In the Termination of the Parent-Child Relationship of N.C. and A.C.; A.C., Appellant(s),
Indiana Department Of Child Services; Child Advocates, Inc., Appellee(s).
Court Case No. 49D09-1405-JT-216
Loretta H. Rush Chief Justice
matter has come before the Indiana Supreme Court on a
petition to transfer jurisdiction, filed pursuant to Indiana
Appellate Rules 56(B) and 57, following the issuance of a
decision by the Court of Appeals. The Court has reviewed the
decision of the Court of Appeals, and the submitted record on
appeal, all briefs filed in the Court of Appeals, and all
materials filed in connection with the request to transfer
jurisdiction have been made available to the Court for
review. Each participating member has had the opportunity to
voice that Justice's views on the case in conference with
the other Justices, and each participating member of the
Court has voted on the petition.
duly advised, the Court DENIES the petition to transfer.
C.J., and Massa and Slaughter, JJ., concur.
J., dissents with separate opinion in which Rucker, J.,
respectfully dissent from the denial of transfer in this case
as I believe this Court should grant transfer and address the
Americans with Disabilities Act (ADA) issue to provide
further guidance and to expressly overrule part of the
holding in Stone v. Daviess Cnty. Div. of Children and
Family Srvs., 656 N.E.2d 824 (Ind.Ct.App. 1995).
first make it clear that I acknowledge that pursuant to our
statutes, the Indiana Department of Child Services (DCS) is
not required to provide services to parents prior to seeking
termination of parental rights. I further acknowledge that
there may be times when providing such services would be
fruitless. It is not my intent to require DCS to provide
services in all cases. Nevertheless, I recognize that DCS
often does provide services to parents, and that often,
parents must complete such services pursuant to the
court's dispositional order in child in need of services
(CHINS) cases, which are the precursor to termination. Some
of the parents that DCS provides services to are disabled,
and it is my belief that, generally, DCS provides reasonable
accommodations to these parents. I believe that is true in
the current case.
only to clarify the law on when a disabled parent may use
DCS' failure to comply with the ADA as a defense in a
termination action. Specifically, it seems to me that if DCS
would be required to comply with the ADA when it provides
mandatory services and failure to do so could be a defense to
a termination action, then when DCS uses its discretion to
provide services, it must also comply with the ADA, and
accordingly, a disabled parent could raise failure to comply
as a defense to a termination action.
to the current case, in reaching its decision that Father
could not use DCS' alleged failure to comply with the ADA
as a defense to the termination of his parental rights, our
Court of Appeals relied upon and cited Stone.
Specifically, it quoted Stone for the proposition
If our termination statute required that services be provided
to all parents prior to the termination of parental rights,
under the doctrine of preemption an ADA violation by the
[DCS] in fulfilling that statutory duty would provide grounds
for attacking a termination pursuant to the statute. Such
services, however, are not required in Indiana.
N.C. v. Indiana Dep't of Child Servs., 56 N.E.3d
65, 70 (Ind.Ct.App. 2016) (quoting Stone, 656 N.E.2d
at 830). I agree with that portion of Stone.
agree with the portion of Stone that provides:
"[a]side from the operation of our termination statute,
once the agency opts to provide services during the CHINS
proceedings to assist parents in improving parental skills,
the provision of those services must be in compliance with
the ADA." Stone at 830. Finally, as I noted
above, I agree with the Court of ...