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Guidance offered on incarcerated parents' attendance at termination hearings

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Scolding the Indiana Department of Child Services for how it handled a parental termination case, the Indiana Supreme Court has found an incarcerated mother’s due process rights were not violated when she did not receive adequate notice about pending proceedings that would affect her rights as a parent or when she was not allowed to attend the hearings.

For the first time, the court issued guidance to state trial courts in determining whether an incarcerated parent is permitted to attend a termination of parental rights hearing.

The holding came in a 17-page ruling Tuesday in the case of 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. Justice Steven David wrote the unanimous opinion for the court.

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.

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.

Z.G.’s requests to appear in person at the hearings in Marion Juvenile Court were denied and she appeared via telephone. 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, as does the state Supreme Court.

Still, David found troubling aspects about how the DCS handled the case.

One DCS case manager’s affidavit of diligent inquiry filed when DCS sought to serve notice upon Z.G. by publication contained an inaccuracy. It said that the case manager had asked “family acquaintances regarding the parent’s whereabouts,” but the manager testified he used a form to generate the affidavit and that statement couldn’t be removed. He didn’t contact any family acquaintances. The justices were also concerned by the fact that the DCS case manager, who first received a letter from the mother in November 2008, didn’t tell her a CHINS case was pending in his response letter in December 2008. The mother didn’t learn of the proceeding until she received an advisement of rights form and copy of the CHINS petition in a February 2009 letter, a little less than a month before DCS filed its petition for termination.

Pointing to these examples individually, David wrote in the opinion that the DCS actions are 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.”

Looking at the mother’s inability to attend the hearing, David examined an issue of which the court hasn’t previously offered guidance for state trial judges. 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 this 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.”

The court didn’t address the effects of a reversal of a termination order when a child has already been adopted. David wrote in a footnote that it might be advisable for prospective adoptive parents and the courts to wait until an appeal is finished before going forward with an adoption. If not, the court and all parties should expect possible reversal.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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