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Court weighs cost of transportation

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In LaPorte County, Juvenile Magistrate Nancy Gettinger tries to recognize and thank the police who transport inmates to her courtroom for parental rights termination hearings.

She knows the difficulty of making sure incarcerated parents are able to appear in order to get the best representation or participate in the proceedings.

teleconference-15col.jpg The Indiana Department of Correction has a videoconferencing room in its facilities where inmates can attend civil or criminal proceedings – including parental rights termination hearings and CHINS proceedings. (IBJ Photo/ Perry Reichanadter)

“If I can get them here in person, I try my best to do that, and I typically don’t have any issue with getting that incarcerated parent here,” she said. “As a judicial officer, I want to make sure I’m affording that person every opportunity to be heard because this is heavy-duty stuff, these parental rights. I’m pretty lucky in LaPorte County, but many others aren’t and have more trouble in transporting them to court.”

willis-maryjan-bw-mug.jpg Willis

On Oct. 11, the Indiana Supreme Court issued guidance to state trial courts in determining whether an incarcerated parent is permitted to attend a termination of parental rights hearing. The decision was welcomed by judges and attorneys who say the requirements up to now have been unclear.

Reaction on how much practical effect this ruling will have are mixed, but most say they see it as significant because it affirms some of the practices already used and gives them clear direction on what must be included in written findings in these cases. Judges and attorneys handling these cases also hope this opinion will send a message to the Department of Child Services that it needs to improve its investigation and notification policies in parental rights cases which are becoming more frequent statewide and involve more parents who are behind bars.

The holding came in a Marion County case, In the Matter of the Involuntary Termination of Parent-Child Relationship of C.G., Minor Child and Her Mother, Z.G. v. Marion County Department of Child Services and Child Advocates, Inc., No. 49S04-1101-JT-46, with Justice Steven David writing the unanimous opinion. While addressing the due process issues of the case, the justices summarily affirmed the Court of Appeals decision from August 2010 that found in favor of Marion County DCS and Child Advocates.

The mother, Z.G., appealed the termination of parental rights of daughter C.G. C.G. was born in 2000 and left in the care of a neighbor or then-boyfriend when Z.G. went to Utah, where she was arrested on drug charges. During that time, C.G. was sexually abused and eventually placed in foster care with a family that has since adopted her. Z.G. was put in federal custody and incarcerated in Kentucky.

Two DCS family case managers attempted to find Z.G. and notify her of the Child in Need of Services and parental termination proceedings. She was located in prison several months later when she learned from a friend about the proceedings regarding her daughter.

carmichael-vicki-mug.jpg Carmichael

Z.G.’s requests to appear in person at the hearings in Marion Juvenile Court were denied and she appeared via teleconferencing. She claimed DCS and the trial court deprived her of due process, the trial court abused its discretion by excluding evidence regarding the permanent disposition for C.G., and that there is insufficient evidence to support the termination. The Court of Appeals disagreed that any due process violation occurred, as does the state Supreme Court.

Still, David – a former juvenile judge in Boone County – found aspects about how the DCS handled the case in regard to inadequately notifying the mother about CHINS and parental rights termination proceedings questionable. He also expressed concern over how case managers filled out forms and that they failed to contact family members. Pointing to these examples, David described the DCS actions as extremely troubling, disturbing and inappropriate.

“In this case, several errors were made by DCS which should not have been made,” he wrote. “However, none of the errors rose to the level of violating Mother’s due process rights or warranting reversal.”

transportationLooking at the mother’s inability to attend the hearing, David examined an issue on which the court hasn’t previously offered guidance to state trial judges. The Court of Appeals addressed the issue for the first time in 2002 and found that parents weren’t denied due process by not being transported to their termination hearings. It also held alternative procedures such as speaker phone or video conferencing could be used.

The justices noted that Z.G. in this case participated in both days of the termination hearing telephonically with Spanish interpreters in the courtroom. That presents risks, they said, because of the “delicate” nature of the proceeding.

Examining the methods used in various states, the Indiana justices focused on a practice used in West Virginia that was outlined more than a decade ago in State of West Virginia ex rel. Jaenette H. v. Pancake, 529 S.E.2d 865 (W. Va. 2000).

Specifically, it says the trial judge should balance 11 factors that range from the impact of delaying a case for parental attendance, the effect of the parent’s presence and personal participation, any potential safety or security risk and the impact on the child’s best interest.

In the present case, the mother wasn’t allowed to attend the proceedings and participated by teleconferencing. Marion County has had a policy since 2006 prohibiting adults from being sent to juvenile courts, even though some continued to be able to attend throughout 2009.

“A blanket order prohibiting transporting a prisoner to a termination hearing is fraught with danger,” David wrote. “If the trial courts were allowed to hide behind such a blanket order, on review our appellate courts would be left with little to no information, forcing them to surmise why the trial court issued the order.”

In many Indiana counties, local judges and attorneys say their jurisdictions don’t have blanket transportation policies and discretion is used based on the situation at the time.

Evansville public defender Erin Berger said that she sees many clients who are incarcerated and that Vanderburgh Superior Judge Brett Niemeier already uses many of these same factors in considering whether transportation is warranted. Clients in federal custody typically do not appear, because the logistics outweigh the benefits, and she said the judge tries to get parents into court as often as possible.

Henry Circuit Judge Mary Willis believes this ruling will be helpful in weighing these due process considerations because it specifically allows for counties to take into account factors such as cost of transporting a parent. Clark Superior Judge Vicki Carmichael said this Supreme Court ruling won’t change how she handles cases involving parents incarcerated inside Indiana, but it will impact those cases where parents are incarcerated out of state. Since Clark County borders Kentucky, the judge said many parents are held in Kentucky and she will now balance the factors the justices adopted.

gettinger-nancy-mug.jpg Gettinger

“I certainly believe the better practice is to have parents present at such hearings as termination of parental rights does impact their fundamental interests in the care and custody of their children,” she said.

In northern Indiana, Gettinger said it is often easier to transport incarcerated parents because three state correctional facilities are located nearby. If transportation is not possible, she finds the Department of Correction video conferencing capabilities adequate, and she’s also allowed incarcerated parents to participate in the hearing by phone.

“That’s not my preference to do a video or teleconference,” Gettinger said, noting that one recent parent was set up in a prison cafeteria where the background noise made it difficult for everyone to communicate. “It’s really case by case and it does make a difference when someone’s there, but that’s not always possible.”

Though she doesn’t see this ruling having much impact on her decision-making process as it occurs now, Gettinger said it will cause her to make an official record with written findings outlying each of the factors the justices referenced. She hopes that the Supreme Court’s scolding of the DCS about its practices in these cases might help motivate the state to more actively work toward getting people into court.

“As a practical matter, not much will change. But we have guidance on what we can consider and what needs to be in our findings,” she said. “I enjoyed in the opinion how Justice David used his own experiences about DCS practices that we’ve felt are often too shabby. I’ve lectured them from time to time that these people do have rights, and it’s nice to have someone in our corner who’s aware of how this plays out in our courtrooms.”•

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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