ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEES
Mark Small
Marion County Public Defender Agency                   Gregory F. Zoeller
Indianapolis, Indiana                                  Attorney General of Indiana

                                                       Robert J. Henke
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana

                                                       Patrick M. Rhodes
                                                       Marion County Department of Child
                                                       Services
                                                       Indianapolis, Indiana

                                                       DeDe K. Connor
                                                       Child Advocates, Inc.
                                                       Indianapolis, Indiana
______________________________________________________________________________



                               In the
                       Indiana Supreme Court
                           _________________________________

                                   No. 49S02-1402-JT-81                 Mar 26 2014, 11:41 am


IN THE MATTER OF THE INVOLUNTARY
TERMINATION OF THE PARENT-
CHILD RELATIONSHIP OF I.P.,

T.P.,
                                                       Appellant (Respondent),

                                         v.

INDIANA DEPARTMENT OF
CHILD SERVICES,
                                                       Appellee (Petitioner),
        AND

CHILD ADVOCATES, INC.,
                                                     Appellee (Guardian Ad Litem).
                           _________________________________

              Appeal from the Marion Superior Court, No. 49D09-1207-JT-29849
                            The Honorable Marilyn Moores, Judge
                             The Honorable Larry Bradley, Magistrate
                             _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-1303-JT-283
                           _________________________________

                                          March 26, 2014

Per Curiam.

       The Court has granted transfer to address due process safeguards where a magistrate
presiding over a termination of parental rights hearing resigns before reporting recommended
findings and conclusions to the judge. In this case and another termination case we decide today,
In the Matter of the Involuntary Termination of the Parent-Child Relationship of S.B., ___
N.E.3d ___ (Ind. 2014), we find the procedure used violated the parent's due process rights.


       The Marion County Department of Child Services petitioned to involuntarily terminate
the parental rights of T.P. ("Father") to his child. Magistrate Julianne Cartmel presided over the
termination hearing. Father was incarcerated. He participated in the hearing by telephone and
was represented by counsel. At the conclusion of the evidentiary hearing, Magistrate Cartmel
took the matter under advisement, but she resigned her position before reporting recommended
factual findings and conclusions to Judge Marilyn Moores. See Ind. Code § 33-23-5-9. The case
was transferred to Magistrate Larry Bradley, who, without holding a new evidentiary hearing,
reviewed the hearing record and reported recommended findings and conclusions. Judge Moores
approved the findings and conclusions and ordered Father's parental rights terminated. On
Father's appeal, the Court of Appeals found no due process violation and affirmed.


       The Fourteenth Amendment to the United States Constitution protects the traditional
right of parents to establish a home and raise their children. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). As we have observed, a parent's interest in
the care, custody, and control of his or her child is one of the oldest fundamental liberty interests,
and the parent-child relationship is one of the most valued in our culture. Id. Thus, when the
State seeks to terminate the parent-child relationship, it must do so in a manner that meets due
process requirements.     In the Matter of the Involuntary Termination of the Parent-Child


                                                  2
Relationship of C.G., 954 N.E.2d 910, 917 (Ind. 2011). The process due in a termination case
turns on 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 governmental
interest supporting use of the challenged procedure. Id. Both a parent's interest in the care,
custody, and control of a child, and the State's parens patriae interest in protecting a child's
welfare are substantial. Id. At issue here is whether the trial court's chosen procedure created a
risk of error.


        A party is entitled to a determination of the issues by the judge who heard the evidence,
and, where a case is tried to a judge who resigns before determining the issues, a successor judge
cannot decide the issues or enter findings without a trial de novo.        State ex rel. Harp v.
Vanderburgh Cir. Ct., 227 Ind. 353, 85 N.E.2d 254, 258 (1949). When a successor judge who
did not hear the evidence or observe the witnesses' demeanor attempts to weigh evidence and
make credibility determinations, the judge "is depriving a party of an essential element of the
trial process." In the Matter of the Involuntary Termination of the Parent-Child Relationship of
D.P., 994 N.E.2d 1228, 1232 (Ind. Ct. App. 2013) (quoting Urbanational Developers, Inc. v.
Shamrock Eng'g, Inc., 175 Ind. App. 416, 372 N.E.2d 742, 746 (1978)).


        It is precisely because the judge or magistrate presiding at a termination hearing has a
superior vantage point for assessing witness credibility and weighing evidence that we give great
deference to a trial court's decision to terminate a parent's rights. See In the Matter of the
Termination of the Parent-Child Relationship of E.M., No. 45S03-1308-JT-557, 2014 WL
895207, at *3 (Ind. Mar. 7, 2014). But in this case, the magistrate who reported recommended
findings and conclusions to the judge did not hear the evidence or observe the witnesses
firsthand.   And Father did not agree to have Magistrate Bradley recommend findings and
conclusions based on a review of the record. See Farner v. Farner, 480 N.E.2d 251, 257-58 (Ind.
Ct. App. 1985) (concluding parties may stipulate to have successor judge who did not preside at
evidentiary hearing decide the issues based on the record). We find the procedure used by the
trial court violated Father's due process rights. See In re D.P., 994 N.E.2d at 1233 (finding due
process violation where Magistrate Cartmel presided over parental termination hearing and then
resigned, and Magistrate Bradley reviewed the hearing record and reported recommended

                                                3
findings and conclusions to the judge, who approved the findings and conclusions and entered
order terminating parent's rights).


       The Court of Appeals also found Trial Rule 63(A) authorized Magistrate Bradley to
report recommended findings and conclusions without holding a new evidentiary hearing. We
find Trial Rule 63(A) inapplicable to this case. Trial Rule 63(A) permits a successor judge to
perform the duties of the predecessor judge "after the verdict is returned or the findings or
decision of the court is filed; but if he is satisfied that he cannot perform those duties because he
did not preside at the trial or for any other reason, he may in his discretion grant a new trial or
new hearing, in whole or in part." Magistrate Cartmel resigned before reporting recommended
findings to the judge. See Meade v. State, 588 N.E.2d 521, 523 (Ind. Ct. App. 1992) (finding
Trial Rule 63(A) inapplicable where judge who presided over post-conviction hearing became
unavailable before entering findings or decision).


       We reverse the trial court's judgment and remand for further proceedings consistent with
this opinion.


All Justices concur.




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