T.P. v. Child Advocates, Inc.

VAIDIK, Judge,

concurring in result.

In this case, the majority concludes that Father’s due-process rights were not violated when Magistrate Bradley reviewed the record and reported findings and conclusions to Judge Moores, despite the fact that Magistrate Bradley did not preside over the underlying evidentiary hearing. I respectfully concur in result because I agree, but my reasoning differs from the majority’s.4 I believe that Magistrate Bradley did not err because the underlying evidence was undisputed and did not require him to make any credibility determinations.

The State must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent-child relationship. Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind.Ct.App.2006) (citation omitted), tram, denied. Due process in parental-rights cases involves 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 government interest supporting the use of the challenged procedure. In re C.G., 954 N.E.2d 910, 917 (Ind.2011) (citing A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App.2000), reh’g denied, trans. denied). The private interest affected by the proceeding is sub*400stantial — a parent’s interest in the care, custody, and control of his or her child. Id. (citation omitted). And the State’s interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DOS’s actions and the trial court’s actions. Id.

Where evidence is heard by a trial judge who later dies or resigns from office before making findings or ruling on the evidence, the general rule is that a successor judge may not make findings or conclusions without a trial de novo. In re A.S. et al., 912 N.E.2d 840, 845 (Ind.Ct.App.2009) (citing Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App.1985)), trans. denied. “This is because ‘a party to an action is entitled to a determination of the issues by the jury or judge that heard the evidence.’ ” Farner, 480 N.E.2d at 257 (citation omitted). “In a case where the resolution of a material issue requires a determination as to the weight and credibility of testimony, due process requires that the trier of fact hear all of the evidence necessary to make a meaningful evaluation.” Id. (citation omitted). When a successor judge attempts to resolve credibility and weight-of-evidence issues without having heard the evidence and observed the demeanor of witnesses, the judge deprives the parties of an essential element of the trial process. Urbanational Developers, Inc. v. Shamrock Eng’g, Inc., 175 Ind.App. 416, 372 N.E.2d 742, 746 (1978) (citation omitted). “Such an undertaking by the successor judge is against the logic and effect of the facts and circumstances before the court and amounts to an abuse of discretion.” Id.

In two other cases stemming from Magistrate Cartmel’s resignation, this Court focused on the issues of credibility and weight of evidence. In D.P., another panel of this Court concluded that a father’s due-process rights were violated when Magistrate Bradley reviewed the record and reported factual findings and conclusions that Judge Moores later approved. In re D.P., 994 N.E.2d 1228 (Ind.Ct.App.2013). In D.P., the father testified and witnesses gave conflicting testimony regarding the child’s removal and the father’s ability to remedy the conditions leading to removal. Because the evidence was in conflict and credibility determinations had to be made, the panel determined that a new evidentia-ry hearing was required. In the second case, this panel affirmed a termination order based on Magistrate Bradley’s review of the record. In re S.B. et al., 999 N.E.2d 419, No. 49A02-1303-JT-244, 2013 WL 5799433 (Ind.Ct.App. Oct. 29, 2013). In S.B., there was no dispute that the mother, who did not appear during the termination proceedings, had failed to complete required services and had not secured stable housing or employment. There was also no dispute that the mother had stopped visiting the children and communicating with caseworkers. We concluded that Magistrate Bradley did not err by reviewing the record and reporting findings and conclusions to Judge Moores without holding a new evidentiary hearing because there were no credibility issues and the evidence was undisputed.5

The same is true here. Appearing by phone at the termination hearing, Father did not dispute the State’s evidence against him; namely, that his extensive criminal history made him unavailable to parent his son. Father has been convicted of six felonies since LP.’s birth, and as a *401result, has been incarcerated for three-fourths of the child’s life. See Tr. p. 109. He has not seen I.P. in years. Father also did not dispute that his son, who has special needs, was thriving in foster care and should not be removed from his placement.

Because both the State and Father have substantial interests in this termination proceeding, when determining what process is due, we focus on the risk of error. See C.G., 954 N.E.2d at 917. Any risk presented by the procedure used here is minimal. The evidence was not in dispute and there were no credibility determinations to be made. And Father was ably represented by counsel who had the opportunity to present evidence in his favor and cross-examine witnesses. See Tillotson v. Clay Cnty. Dep’t of Family & Children, 777 N.E.2d 741, 746 (Ind.Ct.App.2002) (Proper representation by counsel in a termination proceeding significantly decreases the risk of an inaccurate result.), trans. denied.

Our Courts have long recognized that parental rights “constitute an important interest warranting deference and protection,” while simultaneously acknowledging that “children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships.” C.G., 954 N.E.2d at 917 (citations omitted). Having considered Father’s rights at length, it should also be said that his child, I.P., has an undeniable interest in securing permanency and finality.

Because the evidence was undisputed and Magistrate Bradley was not required to make "any credibility determinations, I agree that Father’s due-process rights were not violated in this ease, and I respectfully concur in result.

. I concur in full with the majority’s treatment of Father’s Trial Rule 63(A) argument.

. Judge Baker concurred in result in S.B., articulating the reasoning found in the majority opinion here.