Friend of the Indiana appellate and post-conviction advocate

Resources That Can Help Your CHINS/TPR Appellate Defense Practice

The government has been in the business of child welfare for over 200 years. After a series of mostly unsuccessful programs, the foster care system developed. Throughout the 1900s, society’s focus on the foster care system increased as children in such placements increased.

In response, Congress passed the Adoption Assistance and Child Welfare Act of 1980 (AACWA). The Act provided Federal funding for states whose child welfare systems complied with specific requirements aimed at reducing the number of children and length of stay in foster care through services aimed at reunification. The reasonable efforts requirement took center stage.

The problem with the AACWA, however, was that after a decade the number of children in foster care had only increased. Society’s attention was once again drawn to the child welfare system, due in part to over 20 class-action lawsuits filed against states whose systems were obviously failing.

Thus, in 1997 Congress passed the Adoption and Safe Families Act (ASFA). The ASFA shifted the focus from reasonable efforts toward reunification to the child’s best interest in having permanency. The ASFA created exceptions to the reasonable efforts requirement and mandated shorter time frames for establishing permanency (i.e., seeking termination of parental rights and subsequent adoption). Finally, every few years state systems are assessed for compliance with the ASFA’s requirements.

The ASFA was passed over two decades ago. Besides minor tweaks along the way, we have not seen a major overhaul in our child welfare system in that time. But those of us who work in the system believe such a change is long overdue. Our system here in Indiana is failing and has been for some time.

In June 2018, a task force created by the Governor issued a scathing report about Indiana’s DCS system. The report was full of excellent information on everything that is wrong with our system here in Indiana. I have used information from the report to support appellate claims made on behalf of my CHINS/TPR clients. The task force made several recommendations for DCS to improve its failing system. You can find reports on their progress towards implementing those recommendations here. DCS would say they are doing well in responding to the task force’s recommendations, but that is certainly disputed.

Another helpful resource for attorneys representing parents in CHINS/TPR proceedings is DCS’s own Child Welfare Policy Manual. The manual contains DCS’s policies and practices, which DCS is required to follow. Comparing DCS’s directives contained in the manual to how the agency is actually handling cases often provides excellent arguments to make on behalf of parents.

Finally, two lawsuits have been filed recently that contain several claims that could be relevant to CHINS/TPR cases on appeal. One lawsuit challenges our state’s handling of these cases from the child’s perspective, especially where there are numerous placements, some of which were clearly not in the children’s best interests. The second lawsuit argues that children should be given their own lawyers, and not just GALs, to represent their expressed interests. Both suits allege numerous constitutional violations.

These resources provide appellate defense counsel with a great macro-level perspective of our system and its failings. When the government assumes care and control over a child, it must provide the parent with due process of law throughout the proceedings. Procedural irregularities, when serious enough, can amount to a due process violation. The resources mentioned above provide some evidence of the irregularities in our system.

Our appellate courts are aware of these irregularities as well. In July 2018, the Court of Appeals issued a published order admonishing DCS for its numerous due process violations. In at least 10 cases, DCS appellate counsel sought a remand due to flagrant procedural irregularities. Be sure as appellate counsel that you are reviewing not just the factual findings and conclusions of law, but also the process provided to your client from the inception of the case.

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