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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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