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Parental termination remanded over substitute magistrate’s findings

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A father’s due process rights were violated when a juvenile court stripped him of parental rights based on findings of facts prepared by a magistrate who did not hear from and observe witnesses, the Indiana Court of Appeals ruled Wednesday. The magistrate took over the case after another magistrate, who had conducted the evidentiary hearing in his case, resigned.

In the appeal arising from the court of Marion Superior Judge Marilyn A. Moores, the appellate panel reversed the termination order and remanded for a new evidentiary hearing followed by new findings of fact and conclusions of law.

Magistrate Julianne Cartmel conducted an evidentiary hearing in October 2012, but she resigned her position before findings could be provided to the court, and the case was transferred to magistrate Larry E. Bradley. The case is In the Matter of the Involuntary Term. of the Parent-Child Rel. of D.P., Minor Child, and her Father, D.P.; D.P. v. Indiana Dept. of Child Services and Child Advocates, Inc., 49A02-1303-JT-245.

“DCS has presented no authority, and we find none, suggesting that a magistrate should be treated any differently from a trial judge in a situation where the magistrate makes factual findings without having had the opportunity to hear the testimony and observe the witnesses,” Judge Rudy Pyle III wrote for the panel, which included Judges Mark Bailey and Melissa May.

“As such, we conclude that Father’s due process rights were violated in the instant matter. Magistrate Bradley could not properly resolve questions of credibility and weight of evidence because he did not have an opportunity to hear the evidence and observe the demeanor of witnesses,” Pyle wrote.


 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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