MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be                                      Nov 27 2019, 11:06 am
regarded as precedent or cited before any
                                                                                CLERK
court except for the purpose of establishing                                Indiana Supreme Court
                                                                               Court of Appeals
the defense of res judicata, collateral                                          and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nancy A. McCaslin                                        Curtis T. Hill, Jr.
McCaslin & McCaslin                                      Attorney General of Indiana
Elkhart, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                         November 27, 2019
Termination of the Parent-Child                          Court of Appeals Case No.
Relationship of A.T., B.T., and                          19A-JT-1034
Z.T. (Minor Children)                                    Appeal from the Elkhart Circuit
     and                                                 Court
                                                         The Honorable Michael A.
S.T. (Father),                                           Christofeno, Judge
Appellant-Respondent,                                    The Honorable Deborah A.
                                                         Domine, Magistrate
        v.
                                                         Trial Court Cause Nos.
                                                         20C01-1903-JT-37
The Indiana Department of                                20C01-1903-JT-38
Child Services,                                          20C01-1903-JT-39
Appellee-Petitioner.



Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1034 | November 27, 2019                   Page 1 of 5
                                          Case Summary
[1]   S.T. (“Father”) challenges the trial court order terminating his parental rights to

      his children, A.T., B.T., and Z.T. (collectively, “Children”). We address one

      dispositive issue on appeal: whether the trial court abused its discretion when it

      entered default judgment against Father. The Indiana Department of Child

      Services (“DCS”) agrees that the termination of parental rights (“TPR”) order

      was improper because DCS failed to provide Father with written notice of the

      request for default judgment at least three days prior to the hearing on that

      request.


[2]   We reverse and remand.



                            Facts and Procedural History
[3]   On August 20, 2014, the Johnson County DCS office filed verified petitions

      alleging B.T. (born April 6, 2006) and Z.T. (born March 25, 2009), the sons of

      Father and St.T. (“Mother”), were children in need of services (“CHINS”)

      because of domestic violence in the home. In May 2015, Father filed for a

      change of venue from Johnson County because he was living with his parents in

      Elkhart. The motion was granted and the CHINS cases were transferred to

      Elkhart County in June 2015. A third child, A.T., who was born of the

      marriage on September 15, 2015, was found to be a CHINS on May 16, 2016.

      She was placed with Father, under DCS supervision.




      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1034 | November 27, 2019   Page 2 of 5
[4]   The DCS progress report of August 17, 2017, indicated Father had made

      significant progress and that the children were to have a trial visit with him

      because he was fully compliant with court-ordered services and had enhanced

      his ability to fulfill his parental obligations. On January 25, 2018, Father was

      granted full custody of his sons, B.T. and Z.T., who were placed with him.


[5]   On May 9, 2018, Elkhart DCS filed CHINS petitions for Father’s sons because

      Father was unable to provide long-term housing for the Children. B.T. and

      Z.T. were placed in foster care, and Father’s daughter, A.T., was also removed

      from Father and placed in foster care. On March 25, 2019, the court held a

      modification hearing, at which evidence showed Mother intended to move to

      Indianapolis, the children were exhibiting behavior issues, and the parents were

      not following through with parenting recommendations. On March 26, 2019,

      DCS filed petitions to involuntarily terminate Mother’s and Father’s parental

      rights to all three Children. On the same day, a DCS caseworker verbally told

      Father of the initial TPR hearing date of April 11, and she handed Father a

      “TPR Summons and Notice of Hearing and Notice of Possible Default

      Judgment” and the TPR petition. App. Vol. V at 12; App. Vol. VII at 67; App.

      Vol. VIII at 112. On April 1, Father’s counsel entered his appearance for

      Father in the TPR actions.


[6]   On April 11, the court held the initial hearing for the termination of parental

      rights. Neither parent appeared at the hearing. DCS presented evidence related

      to service of process and notice of hearing to both parents. The DCS case

      manager and Father’s attorney both informed the court that Father had stated

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1034 | November 27, 2019   Page 3 of 5
      he could not attend the hearing on April 11 because he had to work. DCS

      moved for default judgment as to both parents. Father’s attorney informed the

      court that Father “was hoping that [his attorney], on his behalf, would be

      allowed to enter a denial and set this for a trial.” Tr. Vol. II at 231-32. The

      Guardian ad Litem requested that the court “find that default is in the best

      interest[s] of the children.” Id. at 234.


[7]   The trial court found that the parents had notice of the hearing and “the

      consequences of not appearing,” and it entered default judgments terminating

      the parents’ rights to Children. Id.1 Father now appeals.2



                                     Discussion and Decision
[8]   At the April 11, 2019, TPR initial hearing, DCS orally requested that the court

      enter a default judgment against the parents, and the court granted that request.

      However, as DCS now concedes, it did not provide Father with written notice

      of the request for default judgment at least three days prior to the hearing on

      that request as required by the express language of Trial Rule 55(B).3 The




      1
        The trial court stated: “I’m going to enter a default judgment under the termination cases.…” Id. And we
      note that the trial court did not hear evidence on the merits of the termination actions. See Young v. Elkhart
      Cty. Off. of Fam. and Child., 704 N.E.2d 1065, 1069 (Ind. Ct. App. 1999) (noting where DCS failed to present
      evidence to support the TPR, the judgment was a “true default judgment”).
      2
          Mother does not participate in this appeal.
      3
        “If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by
      a representative, his representative) shall be served with written notice of the application for judgment at least three
      [3] days prior to the hearing on such application.” T.R. 55(B) (emphasis added). There is no question that
      Father appeared in the TPR action with counsel on April 1, 2019.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1034 | November 27, 2019                          Page 4 of 5
      language of that rule “is not superfluous and strict adherence to the notice

      provision is required.” Evansville Garage Builders v. Shrode, 720 N.E.2d 1273,

      1277 (Ind. Ct. App. 1999), trans. denied. Although the Summons DCS hand-

      delivered to Father on March 26 stated that the court “may terminate the

      parent-child relationship” if Father failed to appear for the April 11 hearing, it

      did not inform Father that DCS was seeking, or would seek, a default judgment

      at the April 11 hearing. App. Vol. V at 12; App. Vol. VII at 67; App. Vol. VIII

      at 112. Rather, the Summons expressly stated that the April 11 hearing was

      “for an Initial Hearing.” Id. Notice of an initial TPR hearing alone does not

      satisfy the specific notice requirements of Trial Rule 55(B). See Shrode, 720

      N.E.2d at 1277 (holding advance notice of a progress hearing that did not also

      give notice of an application for default judgment was not sufficient under Trial

      Rule 55(B)).4 The trial court abused its discretion when it entered default

      judgment against Father.


[9]   Reversed and remanded for further proceedings with respect to Father.


      Najam, J., and May, J., concur.




      4
        Because we hold the default judgment was improper under the trial rules and, therefore, must be reversed,
      we do not address Father’s due process claim. See, e.g., Snyder v. King, 958 N.E.2d 764, 786 (Ind. 2011)
      (noting the “cardinal principle” that we will not pass upon a constitutional question unless it is “absolutely
      necessary to do so”).

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-1034 | November 27, 2019                   Page 5 of 5
