Termination: I B v. Indiana Department of Child Services ( 2023 )

FILED
Dec 29 2023, 8:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ronald J. Moore Theodore E. Rokita
The Moore Law Firm, LLC Attorney General of Indiana
Richmond, Indiana Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 29, 2023
of Parental Rights of: Court of Appeals Case No.
23A-JT-901
A.B. (Minor Child),
Appeal from the Randolph Circuit
and Court
I.B. (Mother), The Honorable Jay L. Toney,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 68C01-2209-JT-138
Indiana Department of Child
Services,
Appellee-Petitioner.
Opinion by Judge Kenworthy
Chief Judge Altice and Judge Weissmann concur.
Kenworthy, Judge.
Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023 Page 1 of 12
Case Summary
[1] Due process and due diligence go hand-in-hand. These principles are of utmost
importance in proceedings terminating parental rights. In this case, I.B.’s
(“Mother”) parental relationship with her child, A.B., was terminated even
though Mother was not adequately served with process. This shortcoming
violated Mother’s due process rights and prevented the trial court from
obtaining personal jurisdiction over her. Because the trial court’s order was
therefore void, we reverse and remand.
Facts and Procedural History
[2] Mother and C.B. (“Father”) are the biological parents of A.B. 1 Within a month
of A.B.’s birth, Randolph County Department of Child Services (“DCS”) filed a
petition alleging A.B. was a child in need of services (“CHINS”), in part
because of Mother’s and Father’s persistent drug use. Mother and Father
admitted A.B. was a CHINS on June 24, 2021—a day after A.B. turned two
months old.
[3] Because Mother and Father continued to use drugs and had not maintained a
stable home, DCS petitioned to terminate Mother and Father’s parental rights.
A summons was sent to Mother by certified mail addressed to her last known
address in Ohio. It was returned to DCS, marked as not deliverable. Before the
initial hearing, the trial court appointed the attorney who represented Mother in
1
Father—whose parent-child relationship with A.B. was also terminated—does not participate in this appeal.
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the underlying CHINS proceeding to represent her in the TPR proceeding.
Mother’s appointed counsel appeared at the initial hearing. Mother did not.
[4] In mid-November 2022, DCS requested permission to serve Mother via
publication. Although DCS did not file an affidavit of diligent inquiry along
with its praecipe, the trial court granted DCS permission to serve Mother by
publication. DCS did not file proof of publication thereafter. Instead, a few
days later, DCS submitted proof of service upon Mother based on DCS Family
Case Manager Brittany Duffer personally serving Danielle Smith—Father’s
mother 2—at Smith’s home in Richmond, Indiana. DCS and the trial court
deemed Smith to have accepted service on Mother’s behalf.
[5] The trial court held a fact-finding hearing on February 2, 2023. And just like at
the initial hearing, Mother’s appointed counsel was present, but Mother herself
was not. At the start of the hearing, Mother’s counsel indicated she tried to
contact Mother and inform her about the fact-finding hearing multiple times.
But Mother never responded. Mother’s counsel further explained she had “no
good address” for Mother and had “not had contact with [Mother] for a
substantial period of time.” Tr. Vol. 2 at 4. Shortly after, counsel for DCS
conveyed to the trial court that DCS “did make in-person service on both
parents for the date and time of today’s hearing.” Id. at 5.
2
The record refers to Smith as “Paternal Grandmother.” Mother and Father are not married, so Mother and
Smith have no blood or legal relationship.
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[6] The trial court terminated Mother’s parental relationship with A.B. In its order,
the trial court stated: “All persons required to be notified of these proceeding[s]
and the hearings were so notified.” Appellant’s App. Vol. 2 at 68. It continued:
“Mother received adequate service of the Petition and of the date and time of
these proceedings, and she has willfully chosen not to attend this hearing.” Id.
Additional facts are provided when necessary.
1. Due Process is Essential in TPR Proceedings
[7] On appeal, Mother claims her due process rights were violated because she was
not served with process. 3 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). And the parent-
child relationship is one of the most valued relationships in our culture. See In
re Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014).
[8] That is not to say parental rights are absolute; they are not. See R.S., 56 N.E.3d
at 628. But parents’ liberty interest in the care, custody, and management of
their child “does not evaporate simply because they have not been model
parents or have lost temporary custody of their child to the State.” In re C.G.,
3
On appeal, DCS contends Mother waived her due process argument by failing to raise it in the trial court.
Generally, a party waives on appeal an issue that was not raised before the trial court. See, e.g., Plank v. Cmty.
Hosp. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). But we have discretion to address such claims, especially
when they involve constitutional rights, the violation of which would be fundamental error. Id. at 53–54. As
further discussed below, terminating Mother’s parental rights implicates her substantive and procedural due
process rights. Thus, we exercise our discretion to review Mother’s due process claim even though it was not
raised below. See id.; see also Pierce v. State, 29 N.E.3d 1258, 1268 (Ind. 2015) (denoting a preference for
resolving cases on their merits).
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954 N.E.2d 910, 917 (Ind. 2011) (quoting Santosky v. Kramer, 455 U.S. 745, 753
(1982)). Said differently, parental rights are “an important interest warranting
deference and protection, and a termination of that interest is a ‘unique kind of
deprivation.’” Id. at 916–17 (describing involuntary termination of parental
rights as “an extreme measure that is designed to be used as a last resort when
all other reasonable efforts have failed”) (quoting Lassiter v. Dep’t of Soc. Servs.,
452 U.S. 18, 27 (1981)). Thus, “[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) (quoting In re G.P., 4 N.E.3d
1158, 1165 (Ind. 2014)) (emphasis added).
[9] Due process embodies the idea of fundamental fairness and the “opportunity to
be heard at a meaningful time and in a meaningful manner.” C.G., 954 N.E.2d
at 917 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Due process is
“flexible and calls for such procedural protections as the particular situation
demands.” Mathews, 424 U.S. at 334 (quotation omitted). When determining
the process due in a termination of parental rights proceeding, we balance 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. The balancing of these factors often turns on the risk of error
created by DCS’ actions and the trial court’s actions because a parent’s private
interest in the care, custody, and control of his or her child and the State’s
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parens patriae interest in protecting the welfare of a child are both substantial.
Id. at 917–18.
2. DCS Did Not Comply with the Indiana Trial Rules; Thus,
the Trial Court Lacked Personal Jurisdiction Over Mother
[10] In essence, Mother contends she was not served with a summons, the trial court
lacked personal jurisdiction over her because of the lack of service, and the
order terminating her parental rights was therefore void. “Ineffective service of
process prohibits a trial court from having personal jurisdiction over a
respondent.” In re J.H., 898 N.E.2d 1265, 1268 (Ind. Ct. App. 2009), trans.
denied. A judgment rendered without personal jurisdiction over a defendant
violates due process, is void, and may be attacked at any time. Id. And the
existence of personal jurisdiction is a question of law entitled to de novo review.
Id.[11] Whether process was sufficient to warrant exercise of personal jurisdiction over
a party turns on two issues: (1) Was there compliance with the Indiana Rules of
Trial Procedure regarding service; and (2) Did the attempts at service satisfy the
Due Process Clause of the Fourteenth Amendment? Id.[12] A proceeding to terminate parental rights is essentially an in rem proceeding and
as such is governed by the Indiana Rules of Trial Procedure. Id. Indiana Trial
Rule 4.1 provides the following for service of process upon individuals:
(A) In General. Service may be made upon an individual, or an
individual acting in a representative capacity, by:
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(1) sending a copy of the summons and complaint by registered
or certified mail or other public means by which a written
acknowledgment of receipt may be requested and obtained to his
residence, place of business or employment with return receipt
requested and returned showing receipt of the letter; or
(2) delivering a copy of the summons and complaint to him
personally; or
(3) leaving a copy of the summons and complaint at his dwelling
house or usual place of abode; or
(4) serving his agent as provided by rule, statute or valid
agreement.
(B) Copy Service to Be Followed With Mail. Whenever service
is made under Clause (3) or (4) of subdivision (A), the person
making the service also shall send by first class mail, a copy of
the summons and the complaint to the last known address of the
person being served, and this fact shall be shown upon the return.
[13] DCS first tried to serve Mother under Rule 4.1(A)(1) by sending a copy of the
summons and complaint by certified mail to Mother’s last known address in
Ohio. 4 The summons and complaint were returned as undeliverable. See King
v. United Leasing, Inc., 765 N.E.2d 1287, 1290 (Ind. Ct. App. 2002) (explaining
4
DCS contends, “Mother would have been informed in the underlying CHINS case that her failure to
comply with services and to maintain contact with DCS could result in the termination of her parental
rights.” Appellee’s Br. at 23. Of course, we hope this is true, but neither party has provided us with any
indication that Mother was actually informed. A copy of the Parental Participation Plan was not made part
of the appellate record and we were unable to access it in the Odyssey Case Management System.
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unclaimed service is insufficient to establish a reasonable probability that a
defendant received adequate notice and to confer personal jurisdiction); see also
Mills v. Coil, 647 N.E.2d 679, 681 (Ind. Ct. App. 1995) (stating service upon a
defendant’s former residence is insufficient to confer personal jurisdiction),
trans. denied. Service was not made under Rule 4.1(A)(1), so DCS pursued
another method.
[14] Next, DCS requested permission to serve Mother by publication. Trial Rule
4.9—governing in rem proceedings—allows service of a summons to be made
by publication. Under Rule 4.13, the person or entity seeking service by
publication shall submit to the court a request for such service in a praecipe. See
Ind. Trial Rule 4.13(A); see also J.H., 898 N.E.2d at 1268. The praecipe shall be
filed “along with supporting affidavits that diligent search has been made” and that the
defendant cannot be found, has concealed her whereabouts, or has left the state.
T.R. 4.13(A) (emphasis added); see also Munster v. Groce, 829 N.E.2d 52, 58–59
(Ind. Ct. App. 2005) (describing this portion of the rule as a presumptive
requirement that a party swear to due diligence in attempting to locate an
interested party before he or she may seek service by publication). We note that
Rule 4.13 employs mandatory language of “shall” rather than the permissive
language of “may.” Therefore, it is not “merely a suggestion to counsel seeking
service by publication to prepare these specific documents; it is a directive.”
Harris v. Del. Cnty. Div., of Fam. & Child. Serv., 732 N.E.2d 248, 249 (Ind. Ct.
App. 2000). Put differently, strict compliance with Rule 4.13 is required for
service by publication.
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[15] Here, the trial court granted DCS permission to serve Mother by publication.
See Appellant’s App. Vol. 2 at 46–49. Upon review of the record, however, we
cannot find any indication that DCS filed an affidavit of a diligent search
alongside its praecipe, as required by Rule 4.13, even though the praecipe
references the filing of an affidavit. Problematically, the trial court still granted
DCS permission to serve Mother by publication. Further, DCS did not submit
proof of published notice. See T.R. 4.13(E). At bottom, DCS’ efforts fell well
short of the requirements of Rule 4.13.
[16] Then, DCS attempted to serve Mother by giving a copy of the summons to
Smith at Smith’s home in Richmond, Indiana. DCS believes this method of
service satisfied Rule 4.1(A)(3)—which permits serving an individual by leaving
a copy of the summons and complaint at her dwelling house or usual place of
abode—claiming “[s]ervice at [Smith’s] home was reasonably calculated to
render [Mother] service of process, and was thus the best method to inform
Mother of the termination proceedings.” Appellee’s Br. at 19. In DCS’ view, “it
was reasonable for DCS to consider [Smith’s] home Mother’s ‘usual place of
abode’ because Mother had often lived with [Smith] during the underlying
CHINS case.” Id. at 18. And DCS contends Smith “was acting as Mother’s
personal representative” when she accepted service on Mother’s behalf. Id. at
12.
[17] We need not address whether DCS complied with Rule 4.1(A)(3), however,
because DCS did not comply with Rule 4.1(B). Whenever service is made
under Rule 4.1(A)(3), the party making service is also required to send a copy of
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the summons and complaint to the last known address of the person being
served. See T.R. 4.1(B). Confirmation of the additional mailing must be shown
on the return. See T.R. 4.1(B). The purpose behind Rule 4.1(B) is to “increase
the odds that the served party will receive timely notice of the suit.” Boczar v.
Reuben, 742 N.E.2d 1010, 1016 (Ind. Ct. App. 2001). Compliance with Rule
4.1(B) is “a jurisdictional prerequisite to obtaining personal jurisdiction.”
Barrow v. Pennington, 700 N.E.2d 477, 479 (Ind. Ct. App. 1998) (describing Rule
4.1(B) as “unambiguously mandatory”). In other words, “service of process in
contravention of T.R. 4.1(B) is not sufficient to confer personal jurisdiction over
a defendant.” LePore v. Norwest Bank Indiana, N.A., 860 N.E.2d 632, 635 (Ind.
Ct. App. 2007) (quoting Barrow, 700 N.E.2d at 479).
[18] Technically insufficient service under Rule 4.1(B) may nevertheless be sufficient
under Trial Rule 4.15(F) if the service is “reasonably calculated to inform the
person to be served that an action has been instituted against [her].” T.R.
4.15(F). But Rule 4.15(F) “will not excuse noncompliance with trial rule
4.1(B).” Barrow, 700 N.E.2d at 479; see also LaPalme v. Romero, 621 N.E.2d
1102, 1106 (Ind. 1993) (explaining Rule 4.15(F) cures only technical defects in
service of process, “not the total failure to serve process”); see also In re C.C., __
N.E.3d __, 2023 WL 6979258, at *5, No. 23A-JT-848 (Ind. Ct. App. Oct. 24,
2023) (indicating “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”) (quotation omitted).
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[19] DCS concedes “there is no evidence in the record that DCS . . . sent the
summons and petition to Mother’s last known address as required by Trial Rule
4.1(B).” Appellee’s Br. at 19. DCS contends noncompliance should not matter
because the clerk had already sent a copy of the summons and complaint to
Mother’s last known address in Ohio and the attempt came back as
undeliverable. But our case law indicates noncompliance with Rule 4.1(B) does
matter. See Barrow, 700 N.E.2d at 479. The record lacks assurances that DCS
sent a follow-up copy of the summons by first-class mail. And any such efforts
were not indicated on the return. Said another way, DCS’ complete failure to
provide adequate proof of service is not a “minor defect” that can be cured by
Rule 4.15(F). See C.C., __ N.E.3d __, 2023 WL 6979258, at *5. 5
[20] In sum, Trial Rules 4–4.17 provide several methods DCS could have used to
serve Mother with process. Because DCS failed to fully comply with any of its
available options, the trial court never obtained personal jurisdiction over
5
Mother’s whereabouts were largely unknown at the time of the termination hearing. Mother (and Father)
lived at Smith’s home during various portions of the underlying CHINS case, but it is unclear whether she
still lived there during the termination proceeding. For instance, Mother’s counsel did not have a current
address for Mother and had “not had contact with [Mother] for a substantial period of time.” Tr. Vol. 2 at 4.
And DCS first sent a copy of the summons and complaint to Mother’s last known address in Ohio before
turning to Smith’s home in Richmond, Indiana. Further, at the time DCS served Smith, DCS was
investigating an unrelated CHINS matter involving Smith and her children, and found that Smith’s
methamphetamine use and pending drug-related criminal charges eliminated her as a viable placement
option for A.B. Although this information does not affect our determination that DCS did not comply with
Rule 4.1(B), it does shed light on the adequacy of serving Mother through Smith pursuant to Rule 4.1(A)(3).
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Mother. The trial court’s order terminating Mother’s parental rights was
therefore void. 6
Conclusion
[21] Put bluntly, the record is replete with procedural irregularities and demonstrates
an overall lack of care and caution required in this type of proceeding.
Significant and blatant service errors were overlooked by counsel and the trial
court. Because Mother’s due process rights were violated below and the trial
court never obtained jurisdiction over Mother, we reverse and remand.
[22] Reversed and remanded.
Altice, C.J., and Weissmann, J., concur.
6
In addition to complying with the Indiana Rules of Trial Procedure when a petition is filed, the person who
filed the petition to terminate the parent-child relationship is required to send notice of the termination
hearing at least ten days prior to the hearing date to a number of interested persons, including the parents.
See I.C. § 31-35-2-6.5(b). Failure to comply with statutory notice, however, is a defense that must be asserted.
In re C.C., 170 N.E.3d 669, 675 (Ind. Ct. App. 2021). Although Mother did not raise this defense below, we
note that the record reveals DCS did not comply with the notice requirements imposed by statute. This
furthers our concern regarding the deprivation of Mother’s due process rights below.
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