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The Journal Gazette

Wednesday, March 16, 2016 2:39 am

High court hears parental rights case

Niki Kelly | The Journal Gazette

INDIANAPOLIS – Who would you choose: your mentally ill wife or your 3-year-old daughter?

That was the dilemma a Fort Wayne man faced when the Indiana Department of Child Services sought to terminate his parental rights largely because of his wife’s refusal to take medication.

He rejected leaving his wife, and his rights were severed by Allen Superior Court Judge Charles Pratt in April 2014. The child turns 5 in August and remains in foster care while the case is appealed.

Indiana Supreme Court justices heard arguments in the emotional case Thursday, even referring to the end result as "draconian" and "enormous."

The man and his daughter are identified only by initials in the case records.

The mother went to DCS in the fall of 2012, saying she was overwhelmed and wanted to give the girl up. In the following months, the mother attended counseling and was on and off medications for mental illness while the child was in foster care. Several supervised visits ended in tears or confrontations.

Eventually, the department became concerned that the mother might harm the child if left with her unsupervised while the father was at work. Ultimately, officials said both could not remain safely in the home.

Fort Wayne attorney Greg Fumarolo said there was no evidence that the mother ever physically hurt or attempted to hurt the child. And he stressed that the father asked the mother repeatedly to stay on her medication.

"He did all he could to preserve the family unit," Fumarolo said.

Indiana law does not require DCS to wait until a child has been hurt to intervene, Chief Justice Loretta Rush said.

DCS attorney Robert Henke painted the father as having his own issues – specifically, refusing to care for the girl on her own and always deferring to the mother’s needs over the child’s.

One example was a supervised visit during which the mother became agitated and attacked the father. But the father left with the mother instead of consoling his hysterical daughter.

"In the most important moments, the father did not come to the child’s rescue," Henke said.

Justice Mark Massa twice read from the case transcript that DCS workers clearly told the father he could have custody of the little girl if he separated from his wife.

Massa noted that DCS had offered that option only six weeks after the agency got involved.

He and Justice Steven David questioned whether there were other middle-ground options that could be used – such as long-term foster care or a guardianship that could keep the father in the child’s life through visitation.

But Massa also acknowledged that the father wasn’t offering any solution other than full family unification. No relatives offered to step in, and he couldn’t afford to pay for day care.

Henke suggested that the case was about the child – not a marriage. But Justice Brent Dickson corrected him that it was about both, and he found it arrogant of the agency to believe the only solution was to sever the marital relationship.

Henke said they didn’t suggest divorce specifically. And earlier in the argument, he said the mother could go into a shelter.

No decision was made in the case.