Mother’s due process rights deprived in termination hearing

March 16, 2015

In finding both constitutional and statutory guarantees were transgressed, the Indiana Court of Appeals reversed the decision by a lower court to convert an omnibus hearing on a termination of parental rights matter into a final hearing while mother was not present, which led to the termination of her parental rights.

Mother J.P. has a learning disability and was unable to care for her two children, born in 2010 and 2011. The Department of Child Services removed the children from her care in 2012 and they were adjudicated as children in need of services. The children were placed in foster care, where they thrived, and mother did not complete the services necessary for reunification.

DCS then sought termination of her parental rights, and an omnibus hearing was scheduled on the matter for September 2014. DCS called and told her it was important for her to be there, but she did not show and mother was not represented by counsel. It appears she did not have an attorney appointed to represent her.

At the hearing, the trial court converted it to a final evidentiary hearing, heard evidence in support of terminating mother’s parental rights, and then terminated those rights the same day.

In In the Matter of the Termination of the Parent-Child Relationship of: D.P. and D.P.E. and J.P. (Mother) v. Ind. Dept. of Child Services, 45A03-1410-JT-358, the Indiana Court of Appeals agreed with mother that she was deprived of due process because the notice concerning the September hearing was inadequate and because of the in absentia hearing. Mother was never given notice that the omnibus hearing intended to serve as an evidentiary hearing on DCS’ petition, Judge L. Mark Bailey wrote. In addition, she lacked representation at the hearing, and it appears that she had little opportunity to seek counsel.

Mother was denied a meaningful opportunity for cross-examination, presentation evidence and representation of counsel, which the COA found particularly worrisome given DCS’ knowledge of her significant learning and cognitive problems. The case is remanded for further proceedings.



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