In re the Termination of the Parent-Child Relationship of: Co.S., E.S., Cl.S., P.S., and M.S. (minor children) and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 15, 2017
• Docket: 82A01-1609-JT-2111
• Status: Published

Opinion

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 15 2017, 6:56 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Julianne L. Fox Curtis T. Hill, Jr., Vanderburgh County Attorney General of Indiana Public Defender’s Office Robert J. Henke Evansville, Indiana James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the March 15, 2017 Parent-Child Relationship of: Court of Appeals Case No. Co.S., E.S., Cl.S., P.S. and M.S. 82A01-1609-JT-2111 (minor children) Appeal from the Vanderburgh and Superior Court The Honorable Renee A. D.S. (Father), Ferguson, Magistrate Appellant-Respondent, Trial Court Cause Nos. 82D04-1604-JT-682 v. 82D04-1604-JT-683 82D04-1604-JT-684 The Indiana Department of 82D04-1604-JT-685 Child Services, 82D04-1604-JT-686 Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017 Page 1 of 4 Mathias, Judge.

[1] The Vanderburgh Superior Court terminated D.S.’s (“Father”) parental rights

to his five minor children, and Father appeals raising two issues: 1) whether the

magistrate erred when she denied Father’s request for the juvenile court judge

to preside over the termination proceedings, and 2) whether sufficient evidence

supports the finding that termination of Father’s parental rights is in the

children’s best interests.

[2] The orders terminating Father’s parental rights were not approved by the

juvenile court judge. We therefore remand this case to the trial court for

proceedings consistent with this opinion.

Facts and Procedural History

[3] Father has five minor children, and one of the children has cerebral palsy and

hearing loss. In 2010 and 2012, the children were adjudicated children in need

of services (“CHINS”), due at least in part to Father’s methamphetamine use.

Father participated in substance abuse treatment, and the case files were closed.

[4] In July 2015, the Indiana Department of Child Services (“DCS”) received a

report that Father was homeless,1 using methamphetamine and heroin, and had

1 Father is not married to the children’s mother, who was also named as a party to the CHINS proceedings. The children’s mother voluntarily relinquished her parental rights after the DCS filed the petitions to terminate her parental rights to her five children.

Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017 Page 2 of 4 neglected the children’s medical care and education. Shortly thereafter, the

children were again adjudicated CHINS.

[5] Father did not participate in services as ordered at the dispositional hearing. He

failed to participate in a substance abuse evaluation, failed to maintain contact

with DCS, failed to obtain housing, failed to enroll in parent education, and

failed to attend more than one visit with the children. The DCS filed petitions

to terminate Father’s parental rights to all five children on April 22, 2016.

[6] On the date of the fact-finding hearing, Father was incarcerated in the

Vanderburgh County Jail on charges for auto theft. At the hearing, Father

requested that the case be continued so that the juvenile court judge could

preside over the hearing in lieu of the magistrate. Father’s request was denied.

During his testimony, Father admitted that he did not have the current ability

to take care of the children.

[7] The children have been placed with either their maternal or paternal

grandmother, and the grandmothers arrange visits between the children. The

DCS intends for the grandmothers to adopt the children.

[8] The magistrate who presided over the termination hearing issued findings from

the bench. Written orders terminating Father’s rights to each of the five children

were issued thereafter. The orders were signed by the magistrate but were not

signed by or approved by the juvenile court judge. Father now appeals.

Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017 Page 3 of 4 Discussion and Decision

[9] The orders terminating Father’s parental rights to his five minor children, which

were consolidated for the purposes of appeal, were signed by the magistrate

who presided over the termination proceedings. The orders were not approved

by the juvenile court judge.

[10] The authority of magistrates to act is determined by statute. Pursuant to 33-23-

5-5(11), a magistrate may conduct an evidentiary hearing or trial. No statutory

provision allows a magistrate to issue a final order in a parental termination of

rights proceeding.

[11] Importantly, Indiana Code section 33-23-5-9(a) provides that, except in

criminal proceedings, a magistrate “shall report findings” in an evidentiary

hearing or trial and that “the court shall enter the final order.” See also In re

Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015). Because the record does

not establish judicial approval of the magistrate's findings in this case, we

remand to the juvenile court for its consideration of the magistrate’s findings

and further action consistent with this opinion.

[12] Remanded.

Baker, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017 Page 4 of 4