Without Objection

Except for presidential politics, I tend to blog mostly about things on the eastern side of the Atlantic. That’s probably because living here, most of the things that affect my life on a daily basis are here. However, having visited the blog of a commenter to a previous post, my attention is drawn westward.

Each of Mark McGaha’s children have been declared a Child in Need of Services (CHINS) by an Indiana Circuit Court at the behest of the Department of Child Services. I can’t opine on whether they should be CHINS or not, or whether they should be in foster care.

As a lawyer I used to handle occasional CHINS cases in Indiana, usually representing the interests of one or both parents. One of my longest-running cases was a CHINS case involving what I called the family tree that didn’t fork. So I’m not denying that there can be situations whether the State needs to step in.

Unless there have been significant changes in my absence, like all buraucrats, DCS workers range from good to bad. If McGaha’s allegations are true, then there are some in Fountain County who are very bad. One thing that concerns me is that there is no mention of McGaha’s lawyer. He needs one. If he is doing this on his own, sadly he is fighting at a severe disadvantage.

This may be why the Fountain County Circuit Court judge got away with an outrageous unconstitutional act. She issued a restraining order preventing WXIN in Indianapolis from showing McGaha’s face or even allowing him to make his complaints against DCS. As one of my old law professors commented to the Indianapolis Star, “I don’t know what’s more outrageous: the judge ordering this and not knowing it violates the Constitution, or knowing and still issuing the injunction.” He described this as bordering on judicial misconduct. “Quite simply, a judge does not have the authority to stop the press from publishing or airing a story. Any person has a right to contact the press and say a public agency is not treating them right.”

Because of the inherent power of the bureaucracy, the press is one of the only checks upon it. That is why it is so important that access to the press not be denied. The greater the power, the more important the power to question it and challenge it. The more important that it stay on the straight and narrow. Otherwise rights get trampled upon. Otherwise democracy is meaningless.

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9 Responses to “Without Objection”

  1. Kirsten Says:

    Mark does actually have a lawyer, the problem is that the GAL decided to go ahead and file her motion without providing a copy of the motion to his lawyer. As far as he can tell, Sue White decided to only file the motion with the Court in order to have it granted on the day that the story was to run, of the writing of this a copy of the motion has yet to be received by either McGaha or his lawyer so it is unknown what justification was given to have the order issued. This also means that since his attorney was unaware of the motion (he in fact first heard of it when McGaha called him on the 14th), he could not contest it.

    The Judge issued the order on March 13th, 2008 and the GAL sent the order via fax to only the news station that was set to broadcast the story that day. It stated, “It is therefore ordered, adjudged, and decreed by this Court that Fox 59 News is here by enjoined from broadcasting any portion of an interview involving Mark McGaha and his minor children until such time as the GAL and/or the Court has had an opportunity to review the portion of the interview that the news channel intends to broadcast to determine whether the best interests of the minor children would be adversely affected by said broadcast.”

    The order itself was not given to Mark until he found out about it from Fox59, he told his lawyer and his lawyer finally got a copy from the GAL on the 20th.

  2. Kirsten Says:

    Also I just wanted to point out that the judge seeks to remove his lawyer and move up termination of his parental rights. She states that termination and CHINS are two separate things, and so he needs to get his own lawyer other than the one he had appointed for the CHINS case. He is a disabled Vet whose income has gone down, particularly since the county saw fit to take away the SSI check for the care of his oldest child but yet he can now afford to get himself a new lawyer?

  3. sol Says:

    This is outrageous, Kirsten. I would ask how the judge let the Sue White get away with providing no service on his attorney, but nothing surprises me in this case. I suppose that if the judge would have let Mark’s attorney appear, he would have had the opportunity to raise the prior restraint issue on the record. It sounds like both the judge and Sue White knew that this was the only way to achieve their illegal result.

    It seems like the Ms White is not an independent advocate, but is working with DCS. It also sounds like there is a very activist judge who already has an overall agenda to accomplish.

    Can he qualfy for help from Indiana Legal Services? He must have someone represent him in the termination case.

  4. Kirsten Says:

    I thank you for that link, I’ll let Mark know about it. At least his present lawyer will be able to be there for tomorrow because the judge moved up the hearing on termination all of a sudden(imagine that). Mark has also submitted papers to get a judicial review, a review on the GAL, and will be filing motions to have them recuse themselves.I hope that makes a difference, but so far in his case nothing is handled as it should and I imagine that this won’t be any different.

  5. sol Says:

    It must be a slow law day in Covington if the judge has that much flexibility with the docket. I’m guessing that if his lawyer filed for a continuance, that would be denied. And I’m sure he couldn’t get that ex parte.

    Sounds like a bit of railroad job to me, though I would never actually say that, as one should never speak ill of the judiciary.

  6. Kirsten Says:

    Hmmmm….just got a call and the GAL suddenly has decided to drop asking for termination, amazing. I guess maybe she got her copy of the judicial review forms maybe?

  7. sol Says:

    I’m glad to hear something positive! Please keep us informed about this situation.

  8. Kirsten Says:

    well, that was short lived…that system is so messed up. The court said the GAL dropped the termination, but after one of the CPS workers called and haughtily informed Mark that the GAL didn’t have the power to drop it and they were going to pursue termination. Less than than an hour later the GAL called Mark’s lawyer and said that she didn’t drop the termination, she dropped the gag order.
    So now termination is scheduled for Monday. Hopefully the motions that Mark filed today to have the judge and the GAL to recuse themselves and the copy of the federal suit for violating his first amendment rights might change their minds. This system needs independent review, badly, nobody knows what anybody else is doing.

  9. K Says:

    An update, the GAL recused herself and is under investigation and a new GAL who has been looking out for the children has been appointed. The judge recused herself and after trial Mark has been given a second chance to prove himself and his ability to take care of his children. Thank you for spreading the word about this.


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