Indiana Supreme Court weighs case on custody, mental illness

July 6, 2015

The Indiana Supreme Court is weighing an emotionally charged case in which a man lost custody of his daughter after spurning child-welfare officials’ suggestions that he leave his mentally ill wife based on their fears that she might harm the girl.

The justices heard arguments Thursday in the dispute, in which the state Department of Child Services had sought to terminate the man’s parental rights largely due to his wife’s refusal to take medications to treat her mental illness.

An Allen County judge severed the father’s parental rights in April 2014 after he opted not to leave his wife — a course of action suggested by DCS officials who feared she might harm the then-3-year-old. The child, who will turn 5 in August, remains in foster care while the case is appealed, The Journal Gazette reported.

Fort Wayne attorney Greg Fumarolo told the court there was no evidence the woman ever tried to harm her daughter and said the husband repeatedly asked her to stay on her medication.

“He did all he could to preserve the family unit,” Fumarolo said.

But DCS attorney Robert Henke told the court the father had his own parental issues. During one supervised visit, he said, the mother became agitated and attacked the father, who left with her instead of consoling their hysterical daughter.

“In the most important moments, the father did not come to the child’s rescue,” Henke said.

The woman went to DCS in the fall of 2012, saying she was overwhelmed and wanted to give up her daughter. Over the following months, the woman attended counseling and was on and off medications while the child was in foster care. Court records document several supervised visits that ended in tears or confrontations.

The DCS grew concerned that the mother might harm the girl if left with her unsupervised while the father was at work and later said the mother and child could not remain safely in the home.

Chief Justice Loretta Rush noted that Indiana law does not require DCS to wait until a child has been hurt to intervene.

Justice Mark Massa twice read from case transcripts in which DCS workers, only six weeks after becoming involved in the case, told the man he could have custody of his daughter if he separated from his wife.

Massa and Justice Steven David questioned whether other options could have been used, such as long-term foster care or a guardianship, to keep the father in the child’s life through visitation.

Massa acknowledged the father wasn’t offering any solution other than full family unification, that he couldn’t afford day care and no relatives offered to step in.

Henke suggested the case was about the child, not a marriage. But Justice Brent Dickson said it was about both, adding that he found it arrogant of the agency to believe the only solution was to sever the marital relationship.

The case is Termination of Parent-Child Relationship of V. A.; A.A. v. Indiana Department of Child Services, 02A04-1405-JT-233.



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