FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STEVEN J. HALBERT ROBERT J. HENKE
Carmel, Indiana DCS Central Administration
PATRICK M. RHODES
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
FILED
Jan 25 2013, 9:55 am
COURT OF APPEALS OF INDIANA
CLERK
of the supreme court,
court of appeals and
tax court
IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF: )
)
D.T. (Minor Child), )
)
and )
)
T.S. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1205-JT-420
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary Chavers, Judge ProTempore
The Honorable Julie Cartmel, Magistrate
Cause No. 49D09-1108-JT-33069
January 25, 2013
OPINION - FOR PUBLICATION
ROBB, Chief Judge
Case Summary and Issue
T.S. (“Father”) appeals the termination of his parental rights as to D.T. and raises one
issue on appeal: whether his due process rights were violated when the lower court did not
appoint a Guardian ad Litem (“GAL”) for Father. Concluding that his due process rights
were not violated, we affirm.
Facts and Procedural History
On August 11, 2010, D.T. (the “Child”) was born. At that time, Father was fifteen
years old. Two days later, the Department of Child Services (“DCS”) filed a petition alleging
that the Child was a Child in Need of Services (“CHINS”). Approximately a week after
birth, the Child was placed in foster care. At the initial court hearing, Father requested and
was appointed a public defender. In September 2010, the Child’s mother N.T. (“Mother”)
appeared with counsel and requested a GAL for herself; GALs were appointed for Mother
and for the Child, and the Child was found to be a CHINS.1 In October 2010, there was a
disposition hearing at which the court ordered, among other things, for Father to: participate
in a parenting assessment and complete all recommendations developed as a result of the
assessment; participate in and complete home-based counseling, and complete all
1
Mother was not a minor at the time of D.T.’s birth, but was appointed a GAL due to her lower
cognitive abilities.
2
recommendations of counselor; secure stable income; and obtain and maintain suitable
housing. The plan at that point was reunification of the Child with the parents.
On January 11, 2011, there was a placement and review hearing. Father was present
at the hearing, and was represented at that hearing by Mother’s attorney, who was sitting in
for Father’s attorney. The court noted that Father had refused to participate in services, had
stated that he did not want anything to do with the Child, and home-based counseling was
closed prior to completion due to his lack of participation. The court also noted that Father’s
mother (“Grandmother”) had not been meeting with home-based services, attending
meetings, or following recommendations.2 A little further into the hearing, Mother’s attorney
noted a conflict of interest and stated that he was no longer representing Father. The hearing
continued, and the court later noted again that Father did not want the Child, and that
Grandmother complained that home-based services kept asking her questions to which they
already knew the answers. The plan for permanency at the end of the hearing remained
reunification with the parents.
On January 14, 2011, Father admitted to a charge of possession of marijuana, a
misdemeanor if committed by an adult. In March 2011, Father’s probation officer filed a
petition for modification because Father had multiple absences from ordered programs and
was disruptive when he was present. The record indicates that in April 2011, Father told a
DCS case manager that he did not want to parent.
2
There is no participation decree for Grandmother in the record. However, the record is clear that
DCS and service programs were actively engaged with Grandmother and involved her in services, apparently
due to a combination of Father’s age, Father’s reluctance to participate, and general practices to involve the
3
In August 2011, the court held a permanency hearing. DCS requested that the
permanency plan be changed to adoption based on the lack of progress exhibited by the
parents. DCS also noted that Father was recently (re)engaged with home-based services but
earlier that week had told them that he did not want to participate in services, and that Father
had not been communicating with home-based services or returning calls. Father’s counsel
objected to the change in permanency plan, and said that Father was having a bad day when
he talked to home-based services earlier in the week, but that he was now willing to work
with services and would like to continue working toward having the Child in his home. The
Child’s GAL agreed with the plan being changed to adoption, but noted that because of
Father’s age, services should be continued for Father and he should be allowed to continue
visitation. The court ordered the plan changed to adoption with a review hearing scheduled
and services to continue for Father. The court told Father that
plan A is now that the child be adopted, but plan B is you could rally [Father]
and you can get this child. You can get this child, you can parent this child, so
in your young mind you’ve got to figure out what I want and then you have to
do that . . . . but right now based upon where we are and what I find is going to
be best for the child I’m going to change the plan to adoption.
Transcript at 8.
On December 13, 2011, the court held a review hearing at which it was noted that
Father was not participating in parenting skill services but was visiting the Child. A home-
based services representative said that she had not seen Father since November, and that he
did not want to participate in services and the home-based services would therefore be
entire family where possible.
4
closed. Father’s attorney noted that they were working on a waiver for Grandmother to be
able to adopt the Child, because she had a prior CHINS allegation herself; the record
indicates that the waiver would have been necessary not only for her to adopt the Child, but
also for the Child to be placed with Father, because Father was living at home with
Grandmother. The foster mother who had cared for the Child since he was about a week old
stated that she wanted to adopt him. The permanency plan at the end of the hearing was for
adoption.
On February 17, 2012, Father was charged with confinement and battery both with the
use of a deadly weapon, as felonies, and possession of a handgun as a misdemeanor.
On March 2, 2012, an evidentiary hearing was held on the termination petition. Father
testified that initially he did not want the Child, but that about two weeks after the Child was
born, he decided that he did want him in his life. A case manager testified that Father had
been vocally opposed to not only services but visitation until well into 2011. A home-based
case manager testified that Father had been told that the services were court-ordered, and
apparently made to understand that they were a pre-requisite to placement of the Child with
him.
The foster mother discussed the Child’s medical concerns, noting that he was on a
feeding tube for the first five months or so, and had physical therapy and frequent
appointments at Riley Children’s Hospital to deal with developmental delays. At the time of
the hearing, he was on physical therapy for mobility and was about to get leg braces to treat
bowlegs; he was on developmental therapy to address age appropriate behavior; he was on
5
occupational therapy to work on his feeding skills— he was at risk for aspiration and his
liquids had to be thickened; and he had frequent ear infections and was scheduled to have
tubes put in his ears that week. He had various therapy appointments every week. The foster
mother stated that when she dropped the Child off for visitation with the Father and Father’s
family, she made a point of telling the intermediary of upcoming appointments, and she left a
note in the diaper bag with the same information. Despite that, neither Father nor
Grandmother ever came to any of the Child’s medical appointments. She also said that
visitations with the Father were often canceled or cut short by Father. Father and
Grandmother both testified that the only medical issue they were aware of was that the Child
needed to have his liquids thickened.
A case manager testified that she could not recommend placement of the Child with
Father because of lack of follow-through and lack of progress on goals, and Grandmother
had not completed the information necessary for a waiver to place the Child in her home.
She had concerns about Father’s ability to parent the Child and address his medical needs.
She testified that she had worked with minor parents in the past, and while they try to engage
the entire family in every case, with minor parents they try especially to cater to the level of
understanding of the minor parent. In this case, they had referred home-based services to
Father multiple times because of his age, and his age also made the parenting skills classes
very important. He was also referred to Fathers and Families, an agency directed at young
fathers. She said that each referral had been made at least five times.
6
On April 24, 2012, the court issued an order terminating the parent-child relationship
of Father to the Child.3 The court found, among other things, that Father had made no effort
to learn any skills or to demonstrate the willingness or ability to address the Child’s medical
needs; Father refused to participate in services or training; Father would periodically state
that he would like to learn to parent the Child, but would make only cursory efforts to
participate in services and would completely fail to participate in any training to care for the
Child’s medical needs; Father resides with Grandmother and Grandmother has refused to
permit background checks; Father stated that he did not need to learn to parent the Child
because his family would be there to do it; Father continues to engage in delinquent activity;
and continuation of the parent-child relationship poses a risk to the Child and termination of
the relationship is in the best interest of the Child. This appeal followed.
Discussion and Decision
I. Standard of Review
The Due Process clause of the U.S. Constitution prohibits state action that deprives a
person of life, liberty, or property without a fair proceeding. When the State terminates a
parent-child relationship, it must do so in a manner that meets the requirements of due
process. C.T. v. Marion Cnty. Dept. of Child Servs., 896 N.E.2d 571, 586 (Ind. Ct. App.
2008), trans. denied. Due process within the context of termination of a parent-child
relationship requires a 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
3
The court also terminated the relationship between Mother and the Child, but Mother does not
7
countervailing governmental interest supporting use of the challenged procedure. Id. It is
well established that both the private interests and the State interests are substantial in
termination cases. See id.; In re A.L.H., 774 N.E.2d 896, 900-01 (Ind. Ct. App. 2002). The
factor at issue then is the risk of error.
II. Due Process
Father argues that his due process rights were violated when the court failed to appoint
him a GAL. We disagree. We do note at the outset however our disappointment with the
overall care that was taken with this case. We regret that the court allowed the January 11,
2011 hearing to continue without Father’s counsel present, particularly after Mother’s
counsel noted a conflict and stated that he could no longer stand in for Father’s counsel. We
also agree with Father that the participation decree could have been better tailored to a minor
parent and that the language regarding employment and housing was not written with a minor
parent in mind. However, Father also failed to meet the other, reasonable, requirements of
the decree— in particular, he failed to actively participate in or complete services, despite
being given multiple chances over the course of eighteen months. Because of that, in light of
the standard of the best interests of the child, we agree with the overall and final
determination of the juvenile court.
Father contends that a GAL would have insisted that the obligations imposed on
Father be tailored to a minor, and would have understood how important the choices made at
the initial CHINS hearing are. We observe that while the obligations were not well tailored
appeal.
8
to a minor, the court emphasized Father’s failure to meet obligations that were appropriate
for a minor. Additionally, Father was given multiple referrals to multiple different services
throughout the eighteen months leading up to termination, in large part out of respect for his
age. It was the sum total of Father’s lack of participation that largely informed the court’s
opinion, and not choices that were made at any one hearing.
DCS correctly argues that issues not timely raised below are waived on appeal, but
also notes that waived issues may nonetheless be addressed on appeal if they qualify as
fundamental error. Manuel v. State, 793 N.E.2d 1215, 1218 (Ind. Ct. App. 2003), trans.
denied; see also In re K.S., 750 N.E.2d 832, 834 (Ind. Ct. App. 2001). It does not appear that
Father raised the issue of appointment of a GAL below. To qualify as fundamental error, an
error must be so prejudicial to the rights of the defendant as to make a fair trial impossible
and must constitute a blatant violation of basic principles. Manuel, 793 N.E.2d at 1218. The
harm or potential for harm must be substantial, and the resulting error must deny the
defendant fundamental due process. Id.
We must determine whether any risk of error created by not providing Father with a
GAL tips the balance in favor of a determination that Father was denied due process. For
several reasons, we determine that it does not. Firstly, we note that Indiana law requires that
a GAL be appointed to represent and protect the best interests of a child when a child is
alleged to be a CHINS. Ind. Code § 31-34-10-3. However, that statute applies to the child
who is the subject of the CHINS allegation. See In re A.L.H., 774 N.E.2d at 901.
9
We have previously stated that termination proceedings are civil in nature, and are
therefore governed by the Indiana Rules of Trial Procedure. Crayne v. M. K. R. L., 413
N.E.2d 311, 313 (Ind. Ct. App. 1980). Trial Rule 17 requires that “[i]f an infant or
incompetent person is not represented, or is not adequately represented, the court shall
appoint a guardian ad litem for him.” In the present case, Father was represented by counsel
at all hearings except for the final half of the hearing at which Mother’s counsel was sitting
in for Father’s counsel, as noted above. Additionally, Father’s mother appears to have been
present at most hearings, and to have been involved in the case. The record does not
indicate, and Father does not contend, that he was inadequately represented. It was therefore
not required that the court appoint a GAL to Father. Father argues that a GAL should have
been appointed under Indiana Code section 31-32-3-11, which states that “[t]he juvenile
court may appoint a guardian ad litem or a court appointed special advocate, or both, for the
child at any time.” DCS argues that this section applies only to the child who is the subject
of a CHINS allegation. We disagree with DCS that this section is limited to CHINS cases;
rather, it is Indiana Code section 31-34-10-3 that is within the CHINS Article of the code and
applies only to the child who is the subject of a CHINS allegation. Section 31-32-3-11 could
have applied to Father, but the wording clearly indicates that appointment of a GAL under
that section is discretionary, and for the reasons outlined above, we do not believe the court
was required to appoint a GAL for Father. Because the court did appoint a GAL to both
Mother and the Child,4 the court must have been aware not only of the statutory requirement
4
DCS cites to Indiana Code section 29-3-2-1as the section under which Mother’s GAL was
10
of a GAL in some situations, but the court must also have been willing to assign a GAL when
appropriately requested even where the subject was represented by counsel, as Mother was.
The record does not indicate, and Father does not argue, that he ever requested a GAL at any
point in the process.
We conclude that any risk of error created by not providing Father with a GAL was
low. Father was represented by counsel,5 and Father’s mother was involved in the process.
Father makes statements about what a GAL would have done and how things would then
have been different, but we are not convinced. Father was given multiple chances to
participate in services and learn to parent the Child, but declined to do so. The record
indicates that Father chose not to participate in services, not that he did not participate
because he was unaware that the proscribed steps were necessary if he wanted to maintain his
relationship with the Child. The juvenile court properly determined that the best interests of
the Child would be best served by terminating the relationship between Father and the Child
and allowing the Child to be adopted. There was no fundamental error, and Father’s due
process rights were not violated when the court failed to appoint a GAL to him.
appointed. However, Title 29 deals with probate and is not relevant to the instant case. Exactly which code
section was used to appoint Mother’s GAL is immaterial, and Trial Rule 17 would apply to Father.
5
For the hearing at which Father was not represented for the final half, the plan for permanency at the
end of the hearing was still reunification. Moreover, it appears that most of the court’s focus on Father
occurred during the first portion of the hearing, when he was ostensibly represented by Mother’s counsel. This
was not a hearing in which the plan for permanency changed or where new obligations were imposed on
Father, nor was it the trial where evidence regarding termination was heard. While we do not approve of the
lower court’s handling of the representation situation that day, we also do not find any resulting error in the
later termination of Father’s parental rights.
11
Conclusion
Concluding that Father’s due process rights were not violated, we affirm.
Affirmed.
MAY, J., and PYLE, J., concur.
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