How badly can the Department of Child Services screw up a case and still have a parent's rights terminated? Pretty badly, as the Indiana Supreme Court pointed out in
, ___ N.E.2d ___ (Ind. 2011), Cause No. 49S04-1101-JT-46. The Court has urged the DCS to better. We will have to wait and see if it does.
less..
In this case, a mother traveled to Utah to visit family and left her 7-year old child with a family friend, so the child would not miss additional school days. Eventually, the child began complaining that she "hurt in her privates." She was taken to the hospital and diagnosed with genital herpes and had scarring around the anus and perineum. Upon the child's release from the hospital, she was taken into the custody of the DCS and placed into a foster home.
A family case manager (FCM) was assigned to he case and tried to find the mother. The mother had been arrested in Utah, but was not incarcerated in a Utah or Indiana jail or prison, so the FCM couldn't locate her. The DCS then filed a CHINS proceeding.
A second FCM then tried locating the mother. This second FCM took the same steps as the first, but did not speak with any family acquaintances. Despite this, the second FCM swore in an Affidavit of Diligent Inquiry (ADI) that he had spoken to family acquaintances regarding the whereabouts of the mother. Based upon the ADI, the mother was served by publication in the CHINS case.
Just over 2 months after the child was adjudicated a CHINS, the mother wrote to the DCS, informed it that she was incarcerated in federal prison in Kentucky, and asked that an investigation be brought against the family friend. The letter also inquired if the child was in DCS custody and if she could have a family member pick up the child. DCS responded, telling the mother that the child was in a foster home, asked when she would be released from jail, and informed her that there were "legal procedures that go along with this case which can lead to termination of parental rights." The mother wrote back, saying that she would be out of jail in 4 months and asked again to have a family member retrieve the child. The DCS never responded to this letter. The mother had a friend call the DCS on her behalf, but the DCS refused to give the friend any information. The mother then sent a third letter to the DCS. Again, the DCS did not respond.
The month before the mother would be released from jail, the DCS filed a petition to terminate her parental rights. The mother was allowed to participate telephonically, but her rights were terminated. While the appeal was pending, the child was adopted by her foster parents.
On appeal, the mother challenged the termination of her parental rights on many due process grounds. The Court was highly disturbed by the fact that the second FCM signed an affidavit that affirmed that he had asked "family acquaintances regarding the parent's whereabouts" without doing so, which allowed the mother to be served by publication, rather than personally.
We find it extremely troubling that a representative from DCS would make a misrepresentation on such an important document. FCM 2 offered the excuse that the Affidavit "populated" automatically and could not be deleted. If this is accurate, DCS should correct its internal system to ensure that these "populations" cease immediately so that only accurate information exists on its forms. Yet, in the present scenario, we observe that there were no known family acquaintances for FCM 2 to contact about mother's whereabouts. The error would be significantly more egregious if there were family acquaintances with whom FCM 2 knew to inquire about mother's whereabouts. We also note that Mother was able to cross-examine FCM 2 on this issue during the termination proceeding, which allowed the court to assess FCM 2's credibility in determining what impact this had on Mother's due process rights as well as on FCM 2's credibility as a witness. We hold that the misrepresentation on the affidavit, in this limited instance, did not violate Mother's due process rights.
The Court also took issue with the DCS's interactions (or lack thereof) with the mother after she first contacted it herself.
The delay in advising mother of her rights and informing her of the CHINS action is disturbing and inappropriate. There was no reason for this delay. Upon obtaining Mother's letter dated October 14, 2008, DCS should have contacted Mother immediately. The initial response should have included the advisement of rights form and the CHINS petition form. Doing so would have allowed Mother representation in the CHINS proceedings at an earlier stage. However, in this case, we cannot conclude that the dilatory action resulted in fundamental error or deprived Mother of due process. Mother was incarcerated at that time and awaiting a possible ten-year sentence. Although it may have been advisable for DCS to have put the brakes on the termination petition upon locating Mother, or at least temporarily slowed down the proceedings, she was nevertheless in federal custody for transporting drugs. Furthermore, the termination proceeding did not conclude until January 2009. We find the error would have been much more egregious if the court had conducted an expedited termination hearing, sometime shortly after the termination petition being filed. However, the delays in the termination proceeding and the continuances granted provided further opportunity for Mother and her counsel to attempt to prove Mother's fitness to parent and also to prepare for trial. Finally, we note that Mother was fully and diligently represented in the termination proceeding. Counsel was able to question FCM 2 about the lack of communication with Mother, and Mother was able to present her argument to the trial court judge about any due process violations from the lack of contact. The delay from DCS in advising Mother of her rights and serving her with the CHINS petition upon locating Mother is a very poor practice model in the field of child protection. But a reversal is not warranted in this case.
The Court refused to address the effects of reversing a termination order when a child has already been adopted, because it ultimately affirmed the trial court. However, the Court did issue the following advice to trial courts dealing with this situation.
It might be advisable for prospective adoptive parents and the courts to wait until the expiration of any appeal before going forward with an adoption. Alternatively, if a court proceeds with an adoption while TPR proceedings are still on appeal, the court should advise all parties, especially the prospective adoptive parents, of the possibility of reversal.
Finally, the mother also argued that she should have been transported to appear at the hearing, rather than being forced to participate by telephone. The trial court had a blanket order prohibiting the transportation of a prisoner to a termination hearing, but it appears that this prohibition was not universally enforced.
The Court had not previously addressed a parent's right to be present at a termination proceeding and adopted a non-exhaustive 11-prong test to be applied to this situation. It then criticized the trial court's blanket order.
A blanket order prohibiting transporting a prisoner to a termination hearing is frought with danger. If the trial courts were allowed to hide behind such a blanket order, on review our appellate courts would be left with little to no information, forcing them to surmise why the trial court issued the order. This is not good policy. However, in the case at bar, the trial court would have arrived at the conclusion to not transport the mother, as we have previously discussed.
The Court ultimately affirmed the termination of parental rights in this case, however, it was clearly disturbed by the DCS's conduct in this case. Let's hope that the DCS takes the Court's concerns to heart, rather than continuing to disregard the rights of parents and misrepresent the facts on official forms.
