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Thursday, July 24, 2014

Court: Parents Must be Afforded Due Process in Termination of Rights Hearing

The termination of one's parental rights is not something family courts should take lightly. It's a life-altering and family-altering court action with certain finality which should only be sought as a last resort.

In the course of these proceedings, our Bronx ACS lawyers know that due process must be afforded to parents. It's not the only factor the court must weigh - the welfare of the child trumps all - but it is an important one. The best interests of the children are not served when the parent is denied ample opportunity to present his or her case, which in turn deprives the court of the chance to fully weigh the credibility of all involved.

These due process rights include the right to be properly informed, the right to secure adequate legal representation and the right to be present at hearings. Of course, these rights aren't absolute, and may ultimately be outweighed by other elements. However, given the profound impact these rulings can have on a family, these matters must be appropriately considered.

The denial of parental due process rights was at issue in the recent Indiana Supreme Court family law case of In re: Involuntary Termination of the Parent-Child Relationship of K.W. and C.C. This case involves a mother who was incarcerated for a short stint while the termination of her parental rights regarding her toddler son was pending.

The child in this case was born in August 2011. The following month, the boy was identified by state child services workers as being a child in need after his father and mother were  both repeatedly arrested, tested positive for drugs and failed to seek required treatment. Following several continuances, a hearing for final termination of parental rights was set for April 2013.

On the day of that hearing, the mother was in jail. Her attorney indicated she would likely be released from incarceration within two weeks, and requested another continuance. That request was objected to by attorneys for children's services, as well as by the guardian ad litem appointed to represent the child's interests. The court denied the request, and the hearing was held without the mother present.

The mother appealed, arguing a violation of her due process and also ineffective assistance of counsel, as her attorney failed to present an alternative option to have her transported from jail or to testify by phone. The appellate court affirmed the trial court, indicating the evidence supporting termination was "overwhelming."

However, the state supreme court reversed, finding the mother's due process rights were violated. When weighed against other factors in the case, there was little reason the court couldn't have delayed the proceeding until after the mother was released or, at minimum, have allowed her to be present via telephone.

The court noted the precedent set forth in such matters, instructing the court to weigh parental due process rights in custody cases involving an incarcerated parent against:

  • The delay resulting from parental attendance and the time so far elapsed;
  • The need for early determination of the matter;
  • The best interests of the children in having the parent physically attend;
  • The reasonable availability of the testimony through other means;
  • The cost and inconvenience of transport and that to other witnesses;
  • The probable success of his or her arguments on its merits.

Here, a delay to continue the proceedings two weeks would not have resulted in significant inconvenience or cost to those involved. Not only would such a continuance be in line with shielding the due process rights of the parent, it would have served the child's best interests to ensure a fair and legally sound proceeding not subject to further legal challenge.

If you are battling ACS in the Bronx or Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re: Involuntary Termination of the Parent-Child Relationship of K.W. and C.C. , July 10, 2014, Indiana Supreme Court

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