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


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  •                                                                             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.
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023                             Page 2 of 12
    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.
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023                       Page 3 of 12
    [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).
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023                                 Page 4 of 12
    
    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
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023          Page 5 of 12
    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:
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023        Page 6 of 12
    (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.
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023                           Page 7 of 12
    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.
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023          Page 8 of 12
    [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
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023        Page 9 of 12
    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).
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023         Page 10 of 12
    [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).
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023                            Page 11 of 12
    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.
    Court of Appeals of Indiana | Opinion 23A-JT-901 | December 29, 2023                              Page 12 of 12
    

Document Info

Docket Number: 23A-JT-00901

Filed Date: 12/29/2023

Precedential Status: Precedential

Modified Date: 12/29/2023