in-the-matter-of-the-involuntary-termination-of-the-parent-child ( 2014 )

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Steven J. Halbert Gregory F. Zoeller
Carmel, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
Patrick M. Rhodes
Marion County Department of Child
Services
Indianapolis, Indiana
Ryan Kenneth Gardner
Child Advocates, Inc.
Indianapolis, Indiana
______________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S02-1402-JT-77 Mar 26 2014, 11:41 am
IN THE MATTER OF THE INVOLUNTARY
TERMINATION OF THE PARENT-
CHILD RELATIONSHIP OF S.B., AY.B.,
A.B. AND K.G.,
K.G.,
Appellant (Respondent),
v.
MARION COUNTY DEPARTMENT OF
CHILD SERVICES,
Appellee (Petitioner),
AND
CHILD ADVOCATES, INC.,
Appellee (Guardian Ad Litem).
_________________________________
Appeal from the Marion Superior Court,
Nos. 49D09-1208-JT-31368
49D09-1208-JT-31369
49D09-1208-JT-31370
49D09-1208-JT-31371
The Honorable Marilyn Moores, Judge
The Honorable Larry Bradley, Magistrate
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1303-JT-244
_________________________________
March 26, 2014
Per Curiam.
We granted transfer in this case and In the Matter of Involuntary Termination of the
Parent-Child Relationship of I.P., ___ N.E.3d ___ (Ind. 2014), to address due process safeguards
where a magistrate presiding over a termination of parental rights hearing resigns before
reporting recommended findings and conclusions to the judge. In accord with our decision today
in In re I.P., we find the procedure used in this case violated the parent's due process rights.
The Marion County Department of Child Services ("MCDCS") petitioned to
involuntarily terminate the parental rights of K.G. ("Mother") to her four children. Magistrate
Julianne Cartmel presided over the termination hearing. Mother did not attend, but she was
represented by counsel. At the conclusion of the evidentiary hearing, Magistrate Cartmel took
the matter under advisement, but she resigned her position before reporting recommended
findings and conclusions to Judge Marilyn Moores. See Ind. Code § 33-23-5-9. The case was
transferred to Magistrate Larry Bradley, who, without holding a new evidentiary hearing,
reviewed the hearing record and reported recommended findings and conclusions. Judge Moores
approved the findings and conclusions and ordered Mother's parental rights terminated. On
Mother's appeal, the Court of Appeals found no due process violation and affirmed.
In our decision today in In re I.P., we discuss the constitutional rights of parents to the
care, custody, and control of their children, and the process due a parent when the State seeks to
terminate a parent's rights. ___ N.E.3d at ___ (citing In the Matter of the Involuntary
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Termination of the Parent-Child Relationship of C.G., 954 N.E.2d 910, 917 (Ind. 2011); Bester
v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)).
In re I.P. also reasserts the principle that a party is entitled to a determination of the issues
by the judge who heard the evidence, and, where a case is tried to a judge who resigns before
determining the issues, a successor judge cannot decide the issues or enter findings without a
trial de novo. State ex rel. Harp v. Vanderburgh Cir. Ct., 227 Ind. 353, 85 N.E.2d 254, 258
(1949). When a successor judge who did not hear the evidence or observe the witnesses'
demeanor attempts to weigh evidence and make credibility determinations, the judge "is
depriving a party of an essential element of the trial process." In the Matter of the Involuntary
Termination of the Parent-Child Relationship of D.P., 994 N.E.2d 1228, 1232 (Ind. Ct. App.
2013) (quoting Urbanational Developers, Inc. v. Shamrock Eng'g, Inc., 175 Ind. App. 416, 372
N.E.2d 742, 746 (1978)).
It is precisely because the judge or magistrate presiding at a termination hearing has a
superior vantage point for assessing witness credibility and weighing evidence that we give great
deference to a trial court's decision to terminate a parent's rights. See In the Matter of the
Termination of the Parent-Child Relationship of E.M., No. 45S03-1308-JT-557, 2014 WL
895207, at *3 (Ind. Mar. 7, 2014). Magistrate Cartmel heard the evidence and observed the
witnesses firsthand, but she then resigned and Magistrate Bradley reviewed the record and
reported recommended findings and conclusions to Judge Moores, who approved the findings
and conclusions and entered a termination order. Mother did not agree to have Magistrate
Bradley recommend findings and conclusions based on a review of the record. See Farner v.
Farner, 480 N.E.2d 251, 257-58 (Ind. Ct. App. 1985) (concluding parties may stipulate to have
successor judge who did not preside at evidentiary hearing decide the issues based on the
record). Nor did Mother waive her due process right by failing to object, as MCDCS alleged.
Rather, it appears Mother was unaware of Magistrate Bradley's involvement in the case until
after entry of the termination order, which she challenged on appeal. In accord with In re I.P.,
we find the procedure used by the trial court violated Mother's due process rights. See In re D.P.,
994 N.E.2d at 1233 (finding due process violation where Magistrate Cartmel presided over
parental termination hearing and then resigned, and Magistrate Bradley reviewed the hearing
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record and reported recommended findings and conclusions to the judge, who approved the
findings and conclusions and entered order terminating parent's rights).
We reverse the trial court's judgment and remand for further proceedings consistent with
this opinion.
All Justices concur.
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