A couple of years ago, the State Division of Children Services (or whatever it was called back then . . .) started a shift towards centralized control of its units, as opposed to letting county directors run their own shops. This regional, or top down control model likely resulted in a more uniform application of standards for providing assistance to families in need, but some questions are coming out.

For instance, last week the Pal-Item noted that Wayne County is floating a surprise $650,000 bond issue to take the Department of Child Services through the end of 2008. Local Director Terry Suttles said that the money was needed to cover an increase in services provided - due to the tough economic times.

However, the time span for the increase in numbers cited by the article - 82 kids in 2005, 143 in 2006, 382 in 2007 and 321 so far in 2008 - cover not the economic changes (that started in 9/08), but cover the shift from the old system of local control to the state control: County sells $650,000 bond issue.

The Indy Star has a piece up now entitled: DCS removes too may kids from homes, report says. The report is issued by an anti-DCS group, National Coalition for Child Protection Reform, so criticism is expected, but the factual claims are surprising: “New data compiled by [Director Richard] Wexler’s group show Indiana removed children from their families in 2007 at a rate of 4.86 per 1,000 children, more than 20 percent above the national average of 3.93.”

Ex Marion County chief juvenile judge and now director of the DCS disputes the claim that the agency has become over aggressive under his rule: “Director James W. Payne said the numbers can be explained in several ways: They reflect a greater incidence of reports of abuse and neglect. DCS has been investigating more of the reports it has received. The agency has found evidence of abuse or neglect in a higher percentage of cases that were investigated than it did a year ago.”

Payne also noted that removals must be approved by a court: “That means an independent judge has said, ‘Yes, these kids need to be safe.’” But that quote hides that practical impact of what normally goes on in a CHINs (Child in Need of Service) case - The DCS make the initial decision to remove the child and THEN goes to the judge. The judge is then to decide if the initial detention was justified and if the detention should continue.

Now put yourself in the position of that judge - The DCS runs in and says “Hey we just took this kid and now he is safe in foster care.” The judge then decides - almost guesses really, based only on the information from the DCS whether the child should stay in foster care or go back to the parents. If the judge make a mistake - the risk that the child will get hurt if returned to the parent and it would be the judge’s fault - dictate that the child is normally retained in care.

What the DCS has done is said - when in doubt, detain, then let the judges take the heat if a child is released and later hurt or killed. A very smart politic move that keeps the agency blameless in those overwrought situation where a child is hurt, but not such a good use of public power and resources.

Marcia Oddi over at the The Indiana Law Blog has a couple of interesting post up now which raise the issue of the power of courts:

First off, a Columbus, Ohio attorney is challenging the Ohio Supreme Court’s move to determine what court records the public should access online:

Cleveland lawyer David Marburger, of the Ohio Coalition for Open Government, said a court- appointed commission drawing up rules on what court records the public should have access to does not have the constitutional authority to do so.

“When you give a small group of people, seven people, the power to decide what everyone should have access to, you have automatic mischief, maybe not intended mischief,” said Marburger, an open-records attorney who represents The Plain Dealer and other Ohio newspapers.

“The court doesn’t have this kind of power,” he said. “The court is not a little legislature.”

Indiana Law Blog quoting the Cleveland Plain Dealer. Marcia had an earlier piece up this month about the Oklahoma Supreme Court’s cutting off online access to court records.

All of this mirrors the situation in Indiana where the Indiana Supreme Court is enabling its own online access to local court records called Odyssey which has displaced the systems put in place by local county courts to make records available online. In effect, the local courts - who used to exercise broad control over their own records - have seen these powers forfeited to the central court administration.

The second issue is one on the powers of a trial judge to issue a gag order on a litigant:

Mark McGaha wanted to share his frustrations about the Department of Child Services with the public, but he never got the chance.

McGaha did an interview with an Indianapolis TV station, but a Fountain County judge issued a restraining order barring the station from airing his complaints or even showing his face — apparently without even having seen the footage.

The segment about family advocacy group Honk For Kids was broadcast March 13, without McGaha’s comments and with his face blocked out in a group shot of parents.

The Indiana Law Blog quoting a Tim Evans story in the Indianapolis Star.

The article quotes Indiana Law School Professor (Indianapolis) Henry Karlson calling the order a “prior restraint” under the US First Amendment. I’ve talked about Honk for Kids before, here and here. It is an advocacy group aimed at highlighting issues in Indiana’s child protective services system.

The Indiana Court of Appeals issued a decision today on Indiana’s Grandparent Visitation Statute (IC 31-17-5-1, etc). It is an interesting decision that pits the whole “grandparent’s rights” issue against a parent’s constitutional right to determine things for their kids.

The decision is Christi J. Hoeing vs. Jean I. Williams, and it involves a paternity case where the dad takes off. Dad’s mom picks up where dad left off and starts having routine access under the Indiana Parenting Time Guidelines, including time over Christmas and the child’s birthday.

Trouble hits when mom reverts to her original religion and rejoins the Jehovah’s Witnesses. As such, she does not want her daughter exposed to the celebration of Christmas or her birthday. The trial court says that, yes mom’s got custody, and therefore the right to determine the child’s religious upbringing, but this should not permit the custodial parent from cutting down on the access under the Parenting Time Guidelines.

Court of Appeals says, nope: mom’s right to determine the child’s religious upbringing trump’s grandma’s Christmas time access.

Tim Evans has a lengthy article up on the Indy Star today on the calls for Indiana to adopt some type of independent complaint process for child in need of services cases following the deaths of children under DCS supervision: Deaths of kids raise oversight questions.

The idea floated in the article is for the DCS to have an ombudsman, a position used in 33 other states to look in to circumstances leading to a child’s death in cases involving the child welfare system. The article highlights criticism of Indiana’s DCS from the relatives of TaJanay Bailey, who recently died and also the DCS accountability watch-group, Honk for Kids.

We’ve been over these grounds before: The Powers of the State. You can see a healthy debate on the issue of DCS accountability in Indiana over here: Forums to target state agency complaints - Topix.

One of the larger parts of my practice is divorce work. I don’t talk about it much - there’s is not much to say that people really want to hear - it is sort of a downer from most folks’ perspectives.

However, divorce is a very common event, and it’s the one thing that gets most folks into the judicial system. Most folks I encounter in this field are not at all prepared for what I divorce entails. I took notice recently when Al Nye, the lawyer guy recently cut loose his One Dozen Things to Consider Before Filing for Divorce. His tips are practical, but very much to the point:

So what have I learned after being a lawyer for nearly 30 years and helping many folks go through this difficult process?

1. Don’t do it. . . .
2. Get a lawyer. . . .
3. Kids First. . . . Children suffer the most during a divorce so it’s important that their routines be changed as little as possible. Get or keep involved in their everyday activities. Don’t say anything negative about your spouse in front of them. Don’t take out the anger and frustration you may feel toward your spouse out on your children. Make them your top priority. Give your children all the love, attention, emotional and financial support you can during this stressful time.
4. Copy Important Financial Documents. . . .
5. Find out what you own. . . .
6. Find out what you owe. . . .
7. Determine your spouse’s income. . . .
8. Figure out what happens when you move out. . . .
9. Divide up bank accounts. . . .
10. Know what you can earn. . . .
11. Take a look at your credit history. . . .
12. Save, save, save. . . .

A real life problem: placement of older kids removed from their families due to abuse and/or neglect. Indiana foster care system struggles to meet the incredible demand. A harder issue is the permanent placement of these kids into adoptive homes when it is ultimately concluded that the kids will not go back.

This is a big problem in Indiana. Indiana removes kids from their homes at a much higher rate than most states (The Powers of the State), so we end up with a lot of kids needing placement.

The Star Press covers the Indiana Department of Child Services new effort to get kids out of the system: post a picture and brief profile on the web: Indiana’s Adoption Program. This is similar to the newspaper ads that Marion County runs in the Star for adoptable kids. I understand the problem and the motivation, it just seems to treat these kids in a way that I would not want to be treated. Sort of more like a pet dog than a human being:

Cynthia will be an adult in 5 years. I wonder if she was consulted about being put up on the web begging for adoption.

There is a piece worth checking out over at the Indianapolis Star: Protecting Kids, Abusing Power? (Updated link). The Story covers the growing opposition to Indiana’s child welfare system:

The danger, some observers say, is that the confidentiality meant to protect children also allows caseworkers to abuse their authority. A new internal appeals process should address some concerns, state officials say. Critics go even further, arguing that grievances should be handled outside the agency.

A parents’ group, Honk for Kids, has sprung up to address these concerns. The group appears to be a project of J.A.I.L. (Judicial Accountability Initiative Law), a group focused of striping away judicial immunity from Indiana judges and holding them personally accountable for their actions as judges. Founded by Ronald Branson, the group appears to me to be one of those advocating the idea that the courts have overstepped their constitutional limits, and therefore are improperly exercising power over we citizens, the kind of bizarre stuff that ends up in a lot of pro se prisoner appeals.

Anyway, the group made it in to an Indy Star article, so they at least have that going for them. The story does detail the trials of one mother who spent $100K fighting off caseworkers to regain custody of her child. In my experience, its hard to reach generalized conclusions about the child welfare system based on specific cases, though. One item of interest sticks out in the article:

Hoosier children living in poverty are removed from their families by Child Protective Services at three times the rate in Illinois and twice the rate in Alabama, two states recognized nationally for successful child welfare reforms. The national rate of removal for children living in poverty — often a major factor in neglect allegations — is 23.9 per 1,000 children. The Indiana rate is 31.1, compared with 9.9 in Illinois and 15 in Alabama.

Now it could be that we in Indiana are just bad parents, but worse off than Alabama? I think the statistics do point to something of concern with the present system in Indiana: In 2004, the state took 7,689 children, but only returned 605. This would put the annual growth of kids living in foster care at over 7,000 additional kids per year. This is particularly troubling in light of new federally mandated time limitations on having kids out of the home. This drives families into the teeth of a parental termination. The article quotes advocates for the current system in response. DCS spokesperson Susan Tielking noted the rights of parents to get into court and challenge the removal of their children by the Department.

The trouble with this right to go to court is that courts are hard-pressed to actually overrule the Department on a removal. No one wants to be responsible for placing a child into circumstances that lead to the child being harmed or killed. Children removed from their families by the state become tar babies: No one wants them in the system, but the state will be politically responsible for anything that happens to that child wherever that child is placed. Judges cannot be blind to the potential of a reelection campaign where the issue is his or her decision to overrule the Department and return a child to their family and the child is hurt. This is why the quick trigger on removal of the child in the first place is the real issue.

Under the current system, the child welfare case worker, parents or other family members and a volunteer appointed to speak for the child can all make suggestions on what should happen in a case before a juvenile judge.

The judge then makes his decision and the costs are paid from the child welfare levy. Under (Rep. Jeff] Espich’s bill, if the judge accepts any plan of action other than that offered by the state child welfare worker, the county property taxpayers would have to cover the difference in costs between the state’s recommendation and the final action.

 

This has child advocates upset, and they descended on the legislature yesterday to voice their concern:

 ”That’s fiscal intimidation,” said St. Joseph County Judge Peter J. Nemeth. “I have to start thinking about money when I’m looking at this case. Is that what I’m supposed to be doing? Or am I supposed to be protecting that child?” Link (Courier Press).

Head of the department, (former Marion County juvenile Judge) James Payne says that to achieve “uniformity,” the judges should be encouraged to listen to the recommendatioons of the Department. I wonder what we are paying judges to do in this system if they are to be forced by fiscal circumstances to simply impose the remedy called for by the Department. At that point, we should just save the money and cut the judges out of the process, leaving the Department to do what it thinks is right.  Of course, that would deprive families of their basic rights to due process before the state steps in and rips them apart, but what kind of due process would they receive if the judge cannot afford to do anything other than accept the Department’s position?

Well, that is at least what the boy’s mother believes. In Re: Paternity of T.X.J., The Court of Appeals takes on the mother’s request to raise the support obligation of Dale Davis, an Indiana Pacer. The title of this post is actually what the mother told the trial court in her bid.

The Court of appeals ultimately rejects the bid (reversing the trial court that had almost triple Dale’s support), but not before authoring this jewel:

At this point, the argument seems like a slam dunk for Davis. But Knafel attempts a block by pointing out that MacLafferty is distinguishable on its facts.

Ouch.

When it becomes necessary that a child be cared for by a person other than a parent or a family member, the parent needing the child care shall first offer the other parent the opportunity for additional parenting time.

She still thinks Litz and his company violated interstate laws meant to ensure children placed for adoption across state lines end up in safe homes. She also reiterated her claim that the Internet site for Litz’s company promotes insurance fraud by encouraging surrogate mothers to bill their insurers for pre- and postnatal care and infant deliveries.

U.S. Attorney Susan Brooks has asked the FBI to look into Litz and his company in response to Moores’ request last month. The FBI has been following up to determine whether a full-blown probe is warranted, said agent Wendy Osborne, spokeswoman for the Indianapolis office. Litz has disputed Moores’ characterization, in her letter to the federal prosecutor, of surrogacy as a form of felony “child selling.”

The public comments elicited a request from Litz  that the judge step out of the welfare case, and she has complied: Judge quits child welfare case.

The Star article also reports that Judge Payne (now DCS Director Payne),  has taken a personal interest in the case: “I can’t acknowledge there’s a case I’m involved in,” Payne said. “But if I became involved in a case, it is because it has importance to the agency.”

Understanding the situation from the outside is complicated by the privacy laws restricting release of information both in child welfare cases and adoption cases, but I think the situation, with the allegations of the judge and the FBI investigation, highlights the dangers of doing legal work in the surrogacy field. It is one of the areas of the law where legitimate activities are fenced on either side with felonies, and sometimes the lines get awful grey.

“It’s not a final ruling. Steven wants to file a petition to the Supreme Court that the state of Indiana should recognize a marital-home exception,” Chesterton attorney George R. Livarchik responded.

The Court of Appeals found the case so fascinating the judges had the lawyers argue it before a public hearing at an Indianapolis high school this spring.

A reality-based television show in Los Angeles (its producers have “The Practice,” “Ally McBeal,” and “L.A. Law” to their credits) offered to fly the former couple to the West Coast and pay them to have their judge decide the case for the opportunity to broadcast this colorful domestic dispute.

Cagen said, “My client would rather not have her life spilled across the airwaves … arbitrated by some goofy people in Los Angeles. We are happy with (Porter Superior Judge Bill) Alexa and the Indiana appellate court.”

Well, after waiting a week to see how the Indiana appellate court website would handle its archived cases (I am hesitant to link to the cases on the current posting page, figuring that the URL will be dead in the near future), I have grown impatient.

In Re: The Paternity of G.R.G. Is an important case for any domestic litigator. It handles a whole host of issues, many ground breaking for Indiana:

1. The Court affirmed the use of income averaging (taking several years into consideration) for determining a parent’s gross income for support purposes where the parent’s income fluctuates due to overtime. The alternatives to using multi-year averaging are either using the parent’s income from the most recent period to set support, or ordering the parent to pay some percentage of future extra income over in support. Depending on whether the parties see the payor’s income as going up or going down in the future, they might opt to push for one method or the other. This debate is becoming increasingly important in Indiana where many factories are slowing down, cutting back on overtime. With some employers, we have to deal with nearly annual routine layoffs.

2. The trial court in this case was dealing with a father who, at least in the eyes of the trial court, made too much of a pest of himself to the mother. The trial court ended up ordering the parties to communicate only in writing, absent an emergency, and the Court of Appeals said this limitation was legitimate.
3. The trial court ordered that Father may not obtain school and medical records for for the child directly from the school and medical provider. This point is one I have a big problem with. Because of the last point, the father’s only access to what is going on with his kids is his hope that the mother sits down and pens him a letter. The father challenged the restriction based on Indiana Code 20-10.1-22.5-2, the section that gives non-custodial parents access to school records for their kids, and Indiana Code 16-39-1-7, the section that gives non-custodial parents equal access to health records. The limitation again was based on the father’s alleged previous conduct of making a pest of himself. I do not like the fact that the Court of Appeals approved this limitation with very little analysis as to when such an extreme cutting off of a parent can be imposed. Cutting off access to school and health records is a dramatic step that can serve to alienate a parent from the life their child is living. Courts need to be careful to encourage parents to remain active in their children’s lives, and I cannot see how this limitation benefits the child.
4. Finally, the trial court ordered that Mother and Father are forever restrained from discussing their disputes with the child. Father objected that the order prohibiting from engaging the child on the subject amounted to an unconstitutional prior restraint on Father’s free speech, especially with the concept of “forever,” meaning long after the child reaches adulthood. The court rejected the complaint and upheld the restriction analyzing the case under Swank v. Smart, 898 F.2d 1247 (7th Cir. 1990). In Swank, a police officer fired for giving a young female a ride on his motorcycle complained that the firing implicated his rights to free assiciation. The Swank court answered that the purpose of the free speech clause was to protect the right of individuals to enter the “marketplace of ideas,” and “casual chit-chat” in small groups is not part of the marketplace, and not protected. Turning to the restriction here, the Court found the proposed discussion between father and son about disputes between the parties is unprotected chit-chat.

Maryann Dommer, Margaret, Mccarthy, Brenda K. Dommer, Michelle L. Swallow and Laura A. Guffey, vs. Steven W. Dommer is another interesting domestic related case. Husband and wife grow concerned about the activities of their child and install equipment to tape the child’s phone calls. Husband seems to like the idea of gaining this secret knowledge, and starts using the equipment to tape his wife’s calls with her friends. The parties later get into a divorce, and husband uses his secret knowledge gleaned from the tapes to his benefit.

Wife and her phone friends figure out what husband has been up to and sue him under 18 U.S.C. 2520, the federal wiretapping statute and Indiana Code 35-33.5-5-4. Husband tried to run the “extension phone” defense , an exception under the statute. This exception was what the court created the exception permitting parents to tape their minor children’s calls out of. This case was Indiana’s first chance to determine if the extension phone exception should extend to spouses. The Court notes that the 7th Circuit had yet to address the issue, and the other circuits were split on the issue (to some extent). The Court holds that surreptitious taping spouses’ phone calls with third parties does not meet the limited terms of the exemption either in the federal statute, nor in the state’s. So, don’t do it.

Doug Masson has the lead on a story out of Marion County, Indiana (that’s Indianapolis), on a divorce that left the parties scratching their heads: The trial judge inserted a provision prohibiting the parties from exposing their kids to “non-mainstream religious beliefs and rituals,” apparently concerned over the parents practice of Wicca.

Doug says there must be something else to the story, and I agree:

The father says that the court inserted the religious restrictions on its own, and not at the request of either parent. Hopefully there is more to this story that makes the judge’s order something other than wildly and obviously unconstitutional.

In theory, the divorce courts are there like any other civil court: to provide a place for citizens to resolve their disputes. It should be that, just because the parents utilized the judicial system to dissolve their marriage, they do not subject themselves to years of state scrutiny and control of their lives, i.e. They should remain free citizens with full constitutional rights. However, there is a trend in government, both the legislature and the courts, to impose “fixes” on people who enter the judicial system.

So in this case, the judge said, “So you’re here for a divorce. Okay, let me tell you how to raise your children.” If there is a dispute between the parents on the issue, then the judge would have a role in deciding the issue. But if there is no dispute, what is the judge doing?