DCS, trial court reprimanded in reversal of parental rights termination

A father will have his parental rights restored after an Indiana Court of Appeals ruling that reiterated the Department of Child Services does not have the authority to set policy inconsistent with the law.

Soon after his son was born in Indiana, E.H. moved to Florida to live with his parents and prepare for the child and mother to join him. When the mother eventually admitted to DCS that she was unable to care for the child due to homelessness, a child in need of services petition was filed.

When E.H. subsequently sought custody of the child, he was informed that a home inspection in accordance with the Interstate Compact on the Placement of Children was required before the child could be placed with him. That process never happened by the time the child was adjudicated a child in need of services, however, because E.H. had returned to Indiana to seek custody.

E.H. participated in some services ordered by DCS, but not all, and the department eventually filed to terminate his parental rights. The Dearborn Circuit Court ultimately ordered the termination and E.H. appealed, contending that the termination order must be reversed due to the tainted proceedings in the case.

The Indiana Court of Appeals agreed with E.H., siding with his argument that DCS’s failure to place the child with him and requiring him to complete the ICPC process was a procedural error that resulted in the improper termination of his parental rights.

Citing In re D.B., 43 N.E.3d 599, 604 (Ind. Ct. App. 2015), the appellate court noted “that the ICPC does not apply to placement with an out-of-state parent” and disagreed with DCS’s assertion that at the time E.H. was required to comply with the ICPC, “the question of whether ICPC did not apply to a parent in every circumstances [sic] arguabl[y] remained unclear.”

“The majority opinion was the law, and DCS and the trial court were required to comply with that law,” Judge Elizabeth Tavitas wrote for the appellate court. “… DCS continually reaffirmed that its policy required Father to comply with the ICPC, despite our prior ruling that an ICPC is not required for natural parents. Importantly, DCS testified at the fact finding hearing that it was still DCS’s policy to require an ICPC for a parent. We are dismayed that DCS fails to understand the law regarding the ICPC’s inapplicability to natural parents, or, assuming DCS understands the law, DCS has chosen to ignore it.

“We find it unconscionable that DCS continues to require an ICPC for natural parents despite our Court’s reiteration that an ICPC is not required for natural parents. The law on this issue is well-settled,” the appellate court wrote. “On cross examination in this case, the DCS case workers stated that compliance with the ICPC — even for out of state parents — is their policy. DCS, however, does not have the authority to set policy inconsistent with the law, and DCS is reminded that it cannot ignore the law and must set policy based upon the law.”

Turning to the Matthews factors, the appellate court concluded that DCS’s procedural error tainted the proceedings so significantly that it could not say that E.H. was afforded his due process rights in the CHINS and termination proceedings.

“We cannot overlook these findings as Father’s lack of bond with the Child is no doubt due, in part, if not entirely, to DCS’s failure to initially place the Child with Father. The fact that the trial court put so much emphasis on this lack of bond, demonstrates to us that this error by DCS was a significant, contributing factor in the termination of Father’s parental rights,” the appellate court wrote.

It further noted that DCS “cannot merely choose another caretaker for the Child when the Child already has a parent willing and able to care for the Child. DCS does not get to hand select parents for the children of this State by not following the law.”

Noting the difficult position it was thus placed in, the appellate court reversed and remanded with instructions that the trial court vacate the order terminating E.H.’s parental rights in Termination: E H v. Indiana Department of Child Services, 19A-JT-01969.

“Our sincere hope is that, in the future, DCS and the trial court will comply with the law to prevent the need for a decision such as this,” Tavitas wrote for the panel.