Opinion
23A-JT-2946
06-25-2024
In re the Involuntary Termination of the Parent-Child Relationship of M.E. (Minor Child) and S.E. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
Attorney for Appellant Michael G. Moore Indianapolis, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vigo Circuit Court The Honorable Lakshmi Reddy, Special Judge Trial Court Cause No. 84C01-2308-JT-660
Attorney for Appellant Michael G. Moore Indianapolis, Indiana
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
CRONE, JUDGE
Case Summary
[¶1] S.E. (Father) appeals the trial court's order involuntarily terminating his parental relationship with his minor child M.E. (Child). On appeal, Father does not challenge any of the trial court's findings or conclusions supporting its termination order. Instead, Father argues that his right to due process was violated because the Department of Child Services (DCS) did not provide him with ten days' notice of the termination hearing as required by statute. Finding that: (1) Father failed to challenge any of the trial court's findings or conclusions and has, thus, conceded that DCS proved by clear and convincing evidence the allegations in the petition to terminate his parental rights to Child, and (2) Father's due process rights were not violated by DCS's failure to provide ten days' notice of the termination hearing, we affirm.
Facts and Procedural History
[¶2] A.H. (Mother) and Father (collectively Parents) are the parents of Child, who was born drug-exposed in April 2017. Shortly after Child's birth, DCS filed a child in need of services (CHINS) petition, alleging that Child was a victim of neglect. Mother was Child's custodial parent. The CHINS case was dismissed on DCS's motion in December 2017, based on Mother's compliance with services. In April 2020, DCS filed a second CHINS petition, after Mother was arrested and charged with level 6 felony battery for allegedly striking Father in the face in front of Child. The case was dismissed in December 2020 because Mother addressed DCS's concerns.
Mother voluntarily relinquished her parental rights to Child and consented to Child's adoption. Mother does not participate in this appeal. Facts pertaining to Mother will be included insofar as they are relevant to Father's appeal.
[¶3] By December 2020, Parents, who had never married, were no longer living together. At some point, Father married, and in January 2021, Father and his wife (Stepmother) had a child together, N.E. That child became the subject of an unrelated CHINS matter.
[¶4] In January 2022, Mother, who had remained Child's custodial parent, was arrested and charged with domestic battery against her then-boyfriend. In April, Mother was again arrested-after charges were filed against her in a separate criminal case-for burglary, residential entry, battery resulting in bodily injury, and possession of marijuana. Mother placed Child with Father and Stepmother. At that time, DCS was still involved with Father, Stepmother, and N.E.
[¶5] On April 11, 2022, DCS received a report alleging that Child was a victim of physical abuse at the hands of Stepmother "based upon unexplained bruising over [Child's] throat and body" and that Child also was a victim of "poor hygiene, inadequate home conditions, Mother's recent felony charges, domestic violence ..., un-remedied concerns for mental health, and substance abuse." Appealed Order at 3. Child was located at the home of a family friend. Child never returned to Parents' care.
[¶6] A CHINS petition was filed on April 13, 2022. On June 8, following a factfinding hearing, the trial court adjudicated Child a CHINS. Child was placed in foster care on June 22, but was later moved to relative care. On July 13, the trial court entered a dispositional order requiring Father to, in relevant part, contact the DCS family case manager (FCM) every week to allow the FCM to monitor compliance with the CHINS matter; notify the FCM of any changes in address within five days of the change; allow the FCM or other service providers to make announced or unannounced visits to Child's home, allow entrance into the home to ensure Child's safety, and make Child available to the FCM or the court appointed special advocate (CASA); keep all appointments with service providers, DCS, or the CASA, or give advance notice and good cause for a missed appointment; enroll in recommended programs and services within thirty days of the recommendation and participate in the programs/services as scheduled; maintain suitable housing; secure and maintain a legal source of income; not use illegal substances; obey the law; complete a substance abuse assessment, a psychological evaluation, and a domestic violence assessment and follow any recommendations from the assessments/evaluations; submit to random drug screens; not commit any acts of domestic violence; and attend scheduled visits with Child.
[¶7] On July 4, 2022, Child was removed from relative care and returned to foster care. The trial court held a review hearing on September 27, 2022. At that time, the permanency plan was for reunification. On March 2, 2023, the trial court modified Child's permanency plan to include a concurrent plan of adoption and guardianship. In its order approving the permanency plan, the court found that Father had not engaged in any court-ordered services.
[¶8] On August 1, 2023, DCS filed a petition for the involuntary termination of Parents' relationships with Child. That same day, DCS issued a summons and hearing notice and attempted to serve Father at a Terre Haute address with the termination petition and notice of the initial hearing scheduled for August 15. Father had been evicted from the residence located at that address in April 2023, but Father had been observed at the residence after the eviction and was thought to be squatting. The summons and hearing notice were returned to DCS on August 21, marked as "unclaimed[,]" "unable to forward[,]" and "return to sender[.]" Appellant's App. Vol. 2 at 80.
[¶9] The initial hearing was held on August 15, and Father appeared at the hearing and was served in open court with the termination petition. On August 29, the court held a "[c]ontinued" initial hearing, but Father failed to appear. Id. at 88. That same day, the court issued an order setting the termination hearings for October 25, October 27, and November 6, 2023. On October 19, six days before the termination hearings were scheduled to begin, DCS sent Father notice of the hearings to the foregoing address.
[¶10] The termination hearings took place as scheduled. The evidence presented included testimony by Mother, the FCMs, the service providers, Child's foster care placement (Child's Placement), and the CASA. Father did not appear at the hearings, but his attorney appeared, provided representation in Father's absence, and cross-examined the witnesses.
[¶11] During the termination hearings, the trial court learned that Child's Placement had observed "firsthand]" that Father was "very violent[,] ... just very hateful[,]" and that Father directed his children to "say and do things that . . . [were not] appropriate[.]" Tr. Vol. 2 at 77. On one occasion, Father had Child call Child's Placement a "b***h[.]" Id.
[¶12] Regarding visitation with Child, the trial court learned that Kelsey Snellgrose served as Father's visitation supervisor for approximately two and one-half months during the summer of 2023. Father received two three-hour visits with Child twice per week. Father participated in visitation with Child but inconsistently. Father would not accept redirection during the visits and would not take any suggestions. During one visit that took place at a park, Snellgrose asked Father not to use water guns, as Father had not brought a change of clothes for Child. Father displayed a "not so happy expression on his face[,]" "postur[ed]" at Snellgrose, used the water guns anyway, and allowed Child to play in a fountain. Id. at 100. Child was soaked and had to be transported home in wet clothes.
[¶13] Father missed three consecutive visits. During the second-to-last visit with Child, before Snellgrose ended Father's visitation services altogether, Father called Snellgrose a "stupid b***h and [used] other vulgar language[.]" Id. at 98. He postured at Snellgrose by puffing out his chest, and he threw his shoulders back in a manner that suggested he wanted to attack her. During the last visit with Child, Father closed his eyes. When Snellgrose asked him to open his eyes, he yelled at her and used profanity within earshot of Child. Child ran and hid, and it took approximately forty-five minutes before Child could be calmed down to the point where she could leave the visit. Snellgrose ended Father's visitation services in mid-August 2023, due to his nonparticipation and behavioral problems.
[¶14] Tiffany Clark was appointed as Child's CASA in September 2022. CASA Clark observed that Father would become "very agitated and very irritable during visitations" with Child. Id. at 142. She expressed concerns regarding Father's ability to care for Child, explaining that Father showed aggression toward Child but, "afterward[,]" would become "very apologetic and loving[.]" Id. at 172. She was also concerned about Father's methamphetamine use, lack of housing, and domestic violence against Stepmother. CASA Clark believed that Father had attended visitations with Child while under the influence of illegal substances, explaining that his eyes were red, he was "very erratic, he would speak very fast[,] and his sentences did not make any sense." Id. at 173. At the end of one visit with Child, Father screamed that he "wished death upon" the CASA and the visitation provider, "wished [they] would burn in hell[,]" and "wished [they] would die in car wrecks[.]" Id. at 171. Father also denied the CASA access to his home when she attempted to perform home visits.
[¶15] FCM Makaylah Kersey was assigned to Parents and Child in February 2023. She observed that Father had not participated in any court-ordered services except for visitation with Child. Many service providers were unwilling to continue working with Father and ended his services due to his aggressive and threatening behavior. Father refused to submit to drug screens, did not keep his appointments with his service providers, and had no source of income. FCM Kersey believed that Father was homeless.
[¶16] Both the CASA and the FCM testified that termination of Father's parental rights to Child was in Child's best interest. CASA Clark testified that she believed that continuation of the parent-child relationship posed a threat to Child. She further testified that Child ordinarily is "loving and kind and gentle[,]" but when Child is in Father's presence, she is "highly influenced to exhibit negative behaviors[,] including ... saying negative and hateful things toward[]" CASA Clark. Id. at 173. The CASA told the court that, after visiting with Father, Child would have nightmares and experience bedwetting.
[¶17] FCM Kersey testified that Child "deserved permanency and . . . stability." Id. at 231. She further testified that Father had shown "no pattern of compliance" regarding alleviating safety concerns and that there were ongoing concerns as to Father's lack of housing, substance use, and inappropriate discipline of Child. Id. FCM Kersey also believed that continuation of the parent-child relationship posed a threat to Child's well-being.
[¶18] On November 9, 2023, the trial court issued its order terminating the parent-child relationship between Father and Child. The trial court found that Child had been removed from Father and had been under the supervision of DCS for at least fifteen of the last twenty-two months, there is a reasonable probability that the conditions that resulted in Child's removal or the reasons for placement outside Father's home will not be remedied, termination of Father's parental rights is in Child's best interests, and there is a satisfactory plan for Child's care and treatment, which is adoption. Father now appeals.
Discussion and Decision
[¶19] We recognize that "[a] parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)). "[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities." In re A.P., 882 N.E.2d 799, 805 (Ind.Ct.App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore "termination is intended as a last resort, available only when all other reasonable efforts have failed." Id.
[¶20] "We have long had a highly deferential standard of review in cases involving the termination of parental rights." In re C.A., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014).
In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)]. In evaluating whether the trial court's decision to terminate parental rights is clearly erroneous, we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted). In addition, we note that unchallenged findings of fact are accepted as true by this Court. In re S.S., 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind.Ct.App. 2015), trans. denied; T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind.Ct.App. 2012), trans. denied.
[¶21] A petition to terminate a parent-child relationship must allege, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the wellbeing of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.Ind. Code § 31-35-2-4(b)(2). DCS must prove each element by "clear and convincing evidence." R.S., 56 N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the allegations in the petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
Our legislature made significant changes to Indiana Code Section 31-35-2-4 in 2024. DCS filed its petition in 2023, under the prior version of the statute.
Section 1 - Father has conceded that DCS proved by clear and convincing evidence the allegations in the petition to terminate his parental rights to Child.
[¶22] As an initial matter, we note that Father does not challenge the trial court's findings of fact and conclusions thereon as clearly erroneous. Father has thereby waived any arguments relating to the unchallenged findings. See In re S.S., 120 N.E.3d at 614 n.2 (explaining that this Court will accept unchallenged trial court findings as true).
[¶23] The trial court's conclusions read, in relevant part:
13. [Child] was removed from Father's home after reports of domestic violence and physical abuse and after finding multiple bruises all over [Child's] body. Father was ordered to participate in numerous services such as domestic violence counseling, random drug screens, home based care management, psychological evaluation[,] and supervised visits. Father only complied with supervised visits and even that did not go well as numerous providers had to close out the case either due to failure to show and/or Father's aggressive and threatening behavior towards providers....
14. Father has made little to no effort to remedy the conditions that led to the removal of [Child].
16. The evidence demonstrates that [Child] is doing well in her current placement and a continuation of this placement appears to be in [Child's] best interest because she deserves and requires stability and permanency.
17. The evidence demonstrates that Father cannot provide stability for [Child] as there is no evidence that he has housing stability, has a source of income, is free from abusing substances, or that he has resolved the domestic violence concerns....
18. [T]he State ... established] by clear and convincing evidence that . [t]here is a satisfactory plan for the care and treatment of [Child].Appealed Order at 18. Father does not challenge the court's conclusions. By failing to do so, Father has conceded that DCS proved by clear and convincing evidence the allegations in the petition to terminate his parental rights to Child.
Section 2 - Father has failed to establish that his due process rights were violated by DCS's failure to provide ten days' notice of the termination hearings.
[¶24] Father argues that he was denied his right to due process because DCS did not comply with the notice provision required in termination proceedings under Indiana Code Section 31-35-2-6.5. The statute requires DCS to send notice of the termination hearing to the parents at least ten days before the hearing date, which did not occur in this case. Ind. Code § 31-35-2-6.5(b), -(c). DCS mailed the required notice six days before the first termination hearing commenced to a residence from which Father had been evicted. And, according to Father, DCS knew of the eviction prior to filing the petition to terminate his parental rights to Child. Thus, Father claims that the untimely notice was "fatally compromised" and that the appropriate remedy is to reverse and remand the matter to provide DCS the opportunity to provide the statutorily required notice of the termination hearings. Appellant's Br. at 10.
[¶25] However, this Court has explained that
[c]ompliance with the statutory procedure of the juvenile code is mandatory to effect termination of parental rights. Although statutory notice is a procedural precedent that must be performed prior to commencing an action, it is not an element of [DCS's] claim. Failure to comply with statutory notice is thus a defense that must be asserted. Once placed in issue, [DCS] bears the burden of proving compliance with the statute.In re H.K., 971 N.E.2d 100, 103 (Ind.Ct.App. 2012) (emphasis added) (internal quotation marks and citations omitted).
[¶26] Father admits that he did not raise the issue of notice at the termination hearings. Accordingly, this issue is waived. See Matter of C.C., 170 N.E.3d 669, 676 (Ind.Ct.App. 2021) ("Counsel for Mother failed to argue a lack of statutory notice in the trial court. Accordingly, this issue is waived."). Further, although waiver does not preclude our review, Father has failed to even argue that fundamental error has occurred and has therefore waived appellate review of this claim as well. See Truax v. State, 856 N.E.2d 116, 123 (Ind.Ct.App. 2006) (determining that claim for fundamental error is waived when an appellant fails to argue it). Waiver notwithstanding, we acknowledge that the notice sent to Father was untimely, as it was sent less than ten days before the termination hearings began. We conclude, however, that in light of the facts and circumstances of this case, the defect did not rise to the level of a due process violation.
"Fundamental error is a substantial, blatant violation of due process." Hall v. State, 937 N.E.2d 911, 913 (Ind.Ct.App. 2010).
[¶27] Due process has never been defined, but the phrase embodies a requirement of fundamental fairness. In re D.P., 27 N.E.3d 1162, 1166 (Ind.Ct.App. 2015) (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)) (quotations omitted). The United States Supreme Court has stated, "'[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.'" Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The process due in a termination of parental rights proceeding turns on the balancing 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 governmental interest supporting use of the challenged procedure. Id. Both the State and Father have substantial interests affected by the proceeding, so we focus on the risk of error created by DCS's actions and the trial court's actions. Here, we find that the risk of error created by the six-day notice was minimal at best, especially in light of Father's acknowledgment that DCS "did not and likely still does not have a current address" for him. Appellant's Br. at 12.
[¶28] Furthermore, although Indiana Code Section 31-35-2-6.5 requires DCS to send notice of the termination hearing to the parents at least ten days before the hearing date, the statute does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component. H.K., 971 N.E.2d 100 at 103. Instead, in order to comply with the statute, "one need only meet the requirements of Indiana Trial Rule 5, which governs service of subsequent papers and pleadings in the action." In re C.C., 788 N.E.2d 847, 851 (Ind.Ct.App. 2003), trans. denied. Indiana Trial Rule 5 states, "[s]ervice upon the attorney or party shall be made by delivering or mailing a copy of the papers to the last known address[.]" Ind. Trial Rule 5(B); In re B.J., 879 N.E.2d 7, 15 (Ind.Ct.App. 2008), trans. denied. To require service of subsequent papers, such as hearing notices, to rise to the level of service of process "would permit a parent or other party entitled to notice to frustrate the process by failing to provide a correct address and would add unnecessarily to the expense and delay in termination proceedings when existing provisions adequately safeguard a parent's due process rights." In re A.C., 770 N.E.2d 947, 950 (Ind.Ct.App. 2002).
[¶29] In this case, DCS served Father at his last known address in compliance with Indiana Trial Rule 5(B), and, although the dispositional order required Father to notify the FCM of any change in address within five days, Father did not do so. The FCM and the CASA attempted to contact Father by sending multiple emails and a text message to him, all without response. FCM Kersey testified that she had attempted to contact Father every two weeks via email, the only form of communication she had with Father, but Father had not responded. The FCM last received an email from Father in July 2023.
[¶30] More importantly, Father was represented by counsel who was present at the termination hearings, which provided due process protections to Father. During the hearings, counsel was able to cross-examine the witnesses presented by DCS and had the opportunity to present and object to the admission of evidence. However, counsel was unable to explain Father's failure to appear for the hearings, and Father offers no explanation on appeal. Under these circumstances, we conclude that the defective notice of the termination hearings did not rise to the level of a due process violation, Father was not prejudiced as a consequence of the defective notice, and accordingly, his due process rights were not violated. Based on the foregoing, we affirm the trial court's termination order.
[¶31] Affirmed.
Bailey, J., and Pyle, J., concur.