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.) ( 2020 )

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,
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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.
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[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.
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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.
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[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
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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,
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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.
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[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
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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).
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(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.,
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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.
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