J.H. and T.G. v. Indiana Department of Child Services ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
THOMAS C. ALLEN ROBERT J. HENKE
Fort Wayne, Indiana Indiana Department of Child Services
Indianapolis, Indiana
ROBERTA RENBARGER
Fort Wayne, Indiana ALISA RUDE
Indiana Department of Child Services
Fort Wayne, Indiana
IN THE FILED
Jul 26 2012, 9:11 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
J.H. and T.G., ) tax court
)
Appellants-Respondents, )
)
vs. ) No. 02A03-1112-JT-556
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
The Honorable Lori K. Morgan, Magistrate
Cause No. 02D08-1106-JT-94, 02D08-1106-JT-95 and 02D08-1108-JT-111
July 26, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
J.H. (“Father”) and T.G. (“Mother”) (collectively “Parents”) appeal the trial
court’s termination of their parental rights to their children E.H., M.H., and A.H. Parents
present the following two issues for our review:
1. Whether they were denied their right to due process when the trial
court admitted into evidence Exhibit 16 at the termination hearing
regarding E.H. and M.H.
2. Whether the trial court lacked personal jurisdiction over Parents for
lack of proper service in the matter regarding A.H.
We affirm.
FACTS AND PROCEDURAL HISTORY
Parents, who have never married, have three children together: E.H., born
February 3, 2009; M.H., born November 17, 2009; and A.H., born October 3, 2010.
After M.H. was born, a meconium test was positive for marijuana, and Parents’ behavior
while at the hospital raised “some concerns” from hospital staff. Transcript E.H. 1 at 20.
In addition, the Indiana Department of Child Services (“DCS”) received information
“regarding neglectful home conditions” for E.H. Id. Accordingly, DCS removed both
children from Parents’ care and filed a petition alleging that both children were children
in need of services (“CHINS”). At the time, Mother tested positive for and confirmed
using marijuana before M.H. was born. Mother also tested positive for morphine, for
which she did not have a prescription.
1
There were two termination hearings in this case: one regarding E.H. and M.H. and the second
regarding A.H. We will refer to the first transcript as “Transcript E.H.” and the second transcript as
“Transcript A.H.”
2
During subsequent hearings on the matter, Parents admitted to the allegations of
the CHINS petition,2 and E.H. and M.H. were so adjudicated. At the dispositional
hearing on January 29, 2010, the trial court issued parent participation plans. The trial
court ordered Parents to: refrain from all criminal activity; maintain clean, safe and
appropriate housing; notify DCS within forty-eight hours of all changes in household
composition, housing, and employment; cooperate with all caseworkers, the Guardian Ad
Litem (“GAL”) and/or Court Appointed Special Advocate (“CASA”), by attending all
case conferences as directed, maintaining contact, and accepting announced and
unannounced home visits; immediately provide caseworkers with accurate information
regarding paternity, finances, insurance, and family history; immediately provide
caseworkers and mental health specialists with signed and current consents of release and
exchange of information; provide the children with clean, appropriate clothing at all
times; and fully cooperate with all rules of the children’s placement. In addition, the trial
court ordered Parents to: obtain a drug and alcohol assessment and follow all
recommendations of the assessment; obtain suitable employment and/or seek assistance
to reapply for social security disability income; take all medications as prescribed;
provide appropriate caretakers for the children as directed; obtain psychiatric and
psychological evaluations and follow the recommendations; submit to random urinalysis
testing, drug screens, and/or oral swabs as required by DCS caseworkers and refrain from
use of alcohol, illegal drugs, and other substance abuse; and attend and appropriately
participate in all visits with the children as directed.
2
DCS filed an amended petition and a second amended petition alleging the children to be
CHINS. Parents admitted to the allegations contained in the second amended petition.
3
Parents met with DCS caseworker Molly Hall for an initial case conference on
December 7, 2009, and they discussed the parent participation plans. Parents’
psychological evaluations were scheduled for December 30, but when Hall showed up at
their apartment to drive them to the appointment, they were not home, and they missed
the appointments. The appointments were rescheduled five more times, but Parents
failed to show at those appointments too. Finally, on February 8, 2011, Parents
completed their psychological evaluations. Mother was diagnosed with bipolar disorder,
post-traumatic stress disorder, marijuana abuse disorder, and borderline personality
disorder. Father was diagnosed with bipolar disorder, generalized anxiety disorder,
marijuana abuse disorder, and “personality traits of anti-social personality.” Transcript
E.H. at 27. Dr. David Lombard recommended that Mother undergo a psychiatric
evaluation for psychotropic medication, cognitive behavior therapy, dialectical behavior
therapy, substance abuse treatment, supervised visitation, and parent education. And Dr.
Lombard recommended that Father also undergo a psychiatric evaluation for
psychotropic medication, cognitive behavior therapy, substance abuse treatment,
supervised visitation, and parent education. Mother did not comply with any of Dr.
Lombard’s recommendations. And while Father underwent a psychiatric evaluation, he
attended only a single therapy session after that and otherwise was noncompliant.
Further, other than the psychological assessments and sporadic visitation with the
children, Parents failed to comply with most of the requirements under the parent
participation plans.
4
In the meantime, Mother gave birth to A.H. on October 3, 2010. Because Parents
did not have stable housing, and because E.H. and M.H. were already CHINS, DCS
removed A.H. from Parents’ care and filed a petition alleging A.H. to be a CHINS. The
trial court issued parent participation plans for Father and Mother, but they did not
comply with those plans as ordered.
On July 12, 2011, DCS filed a petition seeking the involuntary termination of
Parents’ parental rights to E.H. and M.H. An evidentiary hearing on the termination
petition was held on August 2. Parents failed to appear at the hearing. DCS presented
significant evidence concerning Parents’ refusal to participate in the services
recommended by Dr. Lombard, their inability to maintain stable employment or other
sources of income, and general inability to care for the children. DCS caseworker Hall
testified that Parents had lived in approximately seventeen different residences during the
pendency of the case, mostly staying with friends in overcrowded apartments. DCS also
presented evidence establishing that the children were happy and thriving in a foster
home. At the conclusion of the hearing, the trial court issued its order terminating
Parents’ parental rights to E.H. and M.H.
Shortly thereafter,3 DCS filed a petition to terminate Parents’ parental rights to
A.H. DCS attempted service on Parents by certified mail to their last known address, but
that notice was unsuccessful. After making a diligent search for Parents’ whereabouts,
DCS attempted service by publication. And on September 1, the trial court appointed
counsel for Parents and a CASA for A.H. Parents failed to appear at the termination
3
Neither party has included copies of the petitions to terminate parental rights in an appendix on
appeal, and the CCS does not clarify the date that the petition pertaining to A.H. was filed.
5
hearing on October 11, and the trial court defaulted Parents. Parents also failed to appear
at a second termination hearing on October 18, and, after hearing evidence, the trial court
issued its order terminating Parents’ parental rights to A.H. This appeal ensued.
DISCUSSION AND DECISION
Standard of Review
We begin our review by acknowledging that when reviewing a termination of
parental rights, we will not reweigh the evidence or judge the credibility of the 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 that are most favorable to the judgment. Id.
Moreover, in deference to the trial court’s unique position to assess the evidence, we will
set aside the court’s judgment terminating a parent-child relationship only if it is clearly
erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Here, in terminating Parents’ parental rights, the trial court entered specific factual
findings and conclusions. When a trial court’s judgment contains specific findings of fact
and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine
whether the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. “Findings are clearly erroneous only when the record
contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. L.S., 717 N.E.2d at 208.
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. However, a trial court must
subordinate the interests of the parents to those of the child when evaluating the
circumstances surrounding a termination. K.S., 750 N.E.2d at 837. Termination of a
parent-child relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s own child should not be terminated
solely because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
Before an involuntary termination of parental rights can occur in Indiana, the State
is required to allege and prove, 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 well-being of
the child.
***
(C) that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2). The State’s “burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). Moreover, Indiana Code
7
Section 31-35-2-8(b) provides that if a trial court does not find that the allegations in the
termination petition are true, “the court shall dismiss the petition.” Id. (emphasis added).
Finally, Indiana’s termination statute provides that DCS need establish only one of the
requirements of subsection (b)(2)(B) by clear and convincing evidence before the trial
court may terminate parental rights.
We observe that Parents do not challenge the sufficiency of the evidence to
support any of the trial court’s findings or allege that the findings do not support the
conclusions.
Issue One: Due Process
Parents first contend that the trial court denied them their right to due process
when it considered as evidence State’s Exhibit 16, which, they allege, was not admitted
into evidence during the termination hearing regarding E.H. and M.H. State’s Exhibit 16
was the Second Amended Verified Petition Alleging Children to be in Need of Services.
When the State sought to introduce that document as Exhibit 11 during the hearing,
Parents’ attorneys each objected on the basis that it was “inaccurate” in that it did not
include handwritten modifications of parents’ admissions and denials to the allegations
therein. Transcript E.H. at 10. Accordingly, the State submitted another version of the
Second Amended Verified Petition, which included the handwritten notations, as Exhibit
16 after the hearing had concluded. Thus, on appeal, Parents “contend that the court’s
inclusion of Exhibit 16 into the record without the opportunity to view, object to its
admission, or respond to the evidence violated their due process rights to have a fair
trial.” Brief of Appellants at 15.
8
Trial court error, even of constitutional dimension, does not necessarily require
reversal of a conviction. Bush v. State, 775 N.E.2d 309, 311 (Ind. 2002). Rather, if the
error is such that it would not affect the outcome of the trial, we deem it harmless. Id.
This rule applies equally to the termination of parental rights as to a criminal conviction.
Here, we need not address whether the trial court violated Parents’ due process
rights on this issue because, even if there were error, it was clearly harmless. Parents
assert that Exhibit 16, the second amended CHINS petition, was evidence used by the
trial court to support its conclusion that the reason for the children’s removal from the
parents’ care would not be remedied. See I.C. § 31-35-2-4(b)(2)(B)(i). But the trial court
also concluded that continuation of the parent-child relationships poses a threat to the
well being of the children. See I.C. § 31-35-2-4(b)(2)(B)(ii). And Parents do not make
any contention that the trial court relied on Exhibit 16 in making that conclusion.
Because the statute is written in the disjunctive, again, DCS need only prove either
subsection by clear and convincing evidence. Because Parents do not make a
constitutional or sufficiency of the evidence challenge with regard to subsection (B)(ii),
the trial court’s termination order is adequately supported by that and its other findings
and conclusions that are not challenged by Parents on appeal.
Issue Two: Personal Jurisdiction
Parents next contend that the trial court did not have personal jurisdiction over
them in the termination proceeding as to A.H. In particular, they maintain that there “was
never service of a proper summons” on each of them. Brief of Appellants at 16. We
cannot agree.
9
In D.L.D. v. L.D., 911 N.E.2d 675, 679 (Ind. Ct. App. 2009), trans. denied, we set
out the applicable standard of review as follows:
The existence of personal jurisdiction over a defendant is a question of law
and a constitutional requirement to rendering a valid judgment[.] . . . Thus,
we review a trial court’s determination regarding personal jurisdiction de
novo. Although we do not defer to the trial court’s legal conclusion as to
its existence, personal jurisdiction turns on facts; accordingly, findings of
fact by the trial court are reviewed for clear error. Clear error exists where
the record does not offer facts or inferences to support the trial court’s
findings or conclusions of law.
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. It is commonly understood that procedural
due process includes notice and an opportunity to be heard.
(Citations omitted).
Here, because Parents had not maintained contact with their case manager at DCS,
as required under their parent participation plans, DCS could not locate Parents at the
time the termination petition was filed. DCS had, however, just a few weeks prior,
advised Parents that the petition would be filed and that they should stay in touch with
their caseworker. DCS attempted service of process on Parents at their last known
address, but it was unsuccessful. Accordingly, DCS attempted service by publication.
And in support of that service by publication, DCS submitted to the trial court an
Affidavit for Diligent Search, which stated as follows:
1. That affiant is the Allen County Office of the Department of Child
Services case manager currently assigned to [Parents’] case.
2. Affiant’s last contact with [Mother and Father] was at the Permanency
Hearing on July 14, 2011.
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3. [Mother]’s last known address as reported on the record at the
Permanency Hearing on July 14, 2011[,] is 420 Bass Street, Fort Wayne, IN
46802.
4. Affiant sent notice via regular and certified mail and said notice did not
return undeliverable.
5. [Father]’s last known address as reported on the record at the
Permanency Hearing on July 14, 2011[,] is 420 Bass Street, Fort Wayne, IN
46802.
6. Affiant sent notice via regular and certified mail and said notice did not
return undeliverable.
7. [Father] and [Mother] were notified on the record at the Permanency
Hearing on July 14, 2011 that the Department would be filing for
Involuntary Termination of Parental Rights and that they should remain
available.
8. Affiant has attempted to reach [Mother] and [Father] by last known
phone number, but the number is no longer in service.
9. Affiant researched the Department of Correction records and did not
locate [Mother] or [Father] incarcerated in any State facility.
10. Affiant was unable to locate [Mother] and [Father] at the Allen County
Jail.
11. Affiant was able to obtain information via Facebook, which stated that
[Father] had left with J & J. Affiant understands that this means J & J
Entertainment’s traveling carnival where [Mother] and [Father] worked
from July to October 2010. Affiant also obtained a police report from July
2011 that stated [Father] informed law enforcement that he was leaving
with the traveling carnival the following day.
Appellants’ App. at 16-17.
Indiana Code Section 31-32-9-2 provides in relevant part that if, in an action to
terminate a parent-child relationship, the parent cannot be served in accordance with Rule
4.1 of the Indiana Rules of Procedure, service must be made by publication. And Indiana
Trial Rule 4.13 provides in relevant part:
In any action where notice by publication is permitted by these rules
or by statute, service may be made by publication. Summons by
publication may name all the persons to be served, and separate
publications with respect to each party shall not be required. The person
seeking such service, or his attorney, shall submit his request therefor upon
the praecipe for summons along with supporting affidavits that diligent
search has been made that the defendant cannot be found, has concealed his
11
whereabouts, or has left the state, and shall prepare the contents of the
summons to be published. The summons shall be signed by the clerk of the
court or the sheriff in such manner as to indicate that it is made by his
authority.
(Emphasis added).
Here, Parents contend that “the search by DCS was not diligent or reasonably
calculated to find them.” Brief of Appellants at 19. In particular, Parents assert that,
despite the “tidbit of information” regarding Parents’ employment with J & J
Entertainment, “DCS did nothing to follow up on it.” Id. Parents maintain that DCS
should have attempted to contact J & J Entertainment to determine the carnival’s
schedule, which would have facilitated “private process or other personal service” on
Parents. Id. In addition, Parents contend that DCS should have sent a message to Parents
via Facebook.
In D.L.D., a dissolution case, the father argued “that his service by publication did
not comport with the requirements of Trial Rule 4.13(A) because Mother’s affidavit was
submitted after the publication and because she did not try to serve him at his last known
employer’s place of business.” 911 N.E.2d at 679. But, in her affidavit,
Mother averred that she had been unable to locate Father since their
separation, she had gone to his last known residence and discovered that he
had been evicted, she tried to locate Father at his best friend’s house, she
placed a telephone call to that friend and also attempted to contact Father’s
mother. Mother further averred that, during her deployment to Kosovo,
A.D. had remained at the home of her maternal grandmother, without
receiving any communication from Father. Finally, Mother averred that
she had “made diligent efforts to locate [Father] both before and after the
publication of summons.”
(Citation omitted). We observed that the father had not “point[ed] to any requirement
that service must be attempted at a party’s place of employment prior to publication.” Id.
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at 680. And we held that “Father has not persuaded us that his service by publication
failed to comport with Trial Rule 4.13(A).” Id. We further held that the mother had
made an “adequate showing of due diligence, such that we can conclude that the trial
court obtained personal jurisdiction over Father in a manner consistent with the Due
Process Clause.” Id.
We follow the sound reasoning in D.L.D. and hold that DCS was not required to
attempt to contact Parents through their employer, J & J Enterprises. Further, to the
extent that Parents contend DCS should have contacted them via Facebook, we cannot
say that such was required given the multiple other ways DCS attempted to contact
Parents. Moreover, Parents were under a court order to maintain contact with DCS and
advise DCS of their whereabouts and willfully failed to comply. The DCS caseworker’s
affidavit of due diligence is sufficient to show compliance with Trial Rule 4.13 and
comports with Due Process requirements. Parents cannot show that the trial court lacked
personal jurisdiction over them for purposes of the termination of their rights to A.H.
Affirmed.
RILEY, J., and BAILEY, J., concur.
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