COA: ‘Significant’ DCS failures made termination of parental rights erroneous

KATIE STANCOMBE FOR WWW.THEINDIANALAWYER.COM

A mother won her appeal to reverse an erroneous order terminating her parental rights when the Indiana Court of Appeals found the Department of Child Services committed ‘significant procedural irregularities’ in her case.

Mother L.H. remained in and out of a repeatedly physically abusive relationship with the father of her children, D.H., K.H., and E.H., for nearly 15 years. Domestic violence was often committed against L.H. by Father, and often in the presence of the children.

In 2016, the parents admitted D.H., K.H. and E.H. were children in need of services, thus leading to their removal from the home. Both L.H. and Father were ordered to engage in services and over the next several years, the two separated, participated in services and found stable housing and employment.

When DCS ordered an unsupervised trial home visit with the children and L.H. at Father’s home in August 2017, he resumed physically abusing L.H. Also, in September 2017, K.H. informed L.H. that Father had sexually abused K.H. a few days prior.

In October 2017, DCS family case manager Shonna Leas took over the CHINS case, but admitted to only reviewing “most” of the file, failing to consult any of the five previous family case managers on the case and being unaware of what services L.H. had completed and what services she was still required to complete. Despite L.H.’s questions about what to she still needed to do to regain custody of her children, Leas did not refer L.H. to any services nor encourage her to seek them out.

Then, after L.H. reported a domestic violence incident to Leas, as well as K.H.’s sexual abuse allegations against Father, DCS filed its petition for involuntary termination of the parent-children relationships. In June 2018, the termination petition was granted when a trial court concluded there was a reasonable probability the mother-children relationship posed a threat to the children’s well-being and that termination of that relationship was in their best interest.

On appeal, L.H. argued the termination order should be reversed because DCS mishandled her case to the point of denying her due process of law. Similarly, the appellate court noted that despite language in the DCS policy manual that states it will “provide family services to all children and families with an open case,” Leas failed to do so upon taking over the CHINS case in 2017.

“Essentially, FCM Leas knew little-to-nothing about Mother’s service needs and compliance or non-compliance with services; yet DCS moved for termination of Mother’s rights anyway,” Judge L. Mark Bailey wrote for the panel.  “And it did so without noting, as required by law, that there were grounds to move to dismiss the termination petition because of DCS’s failure to identify and/or provide necessary family services while the CHINS case was open.”

The appellate panel found that failure on DCS’ part created the risk of a “premature, erroneous termination of Mother’s rights on the grounds that she was not complying with services.”

Additionally, the appellate court found DCS further violated its own policy when it did not provide a visitation plan pursuant to its written visitation procedures to prevent L.H. from being forced to interact with the children’s father.

“Therefore, Mother visited Children at Father’s home without third party supervision and, predictably, during one such visitation Father physically abused Mother in Children’s presence,” Bailey continued. “… This procedural error was then compounded by DCS’s subsequent petition to terminate Mother’s parental rights on the grounds that she had not protected Children from witnessing domestic violence, without also noting that DCS had failed to provide services that were ‘substantial and material’ in relation to the reunification goal of protecting Children from witnessing domestic violence.”

Thus, the appellate court reversed the termination order in 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, finding DCS’ significant procedural irregularities created a risk of the erroneous filing of a petition to terminate L.H.’s parental rights to her children, in violation of her due process rights.

The case was further remanded to the trial court for reinstatement of the CHINS cases, a re-examination of the requirements for L.H.’s reunification with D.H., K.H. and E.H. and a revised dispositional order outlining the services she must complete in order to reunify with them.