In the Matter of the Termination of the Parent-Child Relationship of M.L., B.L., & L.L. (Children) and S.A. (Alleged Father) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 27, 2020
• Docket: 19A-JT-2267
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 27 2020, 5:59 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE ALLEGED FATHER Curtis T. Hill, Jr. Amy Karozos Attorney General of Indiana Indianapolis, Indiana David E. Corey ATTORNEY FOR APPELLANT MOTHER Deputy Attorney General Cara Schaefer Wieneke Indianapolis, Indiana Wieneke Law Office, LLC Brooklyn, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination March 27, 2020 of the Parent-Child Relationship Court of Appeals Case No. of M.L., B.L., & L.L. (Children) 19A-JT-2267 and S.A. (Alleged Father) and Appeal from the Knox Superior T.L. (Mother); Court S.A. (Alleged Father) and T.L. The Honorable Gara U. Lee, (Mother), Judge

Appellants-Defendants, Trial Court Cause No. 42D01-1902-JT-2 v. 42D01-1902-JT-3 42D01-1902-JT-4

The Indiana Department of Child Services,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 1 of 11 Appellee-Plaintiff

May, Judge.

[1] T.L. (“Mother”) and S.A. (“Father”) 1 (collectively, “Parents”) appeal the

involuntary termination of their parental rights to M.L., B.L., and T.L.

(collectively, “Children”). They present multiple issues for our review, which

we restate as:

1. Whether the trial court properly exercised personal jurisdiction over Mother when the Department of Child Services (“DCS”) allegedly failed to serve Mother with notice of the termination proceedings; and

2. Whether DCS violated Father’s due process rights when it did not file a paternity action on Father’s behalf.

We affirm.

Facts and Procedural History

1 The record reveals Father took a DNA test to prove he was Children’s biological father, but he did not complete steps to establish legal paternity. Because he did not establish legal paternity of Children, Father is listed as Alleged Father in the orders terminating his parental rights to Children.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 2 of 11 [2] Parents are the biological parents of B.L., born March 18, 2011; M.L., born

March 27, 2012; and L.L., born June 12, 2015. On August 22, 2106, DCS

received a report that M.L. and B.L. were “wandering the streets looking for

food. . . . [B.L] was wearing only a diaper [and] [M.L.] was dirty and clothed

only in pants.” (App. Vol. II at 25.) 2 When confronted by DCS, Father

admitted “this was the third such incident” and Mother admitted that M.L. and

B.L. “had eloped from the home seven times in the past couple of months.”

(Id.) During an earlier incident when M.L. and B.L. left the house

unsupervised, police found marijuana in Father’s pocket and Father was

arrested for possession of marijuana.

[3] On August 24, 2016, DCS filed a petition alleging Children were Children in

Need of Services (“CHINS”) based on Parents’ failure to supervise Children

and Father’s substance abuse problem. The same day, the trial court held

detention and initial hearings on the matter, during which Parents waived

counsel and admitted Children were CHINS. On September 27, 2016, the trial

court entered its dispositional order requiring Parents to

contact the DCS Family Case Manager (FCM) weekly; notify the FCM of address changes or changes in household composition; notify the FCM of any arrests or criminal charges; refrain from criminal activity; keep all appointments; maintain safe, stable housing; secure and maintain a legal source of income; remain

2 The trial court entered individual termination of parental rights orders for each child. The orders are virtually identical; therefore, we will quote the termination order involving M.L. unless a finding was made specific to a particular child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 3 of 11 drug and alcohol free; submit to a substance abuse assessment and follow all treatment recommendations; submit to random drug/alcohol screens; submit to a parenting assessment and successfully complete all recommendations; attend all scheduled visitation with Child[ren]; . . . and provide the Child[ren] with a safe, secure, and nurturing environment.

(Id. at 26.) At the dispositional hearing, the trial court placed Children with

their maternal grandmother; however, they were eventually placed in foster

care, where they remained during the proceedings.

[4] At a status hearing on July 24, 2017, the trial court changed Children’s

permanency plan from reunification to adoption based on Parents’ non-

compliance with the case plan, services, and therapy. On February 27, 2019,

DCS filed its petition to terminate Parents’ parental rights to Children. 3 The

trial court held factfinding hearings on April 26, June 14, and June 25, 2019.

Father appeared at all factfinding hearings; Mother did not appear at all

hearings, but she was represented by counsel at all hearings. On August 26,

2019, the trial court entered its order terminating Parents’ rights to Children.

Discussion and Decision

3 The record indicates DCS first filed a petition to terminate Parents’ rights to Children on February 23, 2018. That petition was dismissed on August 22, 2018. DCS filed a second petition to terminate Parents’ rights to Children on August 20, 2018. That petition was dismissed on February 19, 2019, approximately one week prior to the current petition to terminate Parents’ rights to Children. It is unclear from the record why the two prior petitions were dismissed.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 4 of 11 [5] We review termination of parental rights with great deference. In re K.S., D.S.,

& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

reasonable inferences most favorable to the judgment. Id. In deference to the

juvenile court’s unique position to assess the evidence, we will set aside a

judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

534 U.S. 1161 (2002).

[6] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

subordinate the interests of the parents to those of the children, however, when

evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

at 837. The right to raise one’s own children should not be terminated solely

because there is a better home available for the children, id., but parental rights

may be terminated when a parent is unable or unwilling to meet parental

responsibilities. Id. at 836.

1. Personal Jurisdiction [7] Mother contends DCS did not prove she was given proper notice of any of the

factfinding hearings and thus the trial court did not have personal jurisdiction

over her. “‘Personal jurisdiction refers to a court’s power to impose judgment

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 5 of 11 on a particular defendant.’ A challenge to personal jurisdiction is a question of

law, which we review de novo.” Matter of K.P.G., 99 N.E.3d 677, 680 (Ind. Ct.

App. 2018) (quoting Boyer v. Smith, 42 N.E.3d 505, 509 (Ind. 2015)), trans.

denied. “The existence of personal jurisdiction requires effective service of

process.” Ellis v. M&I Bank, 960 N.E.2d 187, 192 (Ind. Ct. App. 2011).

However, a “party can waive lack of personal jurisdiction and submit himself to

the jurisdiction of the court if he responds or appears and does not contest the

lack of jurisdiction.” Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1007 (Ind.

Ct. App. 2009).

[8] During the first factfinding hearing on April 26, 2019, Mother did not appear.

Mother’s counsel, who was present at the hearing, requested a continuance

because Mother “called the Court this morning and indicated that she is ill with

a couple of different conditions and is unable to appear this morning, so she had

asked that I request a continuance for that reason.” (Tr. Vol. II at 16.) The trial

court asked Mother’s counsel if Mother was hospitalized, and counsel indicated

Mother was not. The trial court denied Mother’s motion to continue and told

Mother’s counsel: “If you want to take a minute to contact her and notify her of

that, I mean, let her know that if she wanted to still try to show up today, just

because she’s not right here this second, doesn’t mean she couldn’t appear at

some point during the proceedings.” (Id.) Mother’s counsel indicated that

Mother had directed her to, in the event the trial court denied her motion to

continue, “basically continue to make arguments on her behalf[.]” (Id.) During

the second and third factfinding hearings on June 14, and June 25, 2019,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 6 of 11 Mother did not appear, but her counsel was present. There was no discussion

regarding Mother’s absences from those factfinding hearings.

[9] Mother’s counsel was present at all hearings and did not raise the issue of

personal jurisdiction, and thus it is waived. See In re Paternity of T.M.Y., 725

N.E.2d 997, 1005 (Ind. Ct. App. 2000) (putative father waived personal

jurisdiction argument on appeal because he did not first present it to the trial

court), reh’g denied, trans. denied. To escape waiver, Mother argues DCS did not

comply with the notice requirements set forth in Indiana Code section 31-35-2-

6.5, which states in relevant part:

(b) At least ten (10) days before a hearing on a petition or motion under this chapter:

(1) the person or entity who filed the petition to terminate the parent-child relationship under section 4 of this chapter; or

(2) the person or entity who filed a motion to dismiss the petition to terminate the parent-child relationship under section 4.5(d) of this chapter;

shall send notice of the review to the persons listed in subsections (c) and (d).

(c) Except as provided in subsection (h), the following persons shall receive notice of a hearing on a petition or motion filed under this chapter:

(1) The child’s parent, guardian, or custodian.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 7 of 11 [10] “Compliance with the statutory procedure of the juvenile code is mandatory to

effect termination of parental rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind.

Ct. App. 2005). Although statutory notice “is a procedural precedent that must

be performed prior to commencing an action,” it is not “an element of

plaintiff’s claim.” Id. Failure to comply with statutory notice is thus “a defense

that must be asserted.” Id. Once placed in issue, “the plaintiff bears the burden

of proving compliance with the statute.” Id.

[11] However, Mother also did not raise the issue of notice before the trial court,

and thus it is waived. See In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006)

(father waived notice issue when he did not first present it before the trial

court), trans. denied. To escape waiver, Mother could have argued any alleged

lack of notice amounted to fundamental error. Fundamental error occurs when

there exists “egregious trial errors. In order for this court to reverse based on

fundamental error, the error must have been a clearly blatant violation of basic

and elementary principles, and the harm or potential for harm must be

substantial and appear clearly and prospectively.” In re E.E., 853 N.E.2d at

1043 (internal citation omitted). Mother did not assert fundamental error on

appeal.

[12] Waiver notwithstanding, we cannot conclude that any failure by DCS to serve

Mother notice of the factfinding hearings is fundamental error. Mother was

represented by counsel throughout the proceedings, which we have held is

appropriate as long as the party’s counsel is able to make argument and cross

examine witnesses, which Mother’s counsel did here in all three factfinding

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 8 of 11 hearings. See J.T. v. Marion Cty. Ofc. of Family & Children, 740 N.E.2d 1261,

1264 (Ind. Ct. App. 2000) (no fundamental error when father not physically

present at termination hearing because father was represented by counsel who

presented argument and cross-examined witnesses), reh’g denied, trans. denied,

abrogated on other grounds by Baker v. Marion Cty. Ofc. of Family & Children, 810

N.E.2d 1035, 1039 (Ind. 2004). 4

2. Establishing Father’s Legal Paternity [13] As part of his services in the CHINS proceedings, Father worked with service

providers on establishing legal paternity of Children; however, he had not done

so by the time of the termination factfinding hearings. Under Indiana Code

section 31-34-15-6 (2012), which was active 5 at the time of the trial court’s

order:

(a) . . . whenever a child who was born out of wedlock is:

4 Father argues his “due process rights may have been impacted by Mother’s absence [because] Mother could have supported Father’s arguments[.]” (Br. of Father at 17.) In order for Father to assert a claim based on an allegation regarding personal jurisdiction over Mother, he must have standing to do so. To have standing, “a plaintiff must demonstrate a personal stake in the outcome of the lawsuit and must show that he or she has sustained or was in immediate danger of sustaining, some direct injury as a result of the conduct at issue.” Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985). Father has not presented any more than speculative injury, and thus his argument fails. See State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005) (no standing when injury is hypothetical), trans. denied. 5 Effective July 1, 2018, during the pendency of these proceedings, the statutory language of Indiana Code section 31-34-15-6(b) changed such that “shall” changed to “may,” leaving to DCS’s discretion whether to file a paternity action under these circumstances. Compare Ind. Code § 31-34-15-6(b) (2102) with Ind. Code § 31-34-15-6(b) (2018).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 9 of 11 (1) or is alleged to be a child in need of services; and

(2) under the supervision of the department or a local office as a result of a court ordered out-of-home placement.

(b) The department or the local office shall refer a child’s case to the local prosecuting attorney’s office for the filing of a paternity action if the:

(1) identity of the alleged father is known; and

(2) department or the local office reasonably believes that establishing the paternity of the child would be beneficial to the child.

[14] DCS acknowledges it did not refer Children’s paternity matters to the local

prosecutor’s office. However, Father did not present this issue before the trial

court, which would have allowed the trial court to determine if DCS reasonably

did not believe that “establishing paternity of the child would be beneficial to

the child.” Ind. Code § 31-35-15-6(b) (2012). Thus, Father has waived this

issue from our review. See McBride v. Monroe Cty. Ofc. of Family and Children, 798

N.E.2d 185, 194 (Ind. Ct. App. 2003) (issue waived because it was not first

presented before the trial court).

Waiver notwithstanding, we note that Indiana Code section 31-34-15-6 is part

of a series of statutes regarding the services provided as part of a CHINS case.

As the failure to provide services as part of a CHINS proceeding cannot be used

to attack an order of termination, we reject Father’s argument. See In re H.L.,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 10 of 11 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (“failure to provide services does

not serve as a basis on which to directly attack a termination order as contrary

to law”).

Conclusion [15] The trial court properly exercised personal jurisdiction over Mother because

Mother availed herself to the trial court’s personal jurisdiction by

communicating her absence to the trial court on the day of the first factfinding

hearing. Additionally, Father lacks standing to appeal the issue of the trial

court’s personal jurisdiction over Mother. Finally, Father waived his argument

regarding DCS’s noncompliance with Indiana Code section 31-34-15-6(b)

(2012) because he did not present the issue before the trial court. Waiver

notwithstanding, Father cannot use a failure to provide services in a CHINS

proceeding to attack a termination order. Accordingly, we affirm the

involuntary termination of Parents’ rights to Children.

[16] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 11 of 11