COA’s error leads to rehearing, affirmation of TPR reversal

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The Indiana Court of Appeals admitted it made an erroneous statement in reversing a termination of parental rights order and granted the Department of Child Services’ request for a rehearing. But the appellate panel Wednesday affirmed its initial opinion, concluding the error had no bearing its original ruling that a mother’s due process rights were violated.

An appellate panel consisting of Judges L. Mark Bailey, Cale Bradford and Elaine Brown acknowledged that although it made an erroneous statement regarding DCS’s requirements under state law, its former decision would remain.

In the rehearing of In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., and E.H. (Minor Children) and L.H. (Mother) v. The Indiana Department of Child Services,18A-JT-1861, the panel re-examined its reversal of an erroneous order terminating L.H.’s parental rights. The panel concluded DCS had committed “significant procedural irregularities” that violated the mother’s due process rights in Adams Circuit Court.

However, the COA later agreed to clarify its earlier published opinion in the case when it admitted to having erroneously stated that Indiana Code Section 31-35-2-4.5(d) required DCS to state in the termination petition whether there was a basis for filing a motion to dismiss the petition and, if there was such a basis, to file a motion to dismiss.

“As DCS points out, Indiana Code Section 31-35-2-4.5(d) was amended in 2012 to be permissive rather than mandatory,” Bailey wrote for the panel. “However, the permissive nature of the statute does not change our conclusion that DCS’s significant, multiple, and admitted procedural errors throughout Mother’s case, including its failure to follow its own mandatory procedures for ensuring the provision of services, violated her due process rights.”

The appellate court therefore clarified that the statute permits, rather than requires, DCS to state in a termination petition whether there is a basis for filing a motion to dismiss the petition, and to file a motion to dismiss if such a basis exists.

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