An Indianapolis Mother Continues Her Search For Justice, Part 3

From The Indianapolis Recorder:

Indianapolis mother Tracie Nelson’s fight to regain custody of her daughter has been difficult, and the concerns she has raised could place select individuals in the Marion County court system on the defensive. Nelson, however, maintains that every motion filed in court and every complaint presented to various agencies has only been used for the best interest of her daughter, Kay (Not her real name. The Recorder does not publish names of minors in court cases.)

Nelson insists her goal is to have Kay removed from the home of her father, who was questioned for (but has never been charged with) sexual abuse. At the least, she would like more visitation with her seven-year-old child. “I’m not out to try to hurt or anger anyone,” Nelson says, holding back tears. “All I’m asking for is justice and safety for my beautiful daughter. I raised Kay from her birth until she was taken, and she and I have a special bond that can’t be erased.”

As written in previous segments of this series, Nelson said her main obstacle to getting a fair assessment of her situation was conflict of interest in local paternity and civil courts, allegedly due to close ties between particular judges and the attorney of her ex-boyfriend.However, Nelson is also disappointed with the assistance she has received from individuals charged with ensuring the protection of children.

Specifically, she is unhappy with Kay’s Guardian Ad Litem. The guardian ad litem is a person asked by the court or attorney to represent a child and independently assess their needs during a legal dispute between parents. At the request of Nelson’s attorney, a guardian ad item was appointed for Kay. According to public records, Nelson recently filed a petition for the dismissal of that guardian ad litem, Denise Hayden.

Nelson says she has information that Hayden had served as a pro tempore judge in a court case involving her custody dispute, and therefore cannot be impartial. She also claims Hayden has refused to return her phone calls, has not actually spoken with Kay since July and refused to recommend counseling for the girl following allegations of abuse. “If there were nothing to hide, what would it have hurt?” said Nelson.

Nelson said she asked Hayden’s attorney, Claire Deichman to appoint another guardian ad litem but was told another was not available. Neither Hayden nor Deichman could be interviewed. Inquires were directed to Kid’s Voice, a not-for-profit organization that provides representation for children, as well as parent-child visitation, programs for volunteers serving at-risk youth, and legal resources for attorneys.

Nelson said Kid’s Voice is a good organization, so she can’t understand why Kay couldn’t get another guardian ad litem. Eddie Rivers, CEO of Kid’s Voice, said he could not talk about any case publicly, but said he hoped a misunderstanding about a single person will not tarnish the reputation of well-meaning volunteers with the organization who work hard to protect children.
“We are asked to provide information for judges in a manner that shows no prejudice against either parent. Our main goal is to take care of the child and look at what we can do to help them,” Rivers said. Kid’s Voice has a staff of five attorneys who are responsible for different programs, as well as a team of volunteers.

“People choose to serve as a guardian ad litem on a volunteer basis, and we train our volunteers extremely well before we let them work with children,” said Rivers. “We conduct background checks to prevent any possibility of conflict on interest. We take that seriously.”

Nelson also says the Marion County Department of Child Services (DCS), which is part of the Indiana Department of Child Services, has not stood up for the protection of Kay. DCS had been contacted twice to file reports of sexual abuse, after the girl gave details of how she was allegedly touched to a forensic interviewer and detective. In January 2008 a CHINS (child in need of services) case was filed to investigate, and Kay was moved from the father’s custody to her grandmother’s home temporarily pending the investigation. Two month’s later however, the CHINS investigation was suddenly dismissed, and custody of Kay shifted back to the father.
Nelson said at first DCS joined her in expressing surprise when the CHINS case was suddenly dismissed without a fact-finding hearing, which is required by law. She was hoping that after its review, DCS would support her in demanding a strong investigation of the abuse allegations and call for the removal of Kay from the father’s home.

But Nelson is upset that following a review last month, DCS determined that abuse allegations against the father are “unsubstantiated,” and the fact that the courts dismissed the CHINS case, even though the case was dismissed by a judge accused of conflict of interest.

At the same time, the review said concerns about Nelson fostering an endangering environment for Kay are “substantiated,” adding that being at the center of a custody battle and hearing damaging accusations could impact Kay’s mental stability. “They are letting the person who is hurting my child get away, but they’re trying to penalize me for fighting,” said Nelson.

Ann Houseforth, director of communications for DCS, said she can’t speak specifically about anyone’s case, but explained that since 2006 the agency has reviewed cases using a procedure under CAPTA (the Child Abuse Prevention and Treatment Act). When a report of abuse or neglect is made, the agency goes to a child’s home to determine their safety. Different individuals and experts familiar with the case are interviewed about the allegations.

A report is then issued that will either substantiate or unsubstantiate the allegations. Individuals unhappy with the report can ask for information to be removed through a review process or administrative trial. However, even if a parent has negative information substantiated (upheld) against them, it does not mean an automatic change in custody.

“If you have a substantiation on your record, it wont mean that your children will be permanently taken away from you or that you can’t get them back,” said Houseforth. “They may be removed temporarily until conditions improve, but the parent will not lose them forever.”

Houseforth said DCS also works with community service organizations to help parents provide a more healthy and safe environment for children. In addition to requesting a new guardian ad litem, Nelson is trying to get her case assigned to a new court.

Nelson’s family is hopeful that such action will be another step taken to get Kay home. Minnie Blaylock, Nelson’s mother and Kay’s maternal grandmother, describes her granddaughter as smart, funny and genuinely interested in connecting with other people.

Blaylock says it doesn’t make sense that she and Kay are in the same city, yet haven’t seen each other in months. (Nelson can have paid supervised visits with Kay, but Blaylock and anyone else from Nelson’s family are not authorized to participate.) “We are being penalized because we are trying to protect her,” said Blaylock. “What kind of justice is that?”