The Indiana Court of Appeals has reversed an order terminating the parental rights of J.W. (Father) and T.W. (Mother) over their child, A.W., ruling that the trial court improperly allowed the Indiana Department of Child Services (DCS) to withhold the names and contact information of the child’s numerous former and current foster parents during discovery.
The appellate court found that denying the parents access to this information violated their fundamental due process rights to prepare a defense and secure evidence, especially since the DCS itself relied on testimony from some of those very foster parents during the termination hearing.
Background: A Long History of State Intervention
The case began in October 2017, when A.W., then seven years old, was removed from the parents’ home following a DCS investigation. The caseworker reported appalling living conditions, including excessive trash, feces and urine on the floor, and exposed wires. The Father also tested positive for methamphetamine and marijuana. The child was adjudicated a Child in Need of Services (CHINS), and reunification was initially the goal.
However, the child’s journey through the foster care system was turbulent. Over the subsequent years, A.W. was placed with seven different foster families and spent time in respite care. The opinion details several placements that ended poorly due to A.W.’s increasing behavioral issues, including self-harming behaviors and incidents stemming from sexual molestation experienced in one placement. Eventually, the permanency goal shifted from reunification to adoption due to the parents’ minimal compliance with required services, particularly substance abuse treatment.
By March 2022, A.W. was placed with her current foster family, where she reportedly bonded well and expressed a desire to be adopted by them. In August 2022, DCS filed the petition to terminate parental rights (TPR).
The Discovery Showdown
During the TPR proceedings, the parents sought crucial information: the names and contact details for every foster family A.W. had lived with since her removal. The Father argued that the child’s significant psychological changes—going from no known deficits to needing multiple psychiatric medications—were likely linked to the instability of these multiple placements, and he needed to investigate these transitions.
DCS fiercely resisted the request. Their primary defense rested on the Indiana Foster Parent Bill of Rights, which states that foster parents have a right to confidentiality, except when the law requires release. DCS argued that disclosing this information would deter future foster parents and was contrary to public policy.
The trial court sided with DCS, summarily denying the parents’ motion to compel disclosure. This ruling became a central issue on appeal.
Appeals Court: Due Process Trumps Confidentiality Concerns
The Court of Appeals, in an opinion written by Judge DeBoer, conducted a *de novo* review because the appeal hinged on alleged due process violations—a constitutional issue that warrants strict scrutiny.
The court emphasized that parental rights are fundamental and require robust due process protections at all stages. A key aspect of due process in a TPR hearing is the right to “obtain witnesses or tangible evidence by compulsory process,” as outlined in Indiana Code § 31-32-2-3(b)(2).
The court turned to Indiana Trial Rule 26(B)(1), which governs discovery in civil cases (including TPR proceedings), allowing parties to discover “any matter, not privileged, which is relevant to the subject-matter involved.” Crucially, discovery does not require the information to be admissible at trial, only that it is “reasonably calculated to lead to the discovery of admissible evidence.”
The appellate court noted a critical contradiction: DCS initially argued that information about the child’s well-being in prior placements was irrelevant to the TPR, but then called two foster parents to testify about the child’s mental state at the termination hearing.
“These arguments cannot be squared,” the court stated, concluding that the foster parents clearly possessed knowledge of discoverable matter related to the child’s relevant history and mental state. Therefore, DCS could not refuse to disclose their identities without infringing upon the parents’ right to compulsory process.
The Role of Protective Orders
The court addressed DCS’s policy concerns regarding foster parent safety. While acknowledging that protecting foster families is important, the court ruled that an outright refusal to disclose information is not the proper legal remedy.
Instead, the court pointed to Trial Rule 26(C)(2), which allows a court to issue a protective order “upon motion by any party… and for good cause shown.” If DCS genuinely feared interference or harassment by the biological parents, they should have requested a protective order—perhaps limiting access to counsel only (“attorney eyes only”)—rather than blocking discovery entirely.
The refusal to compel discovery created a “significant risk of error,” the court found. By being unable to investigate the transitions between seven foster homes, the parents were potentially shut out from evidence that could have supported their case, even if that evidence ultimately favored the continuation of the parental relationship or showed that DCS’s management of placements contributed to the instability.
“Absent a reversal, we will never know what additional information could have been presented by [Parents] in defense of their parental rights,” the opinion concluded.
The Court of Appeals reversed the termination order and remanded the case back to the trial court for further proceedings consistent with the ruling, meaning DCS must now comply with the discovery request for the foster parents’ contact information.
Judge Bradford dissented, arguing that the details of past foster placements were irrelevant to the statutory requirements for termination, which focus primarily on the parents’ failure to remedy the conditions leading to removal and the child’s best interests moving forward.