Thursday, April 3, 2008

New termination of father's rights case

Generally speaking, I do not write on termination of parental right cases. However, few cases get published by Indiana's appellate courts and after reading The Indiana Lawyer Daily's COA reverses termination of father s rights, I thought this well worth repeating:

"In In Re: The Matter of the Termination of the Parent-Child Relationship of S.F. and J.F., Michael Farley v. Allen County Child Services, No. 02A03-0707-JV-306, the appellate court was asked to decide whether Farley was denied due process when he was not allowed to respond to an independent investigation ordered by the trial court.

In July 2006, the Allen County Department of Child Services filed a petition to terminate Farley's parental rights of S.F. and J.F. because he had allegedly failed to maintain suitable living conditions. A trial was conducted in December 2006 on the matter; in February 2007, the trial court ordered an additional investigation of Farley's home by the Allen County Health Department. The court terminated Farley's parental rights in April 2007, citing the health department's report and how it reaffirmed that Farley's home is unsanitary.

The Court of Appeals reversed the trial court order, finding Farley's due process rights were denied by the use of the health department's report in terminating his rights. After the trial court received the report, it didn't conduct further proceedings and Farley wasn't able to cross-examine the inspector or offer his own evidence to contradict the report.

A parent must be able to view evidence used to terminate his or her parental rights and given the opportunity to respond, wrote Judge Michael Barnes. The trial court's off-the-record investigation and failure to give Farley the opportunity to respond created a high risk of error."
Due process rights are constitutional rights and constitutional rights extend even to family law. Something we might forget because it is a rarity in most cases.

Due process rights require one to be able to cross-examine information from the other side. This is why mere documents, even notarized documents, cannot substitute for a live witness.

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