Appeals court slams due process violations in TPR cases: ‘This must stop’

Indiana trial courts and the Department of Child Services continue to deprive parents of their due process rights after years of warnings, the Indiana Court of Appeals said Wednesday, reversing the termination of a mother’s parental rights when the termination hearing went on without her or her lawyer present. In doing so, appellate judges strongly restated that courts and DCS have a duty to ensure parents’ rights aren’t violated.

Judge Nancy Vaidik used the reversal of a parental-rights termination to point to what the court characterized as a persistent problem in court proceedings that permanently remove children from their parents. The COA noted trial courts have been on notice of such concerns since an order in July 2018 that reprimanded DCS and trial courts for due process violations.

“Nearly two years after we issued this order, DCS continues to file motions to remand conceding that parents’ due-process rights have been violated. This unfortunately means that throughout this state, there continues to be significant violations of parents’ due-process rights in termination-of-parental-rights cases,” Vaidik wrote. “This case is just one example.”

In Wednesday’s case, In re the Termination of the Parent-Child Relationship of: Tre.S. and Tra.S. (minor children) and A.S. (Mother); A.S. (Mother) v. Indiana Department of Child Services, 19A-JT-2915, the panel reversed the termination of mother A.S.’s parental rights by Madison Circuit Judge George Pancol, who did so after a termination proceeding in which mother’s attorney was not present and was denied an emergency motion to continue.

“The trial court set the termination hearing for October 1, but the case was moved up because the pre-adoptive parents wanted it finalized sooner,” Vaidik wrote for the panel. “On August 6, the court rescheduled the hearing for approximately two weeks later, August 21. On the day of the hearing, Mother’s attorney filed an emergency motion to continue because she thought the hearing was still set for October 1 and was at an all-day mediation training. Indeed, the record is unclear whether Mother’s attorney was even notified of the August 21 hearing date.”

According to the opinion, when neither the mother or her attorney appeared, Pancol told the DCS attorney, “(I)f we don’t have the attorney here and we proceed I’m fairly confident that the appellate court is going to give her a new hearing so I’m going to have to continue it to October first.” But the judge agreed to proceed with the hearing anyway after DCS said Oct. 1 would not work because the family case manager would be on vacation then. The hearing proceeded after DCS said notice had been provided. Mother’s parental rights were terminated at the end of the hearing.

“The court denied the motion to continue and held the hearing without Mother or her attorney present, knowingly disregarding Mother’s rights. Both the court and DCS knew that they were committing due-process violations and proceeded with the hearing anyway. This must stop,” the panel noted, remanding the case.

“We therefore reverse the termination order and issue yet another reminder to trial-level DCS attorneys and trial courts that they have a duty to ensure that parents’ due-process rights in termination cases are not violated.”