MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 20 2019, 9:58 am

court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John T. Wilson                                            Curtis T. Hill, Jr.
Anderson, Indiana                                         Attorney General of Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                          February 20, 2019
Termination of the Parent-Child                           Court of Appeals Case No.
Relationship of:                                          18A-JT-2242
J.S. (Minor Child),                                       Appeal from the Madison Circuit
                                                          Court
and
                                                          The Honorable G. George Pancol,
A.S. (Father),                                            Judge
Appellant-Respondent,                                     Trial Court Cause No.
                                                          48C02-1802-JT-16
        v.

The Indiana Department
of Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019             Page 1 of 4
      Baker, Judge.


[1]   A.S. (Father) appeals the order terminating his parent-child relationship with

      J.S. Father argues that we should reverse because the Department of Child

      Services (DCS) did not provide the statutorily required notice of the final

      termination hearing. Finding that Father failed to preserve the issue for appeal,

      we affirm.


[2]   J.S. was found to be a child in need of services (CHINS) on February 5, 2014.

      Father failed to participate successfully with any of the court-ordered services in

      the CHINS case, including visits with his child. On February 6, 2018, DCS

      filed a petition to terminate Father’s parental rights.1 At that time, Father was

      incarcerated and was personally served in jail with all relevant documents,

      including notice of an initial hearing that would occur on March 5, 2018.


[3]   On March 5, 2018, the trial court held the initial hearing in the termination

      proceedings. Father failed to appear; the trial court appointed counsel for him

      and scheduled a factfinding hearing for May 29, 2018.


[4]   At the May 29, 2018, factfinding hearing, Father failed to appear but his

      attorney was present. Counsel for DCS stated that “there are no parents

      present although all had proper service.” Tr. Vol. II p. 4. Father’s attorney did

      not object regarding service or notice; therefore, no further discussion took




      1
          The parental rights of J.S.’s mother were also terminated but she has not appealed that order.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019                    Page 2 of 4
      place regarding the issue. On September 17, 2018, the trial court terminated the

      parent-child relationship between Father and J.S. Father now appeals.


[5]   Father’s sole argument on appeal is that DCS failed to provide him with notice

      in conformity with the requirements of Indiana Code section 31-35-2-6.5, which

      requires that DCS send notice to a parent at least ten days before the

      termination of parental rights factfinding hearing. This Court has explained

      that


              [c]ompliance with the statutory procedure of the juvenile code is
              mandatory to effect termination of parental rights. Although
              statutory notice is a procedural precedent that must be performed
              prior to commencing an action, it is not an element of [DCS’s]
              claim. Failure to comply with statutory notice is thus a defense that
              must be asserted. Once placed in issue, [DCS] bears the burden of
              proving compliance with the statute.


      In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (internal quotation marks

      and citations omitted) (emphasis added).


[6]   Here, Father did not raise the issue of notice at the termination hearing.

      Because Father did not raise the issue, DCS had no opportunity to present

      evidence of the notice and the trial court did not have the chance to determine

      whether notice was provided or, if there was no notice provided, whether the

      procedural irregularity violated Father’s due process rights.


[7]   Father argues that even if he waived the issue, the error was fundamental

      because it violated his due process rights. Initially, we note that we cannot

      discern if any error occurred at all because there is no evidence aside from
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019   Page 3 of 4
      Father’s self-serving statement that DCS did not, in fact, provide the required

      notice. Moreover, he had actual notice that the termination petition had been

      filed, he knew the date and time of the initial hearing, and the trial court

      appointed counsel to represent him. His attorney was able to cross-examine

      witnesses and to present and object to the admission of evidence at the

      factfinding hearing. See, e.g., In re K.W., 12 N.E.3d 241, 248-49 (Ind. 2014)

      (holding that parents do not have a constitutional right to be physically present

      at a termination hearing).


[8]   From this record, we cannot determine whether any error occurred at all. And

      if it did, we do not find that it was fundamental or that Father’s constitutional

      rights were violated.


[9]   The judgment of the trial court is affirmed.


      May, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019   Page 4 of 4
