In the Matter of the Termination of the Parent-Child Relationship of, J.H. (minor child), and K.T. (father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
May 19 2015, 9:53 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
David E. Corey
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 19, 2015
of the Parent-Child Relationship Court of Appeals Cause No.
of, 49A02-1409-JT-613
Appeal from the Marion Superior
J.H. (minor child), Court
Cause No. 49D09-1402-JT-91

and, The Honorable Marilyn Moores,
Judge; The Honorable Larry
Bradley, Magistrate
K.T. (father),

Appellant-Respondent

v.

The Indiana Department of Child
Services,

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 Appellee-Petitioner.

Barnes, Judge.

Case Summary
[1] K.T. (“Father”) appeals the termination of his parent-child relationship with

J.H. We affirm.

Issue
[2] Father raises one issue, which we restate as whether he was denied due process

in the termination proceeding because of the alleged lack of notice in the

underlying child in need of services (“CHINS”) proceeding.

Facts
[3] J.H. was born in November 2009. Father saw J.H. just once in March 2011.

At some point, Father lived in California. In December 2012, J.H. was alleged

to be a CHINS, and Father was named as her alleged father with an unknown

address in California. The CHINS petition alleged that J.H.’s mother failed to

provide J.H. and her brother with a safe and sanitary living environment with

appropriate supervision. The petition also alleged that Father had not

successfully demonstrated the ability and willingness to appropriately parent

J.H.

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[4] In April 2013, a default judgment was entered against Father in the CHINS

proceeding after the trial court found that the Department of Child Services

(“DCS”) made diligent efforts to locate Father, that DCS published service by

notification three times in February 2013, that Father had not responded to the

publication, that he had not appeared before the court in the matter, that he had

not contacted DCS, that he had not demonstrated an ability or willingness to

parent J.H., that he had not participated in services, and that he was

unavailable and unable to parent J.H.

[5] In February 2014, the trial court approved DCS’s request to change the plan for

J.H. from reunification to adoption. The trial court found that Father had not

appeared in court or visited J.H. and that DCS did not know where Father was.

[6] On February 20, 2014, DCS filed a petition to terminate Father’s parental

rights. DCS then located Father in California and, on March 17, 2014, a

summons was sent to him at a detention facility in San Diego. On April 4,

2014, Father acknowledged receipt of the summons. Father did not appear at

an April 15, 2014 hearing, but the trial court acknowledged his request for

counsel and appointed counsel to represent him. Father participated at an April

25, 2014 hearing by telephone. On July 2, 2014, a termination hearing was

held. Father’s attorney was present at the hearing, and Father participated by

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 phone. On August 6, 2014, the trial court issued an ordering terminating

Father’s parental rights.1 Father now appeals.

Analysis
[7] Father challenges the termination of his parental rights on the basis that he was

not properly notified of the CHINS proceeding. Although Father uses the

terms subject matter jurisdiction, personal jurisdiction, and due process in his

brief, the focus of his argument appears to be the purported denial of procedural

due process, and we will review it as such.2

[8] Father did not object to the alleged lack of notice of the CHINS proceeding

during the termination proceeding and raises the issue for the first time on

appeal. “It is well established that we may consider a party’s constitutional

claim waived when it is raised for the first time on appeal.” Hite v. Vanderburgh

Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006).

Thus, this issue is waived. See id. at 180-81.

[9] Waiver notwithstanding, when the State seeks to terminate the parent-child

relationship, it must do so in a manner that meets the requirements of due

process. Id. at 181. “Due process in parental rights cases involves the balancing

1
Paternity of J.H. was confirmed after the July 2014 hearing was conducted.
2
Because Father does not provide us with cogent argument regarding why the trial court lacked subject
matter over the CHINS proceeding, this issue is waived. See Ind. App. R. 46(A)(8)(a). Further, many of the
authorities discussing personal jurisdiction that Father relies on relate to a party’s minimum contacts with
Indiana. Father does not make a cogent argument that he did not have the necessary minimum contacts with
Indiana, and this issue is waived. See id.

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 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

government interest supporting use of the challenged procedure.” Id.

[10] There is no doubt that Father’s private interest in his parental relationship with

J.H. is substantial. See id. Likewise, the government’s countervailing interest in

protecting the welfare of children is also substantial. Id. Thus, our focus is on

the risk of error.

[11] Father does not challenge the trial court’s findings following the termination

hearing or dispute that he was notified of and participated in the termination

proceedings while represented by counsel. Thus, the issue is whether the

alleged lack of notice of the CHINS proceeding deprived him of due process in

the termination proceeding.

[12] Regarding notice of the CHINS proceeding, the limited record on this issue

shows that Father testified he had received an email from DCS in April or May

2012 before the CHINS proceeding was initiated in December 2012. It is not

clear where Father was living when the CHINS petition was filed, but his

testimony indicated that he was released from incarceration in California in

January 2013 and reincarcerated in August 2013. A DCS caseworker testified

that, although Father could not be located in December 2012, she continued to

look for Father during the course of the CHINS proceeding. She stated that she

filed an affidavit of diligent inquiry detailing her efforts to locate Father. The

caseworker testified that she tried contacting J.H.’s mother to locate Father and

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 she searched the white pages, the department of correction system, and the

Marion County Jail system. She indicated her belief that they had searched for

Father in California but were not able to locate him until after February 20,

2014, when he was located in the San Diego County Jail. At that point, Father

indicated he did not want to start services until paternity had been established,

which did not occur until after the July 2014 hearing. In addition to DCS’s

efforts to locate Father during the pendency of the CHINS proceeding, the

CHINS order of default shows that Father was served by publication in March

2013.

[13] Father claims that DCS did not establish that it diligently searched for him

during the CHINS proceeding or appoint an attorney to represent him in that

proceeding. Father, however, does not specify what additional notice DCS was

legally required to provide to him as J.H.’s alleged Father whose whereabouts

were unknown or cite any authority suggesting that the trial court was required

to appoint an attorney to represent him in these circumstances. Moreover,

Father makes no argument that J.H. was not actually a CHINS.

[14] We have held that the failure to receive notice during the initial stages of a

CHINS action and copies of the case plan did not create a substantial risk of

error because the parent was not denied the opportunity to be heard in the latter

portions of the CHINS action and in the termination proceedings. See Hite, 845

N.E.2d at 184; but cf. A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d

1107, 1118 (Ind. Ct. App. 2000) (acknowledging that where “a record is replete

with procedural irregularities throughout CHINS and termination proceedings

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 that are plain, numerous, and substantial, we are compelled to reverse a

termination judgment on procedural due process grounds.”), trans. denied. In

Hite, we recognized:

although termination proceedings and CHINS proceedings have an
interlocking statutory scheme because involuntary termination
proceedings are governed by the CHINS statutory procedures, CHINS
proceedings are separate and distinct from involuntary termination
proceedings because a CHINS cause of action does not necessarily
lead to an involuntary termination cause of action.
[15] Id. at 182. More recently our supreme court has stated:

While we acknowledge a certain implication of parental fault in many
CHINS adjudications, the truth of the matter is that a CHINS
adjudication is simply that—a determination that a child is in need of
services. Standing alone, a CHINS adjudication does not establish
culpability on the part of a particular parent.
[16] In re N.E., 919 N.E.2d 102, 105 (Ind. 2010).

[17] Here, where DCS attempted to locate Father throughout the CHINS

proceeding and served him with notice of the CHINS proceeding by

publication, there was not a substantial risk of error in the termination

proceeding in which Father participated and was represented by counsel.

Father has not shown that he was denied due process.

Conclusion
[18] Father waived his procedural due process claim by not raising it during the

termination proceeding. Waiver notwithstanding, he has not established he

was denied due process under these facts. We affirm.

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[19] Affirmed.

Riley, J., and Bailey, J., concur.

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