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Justices: Mother entitled to attorney during CHINS proceedings

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Because a mother was denied her statutory right to counsel during the course of child in need of services proceedings, and those proceedings directly flowed into the action to terminate her parental rights and adopt out her child, the Indiana Supreme Court vacated the judgment terminating her parental rights.

Mother J.A. waived her right to counsel at an initial CHINS hearing and her son G.P. was found to be a CHINS. At the next CHINS review hearing, J.A. asked for counsel and the trial court found she was indigent and entitled to an attorney, but never appointed one to her case. She failed to show at additional CHINS hearings and the Department of Child Services decided to change the plan from reunification to adoption, with G.P. being adopted by his paternal grandparents, who had been caring for him during the proceedings.

J.A. was appointed an attorney for the TPR proceedings, at which time the trial court granted the adoption. The Court of Appeals affirmed.

In In re the Involuntary Termination of the Parent-Child Relationship of G.P., a Minor Child, and His Mother, J.A. v. Indiana Department of Child Services and Child Advocates, Inc., 49S02-1308-JT-558, the justices found J.A. had a right to counsel after reading the juvenile statutes – I.C. 31-32-4-1, -3 and 31-34-4-4-6, collectively.

“Reading the juvenile statutes collectively, Section 31-32-4-1 provides that parents in TPR proceedings are entitled to be represented by counsel, along with ‘[a]ny other person designated by law.’ And one such person ‘designated by law’ – designated by Section 31-34-4-6 specifically – is the indigent parent who requests a court-appointed attorney in a CHINS proceeding and is found by the trial court to be indigent. To the extent the trial court ‘may’ appoint counsel to represent a parent in another proceeding, it would be pursuant to Section 31-32-4-3. It does not have discretion in a circumstance falling under Section 31-34-4-6,” Justice Steven David wrote.

The justices rejected DCS’ claim that J.A. permanently waived her right to counsel or invited the due process violation because she did not contest the failure to appoint her an attorney at the subsequent hearings. They found it inappropriate to hold J.A. to the standards of an attorney at subsequent hearings when counsel was never actually appointed.

“And without question it was fundamentally unfair to tell J.A. she would receive appointed counsel, as she was entitled to by statute, and then not follow through with the appointment but instead continue with proceedings challenging her fitness as a parent,” the opinion states.

The CHINS action and TPR actions are “almost inextricably linked and the defectiveness of one inevitably has a destructive collateral impact on the other,” David wrote. “The undoing of the CHINS process here compels the undoing of the TPR process.”
 

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  1. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

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  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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