MEMORANDUM DECISION May 19 2015, 9:53 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Robert J. Henke David E. Corey Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 19, 2015 of the Parent-Child Relationship Court of Appeals Cause No. of, 49A02-1409-JT-613 Appeal from the Marion Superior J.H. (minor child), Court Cause No. 49D09-1402-JT-91
and, The Honorable Marilyn Moores, Judge; The Honorable Larry Bradley, Magistrate K.T. (father),
Appellant-Respondent
v.
The Indiana Department of Child Services,
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 1 of 8 Appellee-Petitioner.
Barnes, Judge.
Case Summary [1] K.T. (“Father”) appeals the termination of his parent-child relationship with
J.H. We affirm.
Issue [2] Father raises one issue, which we restate as whether he was denied due process
in the termination proceeding because of the alleged lack of notice in the
underlying child in need of services (“CHINS”) proceeding.
Facts [3] J.H. was born in November 2009. Father saw J.H. just once in March 2011.
At some point, Father lived in California. In December 2012, J.H. was alleged
to be a CHINS, and Father was named as her alleged father with an unknown
address in California. The CHINS petition alleged that J.H.’s mother failed to
provide J.H. and her brother with a safe and sanitary living environment with
appropriate supervision. The petition also alleged that Father had not
successfully demonstrated the ability and willingness to appropriately parent
J.H.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 2 of 8 [4] In April 2013, a default judgment was entered against Father in the CHINS
proceeding after the trial court found that the Department of Child Services
(“DCS”) made diligent efforts to locate Father, that DCS published service by
notification three times in February 2013, that Father had not responded to the
publication, that he had not appeared before the court in the matter, that he had
not contacted DCS, that he had not demonstrated an ability or willingness to
parent J.H., that he had not participated in services, and that he was
unavailable and unable to parent J.H.
[5] In February 2014, the trial court approved DCS’s request to change the plan for
J.H. from reunification to adoption. The trial court found that Father had not
appeared in court or visited J.H. and that DCS did not know where Father was.
[6] On February 20, 2014, DCS filed a petition to terminate Father’s parental
rights. DCS then located Father in California and, on March 17, 2014, a
summons was sent to him at a detention facility in San Diego. On April 4,
2014, Father acknowledged receipt of the summons. Father did not appear at
an April 15, 2014 hearing, but the trial court acknowledged his request for
counsel and appointed counsel to represent him. Father participated at an April
25, 2014 hearing by telephone. On July 2, 2014, a termination hearing was
held. Father’s attorney was present at the hearing, and Father participated by
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 3 of 8 phone. On August 6, 2014, the trial court issued an ordering terminating
Father’s parental rights.1 Father now appeals.
Analysis [7] Father challenges the termination of his parental rights on the basis that he was
not properly notified of the CHINS proceeding. Although Father uses the
terms subject matter jurisdiction, personal jurisdiction, and due process in his
brief, the focus of his argument appears to be the purported denial of procedural
due process, and we will review it as such.2
[8] Father did not object to the alleged lack of notice of the CHINS proceeding
during the termination proceeding and raises the issue for the first time on
appeal. “It is well established that we may consider a party’s constitutional
claim waived when it is raised for the first time on appeal.” Hite v. Vanderburgh
Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006).
Thus, this issue is waived. See id. at 180-81.
[9] Waiver notwithstanding, when the State seeks to terminate the parent-child
relationship, it must do so in a manner that meets the requirements of due
process. Id. at 181. “Due process in parental rights cases involves the balancing
1 Paternity of J.H. was confirmed after the July 2014 hearing was conducted. 2 Because Father does not provide us with cogent argument regarding why the trial court lacked subject matter over the CHINS proceeding, this issue is waived. See Ind. App. R. 46(A)(8)(a). Further, many of the authorities discussing personal jurisdiction that Father relies on relate to a party’s minimum contacts with Indiana. Father does not make a cogent argument that he did not have the necessary minimum contacts with Indiana, and this issue is waived. See id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 4 of 8 of three factors: (1) the private interests affected by the proceeding; (2) the risk
of error created by the State’s chosen procedure; and (3) the countervailing
government interest supporting use of the challenged procedure.” Id.
[10] There is no doubt that Father’s private interest in his parental relationship with
J.H. is substantial. See id. Likewise, the government’s countervailing interest in
protecting the welfare of children is also substantial. Id. Thus, our focus is on
the risk of error.
[11] Father does not challenge the trial court’s findings following the termination
hearing or dispute that he was notified of and participated in the termination
proceedings while represented by counsel. Thus, the issue is whether the
alleged lack of notice of the CHINS proceeding deprived him of due process in
the termination proceeding.
[12] Regarding notice of the CHINS proceeding, the limited record on this issue
shows that Father testified he had received an email from DCS in April or May
2012 before the CHINS proceeding was initiated in December 2012. It is not
clear where Father was living when the CHINS petition was filed, but his
testimony indicated that he was released from incarceration in California in
January 2013 and reincarcerated in August 2013. A DCS caseworker testified
that, although Father could not be located in December 2012, she continued to
look for Father during the course of the CHINS proceeding. She stated that she
filed an affidavit of diligent inquiry detailing her efforts to locate Father. The
caseworker testified that she tried contacting J.H.’s mother to locate Father and
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 5 of 8 she searched the white pages, the department of correction system, and the
Marion County Jail system. She indicated her belief that they had searched for
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MEMORANDUM DECISION May 19 2015, 9:53 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Robert J. Henke David E. Corey Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 19, 2015 of the Parent-Child Relationship Court of Appeals Cause No. of, 49A02-1409-JT-613 Appeal from the Marion Superior J.H. (minor child), Court Cause No. 49D09-1402-JT-91
and, The Honorable Marilyn Moores, Judge; The Honorable Larry Bradley, Magistrate K.T. (father),
Appellant-Respondent
v.
The Indiana Department of Child Services,
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 1 of 8 Appellee-Petitioner.
Barnes, Judge.
Case Summary [1] K.T. (“Father”) appeals the termination of his parent-child relationship with
J.H. We affirm.
Issue [2] Father raises one issue, which we restate as whether he was denied due process
in the termination proceeding because of the alleged lack of notice in the
underlying child in need of services (“CHINS”) proceeding.
Facts [3] J.H. was born in November 2009. Father saw J.H. just once in March 2011.
At some point, Father lived in California. In December 2012, J.H. was alleged
to be a CHINS, and Father was named as her alleged father with an unknown
address in California. The CHINS petition alleged that J.H.’s mother failed to
provide J.H. and her brother with a safe and sanitary living environment with
appropriate supervision. The petition also alleged that Father had not
successfully demonstrated the ability and willingness to appropriately parent
J.H.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 2 of 8 [4] In April 2013, a default judgment was entered against Father in the CHINS
proceeding after the trial court found that the Department of Child Services
(“DCS”) made diligent efforts to locate Father, that DCS published service by
notification three times in February 2013, that Father had not responded to the
publication, that he had not appeared before the court in the matter, that he had
not contacted DCS, that he had not demonstrated an ability or willingness to
parent J.H., that he had not participated in services, and that he was
unavailable and unable to parent J.H.
[5] In February 2014, the trial court approved DCS’s request to change the plan for
J.H. from reunification to adoption. The trial court found that Father had not
appeared in court or visited J.H. and that DCS did not know where Father was.
[6] On February 20, 2014, DCS filed a petition to terminate Father’s parental
rights. DCS then located Father in California and, on March 17, 2014, a
summons was sent to him at a detention facility in San Diego. On April 4,
2014, Father acknowledged receipt of the summons. Father did not appear at
an April 15, 2014 hearing, but the trial court acknowledged his request for
counsel and appointed counsel to represent him. Father participated at an April
25, 2014 hearing by telephone. On July 2, 2014, a termination hearing was
held. Father’s attorney was present at the hearing, and Father participated by
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 3 of 8 phone. On August 6, 2014, the trial court issued an ordering terminating
Father’s parental rights.1 Father now appeals.
Analysis [7] Father challenges the termination of his parental rights on the basis that he was
not properly notified of the CHINS proceeding. Although Father uses the
terms subject matter jurisdiction, personal jurisdiction, and due process in his
brief, the focus of his argument appears to be the purported denial of procedural
due process, and we will review it as such.2
[8] Father did not object to the alleged lack of notice of the CHINS proceeding
during the termination proceeding and raises the issue for the first time on
appeal. “It is well established that we may consider a party’s constitutional
claim waived when it is raised for the first time on appeal.” Hite v. Vanderburgh
Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006).
Thus, this issue is waived. See id. at 180-81.
[9] Waiver notwithstanding, when the State seeks to terminate the parent-child
relationship, it must do so in a manner that meets the requirements of due
process. Id. at 181. “Due process in parental rights cases involves the balancing
1 Paternity of J.H. was confirmed after the July 2014 hearing was conducted. 2 Because Father does not provide us with cogent argument regarding why the trial court lacked subject matter over the CHINS proceeding, this issue is waived. See Ind. App. R. 46(A)(8)(a). Further, many of the authorities discussing personal jurisdiction that Father relies on relate to a party’s minimum contacts with Indiana. Father does not make a cogent argument that he did not have the necessary minimum contacts with Indiana, and this issue is waived. See id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 4 of 8 of three factors: (1) the private interests affected by the proceeding; (2) the risk
of error created by the State’s chosen procedure; and (3) the countervailing
government interest supporting use of the challenged procedure.” Id.
[10] There is no doubt that Father’s private interest in his parental relationship with
J.H. is substantial. See id. Likewise, the government’s countervailing interest in
protecting the welfare of children is also substantial. Id. Thus, our focus is on
the risk of error.
[11] Father does not challenge the trial court’s findings following the termination
hearing or dispute that he was notified of and participated in the termination
proceedings while represented by counsel. Thus, the issue is whether the
alleged lack of notice of the CHINS proceeding deprived him of due process in
the termination proceeding.
[12] Regarding notice of the CHINS proceeding, the limited record on this issue
shows that Father testified he had received an email from DCS in April or May
2012 before the CHINS proceeding was initiated in December 2012. It is not
clear where Father was living when the CHINS petition was filed, but his
testimony indicated that he was released from incarceration in California in
January 2013 and reincarcerated in August 2013. A DCS caseworker testified
that, although Father could not be located in December 2012, she continued to
look for Father during the course of the CHINS proceeding. She stated that she
filed an affidavit of diligent inquiry detailing her efforts to locate Father. The
caseworker testified that she tried contacting J.H.’s mother to locate Father and
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 5 of 8 she searched the white pages, the department of correction system, and the
Marion County Jail system. She indicated her belief that they had searched for
Father in California but were not able to locate him until after February 20,
2014, when he was located in the San Diego County Jail. At that point, Father
indicated he did not want to start services until paternity had been established,
which did not occur until after the July 2014 hearing. In addition to DCS’s
efforts to locate Father during the pendency of the CHINS proceeding, the
CHINS order of default shows that Father was served by publication in March
2013.
[13] Father claims that DCS did not establish that it diligently searched for him
during the CHINS proceeding or appoint an attorney to represent him in that
proceeding. Father, however, does not specify what additional notice DCS was
legally required to provide to him as J.H.’s alleged Father whose whereabouts
were unknown or cite any authority suggesting that the trial court was required
to appoint an attorney to represent him in these circumstances. Moreover,
Father makes no argument that J.H. was not actually a CHINS.
[14] We have held that the failure to receive notice during the initial stages of a
CHINS action and copies of the case plan did not create a substantial risk of
error because the parent was not denied the opportunity to be heard in the latter
portions of the CHINS action and in the termination proceedings. See Hite, 845
N.E.2d at 184; but cf. A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d
1107, 1118 (Ind. Ct. App. 2000) (acknowledging that where “a record is replete
with procedural irregularities throughout CHINS and termination proceedings
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 6 of 8 that are plain, numerous, and substantial, we are compelled to reverse a
termination judgment on procedural due process grounds.”), trans. denied. In
Hite, we recognized:
although termination proceedings and CHINS proceedings have an interlocking statutory scheme because involuntary termination proceedings are governed by the CHINS statutory procedures, CHINS proceedings are separate and distinct from involuntary termination proceedings because a CHINS cause of action does not necessarily lead to an involuntary termination cause of action. [15] Id. at 182. More recently our supreme court has stated:
While we acknowledge a certain implication of parental fault in many CHINS adjudications, the truth of the matter is that a CHINS adjudication is simply that—a determination that a child is in need of services. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. [16] In re N.E., 919 N.E.2d 102, 105 (Ind. 2010).
[17] Here, where DCS attempted to locate Father throughout the CHINS
proceeding and served him with notice of the CHINS proceeding by
publication, there was not a substantial risk of error in the termination
proceeding in which Father participated and was represented by counsel.
Father has not shown that he was denied due process.
Conclusion [18] Father waived his procedural due process claim by not raising it during the
termination proceeding. Waiver notwithstanding, he has not established he
was denied due process under these facts. We affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 7 of 8 [19] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015 Page 8 of 8