FOR PUBLICATION


ATTORNEY FOR APPELLANT:              ATTORNEYS FOR APPELLEE
                                     DEPARTMENT OF CHILD SERVICES:
AMY KAROZOS
Greenwood, Indiana                   GREGORY F. ZOELLER
                                     Attorney General of Indiana

                                     ROBERT J. HENKE
                                     Deputy Attorney General
                                     Indianapolis, Indiana

                                     PATRICK M. RHODES
                                     Department of Child Services,
                                     Marion County Office
                                     Indianapolis, Indiana

                                     ATTORNEY FOR APPELLEE
                                     CHILD ADVOCATES, INC.:

                                     CAREY HALEY WONG
                                     Indianapolis, Indiana


                                                               Sep 25 2013, 9:57 am

                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY     )
TERMINATION OF THE PARENT-CHILD      )
RELATIONSHIP OF D.P., MINOR CHILD,   )
AND HER FATHER, D.P.,                )
                                     )
D.P.,                                )
                                     )
        Appellant-Respondent,        )
                                     )
              vs.                    )    No. 49A02-1303-JT-245
                                     )
INDIANA DEPARTMENT OF CHILD          )
SERVICES,                            )
                                                           )
        Appellee-Petitioner,                               )
                                                           )
                and                                        )
                                                           )
CHILD ADVOCATES, INC.,                                     )
                                                           )
        Appellee-Guardian Ad Litem.                        )


                       APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Marilyn A. Moores, Judge
                           The Honorable Larry E. Bradley, Magistrate
                               Cause No. 49D09-1206-JT-23315


                                          September 25, 2013

                                  OPINION - FOR PUBLICATION

BRADFORD, Judge

                                          CASE SUMMARY

        On February 20, 2013, the juvenile court issued an order terminating Appellant-

Respondent D.P.’s (“Father”) parental rights to his minor child. The order contained factual

findings and conclusions thereon that were recommended to the juvenile court by a

magistrate.1 The magistrate who made and reported the recommended factual findings and

conclusions thereon to the juvenile court was not the same magistrate who conducted the

evidentiary hearing. The magistrate who conducted the evidentiary hearing resigned from

her position as magistrate before making any recommended factual findings or conclusions

thereon.


        1
         Indiana law provides that a magistrate may conduct an evidentiary hearing. Ind. Code § 33-23-5-
5(11). The magistrate who conducts an evidentiary hearing shall report the magistrate’s findings to the court,
which shall enter the final order. Ind. Code § 33-23-5-9.

                                                      2
       On appeal, Father contends that the juvenile court erred in terminating his parental

rights. In challenging the termination of his parental rights, Father raises numerous issues,

one of which we find dispositive. This issue is whether the replacement magistrate could

make recommended factual determinations when the replacement magistrate did not hear the

evidence or observe the witnesses during the evidentiary hearing. Because we conclude that

the replacement magistrate could not make recommended findings of fact and conclusions

thereon to the juvenile court, we reverse the judgment of the juvenile court and remand to the

juvenile court for a new evidentiary hearing.

                              FACTS AND PROCEDURAL HISTORY

       D.P. was born to Father and P.R.S. (“Mother”) on July 7, 2003.2 On October 18,

2010, DCS filed a verified petition alleging that D.P. was a child in need of services

(“CHINS”). With respect to Mother, the CHINS petition alleged that Mother had failed to

provide her with a safe and appropriate living environment free from substance abuse. With

respect to Father, the CHINS petition alleged that Father, who was incarcerated, was unable

to appropriately parent D.P. On December 7, 2010, following a fact-finding hearing, the

juvenile court found D.P. to be a CHINS. The juvenile court issued a dispositional order and

parental participation decree on January 4, 2011, in which it ordered Father to complete

certain services.

       On June 11, 2012, DCS filed a petition seeking the termination of Father’s parental

rights to D.P. On October 24, 2012, Magistrate Julianne Cartmel conducted an evidentiary


       2
           The termination of Mother’s parental rights is not at issue in this appeal.

                                                       3
termination hearing at which Father appeared telephonically and was represented by counsel.

During the evidentiary hearing, Magistrate Cartmel heard testimony from the Department of

Child Services (“DCS”) case worker, Father, and the Guardian Ad Litem (“GAL”). These

witnesses provided conflicting testimony regarding whether the reasons for removing the

child from Father’s care could be remedied in the future and whether termination of Father’s

parental rights was in the child’s best interests. Following the conclusion of the termination

hearing, Magistrate Cartmel took the matter under advisement.

       At some point before Magistrate Cartmel reported recommended factual findings and

conclusions thereon to the juvenile court, Magistrate Cartmel resigned from her position as a

magistrate. The matter was transferred to Magistrate Larry Bradley. Magistrate Bradley

reviewed the record created during the evidentiary hearing and reported recommended

factual findings and conclusions thereon to the juvenile court. Magistrate Bradley did not

conduct a new evidentiary hearing before reporting his recommended factual findings and

conclusions thereon to the juvenile court. The juvenile court approved Magistrate Bradley’s

factual findings and conclusions thereon, and on February 20, 2013, issued an order

terminating Father’s parental rights to D.P. Father now appeals.

                               DISCUSSION AND DECISION

       The Fourteenth Amendment to the United States Constitution protects the traditional

right of a parent to establish a home and raise his child. Bester v. Lake Cnty. Office of Family

& Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the parent-child

relationship is “one of the most valued relationships of our culture.” Id. However, although


                                               4
parental rights are of a constitutional dimension, the law allows for the termination of those

rights when a parent is unable or unwilling to meet his responsibility as a parent. In re T.F.,

743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore, parental rights are not

absolute and must be subordinated to the child’s interests in determining the appropriate

disposition of a petition to terminate the parent-child relationship. Id.

       The purpose of terminating parental rights is not to punish the parent but to protect the

child. Id. Termination of parental rights is proper where the child’s emotional and physical

development is threatened. Id. The juvenile court need not wait until the child is irreversibly

harmed such that his physical, mental, and social development is permanently impaired

before terminating the parent-child relationship. Id. In reviewing termination proceedings

on appeal, this court will not reweigh the evidence or assess the credibility of the witnesses.

In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct.

App. 2004).

  Whether a Magistrate who Did Not Preside over the Evidentiary Hearing Could
 Report Suggested Findings of Fact and Conclusions Thereon to the Juvenile Court

       Father contends that his due process rights were violated because the magistrate who

conducted the evidentiary hearing was not the same magistrate who made and reported the

recommended findings of fact and conclusions thereon to the juvenile court. We agree.

       Indiana courts have long held that “[a] party to an action is entitled to a determination

of the issues by the jury or judge that heard the evidence, and where a case is tried by the

judge, and the issues remain undetermined at the death, resignation, or expiration of the term

of such judge, his successor cannot decide, or make findings in the case, without a trial de

                                               5
novo.” Wainwright v. P.H. & F.M. Roots Co., 176 Ind. 682, 698-99, 97 N.E. 8, 14 (1912)

(providing that a judge did not have a right to decide the issues presented in a case in which

he had not heard the evidence, and, accordingly, the case should have been retried); see also

Dawson v. Wright, 234 Ind. 626, 630, 129 N.E.2d 796, 798 (1955); State ex rel. Harp v.

Vanderburgh Cir. Ct., 227 Ind. 353, 363, 85 N.E.2d 254, 258 (1949); Bailey v. State, 397

N.E.2d 1024, 1027 (Ind. Ct. App. 1979). This is because due process requires that the trier of

fact hear all of the evidence necessary to make a meaningful evaluation in a case where the

resolution of a material issue requires a determination as to the weight and credibility of

testimony. Farner v. Farner, 480 N.E.2d 251, 257 (Ind. Ct. App. 1985).

       “When a successor judge attempts to resolve questions of credibility and weight of

evidence without having had an opportunity to hear the evidence and observe the demeanor

of witnesses, he is depriving a party of an essential element of the trial process.”

Urbanational Devrs., Inc. v. Shamrock Eng’g, Inc., 175 Ind. App. 416, 421, 372 N.E.2d 742,

746 (1978). “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. “To

hold otherwise would be to grant a power of review to the successor judge that is not even

claimed by appellate courts.” Id.

       The circumstances presented here closely resemble the case where evidence is heard

by a trial judge who thereafter dies or resigns from office before making findings or ruling on

the evidence. The record demonstrates that on October 24, 2012, Magistrate Cartmel

conducted an evidentiary hearing on DCS’s petition to terminate Father’s parental rights.


                                              6
During this evidentiary hearing, Magistrate Cartmel heard the testimony of witnesses and

accepted exhibits into the record. The witnesses’ testimony and exhibits required Magistrate

Cartmel to weigh the exhibits and judge witness credibility to make a factual determination

as to whether termination of Father’s parental rights was warranted. Magistrate Cartmel,

however, resigned from her position as magistrate before making and reporting

recommended findings and conclusions thereon to the juvenile court. Magistrate Cartmel’s

successor, Magistrate Bradley, reviewed the record, made factual findings and conclusions

thereon, and reported these recommended findings and conclusions thereon to the juvenile

court. These factual findings and conclusions thereon were ultimately approved by the

juvenile court, which subsequently issued an order terminating Father’s parental rights to

D.P. Magistrate Bradley did not conduct a new evidentiary hearing before making these

factual findings or reporting the recommended findings and conclusions thereon to the

juvenile court.

       DCS has presented no authority, and we find none, suggesting that a magistrate should

be treated any differently from a trial judge in a situation where the magistrate makes factual

findings without having had the opportunity to hear the testimony and observe the witnesses.

As such, we conclude that Father’s due process rights were violated in the instant matter.

Magistrate Bradley could not properly resolve questions of credibility and weight of evidence

because he did not have an opportunity to hear the evidence and observe the demeanor of

witnesses. See Wainwright, 176 Ind. at 698-99, 97 N.E. at 14; Farner, 480 N.E.2d at 257.

Again, to hold otherwise would be to grant a power of review to Magistrate Bradley that is


                                              7
not even claimed by this court on appeal. See Urbanational Devrs., 175 Ind. App. at 421,

372 N.E.2d at 746.

       Further, despite DCS’s claim to the contrary, Father did not waive his right to have a

factual determination made by Magistrate Cartmel. Like other elements of due process, this

right may be waived if the parties stipulate that the substitute judge should determine the case

on the record. See Farner, 480 N.E.2d 257-58. Father did not stipulate that Magistrate

Bradley should determine the case on the record. Nothing in the record indicates that Father

even knew that Magistrate Bradley had replaced Magistrate Cartmel until the juvenile court

issued its order terminating Father’s parental rights. Father challenged Magistrate Bradley’s

ability to make the recommended findings and conclusions thereon by way of a timely

appeal.

       Having concluded that Father’s due process rights were violated in the instant matter

because Magistrate Bradley could not properly resolve questions of credibility and weight of

evidence because he did not have an opportunity to hear the evidence and observe the

demeanor of witnesses, we reverse the judgment of the juvenile court and remand to the

juvenile court for a new evidentiary hearing.         Any subsequent factual findings and

conclusions thereon should be issued in accordance with this opinion.

       The judgment of the juvenile court is reversed and the matter remanded for further

proceedings.

BAILEY, J., and MAY, J., concur.




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