In the Matter of the Termination of the Parent-Child Relationship of: D.P. and D.P.E. and J.P. (Mother) v. Ind. Dept. of Child Services , 2015 Ind. App. LEXIS 154 ( 2015 )

Mar 16 2015, 9:49 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joann M. Price Gregory F. Zoeller
Merrillville, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
Donald W. Wruck
Wruck Paupore PC
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 16, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: D.P. and D.P.E. 45A03-1410-JT-358
and Appeal from the Lake Superior
J.P. (Mother) Court
The Honorable Thomas P.
Appellant-Respondent, Stefaniak, Jr., Judge
Cause Nos. 45D06-1403-JT-81
v. 45D01-1403-JT-82
Indiana Department of Child
Services,
Appellee-Petitioner
Bailey, Judge.
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Case Summary
[1] J.P. (“Mother”) appeals the trial court’s order granting the petition of the
Department of Child Services (“DCS”) to terminate Mother’s parental rights as
to D.P. and D.P.E. (“the Children”). Mother raises two issues for our review,
which we reframe as a single issue: whether the trial court deprived Mother of
due process of law when, in Mother’s absence and without representation of
counsel, it converted the nature of the proceedings and then terminated her
parental rights.
[2] Finding this a deprivation of due process guarantees, we reverse.
Facts and Procedural History
[3] D.P. was born to Mother in 2010; D.P.E. was born in 2011.1 Mother had a
learning disability and was unable to care for Children without supervision
from a friend or relative.
[4] On January 22, 2012, Mother was forced out of the home she shared with her
aunt. She found shelter in a friend’s home, who alerted DCS that Mother was
homeless and that Mother could not care for the Children without help.
Mother’s aunt was aware of this when she ejected Mother from the home.
Because of Mother’s disability, she received social security disability income
1
D.E., alleged father of both children, is not an active party to this appeal.
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which was managed by her aunt. Without the ability to manage her own
finances, Mother was unable to finance other housing. DCS removed the
Children from Mother’s care, and on January 24, 2012, the Children were
adjudicated as Children in Need of Services (“CHINS”).
[5] Over the course of the CHINS action, the Children were placed into a foster
home in which they thrived. Mother used some services, but was unable to
obtain permanent housing. She also missed numerous appointments with
service providers, often because she would leave Gary for Chicago, Illinois, and
find herself without money to return. Mother also missed several hearings and
other meetings associated with the CHINS action and DCS-provided services.
Beginning in June 2014, Mother ceased appearing for visitation with the
Children.
[6] On June 17, 2014, a permanency plan of termination of parental rights was
adopted, and DCS subsequently filed a petition to terminate Mother’s parental
rights as to the Children.2 The order adopting the permanency plan provided
that on October 3, 2014, a hearing would be conducted on the plan. On August
19, 2014, an initial hearing on the petition was conducted (“the August 19
hearing”). Mother did not appear for the hearing, and DCS sought to proceed
2
None of the parties to this appeal have provided this Court with a copy of the Chronological Case
Summary (“CCS”) or other docketing information from the trial court. We remind all parties that our
appellate rules require that at least one party to an appeal provide this document in an Appendix. See Ind.
Appellate Rules 50(a)(2)(a) & 50(a)(3). Nor have we been provided with a copy of DCS’s petition for
termination of parental rights.
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at that time with an evidentiary hearing on the petition. The trial court denied
DCS’s request, and instead scheduled an omnibus hearing for September 24,
2014.
[7] On August 21, 2014, DCS sent mail to Mother’s last known address to inform
her of the upcoming hearing. The letter stated:
Please find enclosed with this letter a copy of the Court Order of
August 19, 2014 setting your termination of parental rights matter for
Omnibus Hearing[3] on September 24, 2014 at 8:30 p.m…. If you fail
to appear, the court will proceed in your absence. You have the right
to appear in person or by sending a letter if unable to appear in person.
You also have the right to an appointed attorney if you cannot afford
to hire one yourself.
(App’x at 8.)
[8] The order enclosed with the letter included a list of those present and absent
from the August 19 hearing, recorded a finding of adequate service of process,
and included the statement that the court “Resets for a(n) Omnibus Hearing on
9/24/2014 at 8:30 AM.” (App’x at 9.)
[9] On September 23, 2014, the day prior to the scheduled omnibus hearing, a DCS
caseworker called Mother and confirmed over the phone that mother knew
about the hearing. Mother stated that she had arranged for transportation to
3
Neither the letter nor the court’s order defined the term “omnibus.” The term is not used in the statutory
language of our termination of parental rights statutes. The purpose of an omnibus date, as set forth in our
criminal statutes, “is to establish a point in time from which various deadlines … are established.” Ind. Code
§ 35-36-8-1(b). The Indiana Code no longer uses the term omnibus hearing in statutory language, but the
term generally refers to certain pretrial status hearings in criminal cases. See, e.g., Fajardo v. State, 859 N.E.2d
1201 (Ind. 2007).
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the hearing, and the DCS caseworker told Mother that if her arrangements fell
through, she could contact a DCS service provider for transportation assistance.
[10] Mother did not appear for the hearing on September 24, 2014 (“the September
24 hearing”). The individuals present in the courtroom, in addition to
courtroom staff, were an attorney for DCS, an attorney for the Children’s Court
Appointed Special Advocate (“CASA”), a DCS caseworker, and the Children’s
foster mother. Mother did not have counsel, nor had counsel been appointed
for her. 4
[11] In the absence of Mother or counsel for Mother, DCS moved the trial court to
proceed forward that day to an evidentiary hearing on the petition to terminate
Mother’s parental rights. The CASA agreed with DCS’s request to proceed to a
final evidentiary hearing. After hearing evidence concerning service of notice
upon Mother of the “omnibus hearing” and her failure to appear for other
appointments, the trial court permitted DCS to introduce evidence in support of
the petition to terminate Mother’s parental rights.
4
At some point during the proceedings, Mother was provided with a court-appointed guardian ad litem who
was present at some proceedings on Mother’s behalf; that guardian ad litem is Mother’s appellate counsel in
the instant appeal. Because we lack a complete record of the proceedings below during the pendency of the
CHINS case, see supra n.2, we have no record of whether the guardian was contacted concerning DCS’s
termination petition.
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[12] At the conclusion of the hearing, the trial court announced in open court that
DCS had met its evidentiary burden, and terminated Mother’s parental rights.
A written order was entered the same day.
[13] This appeal ensued.
Discussion and Decision
[14] On appeal, Mother’s contends that she was deprived of due process, first
claiming as inadequate the notice concerning the nature of the September 24,
2014 hearing, and second claiming as a violation of her due process rights the in
absentia hearing resulting in the termination of her parental rights.
[15] Our standard of review is highly deferential in cases concerning the termination
of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This
Court will not set aside the trial court’s judgment terminating a parent-child
relationship unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544
(Ind. Ct. App. 1997).
[16] Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet
their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not
to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied.
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[17] Here, Mother contends that the notice she received and the trial court’s decision
to hear evidence and enter a judgment despite her absence constituted a
violation of her due process rights. “[W]hen the government seeks to terminate
the parent-child relationship, it must do so in a manner that meets the
requirements of due process.” Q.B. v. Marion Cnty. Dep’t of Child Servs., 873
N.E.2d 1063, 1067 (Ind. Ct. App. 2007). These include not only compliance
with the various statutory requirements of the Indiana Code, but also the
fundamental constitutional requirements prohibiting “‘state action that deprives
a person of life, liberty, or property without a fair proceeding.’” In re A.B., 922
N.E.2d 740, 744 (Ind. Ct. App. 2010) (quoting In re B.J., 879 N.E.2d 7, 16 (Ind.
Ct. App. 2008), trans. denied).
[18] Among the protections written into our statutes, Indiana Code section 31-35-2-
6.5 provides the requirements for notice of a hearing on a petition to terminate
parental rights:
(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).
Individuals entitled to notice under the statute include a child’s parents and
legal counsel who has entered an appearance on behalf of the parents. I.C. §§
31-35-2-6.5(c)(1) & (2).
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[19] Compliance with the statute is mandatory and is a procedural precedent, but
not an element of a plaintiff’s claim. In re H.K., 971 N.E.2d 100, 103 (Ind. Ct.
App. 2012). Rather, a claim of inadequate notice under the statute is a defense
that must be asserted. Id. Once notice is placed at issue, the plaintiff must bear
the burden of proving compliance with the statute. Id.
[20] Further, our statutes afford parents the opportunity to be heard and to make
recommendations concerning their children. I.C. § 31-35-2-6.5. Parents are
also entitled to cross-examine witnesses, obtain witnesses and other evidence by
means of compulsory process, and introduce evidence. I.C. §§ 31-32-2-3(b)(1)-
(3). Finally, parents are entitled to court-appointed counsel when they have not
already waived that right, I.C. § 31-32-4-3, and “‘if the State imparts a due
process right, then it must give that right.’” In re G.P., 4 N.E.3d 1158, 1166
(Ind. 2014) (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)).
[21] “Due process has never been defined, but the phrase embodies a requirement of
‘fundamental fairness.’” In re C.G., 954 N.E.2d at 917. The U.S. Supreme
Court has stated, “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 (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.” C.G., 954 N.E.2d at 917.
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[22] Here, Mother claims that DCS’s notice of the upcoming hearing was
inadequate, and thus places at issue compliance with the notice statute. She
also contends that the trial court’s decision to terminate her parental rights in
her absence, without representation of counsel, was a violation of her statutory
and constitutional due process rights.
[23] We agree.
[24] Turning first to the adequacy of the notice, Mother does not contend that she
received no notice of the hearing. Rather, she argues that the notice she
received was not adequate to inform her of the nature of the proceeding.
[25] DCS sent Mother a letter on August 21, 2014, which stated, “Please find
enclosed with this letter a copy of the Court Order of August 19, 2014 setting
your termination of parental rights matter for Omnibus Hearing on September
24, 2014 at 8:30 am…. If you fail to appear the court will proceed in your
absence.” (App’x at 8.) Further, Geralyn Martin (“Martin”), a DCS
caseworker, called Mother the day before the hearing and spoke with Mother
on the telephone. Martin testified that she told Mother of the hearing and
“informed [her] that no matter if she is here or not here, the hearing will
proceed. And I stressed to her that she needed to be here this morning.” (Tr. at
7.)
[26] Mother argues that all of this was insufficient to inform her that her absence
from the September 24, 2014 hearing would result in the hearing becoming a
final fact-finding hearing on DCS’s petition to terminate her parental rights.
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Indeed, the hearing was not initiated as one intended to serve as an evidentiary
hearing on DCS’s petition. Rather, as the trial court observed, the hearing was
scheduled as an omnibus hearing. When, in light of Mother’s absence, DCS
again moved during the September 24 hearing to present evidence on its
petition for termination of Mother’s parental rights, the trial court requested
and was provided with evidence concerning DCS’s efforts to give Mother notice
of and obtain Mother’s participation in the omnibus hearing. DCS presented
testimonial and documentary evidence concerning Mother’s pattern of non-
attendance at hearings and at sessions and appointments related to DCS-
provided services, and the Children’s Court-Appointed Special Advocate
(“CASA”) made similar representations to the court. After hearing this, the
trial court granted DCS’s motion to proceed in Mother’s absence with an
evidentiary hearing on the termination petition.
[27] We note, however, that Mother did not have counsel present during either the
August 19 hearing or the September 24 hearing, nor was counsel appointed.
Thus, there was no one present at either hearing to ensure that Mother’s due
process rights were protected. This is even more egregious than A.B., which
likewise involved a deprivation of due process rights. 922 N.E.2d at 746. In
A.B., we reversed the termination of parental rights for a parent who was not
present for an already-scheduled final evidentiary hearing on a termination
petition. Id. at 743-44. A.B.’s mother was not present at the beginning of the
hearing, which began more than an hour after its scheduled time. Id. at 743.
The trial court permitted A.B.’s mother’s attorney to withdraw from the
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representation after the attorney had been unable to make contact, meet, or
speak with mother, and proceeded with the hearing. Id. A.B.’s mother
eventually arrived at the courthouse and, when the trial court was informed of
her presence, the court permitted mother to meet with counsel but refused to
allow mother into the hearing, stating, “‘We’re almost done here.’” Id.
(quoting the trial transcript).
[28] On appeal in A.B., this Court determined that this amounted to a due process
violation as to A.B.’s mother. Reversing the order terminating parental rights,
the A.B. Court observed:
[T]the risk of error is substantial where, as here, the juvenile court
terminates Mother’s parental rights after conducting a short hearing
during which only one witness for the State testifies, no cross-
examination is conducted, Mother is not represented by counsel, and
Mother is prohibited from attending the hearing and/or presenting
evidence in her favor although present in the courthouse before the end
of the hearing, albeit late.
Id. at 745.
[29] In reaching this conclusion, the A.B. Court relied upon an earlier case from this
Court, Thompson v. Clark Cnty. Div. of Family & Children, 791 N.E.2d 792 (Ind.
Ct. App. 2003). In Thompson, a divided panel of this Court observed that
Thompson had engaged in “deception and delay[ing] tactics,” id. at 796, which
resulted in numerous delays of a final hearing on a termination petition. Id. at
795. At the final hearing, “Thompson sought yet another continuance,” which
the trial court denied. Id. Upon motion and over the objection of Thompson’s
attorney, the trial court proceeded with an expedited proceeding and terminated
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Thompson’s parental rights. Id. Yet despite Thompson’s repeated deceptions
and delays, this Court concluded that “the trial court could have conducted the
final termination hearing in her absence where witnesses testified, cross-
examination was conducted, and exhibits were properly admitted into
evidence.” Id. at 796. Because none of this occurred, the Thompson Court
reversed the termination order.
[30] In the case now before us, two witnesses testified for DCS. One was a DCS
caseworker whose testimony and documents were the bulk of the evidence.
The other witness was Children’s foster mother, who was asked a total of four
questions and provided short, one-sentence answers. (Tr. at 29-30.) At the
conclusion of the hearing, the trial court ruled orally from the bench that DCS
had met its burden and granted the petition to terminate Mother’s parental
rights.
[31] Our review of the record discloses no opportunity for Mother to seek counsel,
save for a single sentence in the letter from DCS notifying Mother that she was
entitled to counsel; Mother did not, then, affirmatively waive counsel. See G.P.,
4 N.E.3d at 1164-65 (concluding that waiver of counsel and decision to proceed
pro se at an earlier stage of a CHINS proceeding does not work a permanent
waiver of right to appointed counsel upon a petition for termination of parental
rights). And while DCS regards Mother’s failure to seek counsel as a matter of
little moment—or even as waiver—under the totality of the circumstances, we
cannot agree. As in both A.B. and Thompson, Mother was denied a meaningful
opportunity for cross-examination, presentation of evidence, and indeed—
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unlike both A.B. and Thompson—representation of counsel. This is particularly
worrisome given DCS’s knowledge of Mother’s apparently significant learning
and cognitive problems, and the placement of the Children in a stable foster
home where the foster parent intended to adopt the children.
[32] The magnitude of Mother’s parental rights and the risk of error in the State’s
procedural approach in this case outweigh the State’s interests in its chosen
procedural path. See C.G., 954 N.E.2d at 917. Both constitutional and
statutory guarantees were transgressed. Accordingly, we cannot conclude that
Mother’s due process rights received adequate protection in this matter. We
therefore reverse the trial court’s order terminating Mother’s parental rights,
and remand for further proceedings.
[33] Reversed and remanded.
Robb, J., and Brown, J., concur.
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