MEMORANDUM DECISION
                                                                        May 19 2015, 9:53 am
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.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark Small                                                Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         May 19, 2015
of the Parent-Child Relationship                         Court of Appeals Cause No.
of,                                                      49A02-1409-JT-613
                                                         Appeal from the Marion Superior
J.H. (minor child),                                      Court
                                                         Cause No. 49D09-1402-JT-91

         and,                                            The Honorable Marilyn Moores,
                                                         Judge; The Honorable Larry
                                                         Bradley, Magistrate
K.T. (father),

Appellant-Respondent

        v.

The Indiana Department of Child
Services,



Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015             Page 1 of 8
      Appellee-Petitioner.




      Barnes, Judge.


                                             Case Summary
[1]   K.T. (“Father”) appeals the termination of his parent-child relationship with

      J.H. We affirm.


                                                     Issue
[2]   Father raises one issue, which we restate as whether he was denied due process

      in the termination proceeding because of the alleged lack of notice in the

      underlying child in need of services (“CHINS”) proceeding.


                                                     Facts
[3]   J.H. was born in November 2009. Father saw J.H. just once in March 2011.

      At some point, Father lived in California. In December 2012, J.H. was alleged

      to be a CHINS, and Father was named as her alleged father with an unknown

      address in California. The CHINS petition alleged that J.H.’s mother failed to

      provide J.H. and her brother with a safe and sanitary living environment with

      appropriate supervision. The petition also alleged that Father had not

      successfully demonstrated the ability and willingness to appropriately parent

      J.H.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015   Page 2 of 8
[4]   In April 2013, a default judgment was entered against Father in the CHINS

      proceeding after the trial court found that the Department of Child Services

      (“DCS”) made diligent efforts to locate Father, that DCS published service by

      notification three times in February 2013, that Father had not responded to the

      publication, that he had not appeared before the court in the matter, that he had

      not contacted DCS, that he had not demonstrated an ability or willingness to

      parent J.H., that he had not participated in services, and that he was

      unavailable and unable to parent J.H.


[5]   In February 2014, the trial court approved DCS’s request to change the plan for

      J.H. from reunification to adoption. The trial court found that Father had not

      appeared in court or visited J.H. and that DCS did not know where Father was.


[6]   On February 20, 2014, DCS filed a petition to terminate Father’s parental

      rights. DCS then located Father in California and, on March 17, 2014, a

      summons was sent to him at a detention facility in San Diego. On April 4,

      2014, Father acknowledged receipt of the summons. Father did not appear at

      an April 15, 2014 hearing, but the trial court acknowledged his request for

      counsel and appointed counsel to represent him. Father participated at an April

      25, 2014 hearing by telephone. On July 2, 2014, a termination hearing was

      held. Father’s attorney was present at the hearing, and Father participated by




      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015   Page 3 of 8
      phone. On August 6, 2014, the trial court issued an ordering terminating

      Father’s parental rights.1 Father now appeals.


                                                      Analysis
[7]   Father challenges the termination of his parental rights on the basis that he was

      not properly notified of the CHINS proceeding. Although Father uses the

      terms subject matter jurisdiction, personal jurisdiction, and due process in his

      brief, the focus of his argument appears to be the purported denial of procedural

      due process, and we will review it as such.2


[8]   Father did not object to the alleged lack of notice of the CHINS proceeding

      during the termination proceeding and raises the issue for the first time on

      appeal. “It is well established that we may consider a party’s constitutional

      claim waived when it is raised for the first time on appeal.” Hite v. Vanderburgh

      Cnty. Office of Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006).

      Thus, this issue is waived. See id. at 180-81.


[9]   Waiver notwithstanding, when the State seeks to terminate the parent-child

      relationship, it must do so in a manner that meets the requirements of due

      process. Id. at 181. “Due process in parental rights cases involves the balancing




      1
          Paternity of J.H. was confirmed after the July 2014 hearing was conducted.
      2
        Because Father does not provide us with cogent argument regarding why the trial court lacked subject
      matter over the CHINS proceeding, this issue is waived. See Ind. App. R. 46(A)(8)(a). Further, many of the
      authorities discussing personal jurisdiction that Father relies on relate to a party’s minimum contacts with
      Indiana. Father does not make a cogent argument that he did not have the necessary minimum contacts with
      Indiana, and this issue is waived. See id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015               Page 4 of 8
       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

       government interest supporting use of the challenged procedure.” Id.


[10]   There is no doubt that Father’s private interest in his parental relationship with

       J.H. is substantial. See id. Likewise, the government’s countervailing interest in

       protecting the welfare of children is also substantial. Id. Thus, our focus is on

       the risk of error.


[11]   Father does not challenge the trial court’s findings following the termination

       hearing or dispute that he was notified of and participated in the termination

       proceedings while represented by counsel. Thus, the issue is whether the

       alleged lack of notice of the CHINS proceeding deprived him of due process in

       the termination proceeding.


[12]   Regarding notice of the CHINS proceeding, the limited record on this issue

       shows that Father testified he had received an email from DCS in April or May

       2012 before the CHINS proceeding was initiated in December 2012. It is not

       clear where Father was living when the CHINS petition was filed, but his

       testimony indicated that he was released from incarceration in California in

       January 2013 and reincarcerated in August 2013. A DCS caseworker testified

       that, although Father could not be located in December 2012, she continued to

       look for Father during the course of the CHINS proceeding. She stated that she

       filed an affidavit of diligent inquiry detailing her efforts to locate Father. The

       caseworker testified that she tried contacting J.H.’s mother to locate Father and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015   Page 5 of 8
       she searched the white pages, the department of correction system, and the

       Marion County Jail system. She indicated her belief that they had searched for

       Father in California but were not able to locate him until after February 20,

       2014, when he was located in the San Diego County Jail. At that point, Father

       indicated he did not want to start services until paternity had been established,

       which did not occur until after the July 2014 hearing. In addition to DCS’s

       efforts to locate Father during the pendency of the CHINS proceeding, the

       CHINS order of default shows that Father was served by publication in March

       2013.


[13]   Father claims that DCS did not establish that it diligently searched for him

       during the CHINS proceeding or appoint an attorney to represent him in that

       proceeding. Father, however, does not specify what additional notice DCS was

       legally required to provide to him as J.H.’s alleged Father whose whereabouts

       were unknown or cite any authority suggesting that the trial court was required

       to appoint an attorney to represent him in these circumstances. Moreover,

       Father makes no argument that J.H. was not actually a CHINS.


[14]   We have held that the failure to receive notice during the initial stages of a

       CHINS action and copies of the case plan did not create a substantial risk of

       error because the parent was not denied the opportunity to be heard in the latter

       portions of the CHINS action and in the termination proceedings. See Hite, 845

       N.E.2d at 184; but cf. A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d

       1107, 1118 (Ind. Ct. App. 2000) (acknowledging that where “a record is replete

       with procedural irregularities throughout CHINS and termination proceedings

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015   Page 6 of 8
       that are plain, numerous, and substantial, we are compelled to reverse a

       termination judgment on procedural due process grounds.”), trans. denied. In

       Hite, we recognized:

               although termination proceedings and CHINS proceedings have an
               interlocking statutory scheme because involuntary termination
               proceedings are governed by the CHINS statutory procedures, CHINS
               proceedings are separate and distinct from involuntary termination
               proceedings because a CHINS cause of action does not necessarily
               lead to an involuntary termination cause of action.
[15]   Id. at 182. More recently our supreme court has stated:

               While we acknowledge a certain implication of parental fault in many
               CHINS adjudications, the truth of the matter is that a CHINS
               adjudication is simply that—a determination that a child is in need of
               services. Standing alone, a CHINS adjudication does not establish
               culpability on the part of a particular parent.
[16]   In re N.E., 919 N.E.2d 102, 105 (Ind. 2010).


[17]   Here, where DCS attempted to locate Father throughout the CHINS

       proceeding and served him with notice of the CHINS proceeding by

       publication, there was not a substantial risk of error in the termination

       proceeding in which Father participated and was represented by counsel.

       Father has not shown that he was denied due process.


                                                 Conclusion
[18]   Father waived his procedural due process claim by not raising it during the

       termination proceeding. Waiver notwithstanding, he has not established he

       was denied due process under these facts. We affirm.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015   Page 7 of 8
[19]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-JT-613 | May 19, 2015   Page 8 of 8
