B.T. v. Clark County Division of Family & Children , 2003 Ind. App. LEXIS 1254 ( 2003 )

OPINION

VAIDIK, Judge.

Case Summary

Christine Thompson appeals the termination of her parental rights. Specifically, she contends that the trial court violated her due process rights by entering judgment against her without conducting a proper final termination hearing. Because the trial court conducted the hearing as a summary proceeding where no witnesses testified and no cross-examination was conducted, we conclude that Thompson’s due process rights were violated. We therefore reverse the trial court and remand this case for a proper final termination hearing.

Facts and Procedural History

Thompson has two children, B.T., who was born March 14, 1990, and A.T., who was born April 12, 1992. On February 9, 2001, the Clark County Division of Family and Children (DFC) filed petitions for the involuntary termination of Thompson’s parental rights to both B.T. and A.T. Thompson, who was represented by counsel, appeared at the March 2001 initial hearing, and the final termination hearing was set for June 2001. After a series of six continuances on behalf of Thompson and one continuance on behalf of the DFC, the final termination hearing was held on July 25, 2002. Just before the hearing was set to begin, Thompson called the trial court and said that she would be unable to make the hearing because she checked herself into The Healing Place, an alcohol and drug rehabilitation facility. Thompson’s attorney requested a continuance, and the trial court tentatively agreed to continue the hearing upon verification that Thompson was indeed a patient at the facility. The court reporter then called The Healing Place and was told that Thompson was not a patient there now nor had she ever been a patient there. The trial court therefore denied Thompson’s motion to continue and proceeded to conduct the final termination hearing in “an expedited manner” because Thompson “has failed to appear as a result of inexcusable neglect.” Tr. p. 23, 24. Over the objection of Thompson’s attorney, the court conducted a summary proceeding. Neither the DFC nor Thompson called any witnesses. Instead, the attorneys for both the DFC and Thompson gave summaries of what their witnesses would have testified to had a full hearing been conducted. Furthermore, the attorneys introduced various exhibits into evidence without sponsoring witnesses or foundations. After the summaries of the anticipated testimony, the trial court “grant[ed] the request by the Division of Family and Children for entry of a Default Judgment and thereby terminat[ed] the parental interest between the Natural Mother Christine Thompson and [B.T.] and [A.T.] ”¹ Tr. p. 38-39. This appeal ensued.

Discussion and Decision

Thompson challenges the termination of her parental rights on a number of grounds, one of which we restate and find dispositive: whether the trial court violated her due process rights by entering judgment in favor of the DFC after conducting a final termination hearing as a summary proceeding where no witnesses testified and no cross-examination was conducted. We first note that a parent does not have a constitutional right to be physically present at a final termination hearing. See J. T. v. Marion County Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind.Ct.App.2000), reh’g denied, trans. denied. However, under Indiana Code § 31-35-2-6.5(e), which governs hearings for petitions to terminate a parent-child relationship, “[t]he court shall provide to a [parent] an opportunity to be heard and make recommendations to the court at the hearing. The right to be heard and to make recommendations under this subsection includes the right of a [parent] to submit a written statement to the court....” Furthermore, Indiana Code § 31-32-2-3(b) provides that in proceedings to terminate the parent-child relationship, “[a] parent, guardian, or custodian is entitled: (1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian.”

In addition to these statutory provisions, the Due Process Clause of the United States Constitution prohibits state action that deprives a person of life, liberty, or property without a fair proceeding. In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind.Ct.App.2001), trans. denied. When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process. J.T, 740 N.E.2d at 1264. “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, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quotation omitted). The nature of 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. Id.; A.P. v. Porter County Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App.2000) (citing Mathews, 424 U.S. at 335, 96 S.Ct. 893), reh’g denied, trans. denied. The balancing of these factors recognizes that although due process is not dependent on the underlying facts of the particular case, it is nevertheless “flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334, 96 S.Ct. 893 (quotation omitted).

In this case, both the private interests and the countervailing governmental interests that are affected by the proceeding are substantial. In particular, the action concerns a parent’s interest in the care, custody, and control of his or her children, which has been recognized as one of the most valued relationships in our culture. J.T., 740 N.E.2d at 1264. Moreover, it is well settled that the right to raise one’s children is an essential, basic right that is more precious than property rights. In re M.G.S., 756 N.E.2d at 1005. As such, a parent’s interest in the accuracy and justice of the decision is commanding. J.T., 740 N.E.2d at 1264. On the other hand, the State’s parens patriae interest in protecting the welfare of the children involved is also significant. Id. Delays in the adjudication of a case impose significant costs upon the functions of the government as well as an intangible cost to the lives of the children involved. Id. Here, the final termination hearing was continued several times upon Thompson’s request. And immediately before the final termination hearing was set to begin, Thompson sought yet another continuance and gave a false reason in support thereof.

When balancing the competing interests of a parent and the State, we must also consider the risk of error created by the challenged procedure. The risk of error created by entering judgment after conducting a hearing as a summary proceeding where no witnesses testify and no cross-examination is conducted is substantial, in that the parent does not have an opportunity to present witnesses in his or her favor or to cross-examine opposing witnesses. Consequently, the trial court may not have an accurate picture of the evidence before making its decision. Not only does Indiana Code § 31-32-2-3(b) provide that a parent in a proceeding to terminate the parent-child relationship “is entitled ... to cross-examine witnesses ... [and] to introduce evidence on [his or her] behalf,” but cross-examination is “fundamental and essential to a fair trial.” Parker v. State, 773 N.E.2d 867, 869 (Ind.Ct.App.2002). Indeed, cross-examination is the very way to test the evidence that the dissent assumes to be true.

We have previously recognized the importance in termination of parental rights cases of conducting a hearing that meets due process requirements. In Pitts v. Johnson County Department of Public Welfare, 491 N.E.2d 1013 (Ind.Ct.App.1986), the trial court entered default judgment against the mother without conducting a hearing. In fact, the mother was not permitted to speak, present evidence, or cross-examine opposing witnesses. The mother appealed contending that her due process rights were violated. After acknowledging that persons faced with forced dissolution of their parental rights have a more critical need for procedural protections, this Court concluded that a hearing is required when default judgment is entered. Id. at 1016. Because the mother did not receive the benefit of a hearing where she could present evidence or cross-examine opposing witnesses, the court concluded that “it is clear the trial court’s action here violated procedural due proeess[.]” Id. at 1017. The court therefore reversed the entry of default judgment and remanded the case for further proceedings. Id.

Here, after the trial court denied Thompson’s motion to continue, the attorney for the DFC asked the court to proceed in an expedited manner and enter judgment in its favor. Despite Thompson’s attorney’s objection to the nature of the proceeding, the trial court nevertheless proceeded to terminate Thompson’s parental rights. See Trout v. Trout, 638 N.E.2d 1306, 1307-08 (Ind.Ct.App.1994) (opining that appellant waived any entitlement to relief from abbreviated hearing by failing to object but cautioning against the use of summary proceedings). While the trial court conducted a summary proceeding before entering judgment, it consisted of the attorneys for the DFC and Thompson giving summaries of the anticipated testimony and introducing exhibits into evidence without sponsoring witnesses or foundations. Included among the DFC’s exhibits were a psychological evaluation, which was hearsay, and seven of the court’s previous orders, which educated the court on Thompson’s past failings but did not speak to her present ability to properly care for her children. Further, no witnesses testified and no cross-examination was conducted.

Although we agree with the dissent that Thompson should not be rewarded for her deception and delay tactics, 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. Essentially, what happened here was no hearing at all. After balancing the substantial interest of Thompson with that of the State and in light of the substantial risk of error created by the challenged procedure, we conclude that the trial court’s entry of judgment terminating Thompson’s parental rights in this manner denied Thompson due process of law and violated the provision of Indiana Code § 31—32—2—3(b), which provides Thompson the opportunity to cross examine witnesses. Even though Thompson was given the opportunity to be heard at a meaningful time, she was not given the opportunity to be heard in a meaningful manner. As the dissent highlights, our decision will delay the children’s permanency. This is unfortunate but, nonetheless, required in an action as serious and intrusive as the termination of parental rights. We therefore reverse the entry of judgment terminating Thompson’s parental rights and remand this case to the trial court with instructions to hold a proper final termination hearing.

Reversed and remanded.

ROBB, J., concurs. FRIEDLANDER, J., dissents with separate opinion.

1 . Even though the DFC requested a default judgment, and the trial court referred to its judgment as a default judgment, this case did not involve a true default judgment. Young v. Elkhart County Office of Family & Children, 704 N.E.2d 1065, 1068, (Ind.Ct.App.1999) ("Where an issue of fact exists between the parties, a default judgment is improper. The court may, however, proceed to hear evidence and, if a prima facie case is established, render the appropriate judgment. Such a judgment is a judgment on the merits.") (citations omitted).