Opinion
24A-JT-540
07-25-2024
In Re: The Termination of The Parent-Child Relationship of J.B. and P.L. (Minor Children) v. Indiana Department of Child Services, Appellee-Petitioner S.L. (Mother) and C.B. (Father), Appellants-Respondents
ATTORNEY FOR APPELLANT MOTHER Kay A. Beehler Kay A. Beehler, Esq. Terre Haute, Indiana. ATTORNEY FOR APPELLANT FATHER Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana. ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Adams Circuit Court The Honorable Chad E. Kukelhan, Judge Trial Court Cause Nos. 01C01-2310-JT-8, 01C01-2310-JT-9
ATTORNEY FOR APPELLANT MOTHER Kay A. Beehler Kay A. Beehler, Esq. Terre Haute, Indiana.
ATTORNEY FOR APPELLANT FATHER Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana.
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana.
MEMORANDUM DECISION
MATHIAS, JUDGE.
[¶1] S.L. ("Mother") and C.B. ("Father") appeal the Adams Circuit Court's orders terminating their parental rights to their two children. They argue that the orders are void for lack of personal jurisdiction because the Department of Child Services ("DCS") failed to properly serve them with the petitions to terminate their parental rights.
[¶2] We affirm.
Facts and Procedural History
[¶3] Parents have two children: J.B. born in June 2019 and P.L. born in October 2021. Both parents have a history of substance abuse issues and criminal offenses. DCS became involved with the family after the Parents were arrested for drug-related offenses.
Parents and DCS agree that C.B. is the biological father of both children even though he is only listed as the father on J.B.'s birth certificate.
[¶4] In May 2022, DCS filed a petition alleging that J.B. and P.L. were Children in Need of Services ("CHINS"), and Parents admitted to the allegations in the petition. Throughout the CHINS proceedings, Parents participated in services but also continued to test positive for controlled substances.
[¶5] In May 2023, while Father was serving a suspended sentence on home detention for a domestic battery conviction, he tested positive for fentanyl. Father also removed his home detention monitor and fled. Therefore, a court issued a warrant for his arrest. Shortly thereafter, a court issued a warrant for Mother's arrest after the State alleged that she had violated her probation, which she was serving as a result of convictions for operating while intoxicated and possession of marijuana.
[¶6] Due to Parents' continued substance abuse issues, failure to adequately participate in treatment for those issues, and their violations of probation, DCS filed petitions to terminate their parental rights to the children on October 12, 2023. DCS attempted to serve Parents at their last known address, but the attempt was unsuccessful. DCS tried to locate Parents by searching the DCS case management system, the Bureau of Motor Vehicles database, the Indiana Department of Correction offender database, and the white pages. DCS also contacted the county jail and a relative and utilized a private investigator to attempt to locate Parents. In addition, DCS attempted to serve Mother by email. Because DCS could not locate Parents using these methods, it asked the trial court to issue an order authorizing service by publication. The trial court granted DCS's request on November 13.
DCS filed separate petitions for each child.
[¶7] Four days later, the trial court held the initial hearing and appointed counsel for Parents. Parents did not appear in person at the hearing. The local newspaper published the summonses on November 16, 24, and 30. The trial court held the factfinding hearing on January 5, 2024, after denying Parents' motion for a continuance. Parents did not appear in person at the hearing. DCS presented evidence that Parents had not participated in visitation with the children for the preceding nine months and that they had failed to make any notable progress under the case plan. The family case manager and guardian ad litem testified that termination of Parents' parental rights was in the children's best interests. Tr. pp. 29-30, 36-37. Parents still had active warrants for their arrest on the date of the factfinding hearing.
[¶8] On February 8, the trial court issued its findings of fact and conclusions of law. The trial court found that Parents "have essentially abandoned" the children to avoid their active arrest warrants. Appellant's App. pp. 78, 166. The court concluded that DCS presented clear and convincing evidence of the requisite statutory factors and terminated Parents' parental rights to J.B. and P.L.
[¶9] Parents now jointly appeal the trial court's orders terminating their parental rights.
Our court granted C.B.'s motion to consolidate the Parents' appeals on March 25, 2024.
Discussion and Decision
[¶10] Parents argue that the trial court's orders terminating their parental rights are void for lack of personal jurisdiction because DCS failed to undertake sufficient efforts to serve them with the termination petitions in violation of their due process rights. The question as to whether process was sufficient to permit a trial court to exercise jurisdiction over a party involves two inquiries: whether there was compliance with the Indiana Trial Rules regarding service, and whether the attempts at service comported with the Due Process Clause of the Fourteenth Amendment. D.L.D. v. L.D., 911 N.E.2d 675, 679 (Ind.Ct.App. 2009), trans. denied.
[¶11] It is well-settled 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) (quotation omitted). Parental rights are "an important interest warranting deference and protection, and a termination of that interest is a 'unique kind of deprivation.'" In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). For this reason, "[w]hen the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process." In re J.K., 30 N.E.3d 695, 699 (Ind. 2015).
[¶12] Due process "embodies a requirement of 'fundamental fairness.'" In re C.G., 954 N.E.2d at 917 (quoting E.P. v. Marion County O.F.C., 653 N.E.2d 1026, 1031 (Ind.Ct.App. 1995)).
The U.S. Supreme Court has written that "the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (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. A.P. v. Porter County Office of Family &Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App. 2000,) trans. denied (citing Mathews, 424 U.S. at 335, 96 S.Ct. 893). The balancing of these factors recognizes that although due process is not dependent on the underlying facts of the particular case, it is nevertheless "flexible and calls for such procedural protections as the particular situation demands." Mathews, 424 U.S. at 334, 96 S.Ct. 893. Finally, we must keep in mind the general principle that "if the State imparts a due process right, then it must give that right." A.P. [], 734 N.E.2d at 1112.Id. In evaluating the three Mathews test factors, our courts have recognized that both the State and the parents have substantial interests affected by termination proceedings. Id. at 917-18. Therefore, the balancing of the Mathews test factors turns on "the risk of error created by" DCS's and the trial court's actions. Id. at 918.
[¶13] Parents argue that DCS's attempts to serve them with the petitions to terminate their parental rights were insufficient because DCS 1) failed to conduct a diligent inquiry to locate Parents, 2) made a major misrepresentation in the affidavit filed to establish that it had conducted a diligent inquiry, and 3) failed to effectuate proper service by publication.
[¶14] First, we address DCS's attempts to locate Parents. DCS attempted to serve Parents with the termination petitions at their last known address. After Parents' family case manager concluded that Parents no longer lived at that address, she searched for Parents' whereabouts on the DCS case management system, the Bureau of Motor Vehicles database, the Indiana Department of Correction offender database, and in the white pages. The family case manager also contacted the county jail and a relative, and she utilized a private investigator to attempt to locate Parents. She also attempted to serve Mother by email. Parents claim that these attempts at locating them were not diligent and argue that the family case manager should have searched social media websites.
[¶15] Parents cite to DCS policies and the means DCS may utilize to locate a missing parent, which are listed in the affidavit of diligent inquiry. Parents argue that of the fourteen possible means of locating a parent listed in the affidavit, DCS only utilized four of those methods. But several of the methods listed in the affidavit would not have yielded any additional information in this case because they involve determining the identity of the parent, which was not at issue in this case, or questioning the children or an emergency contact listed in their school records. The children's young ages in this case prevented DCS from attempting to locate parents by utilizing those methods. DCS used the methods available to them that might have reasonably resulted in information leading to the Parents' whereabouts. See In re C.G., 954 N.E.2d at 918 (determining that DCS undertook reasonable methods to attempt to locate the missing parent by searching DCS databases, the local telephone directory, the local jail, and the Indiana Department of Correction database).
[¶16] In addition, Parents suggest that DCS should have searched social media websites. While the family case manager could have utilized this method to search for Parents, it was also reasonable for the case manager to conclude that a social media search would not have resulted in any useful information because Parents were likely concealing their location due to the active warrants issued for their arrest.
[¶17] For these reasons, we disagree with Parents' claim that DCS failed to conduct a diligent search to attempt to locate Parents for the purpose of serving them with the termination petitions.
[¶18] Next, Parents claim that one of the affidavits of diligent inquiry, which was submitted with DCS's request for service by publication, contains a major misrepresentation. The affidavits of diligent inquiry were signed "under the penalties for perjury" by DCS Family Case Manager Amy Winkle. Appellants' App. pp. 34, 36, 129, 132. During the termination factfinding hearing, family case manager Kylee Simmons was asked whether she had knowledge that C.B. was P.L.'s father. Tr. p. 29. Simmons testified that Mother stated that C.B. was P.L.'s father, and she explained why he was unable to sign P.L.'s birth certificate. Id. Without reference to an exhibit or document, Simmons then testified that she "completed an affidavit of diligent inquiry regarding any unknown father" because paternity had not been established. Id. Citing this testimony, Parents claim that Simmons prepared one of the affidavits signed by Winkle. Appellants' Br. at 14. But they also concede that "it is unclear from the record whether FCM Simmons, and not Supervisor Winkle, actually conducted the inquiries and prepared the" affidavits of diligent inquiry "regarding Parents as well." Id.
[¶19] The record does not support Parents' speculative argument concerning the affidavits of diligent inquiry that were attached to DCS's request for service of the termination petition by publication. First, it is not clear whether Simmons was testifying about one of the four affidavits signed by Winkle that are included in the record on appeal. Simmons did not reference a specific document, and her testimony concerned her search of the putative father registry to determine whether someone other than C.B. claimed to be P.L.'s father. Parents, who were represented by counsel at the factfinding hearing, did not elicit any additional testimony about the preparation of the four affidavits in the record. As the State observes, it is possible that Winkle assisted in the inquiry concerning Parents' whereabouts or that Simmons reported her investigation and findings to Winkle. For these reasons, the record does not support Parents' claim that any of the affidavits contain a "major misrepresentation," see Appellants' Br. at 14, and Parents have not established a violation of their due process rights. Cf. In re C.G., 954 N.E.2d at 918-19 (concluding that a misrepresentation on the affidavit of diligent inquiry did not violate Mother's due process rights).
[¶20] Parents' final argument is that DCS's attempt to serve them by publication did not comply with Trial Rule 4.13. After DCS's attempts to serve Parents with the termination petitions were unsuccessful and it was unable to locate Parents, DCS requested permission to serve Parents by publication as allowed by Trial Rule 4.9. Trial Rule 4.13(B) lists the content required for a summons for service by publication, and DCS's summonses met the requirements of subsection (B). The summonses were also published by the Decatur Daily Democrat in accordance with Rule 4.13(C).
[¶21] Subsection (E) of Rule 4.13 provides that
Return. The clerk or person making the service shall prepare the return and include the following:
(1) Any supporting affidavits of the printer containing a copy of the summons which was published;
(2) An information or statement that the newspaper and the publication meet all legal requirements applicable to such publication;
(3) The dates of publication.
The return and affidavits shall be filed with the pleadings and other papers in the case and shall become a part of the record as provided in these rules.Id. (emphasis added).
[¶22] Parents observe that the "publisher's affidavit did not include any information or statement that the newspaper and the publication met all legal requirements." Appellants' Br. at 15 (citing Appellants' App. pp. 62-71, 14660). Further, Parents direct our attention to In re A.B., 226 N.E.3d 791, 797 (Ind.Ct.App. 2023), where our court stated that "strict compliance with Rule 4.13 is required for service by publication."
[¶23] The State concedes that the return does not meet the requirements of Rule 4.13(E)(2). Appellee's Br. at 19. But the State claims that the "apparent failure to include a statement that 'the newspaper and the publication meet all legal requirements applicable to such publication' is minor and technical and should not be used to reverse the termination order." Id. at 20. The State distinguishes In re A.B., because, in that case, DCS had failed to file an affidavit of diligent inquiry and proof of published notice. Id. (citing In re A.B., 226 N.E.3d at 797). Finally, the State relies on Trial Rule 4.15(F) to support its argument that DCS's failure to comply with Rule 4.13(E)(2) should not void the termination order.
[¶24] Rule 4.15(F) provides that a summons "or the service thereof" shall not be set aside or adjudged insufficient "when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond." The "savings provision" contained in Rule 4.15(F) "is meant to excuse minor, technical defects in the method of service where actual service has been accomplished." Cotton v. Cotton, 942 N.E.2d 161,166 (Ind.Ct.App. 2011) (quotation and citation omitted). And "the test for sufficiency of service of process under [Rule] 4.15(F) is identical to the requirements of due process, i.e., 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" See Yoder v. Colonial Nat. Mortg., 920 N.E.2d 798, 802 (Ind.Ct.App. 2010) (quoting Mullane v. Cent. Hanover Bank &Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).
[¶25] Here, the summonses were published three times in the Decatur Daily Democrat, which is published in Decatur, Indiana. The summonses were also published on the newspaper's website. Appellants' App. pp. 102, 146-160. Parents' last known address was in Decatur, Indiana.
Parents disagree with the State's characterization of the omission of the information required by Rule 4.13(E)(2) as "minor." Reply Br. at 7-8. We acknowledge Parents' argument that our General Assembly has imposed specific requirements for publication of legal notices. See id. (citing Ind. Code Art. 5-3). And we agree that service by publication "is essentially the 'last resort's means of service." Id. at 8. But, under the particular facts and circumstances of this case, Parents' arguments in this regard do not convince us that reversal is warranted.
[¶26] The facts and circumstances of this case lead us to conclude that DCS made reasonable efforts to locate and notify Parents that it had filed petitions to terminate Parents' parental rights to their children, but Parents did not want to be found likely because both had active warrants for their arrest. Parents do not contest publication of the summonses or that publication in the Decatur Daily Democrat was not reasonably calculated to apprise them of the termination proceedings. For these reasons, we conclude that DCS's failure to comply with 4.13(E)(2) did not render service insufficient, and therefore, the defect was cured by 4.15(F).
Conclusion
[¶27] We are unpersuaded by Parents' claim that the trial court's orders terminating their parental rights are void for lack of personal jurisdiction. DCS diligently attempted to locate and serve Parents with the petitions to terminate their parental rights. When those efforts failed, it perfected service by publication. For all of these reasons, we affirm the trial court's order terminating Parents' parental rights to J.B. and P.L.
[¶28] Affirmed.
Altice, C.J., and Bailey, J., concur.