MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                          Dec 26 2018, 5:51 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joann M. Price                                           INDIANA DEPARTMENT OF
Merrillville, Indiana                                    CHILD SERVICES
                                                         Curtis T. Hill, Jr.
                                                         Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana
                                                         ATTORNEY FOR APPELLEE LAKE
                                                         COUNTY COURT APPOINTED
                                                         SPECIAL ADVOCATE
                                                         Donald W. Wruck
                                                         Wruck Paupore PC
                                                         Dyer, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the                                December 26, 2018
Parent–Child Relationship of:                            Court of Appeals Case No.
X.S. (Minor Child),                                      18A-JT-1198
        and                                              Appeal from the Lake Superior
                                                         Court
S.S. (Father),
                                                         The Hon. Thomas P. Stefaniak,
Appellant-Respondent,                                    Jr., Judge




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018               Page 1 of 28
              v.                                               Trial Court Cause No.
                                                               45D06-1710-JT-260
      The Indiana Department of
      Child Services,
      Appellee-Petitioner,
              and
      Lake County Court Appointed
      Special Advocate,
      Appellee.



      Bradford, Judge.


                                          Case Summary
[1]   S.S. (“Father”) challenges the termination of his parental rights in X.S.

      (“Child”), claiming that the juvenile court violated his due process right to

      counsel by conducting a termination hearing at which he did not appear and

      was not represented by counsel. The Indiana Department of Child Services

      (“DCS”) agrees with Father and requests that we reverse the judgment of the

      juvenile court and remand for the appointment of counsel and a new hearing.

      The Lake County court appointed special advocate (“CASA”), however,

      contends that Father’s due process rights were not violated because he was

      given the opportunity to obtain counsel and meaningfully participate in the

      termination hearing but did nothing to take advantage of that opportunity.

      Because we agree with the CASA, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 2 of 28
                            Facts and Procedural History
[2]   On July 21, 2016, DCS petitioned to have Child declared a child in need of

      services (“CHINS”). On October 18, 2016, the juvenile court found Child to be

      a CHINS. Other than appearing at the initial hearing, Father did not

      participate in the CHINS proceeding, and DCS found it increasingly difficult to

      maintain contact with him. In early May of 2017, DCS learned that Father was

      incarcerated in the Lake County jail. On May 5, 2017, Family Case Manager

      Dylan Sheets (“FCM Sheets”) visited Father in jail and reported that he “still

      wants to be in [Child’s] life and wants to do whatever he [can] to get him back.”

      Ex. Vol. p. 62. On August 4, 2017, Father pled guilty to a burglary charge and,

      on October 6, 2017, was sentenced to three years of incarceration, to be served

      at Westville Correctional Facility.

[3]   On October 24, 2017, DCS petitioned to terminate Father’s parental rights in

      Child. On January 25, 2018, FCM Sheets spoke with Father and later testified

      about the conversation:

              [A]fter I spoke with him on the 25th, I explained to him that
              we’re proceeding forward with the termination of parental rights
              and there’s a few things that he would need to be doing in order
              to attend those hearings, be represented. So, I wrote him a letter
              on January 30th, very much detailing everything he needed to do
              in regards to requesting transportation. And requesting a public
              defender at the time of the fact finding hearing for termination.
              He was made aware of this over the phone and said that he
              wanted to participate. Well, we’re now in April and he hasn’t.
              Whenever speaking to him[, ]I spoke with [Father] three times
              throughout the duration of this case, he always makes it aware
              [sic] that he wants to participate, but he never follows through

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 3 of 28
              with any of the court ordered services, things that he would need
              to do to, in order to reunify with [Child].

      Tr. p. 13.


[4]   An alias summons was issued to Father by the clerk of the juvenile court on

      March 7, 2018, and directed to him in prison. The summons provided, in part,

      as follows:

              YOU ARE HEREBY NOTIFIED that a Petition for the
              Involuntary Termination of Parental Rights of the above name[d]
              child, a copy of which is attached hereto, has been filed in the
              above named Court.

              YOU ARE HEREBY NOTIFIED AND COMMANDED TO
              APPEAR before the Judge of the Lake Superior Court, 3000 W.
              93rd Avenue, Crown Point, IN 46307, 219-660-6900 for a(n)
              Factfinding Hearing on 4/12/2018 at 8:30 AM on the petition
              for termination of parental rights.

              YOU ARE FURTHER NOTIFIED that if the allegations of the
              petition are found to be true and/or you fail to appear at the
              hearing[], the Court may terminate the parent–child relationship;
              and if the Court terminates the parent–child relationship, you
              will lose all parental rights, powers, privileges, immunities,
              duties, obligations[,] including any rights to custody, control,
              visitation, or support of the child; and if the Court terminates
              your parent–child relationship, it will be permanently terminated,
              and thereafter you may not contest an adoption or other
              placement of said child, and
              YOU ARE ENTITLED TO REPRESENTATION BY AN
              ATTORNEY, provided by the State if necessary, throughout
              these proceedings to terminate the parent–child relationship.
              If this SUMMONS is duly served upon you and you fail to
              appear for the INITIAL and/or FACT FINDING HEARING,

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 4 of 28
              adjudication on said petition and termination of your parental
              rights may be entered against you without further notice.
      CASA’s App. p. 3 (emphases in original). Father was personally served with

      the summons on March 12, 2018, when it was hand-delivered to him by a

      prison official. In a report filed March 22, 2018, DCS indicated that Father had

      not yet requested “transportation and a public defender.” Ex. Vol. p. 88. In the

      end, Father would make no request for counsel or transportation and no other

      attempt to participate in the termination proceedings.

[5]   On April 12, 2018, a termination hearing was held at which Father failed to

      appear personally or by counsel, after which the juvenile court ordered that

      Father’s parental rights in Child be terminated. The juvenile court’s order

      provided, in part, as follows:

              [DCS’s] case manager spoke with [Father] in May 2017. At that
              time, he indicated he was not able to care for the child due to
              incarceration in jail but that he wanted to be a part of [Child’s]
              life. He did nothing to participate, to follow up, or to assert his
              rights. He made similar comments when [FCM Sheets]
              telephoned him in Westville on January 30[1], 2018. Despite
              these comments, Father has never made any efforts to be a part
              of the child’s life after [DCS] became involved on July 21, 2016.
              He has not contacted [FCM Sheets].
              During that January 30, 2018 telephone conversation, [FCM
              Sheets] discussed these termination proceedings in detail with
              Father. They discussed what Father needed to do to assert his
              rights. Father has done nothing. He has never followed up in



      1
        Although the juvenile court’s order indicates that FCM Sheets spoke with Father on the telephone on
      January 30, 2018, FCM Sheets’s testimony is clear that the telephone conversation occurred on January 25
      and that a letter was sent on January 30, also providing instructions on how to obtain counsel, etc.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018             Page 5 of 28
              writing to the court and he has never attempted to assert his
              rights. He did not request the appointment of counsel.
      Appellant’s App. p. 3.


                                 Discussion and Decision
                    Whether Father Was Denied Due Process
[6]   The traditional right of a parent to establish a home and raise his children is

      protected by the Fourteenth Amendment to the United States Constitution.

      Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).

      We acknowledge that the parent–child relationship is “one of the most valued

      relationships of our culture.” Id. (citation omitted). However, parental rights

      are not absolute, and the law allows for the termination of such rights when a

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

      743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. The purpose of

      terminating parental rights is to protect the child, not to punish the parent. Id.

[7]   While remaining mindful of the above, we have long had a highly deferential

      standard of review in cases concerning the termination of parental rights. In re

      K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). “In determining whether the

      evidence is sufficient to support the judgment terminating parental rights, this

      court neither reweighs the evidence nor judges the credibility of witnesses.” Id.

      “We consider only the evidence that supports the judgment and the reasonable

      inferences to be drawn there from.” Id. “Findings of fact are clearly erroneous

      only when the record lacks any evidence or reasonable inferences to support

      them.” Id. Father does not contend that DCS failed to present evidence
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 6 of 28
      sufficient to sustain the trial court’s termination of his parental rights in Child.

      As restated, Father contends that he was denied the process due to him in a

      termination proceeding, namely, that he was effectively denied the statutory

      right to counsel.

[8]   Indiana Code section 31-32-2-5 provides that “[a] parent is entitled to

      representation by counsel in proceedings to terminate the parent–child

      relationship.” Moreover,

              [i]f:
                   (1) a parent in proceedings to terminate the parent–child
                   relationship does not have an attorney who may represent the
                   parent without a conflict of interest; and
                   (2) the parent has not lawfully waived the parent’s right to
                   counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);
              the juvenile court shall appoint counsel for the parent at the
              initial hearing or at any earlier time.


      Ind. Code § 31-32-4-3(a). However, “[a] parent who is entitled to

      representation by counsel may waive that right if the parent does so knowingly

      and voluntarily.” Ind. Code § 31-32-5-5.


                                                 A. Notice
[9]   As an initial matter, Father contends that DCS failed to produce sufficient

      evidence to establish that he was ever even informed of his right to counsel.

      DCS, however, produced evidence that FCM Sheets told Father of this right

      over the telephone and detailed it in a letter sent a few days later and that the

      juvenile court informed him in an alias summons. Father denies only that he

      received the letter from FCM Sheets, failing to address the telephone call from
      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 7 of 28
       FCM Sheets or the alias summons in his argument. We take these omissions as

       admissions that the telephone call occurred and that Father actually received

       the summons, both of which informed him of his right to counsel. So, even if

       we assume the Father did not receive the letter (which we do not), we conclude

       that the evidence is still more than sufficient to support a finding that Father

       was informed of his right to counsel. To the extent that Father asks us to find

       that he did not receive the letter from FCM Sheets, this is an invitation to

       reweigh the evidence, which we will not do.

[10]   That said, on a somewhat related matter, one of the bases of DCS’s desire to

       concede this appeal is the lack of any indication that DCS sent Father notice of

       the termination hearing pursuant to Indiana Code section 31-35-2-6.5. Father

       himself does not make this claim, but even if we assume that DCS failed to

       properly notify Father pursuant to the statute, we conclude that such a failure

       does not require reversal under the circumstances of this case, even though it

       might in other cases. To get straight to the point, there is sufficient evidence to

       establish that Father had actual notice of the termination hearing via the

       personally-served summons issued by the juvenile court. Consequently, Father

       has failed to establish that he suffered any prejudice as a result of any failure by

       DCS to properly notify him of the hearing. See In re T.W., 831 N.E.2d 1242,

       1247 (Ind. Ct. App. 2005) (in termination-of-parental-rights case, concluding

       that, even if notice was defective, there was no due process violation where the

       record established that the mother had actual notice of the termination hearing).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 8 of 28
                                                 B. Waiver
[11]   Finally, Father contends that, even if one assumes that he was given proper

       notice of his right to counsel, it was denied without a valid waiver. In other

       words, Father contends that he was denied counsel without due process. When

       the State seeks to terminate the parent–child relationship, it must do so in a

       manner that meets the requirements of due process. Lawson v. Marion Cty. Office

       of Family & Children, 835 N.E.2d 577, 579 (Ind. Ct. App. 2005). “The

       fundamental requirement of due process is the opportunity to be heard at a

       meaningful time and in a meaningful manner.” Thompson v. Clark Cty. Div. of

       Family & Children, 791 N.E.2d 792, 795 (Ind. Ct. App. 2003) (quoting Mathews

       v. Eldridge, 424 U.S. 319, 333 (1976)), trans. denied.

[12]   The question, then, is whether the procedures used in this case were sufficient

       to provide a parent with the process due to him in a termination proceeding.

       The Indiana Supreme Court has held “that the process due in a termination of

       parental rights action turns on balancing three Mathews 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.” In re K.D., 962 N.E.2d 1249, 1257 (Ind.

       2012). “The balancing of these factors recognizes that although due process is

       not dependent on the underlying facts of a particular case, it is nevertheless

       ‘flexible and calls for such procedural protections as the particular situation

       demands.’” Thompson, 791 N.E.2d at 795 (quoting Mathews, 424 U.S. at 334).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 9 of 28
                                              1. Private Interests

[13]   The private interests affected the most in any termination proceeding are

       obviously those of the parent and the child. We have already noted the value

       our society places on the parent–child relationship, and while we acknowledge

       that “a parent’s interest in the accuracy and justice of the decision [in a

       termination proceeding] is commanding[,]” id., that interest is not as

       compelling as it would be in a criminal proceeding, where the potential for loss

       of life or liberty is very often at stake. That said, the child’s interest in being

       raised in a safe, nurturing, and stable environment is also very compelling. As

       mentioned, the point of termination is to protect the child, not punish the

       parent, and where a parent is unwilling or unable to properly raise a child, the

       parent’s parental interests must give way. Moreover, “the speedy resolution of

       termination and adoption proceedings [is] in the best interests of the child.”

       K.S. v. Marion Cty. Dep’t of Child Servs., 917 N.E.2d 158, 165 (Ind. Ct. App.

       2009). Although it is impossible to assign specific weights to the interests of the

       parent and the child in a termination proceeding, suffice it to say that the

       parent’s interests do not outweigh the child’s interests to such a degree that

       extraordinary measures are warranted to protect the former at the expense of

       the latter.


                                                2. Risk of Error

[14]   In our view, the procedure used in this case was unlikely to have produced the

       error of denying representation to a parent who wished to exercise that right.

       The FCM went to some lengths to find Father and communicate with him

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 10 of 28
       regarding his right to counsel and how to obtain it, speaking with him on the

       telephone and mailing him the materials he needed to obtain counsel.

       Moreover, the alias summons issued by the juvenile court reminded Father that

       he had the right to counsel, which was to be appointed at State expense, if

       necessary. Even though apparently all Father had to do to obtain counsel was

       make a telephone call, there is no indication that he ever even tried. DCS and

       the juvenile court’s general approach, involving notification and instructions,

       etc., is unlikely to result in the erroneous denial of representation to a parent

       who genuinely wishes to have it.

[15]   Moreover, even if a wrongful denial of counsel were to occur, the inherent

       nature of termination proceedings is such that the risk of erroneous disposition

       due to lack of representation is much lower than in most other legal

       proceedings. The Indiana Supreme Court has recognized this, adopting the

       following passage from an opinion of the Pennsylvania Superior Court:

               [B]ecause of the doctrine of Parens Patriae and the need to focus
               on the best interest of the child, the trial judge, who is the fact
               finder, is required to be an attentive and involved participant in
               the process. While he must depend upon the litigants to present
               the evidence to establish the particular elements or defenses in
               the termination case, he is not limited to their presentations, and
               as in any custody case, he may require more than they present
               and direct further investigation, evaluations or expert testimony
               to assure him that the interests of the child and the respective
               parties are properly represented. Under the aegis of the court, the
               role of the lawyer, while important, does not carry the deleterious
               impact of ineffectiveness that may occur in criminal proceedings.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 11 of 28
       Baker v. Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

       2004) (quoting In re Adoption of T.M.F., 573 A.2d 1035, 1042–43 (Pa. Super. Ct.

       1990), appeal denied). In other words, the juvenile court is looking out for the

       parent’s interests in a termination proceeding even if an attorney is not. The

       low risk of error also weighs against requiring a more involved procedure for

       determining waiver, such as would generally be required in a more adversarial

       proceeding.


                                          3. Governmental Interest

[16]   Finally, we note the State’s significant interest in the speedy, efficient, and cost-

       effective resolution of termination proceedings:

               The State has a significant parens patriae interest in protecting the
               welfare of the children involved. Santosky v. Kramer, 455 U.S.
               745, 102 S. Ct. 1388, 71 L. Ed. 2d 599. Although the State does
               not gain when it separates children from the custody of fit
               parents, id., the State has a “compelling interest in protecting the
               welfare of the child by intervening in the parent–child
               relationship when parental neglect, abuse, or abandonment are at
               issue.” E.P. v. Marion County Office of Family & Children, 653
               N.E.2d at 1032. Delays in the adjudication of a case impose
               significant costs upon the functions of government as well an
               intangible cost to the lives of the children involved. See In re
               M.R., 316 Ill. App. 3d 399, 249 Ill. Dec. 325, 736 N.E.2d 167
               (2000), appeal denied.


       J.T. v. Marion Cty. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct.

       App. 2000), trans. denied, abrogated on other grounds by Baker, 810 N.E.2d at 1041.

       It seems to us that the procedure used in this case adequately informed Father


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 12 of 28
       of his right to counsel without incurring significant costs or causing undue

       delay.2 The interests of the State are served by the procedure used in this case.


                                                      4. Balancing

[17]   We conclude that a balancing of the Mathews factors does not require more

       process in termination proceedings than Father was given in this case. Father

       was informed on multiple occasions of the right to counsel, and if he wanted

       counsel, all he would have had to do was make a telephone call. We do not

       believe that this is too much to ask of a parent in a termination proceeding.

       Moreover, there is a greatly reduced risk of error in termination proceedings,

       even without counsel, which also weighs against a more burdensome

       procedure. Finally, the interests of Child and the State in a speedy resolution

       are well-served by the procedure used in this case. A more involved process

       would, in our view, not do much to advance Father’s interests while very

       possibly negatively affecting the interests of Child and the State through delay

       and unnecessary commitment of resources. In summary, we conclude that the

       procedure used in this case provided Father with “the opportunity to be heard




       2
         In contrast, the use of a procedure like that typically used in criminal cases (requiring that the trial court
       generate a record and thoroughly investigate a request to waive counsel) could be quite expensive and time-
       consuming, especially in cases like this one, where transportation from a correctional facility to a waiver
       hearing would likely have to be arranged.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018                   Page 13 of 28
       at a meaningful time and in a meaningful manner.” Thompson, 791 N.E.2d at

       795. Father has failed to establish that his due process rights were violated.3

[18]   We affirm the judgment of the juvenile court.


       Bailey, J., concurs.


       Mathias, J, dissents with opinion.




       3
         The dissent points to indications in the record that Father was denied counsel at the initial hearing in the
       CHINS proceeding that came before this termination, despite requesting it. Although Father does not make
       this argument, we acknowledge that “procedural irregularities in a CHINS proceedings may be of such
       import that they deprive a parent of procedural due process with respect to the termination of his or her
       parental rights.” A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112–13 (Ind. Ct. App. 2000),
       trans. denied. In A.P., the following errors occurred and were found to require reversal:
                (1) the [Porter County Office of Family and Children] admittedly failed to provide
                Brenda and Elvis with copies of at least some, and possibly all, of A.P.’s case plans as
                required by Indiana Code Chapter 31-34-15; (2) the termination petition filed in this
                cause did not comport with the requirements of Indiana Code Section 31-35-2-4; (3) the
                original underlying CHINS petition filed with respect to A.P. was unsigned and
                unverified in violation of Indiana Code Section 31-34-9-3; (4) no permanency hearing
                was ever held as required by Indiana Code Section 31-34-21-7; (5) the original CHINS
                dispositional order, the modification of that order providing for A.P.’s out-of-home
                placement, and every other order entered by the trial court, with the exception of the
                termination judgment, contained no written findings and conclusions upon the record
                concerning its reasons for those dispositions as required by Indiana Code Section 31-34-
                19-10; (6) the trial court entered a no-contact order against Elvis without following the
                statutory prerequisites for entry of such an order as contained in Indiana Code Chapter
                31-34-17 [now repealed]; and (7) Elvis was deprived, on at least two occasions, of his
                right to be present at review hearings in A.P.’s CHINS case in violation of Indiana Code
                Section 31-34-21-4(b).

       Id. at 1117. This case, however, is a far cry from A.P. Even if we assume that Father did request counsel in
       the CHINS case and was denied, this does not approach the wholesale violations in A.P. More importantly,
       the dissent points to no indication that any denial of counsel in the CHINS case prejudiced Father, much
       less in any way that carried over into the termination. Put another way, whatever may have happened in the
       CHINS case, Father was advised multiple times of his right to counsel in this case.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018                  Page 14 of 28
MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


                                           IN THE


    COURT OF APPEALS OF INDIANA

In the Termination of the                                Court of Appeals Case No.
Parent–Child Relationship of                             18A-JT-1198
X.S. (Minor Child),
         and
S.S. (Father),
Appellant-Respondent,

        v.

Indiana Department of Child
Services,
Appellee-Petitioner,

         and
Lake County Court Appointed
Special Advocate,
Appellee.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018    Page 15 of 28
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 16 of 28
       Mathias, Judge, dissenting.


[19]   I respectfully dissent because I do not believe Father was provided with notice

       that meets the requirements of due process. I also conclude that Father did not

       knowingly and voluntarily waive his right to counsel. These conclusions lead

       me to balance the Mathews factors differently than my colleagues. As the State

       may only undertake the extreme measure of terminating a parent’s rights in a

       manner that comports with the standards of due process, and these standards

       have not been met, I believe a remand is required.


                                          Standard of Review
[20]   The majority correctly notes that we have long had a highly deferential

       standard of review in cases concerning the termination of parental rights. In re

       K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). However, whether a party was

       denied due process is a question of law that we review de novo. Wolf Lake Pub,

       Inc. v. Review Bd. Of Ind. Dep’t of Workforce Dev., 930 N.E.2d 1138, 1141 (Ind. Ct.

       App. 2010) (citing Miller v. Ind. Dep’t of Workforce Dev., 878 N.E. 2d 346, 351

       (Ind. Ct. App. 2007)). While due process is not dependent on the underlying

       facts of the particular case, it is nevertheless “flexible and calls for such

       procedural protections as the particular situation demands.” Thompson v. Clark

       Cty. Div. of Family & Children, 791 N.E.2d 792, 795 (citing Mathews v. Eldridge,

       424 U.S. 319, 334 (1976)).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 17 of 28
                                      Discussion and Analysis
                                                         Notice

       Service of the Alias Summons

[21]   The “affidavit” filed by DCS regarding service upon Father shows the alias

       summons was not served in compliance with the Indiana Rules of Trial

       Procedure. In addition, the same document does not contain sufficient indicia

       of reliability required by the Rules of Evidence.


[22]   Indiana Trial Rule 4.3 governs service of summons upon institutionalized

       persons. It provides:


                Service of summons upon a person who is imprisoned or
                restrained in an institution shall be made by delivering or mailing
                a copy of the summons and complaint to the official in charge of
                the institution. It shall be the duty of said official to immediately
                deliver the summons and complaint to the person being served
                and allow him to make provisions for adequate representation by
                counsel. The official shall indicate upon the return whether the
                person has received the summons and been allowed an
                opportunity to retain counsel.


       “A witness may testify to a matter only if evidence is introduced sufficient to

       support a finding that the witness has personal knowledge of the matter.” Ind.

       Evidence Rule 602. Unsigned affidavits do not constitute admissible evidence.

       T.R. 11(B); In re Paternity of P.W.J., 846 N.E.2d 752, 757–58 (Ind. Ct. App.

       2006).




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 18 of 28
[23]   The document entitled “Affidavit of Service” purports to show that a process

       server delivered an Alias TPR Summons and corresponding documents to

       Father at Westville Correctional Center, where he was incarcerated. 4 This

       document provides that:


               I, J. Michael Jenkins, being duly sworn, depose, and say: I am
               over the age of 18 years and not a party to this action, and that
               within the boundaries of the state where service was effected, I
               was authorized by law to make service of the documents and
               informed said person of the contents herein.


       DCS App. p. 3.


[24]   In the “Additional Comments” section of the document, a notation provides:

       “1) Successful Attempt: Mar 12, 2018, 1:19 pm CDT at Westville Correctional

       Center: 5501 S. 1100 W, Westville IN 46391 received by Shawn Staggs. Other:

       Defendant was served by WCC Investigator Christine Kallok.” The CCS shows

       this “Affidavit of Service” was filed by DCS on March 15, 2018. No signature is

       affixed to this “Affidavit of Service.”


[25]   The defects in service of the alias summons are abundant. First, this “Affidavit

       of Service” is unsigned and therefore inadmissible evidence. Secondly, the

       notation in the “Additional Comments” section shows that even if Mr. Jenkins

       had signed the affidavit, whether Father received the summons was outside of




       4
        The packet also included a Notice of Hearing, Notice of Possible Default Judgment, and the Verified
       Petition to Terminate.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018             Page 19 of 28
       his personal knowledge as it was purportedly delivered to Father by an

       investigator employed by the prison. Moreover, the statement from a prison

       official that the recipient has also been allowed an opportunity to retain counsel

       required by T.R. 4.3 is not contained in the record. In order to prove service of

       this summons, an executed affidavit of service from the individual who actually

       delivered the summons to Father and an indication from a prison official that

       Father was provided with an opportunity to retain counsel is required. The

       record contains neither.


       Father’s Communications with the FCM

[26]   The CASA argues, and the majority agrees, that the FCM’s telephone

       conversation and letter he sent to Father were sufficient to provide notice of the

       termination.


[27]   The FCM’s testimony shows that he had a telephone conversation with Father.

       In this conversation, he advised him that DCS intended to proceed to

       termination. Father indicated to him during their phone conversation that he

       wanted to participate. The FCM also testified that he sent him a letter detailing

       “everything he needed to do in regards to requesting transportation. And

       requesting a public defender at the time of the fact[-]finding hearing for

       termination.” Tr. p. 13. He further testified that every time he spoke with him

       throughout the duration of his case, Father “always makes it [sic] aware that he

       wants to participate,” but he never followed through. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 20 of 28
[28]   The letter FCM testifies that he sent is not in the record, and we are unaware of

       its specific contents. We have no indication that Father actually received this

       letter, or that the FCM was able to accurately advise him of the processes and

       procedures required for him to take the actions within his prison and within the

       juvenile court system.


                                                 Right to Counsel

[29]   A parent is entitled to representation by counsel in proceedings to terminate the

       parent–child relationship. Ind. Code §§ 31-32-4-1 and 31-32-2-5. Indiana Code

       “[s]ection 31-34-4-6 is an explicit provision of just such a statutory right, though

       subject to its own internal qualifications, and is consistent with the operation of

       the rest of the statutory scheme. And it exists independently of – though

       informed and influenced heavily by – any constitutionally compelled right to

       counsel pursuant to the Due Process Clause of the Fourteenth Amendment.” In

       re G.P., 4 N.E.3d 1158, 1163 (Ind. 2014). Indiana Code section 31-32-4-3

       provides:


               (a)      If:


                        (1)     a parent in proceedings to terminate the parent–
                                child relationship does not have an attorney who
                                may represent the parent without a conflict of
                                interest; and


                        (2)     the parent has not lawfully waived the parent’s right
                                to counsel under IC 31-32-5 (or IC 31-6-7-3 before
                                its repeal); the juvenile court shall appoint counsel for the
                                parent at the initial hearing or at any earlier time.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 21 of 28
               (b)      The court may appoint counsel to represent any parent in
                        any other proceeding.


       Ind. Code § 31-32-4-3 (emphasis added).


[30]   Although the termination statute provides that a parent is entitled to appointed

       counsel in a termination proceeding, the case law indicates that a parent’s

       indigency is a prerequisite to having the court appoint counsel. “A parent who

       is entitled to representation by counsel may waive that right if the parent does

       so knowingly and voluntarily.” Ind. Code § 31-32-5-5 (emphasis added). Similarly,

       a parent has a right to counsel in a CHINS proceeding. Ind. Code § 31-34-4-

       6(a)(2); In re G.P., 4 N.E.3d at 1163. And, as the Indiana Supreme Court has

       stated, Mathews analysis aside, “if the State imparts a due process right, then it

       must give that right.” In re G.P., 4 N.E.3d at 1166 (“So if a parent were

       deprived of representation by counsel at a TPR proceeding, for example, the

       deprivation would constitute a failure to afford that parent the process to which

       the General Assembly says he or she is due.”).


[31]   While CHINS and TPR are distinct proceedings, the results of a CHINS

       proceeding has obvious consequences for the TPR proceeding. In re E.P., 653

       N.E.2d 1026, 1032 (Ind. Ct. App. 1995); In re G.P., 4 N.E.3d at 1166 (“In their

       most typical arrangement, CHINS, TPR, and adoption proceedings line up

       somewhat like dominoes; although one proceeding may not necessarily tip over

       into the next, neither can it usually fall without being pushed by the proceeding

       before it.”); A.P. v. Porter County Office of Family and Children, 734 N.E.2d 1107,

       1112–13 (Ind. Ct. App. 2000) (“procedural irregularities in a CHINS
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 22 of 28
       proceedings [sic] may be of such import that they deprive a parent of

       procedural due process with respect to the termination of his or her parental

       rights.”), trans. denied. However, a parent’s right to counsel is even greater in a

       termination proceeding than in a CHINS proceeding. See Smith v. Marion Cty.

       Dep’t of Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994) (holding that

       because a parent’s rights are not terminated in a CHINS proceeding, parents do

       not have the same statutory right to counsel that they have in termination

       hearings), trans. denied. A litigant who has been told that they would receive

       appointed counsel is not required to continually re-request counsel at each and

       every hearing where an attorney is not provided. In re G.P., 4 N.E.3d at 1164.


[32]   Here, in the CHINS proceeding, the order on the initial detention hearing,

       dated July 22, 2016, shows that Father denied the allegations in the CHINS

       petition. The order then states, “[b]eing advised of the right to Counsel the

       Father does request an Attorney.”5 Ex. Vol., State’s Ex. C. This order does not

       indicate whether Father’s request for counsel was granted or denied, or whether

       the trial court made any inquiry into indigency. And in this same order, a

       public defender was discharged. The CCS for the CHINS matter does not show

       an appearance for Father by any attorney. Because the termination proceedings

       are often necessarily dependent upon and inextricably intertwined with the




       5
        DCS also provides citation to this order on page 5 of its brief. However, DCS misquotes the order, stating
       “[t]he next day, on July 22, 2016, Father attended the detention hearing, and after being advised of his rights,
       he ‘did not request an attorney.’” DCS Brief p. 5. The order clearly states that Father did indeed request an
       attorney.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018                 Page 23 of 28
       results of CHINS proceedings, I cannot dismiss the unexplained failure to

       appoint counsel at the initial detention hearing as immaterial.


[33]   Turning to the termination proceeding, as previously discussed herein, the

       record contains no reliable indication that Father received the alias summons

       that contained the advisory regarding his right to counsel. As such, we have no

       reliable proof that he was advised to his right to counsel in the termination

       proceedings. We only have testimony from the FCM that he told him how to

       request counsel and that Father had indicated to him that he wanted to

       participate in the proceedings.


[34]   Existing Indiana case law does not address whether advice of a right to counsel

       by an FCM alone, outside the presence of the court, is sufficient to determine

       that a parent has knowingly and voluntarily waived his or her right to counsel

       in a termination proceeding. As previously discussed, the letter the FCM

       allegedly sent is not before us, there is no proof that Father received the letter,

       and we have no way of knowing the specific contents of the letter. Moreover,

       even if he received the letter, this fact, without more, does not constitute a

       knowing and voluntary waiver of his right to counsel.


                                                Mathews Balancing

[35]   Having concluded that proper notice in accordance with the trial rules was not

       provided and the record contains no evidence of a knowing and voluntary

       waiver of the right to counsel, I balance the Mathews factors differently than my

       colleagues.


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 24 of 28
       A. Private Interests

[36]   The private interests in this matter are substantial for both the parent and the

       child. The care, custody, and control of one’s children is “perhaps the oldest of

       the fundamental liberty interests[.]” Troxel v. Granville, 530 U.S. 57, 65 (2000). It

       is well settled that the right to raise one’s children is an essential, basic right that

       is more precious than property rights. In re M.G.S., 756 N.E.2d 990, 1005.

       Parental rights constitute an important interest warranting deference and

       protection, and a termination of that interest is a “unique kind of deprivation.”

       Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27 (1981).


[37]   However, children have an interest in finality. Lehman v. Lycoming Cty.

       Children’s Servs. Agency, 458 U.S. 502, 513 (1982). “[A] trial court need not wait

       until a child is irreversibly influenced by a deficient lifestyle such that [his or]

       her physical, mental, and social growth is permanently impaired before

       terminating the parent–child relationship.” In re E.S., 762 N.E.2d 1287, 1290

       (Ind. Ct. App. 2002).


[38]   A child also has an interest in a judicially efficient determination. See Lehman,

       458 U.S. at 513. “It is undisputed that children require secure, stable, long-term,

       continuous relationships with their parents or foster parents. There is little that

       can be as detrimental to a child's sound development as uncertainty[.]” Id.

       While always significant, a child’s concern for delay becomes less commanding

       when the record shows placement in a stable, positive foster home. See In re

       G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009) (“Particularly given the highly positive

       reports about the quality of the placement here, we are unable to conclude that
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 25 of 28
       the continuation of the CHINS foster care arrangement here will have much, if

       any, negative impact on G.Y.’s well-being.”) Additionally, parental rights

       should not be terminated simply because there is a better home available. In re

       K.S., 750 N.E.2d at 837 (citing In re V.A., 632 N.E.2d 752, 756 (Ind. Ct. App.

       1994)).


       Risk of Error

[39]   Our supreme court has stated:


               proceedings in which the State seeks to regulate or terminate a
               parent’s relationship with his or her children are among the most
               delicate and difficult that judicial officers and attorneys must
               face. And we have repeatedly emphasized the importance of
               caution and care in these sorts of cases — from all involved — as
               the repercussions that flow from them can be devastating to every
               member of a family.


       In re K.W., 12 N.E.3d 241, 242–43 (Ind. 2014). A parent’s interest in the

       accuracy and justice of the decision to terminate his parental rights is

       commanding. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016) (citing Santosky v.

       Kramer, 455 U.S. 745, 749 (1982).


       Governmental Interest

[40]   I agree with the majority that the State’s interests are in the speedy, efficient,

       and cost-effective resolution of termination proceedings, as well as its parens

       patriae interest in protecting the interest of the child. J.T. v. Marion Cty. Office of

       Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans denied,

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 26 of 28
       abrogated on other grounds by Baker v. Marion Cty. Office of Family & Children, 810

       N.E.2d 1035 (Ind. 2004).


       Balancing

[41]   Here, the record demonstrates an overall lack of care and caution required in

       these proceedings. The Indiana Rules of the Trial Procedure and the Indiana

       Rules of Evidence are based on long-standing principles designed to ensure

       reliability and accuracy in legal proceedings. Constitutional law jurisprudence

       firmly establishes that the rights that attach to family members within

       termination proceedings are among the most fundamental.


[42]   I believe the high risk of error in the chosen procedures at issue here require

       remand. Father was not provided counsel when he requested counsel at the

       initial detention hearing when DCS first alleged CHINS. Nor is there reliable

       proof that Father knowingly and voluntarily waived his right to counsel in the

       termination proceeding. Moreover, he indicated his desire to participate to the

       FCM.


[43]   When the court proceeded to termination, there is no reliable proof of notice of

       the fact-finding hearing. Significant and blatant procedural service errors were

       blankly accepted by the trial court, which, as the majority relays, is “required to

       be an attentive and involved participant in the process” for the purpose of

       protecting the rights of all parties. See Baker, 810 N.E.2d at 1041 (quoting In re

       Adoption of T.M.F., 573 A.2d 1035, 1042 (Pa. Super. Ct. 1990), appeal denied.



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018   Page 27 of 28
[44]   While delay, especially preventable delay, in the legal process and therefore the

       permanency of any child who is the subject of a CHINS or TPR proceeding is

       concerning to me, given the positive reports of the current placement, the lack

       of any time-sensitive matters, and the young age of the child, I am unable to

       conclude that delay will have as significant of harm to the child as it might

       under other circumstances. 6


                                                      Conclusion
[45]   Insistence on reliable proof of service in compliance with the Indiana Rules of

       Trial Procedure and the Indiana Rules of Evidence are not extraordinary

       measures for the purposes of meeting the requirements of procedural due

       process. I also find no reliable evidence that Father knowingly and voluntarily

       waived his right to counsel. As such, I believe the requirements of due process

       require reversal and remand.




       6
        With respect to the negative impact of additional delay, I also must note that, while I appreciate DCS’s
       concern for judicial economy and Father’s due process rights on appeal, I am left to wonder why DCS did
       not address these concerns to the trial court. The State acted against its own interests, and the interests of all
       parties involved, in the speedy, efficient, and cost-effective resolution of these important proceedings when
       DCS failed to address these defects at the trial court level. Not only is remedying these admitted procedural
       defects at the earliest opportunity in the best interest of judicial economy, it is in the best interest of the
       parent, the child, and the efficiency of DCS.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1198 | December 26, 2018                    Page 28 of 28
