In re the Termination of the Parent-Child Relationship of J.K., B.K., and I.R. (Minor Children) and L.R. (Mother) v. Indiana Department of Child Services

FILED
Sep 07 2018, 8:57 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Erin L. Berger Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the September 7, 2018
Parent-Child Relationship of Court of Appeals Case No.
J.K., B.K., and I.R. (Minor 18A-JT-529
Children) and Appeal from the Vanderburgh
L.R. (Mother), Superior Court
The Honorable Brett J. Niemeier,
Appellant-Respondent,
Judge
v. The Honorable Renee A.
Ferguson, Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 82D04-1711-JT-2034
82D04-1711-JT-2035
Appellee-Petitioner. 82D04-1711-JT-2036

Mathias, Judge.

Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 1 of 4
[1] The Vanderburgh Superior Court terminated L.R.’s parental rights to her

children without affording her due process under Indiana statute in several,

separate instances. For this reason, we reverse the trial court’s judgment.

[2] Initially, we observe that on June 9, 2018, our court issued an order addressing

due process violations in termination of parental rights cases from courts across

the state. Specifically, in the Order, our court noted that DCS has filed motions

for remand in too many cases conceding, as it did in this case, that the

Appellant had not been provided with due process or their due process rights

have been violated. In its motions, DCS requested that the cases be remanded

to the trial court for further proceedings consistent with due process. Our court

observed that

The increasing frequency of these motions suggest that there are
repeated, significant violations of due process occurring in
termination of parental rights cases throughout this state. This is
a disturbing trend given the fundamental rights at issue in these
types of cases. . . .

While the Court commends DCS for essentially conceding error
in these cases, the Court is obligated to formally admonish DCS
for its failure to afford litigants throughout this state the due
process rights they are owed. Furthermore, the Court also
reminds the trial courts throughout this state of their duty to
ensure that litigants’ due process rights are not violated. Given
the fundamental due process rights at issue in termination of
parental rights cases, affording litigants these fundamental due
process rights is essential, including not only the litigants but also
their children.

Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 2 of 4
 See Exhibit A,1 June 9, 2018 Order in Case No. 18A-JT-527. This case was

referenced in this Order.

[3] Here, L.R. failed to appear for a “status of counsel” hearing.2 For this reason

alone, and on the motion of the Department of Child Services (“DCS”), the

trial court entered a default judgment against her and terminated her parental

rights. L.R. filed a timely motion to correct error, and at the hearing held on

that motion, she was denied the opportunity to explain her failure to appear.

[4] DCS concedes that L.R. “was not provided the due process protection to which

she is entitled” and the “court's termination order does not satisfy the

requirements of Indiana Code [section] 31-35-2-8[.]” Appellee’s Br. at 10.

Specifically, the trial court failed to enter findings of fact and conclusions of law

as required by Indiana Code section 31-35-2-8. “Compliance with the statutory

procedure of the juvenile code is mandatory to effect termination of parental

rights.”3 In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (quoting In re

T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005)).

1
The June 9, 2018 Order specifically references ten cases. Four of those are from Judge Niemeier’s court.
The order is attached to this opinion as Exhibit A.
2
L.R. was present for an initial hearing held on November 28, 2017. At that hearing, L.R., who waived her
right to counsel during the CHINS proceedings, requested counsel, and counsel was appointed. The
chronological case summary describes the December 12, 2017 hearing as a “status of counsel hearing,” and
L.R. was told that the purpose of the December 12, 2017 hearing was to answer the petition to terminate her
parental rights. Appellant’s App. p. 15; Tr. p. 7. The December 12, 2017 hearing was not set as a fact-finding
hearing on the petition.
3
The transcript in this case shows repeated violations of L.R.’s fundamental due process rights. We are at a
loss as to any possible, just reason for such conduct.

Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 3 of 4
[5] For all of these reasons, we reverse the trial court’s order terminating L.R.’s

parental rights.

[6] Reversed and remanded for proceedings consistent with this opinion.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 4 of 4
 EXHIBIT A

IN THE

COURT OF APPEALS OF INDIANA
Termination:
A.A.,
Appellant, Court of Appeals Case No.
v. 18A-JT-527

Indiana Department of Child
Services, FILED
Appellee. Jul 09 2018, 3:46 pm

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

Order
[1] Appellant’s Brief and Appendix were filed on May 4, 2018. On May 31, 2018,
the Court ordered Appellee Indiana Department of Child Services (“DCS”) to
file its brief by June 18, 2018. Instead of filing a brief, DCS, by counsel, has
filed a Verified Motion to Remand, or in the Alternative, a New Briefing
Schedule. In the motion, DCS essentially concedes that Appellant was not
provided with adequate notice of the termination of parental rights hearing and
that the trial court violated Appellant’s due process rights when it defaulted her
while she was present in the court’s waiting room but excluded from the actual
courtroom. DCS asks that the case be dismissed without prejudice and
remanded to the trial court for further proceedings consistent with due process.
DCS alleges that Appellant does not object to remand.

[2] Over the past six (6) months, DCS has filed eight (8) motions to remand that
are substantively similar to the motion at issue here. See Termination: S.T. v.
Indiana Dep’t of Child Services, No. 48A02-1709-JT-2094; Termination: T.Z. v.
Indiana Dep’t of Child Services, No. 79A02-1710-JT-2406; Termination: K.P. v.
Indiana Dep’t of Child Services, No. 53A05-1712-JT-2830; Termination: N.L. v.
Indiana Dep’t of Child Services, No. 18A-JT-94; Termination: A.B. v. Indiana Dep’t
of Child Services, No. 18A-JT-170; Termination: C.S., et al. v. Indiana Dep’t of Child
Services, No. 18A-JT-280; Termination: J.F., et al. v. Indiana Dep’t of Child Services,

Page 1 of 3
 No. 18A-JT-341; Termination: L.R. v. Indiana Dep’t of Child Services, No. 18A-JT-
529. This is the ninth such motion filed by DCS, and the Court is aware of a
tenth motion that has been filed in Cause Number 18A-JT-530. The motions
are always filed after Appellant has filed their brief. In these motions, DCS
essentially concedes that Appellant has either not been provided with adequate
notice or that their due process rights have been violated. DCS then, as in this
case, requests that the matter be remanded to the trial court for further
proceedings consistent with due process.

[3] It is not clear why DCS has suddenly chosen to file motions to remand in these
cases rather than file a brief. The result of this, though, is that the Court has
primarily dealt with these issues through its orders and not in a formal opinion.
While the orders of this Court carry weight, they do not carry the weight or the
effect that an opinion from this Court does. By filing a motion to remand, DCS
has successfully avoided defending repeated, significant violations of due
process in termination of parental rights cases.

[4] The increasing frequency of these motions suggest that there are repeated,
significant violations of due process occurring in termination of parental rights
cases throughout this state. This is a disturbing trend given the fundamental
rights at issue in these types of cases. See In re Adoption of O.R., 16 N.E.3d 965,
972 (Ind. 2014) (noting that the Fourteenth Amendment to the United States
Constitution protects the rights of parents to establish a home and raise their
children, that parents have a fundamental liberty interest in the care, custody,
and control of their children, and that the parent-child relationship is one of the
most valued relationships in our culture).

[5] While the Court commends DCS for essentially conceding error in these cases,
the Court is obligated to formally admonish DCS for its failure to afford
litigants throughout this state the due process rights they are owed.
Furthermore, the Court also reminds the trial courts throughout this state of
their duty to ensure that litigants’ due process rights are not violated. Given the
fundamental due process rights at issue in termination of parental rights cases,
affording litigants these fundamental due process rights is essential, including
not only the litigants but also their children.

[6] Having reviewed the matter, the Court finds and orders as follows:

Page 2 of 3
 1. Pursuant to Appellate Rule 37, Appellee’s Verified Motion to Remand is
granted. This appeal is dismissed without prejudice and remanded to the
trial court for further proceedings consistent with due process.
2. Appellant may, after filing a new notice of appeal, raise the issues
Appellant would have raised in this appeal along with any new issues
created by the trial court’s ruling(s) on remand.
3. The Court directs that this order should be published. The Clerk of this
Court is directed to send copies of this order to West/Thomson Reuters,
LexisNexis, and all other sources to which decisions/opinions of this
Court are normally sent.
4. The Clerk of this Court is directed to send a copy of this order to the
parties, Judge Brent J. Niemeier of the Vanderburgh Superior Court,
Magistrate Renee A. Ferguson of the Vanderburgh Superior Court, the
Vanderburgh Circuit and Superior Courts Clerk, Indiana Attorney
General Curtis Hill, and Terry J. Stigdon, Director of the Indiana
Department of Child Services.
5. The Vanderburgh Circuit and Superior Courts Clerk is directed to file a
copy of this order under Cause Numbers 82D04-1711-JT-2195, 82D04-
1711-JT-2196, 82D04-1711-JT-2197, and 82D04-1711-JT-2198, and,
pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents
of this order in the Record of Judgments and Orders.

7/9/2018
Ordered

Mathias, J., Darden, Friedlander, Sr.JJ., concur.

For the Court,

Chief Judge

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