                                                                            FILED
                                                                        Sep 11 2018, 8:43 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT A.S.                                ATTORNEYS FOR APPELLEE
(MOTHER)                                                   Curtis T. Hill, Jr.
Cara Schaefer Wieneke                                      Attorney General of Indiana
Wieneke Law Office
Brooklyn, Indiana                                          Robert J. Henke
                                                           Deputy Attorney General
ATTORNEYS FOR APPELLANT R.T.                               Indianapolis, Indiana
(FATHER)
Steven E. Ripstra
Jacob P. Wahl
Ripstra Law Office
Jasper, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           September 11, 2018
of the Parent-Child Relationship                           Court of Appeals Case No.
of C.M.S.T., T.M., & M.M.                                  18A-JT-530
(Children) and A.S (Mother) and                            Appeal from the Spencer Circuit
R.T. (Father);                                             Court
A.S. (Mother) and R.T. (Father),                           The Honorable William E.
                                                           Weikert, Senior Judge
Appellants-Respondents,
                                                           Trial Court Cause No.
        v.                                                 74C01-1706-JT-135
                                                           74C01-1706-JT-136
                                                           74C01-1706-JT-137
The Indiana Department of
Child Services,
Appellee-Petitioners




Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                           Page 1 of 11
      May, Judge.


[1]   A.S. (“Mother”) appeals the involuntary termination of her parental rights to

      C.M.S.T., born May 11, 2011; T.M., born November 12, 2013; and M.M., born

      May 24, 2016 (collectively, “Children”). R.T. (“Father”) appeals the

      involuntary termination of his parental rights to C.M.S.T. 1 Mother and Father

      (collectively, “Parents”) present a number of issues, one of which we find

      dispositive: whether Parents were denied due process during the proceedings.

      The Department of Child Services (“DCS”) concedes Parents were denied due

      process. Accordingly, we reverse and remand.



                             Facts and Procedural History                                  2




[2]   In March 2015, DCS responded to a report that Mother and her then-husband

      were involved in a domestic violence-related altercation. C.M.S.T. was staying

      with Father at the time. T.M. was removed from Mother’s care based on the

      domestic violence and Mother’s use of methamphetamine. Father was required

      to bring C.M.S.T. to the DCS office for placement outside Mother’s home as

      well. Father testified C.M.S.T. was not placed with him at that time because of

      his prior criminal history. T.M. and C.M.S.T. were placed with their




      1
       The parental rights of the father of T.M. and M.M. were also terminated, but he does not participate in this
      appeal.
      2
       We note some of the facts and timeline are difficult to discern because the record provided to us does not
      contain much information from the proceedings in the Child in Need of Services (“CHINS”) cases. This lack
      of documentation has severely hindered our ability to review this matter.

      Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                            Page 2 of 11
      grandmother, Te.C., 3 though at some point they were removed from her care

      and placed in foster care.


[3]   On March 21, 2015, DCS filed a petition alleging T.M. and C.M.S.T. were

      Children in Need of Services (“CHINS”). On April 16, 2015, T.M. and

      C.M.S.T. were adjudicated CHINS. In May 2015, C.M.S.T. was placed with

      Father on a trial basis. She was removed from Father’s care shortly thereafter

      because Father had a medical emergency resulting from a mixture of alcohol

      and anti-anxiety medication. On June 8, 2015, the trial court entered its

      dispositional order in this case, ordering Mother and Father to engage in

      services.


[4]   Jesse Hubert was the first Family Case Manager (“FCM”) assigned to the case.

      At some point, he was replaced by FCM Marilyn Neal, who submitted a report 4

      in the case on October 14, 2015. Father testified FCM Neal filed a false report

      that Father “went to [C.M.S.T.’s] school, made a scene, and tried to take

      [C.M.S.T.].” (Tr. Vol. III at 141.) Based on FCM Neal’s false report, Father

      was required to participate in supervised visits with C.M.S.T. and was banned

      from the school. DCS terminated FCM Neal, who was replaced by FCM Sybil

      Rodeck. FCM Rodeck was on the case for only a short period of time before




      3
          Te.C. is C.M.S.T.’s paternal grandmother, but DCS initially placed both C.M.S.T. and T.M. with her.
      4
          This report is not in the record but was referenced at the termination hearing.


      Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                           Page 3 of 11
      she was replaced with FCM Megan Ginanni, who was also working with

      Father on a CHINS case for one of his other children.


[5]   At some point during her time working on the case, FCM Ginanni and Father

      began exchanging Facebook messages, which became sexually explicit in

      nature. FCM Ginanni and Father also engaged in a sexual relationship. Father

      testified FCM Ginanni would give him advanced notice of drug screens and

      told him he did not need to continue engaging in certain services. Father

      testified FCM Ginanni told him he “would get reunified [with C.M.S.T.] and

      she 5 would live with me and she was gonna (sic) help me get [Father’s other

      child] as well.” (Id. at 149) (footnote added).


[6]   In January 2016, C.M.S.T. was placed with Father for a trial home visit. In

      March 2016, FCM Ginanni gave Father a drug screen he failed. Father

      testified FCM Ginanni told him “she’d take care of it.” (Id. at 150.) Father

      submitted another drug test the next day and failed it, resulting in C.M.S.T.’s

      removal from his care. Father was arrested after his positive drug screen

      because drug use also violated the terms of his probation. Father testified he

      “got angry and decided to come clean about everything” with FCM Ginanni to

      FCM Ginanni’s supervisor. DCS fired FCM Ginanni based on her

      inappropriate relationship with Father.




      5
       It is unclear to whom the pronoun “she” refers, as C.M.S.T. is also female. In her brief, Mother identifies
      “she” as FCM Ginanni, though it is also possible “she” referred to C.M.S.T.

      Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                            Page 4 of 11
[7]   During these transitions, Mother was compliant with services. Mother testified

      she stopped using methamphetamine on July 15, 2015. She learned she was

      pregnant with M.M. in October 2015. In March 2016, FCM Maureen

      Lambeck took over the case. Prior to M.M.’s birth in May 2016, Mother

      requested a trial home visit with C.M.S.T. and T.M. to prepare for the birth of

      their sibling. FCM Lambeck denied her request, though she allowed C.M.S.T.

      and T.M. to participate in overnight visits with Mother on the weekend. Then,

      in July or August 2016, FCM Lambeck placed C.M.S.T. and T.M. in Mother’s

      care for a trial home visit.


[8]   In early September 2016, Mother left Children with her father, her older son,

      and her older son’s girlfriend, so that Mother could use methamphetamine at a

      different location. Mother testified she reported her use to FCM Lambeck

      shortly thereafter. FCM Lambeck removed Children from Mother’s care and

      placed them in two separate placements – C.M.S.T. with kinship placement,

      and T.M. and M.M. in foster placement.


[9]   Mother testified she contacted a DCS attorney in December 2016 and asked the

      attorney to help Mother find an inpatient substance abuse treatment center.

      Mother was placed at Serenity House and engaged in residential treatment until

      February 2017, when Serenity House’s administrator had a medical emergency

      out of town and was unable to manage the facility. Mother immediately

      contacted FCM Lambeck, who provided Mother with a list of inpatient

      treatment facilities, but FCM Lambeck testified it was Mother’s “responsibility



      Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018   Page 5 of 11
       to get into those places.” (Id. at 77.) 6 Mother moved in with her father and lost

       her job due to lack of transportation.


[10]   In June 2017, DCS filed petitions to terminate Mother’s and Father’s parental

       rights to their respective children. In July 2017, while with the father of M.M.

       and T.M., Mother was arrested for possession of paraphernalia and tested

       positive for methamphetamine. The arrest violated Mother’s probation on

       another charge, so she was taken into custody. At the time of the termination

       hearing, Mother was housed at the Spencer County Jail, but she allegedly was

       scheduled to be released shortly after the hearing. Father was also housed at

       the Spencer County Jail at the time of the termination proceedings, and he

       testified he was scheduled for release on September 26, 2018.


[11]   In August 2017, Te.C. and Ta.C., Children’s respective paternal grandmothers,

       filed a motion to intervene, seeking to have Children placed with either paternal

       grandmother. Those requests were denied. 7 On August 15 and September 12,

       2017, the trial court held evidentiary hearings regarding the termination

       petitions. On January 8, 2018, the trial court issued orders terminating

       Mother’s and Father’s parental rights to their respective children.




       6
        FCM Lambeck testified DCS could refer parents to outpatient, but not inpatient, counseling. Additionally,
       FCM Lambeck testified DCS could not help parents find places to live, except to give Mother a list of
       available places to stay or rent.
       7
           It is unclear why the trial court denied Te.C.’s and Ta.C.’s requests to intervene.


       Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                         Page 6 of 11
[12]   Mother and Father both timely appealed the termination decisions. On June

       26, 2018, DCS filed a motion for remand 8 or, in the alternative, a new briefing

       schedule. On July 5, 2018, this court granted DCS’s motion for a new briefing

       schedule and held in abeyance the issue of remand to be determined by the

       writing panel. 9



                                    Discussion and Decision
[13]   We review termination of parental rights with great deference. In re K.S., D.S.,

       & B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

       evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

       Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

       reasonable inferences most favorable to the judgment. Id. In deference to the

       juvenile court’s unique position to assess the evidence, we will set aside a

       judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

       717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

       534 U.S. 1161 (2002).




       8
         We note this case was referenced in a July 9, 2018, order granting a DCS motion to remand, which is
       attached as Exhibit A to this opinion. In the order, our Court formally admonished DCS “for its failure to
       afford litigants through this state the due process they are owed.” (Ex. A at 2.) Further, our Court reminded
       trial courts “of their duty to ensure that litigants’ due process rights are not violated. Given the fundamental
       due process rights at issue in termination of parental rights cases, affording litigants these fundamental due
       process rights is essential, including not only the litigants but also their children.” (Id.) We join in those
       sentiments, especially considering the multiple due process and ethical violations present in this case.
       9
           We deny DCS’s motion for remand in an order issued contemporaneously with this opinion.


       Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                               Page 7 of 11
[14]   “The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.” In

       re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

       subordinate the interests of the parents to those of the children, however, when

       evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

       at 837. The right to raise one’s own children should not be terminated solely

       because there is a better home available for the children, id., but parental rights

       may be terminated when a parent is unable or unwilling to meet parental

       responsibilities. Id. at 836.


[15]   In a termination of parental rights proceeding, parents have certain due process

       rights:


                 When a State seeks to terminate the parent-child relationship, it
                 must do so in a manner that meets the requirements of the due
                 process clause. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388,
                 71 L.Ed.2d 599 (1982). Although due process has never been
                 precisely defined, the phrase embodies a requirement of
                 “fundamental fairness.” E.P. v. Marion County Office of Family &
                 Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting
                 Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 26, 101 S. Ct. 2153,
                 68 L.Ed.2d 640 (1981)). Citing Mathews v. Eldridge, 424 U.S. 319,
                 96 S. Ct. 893, 47 L.Ed.2d 18 (1976), this court has recently
                 acknowledged that the nature of the process due in parental
                 rights termination proceedings turns on a 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. A.P. v. Porter County Office of Family and
                 Children, 734 N.E.2d 1107 (Ind. Ct. App. 2000)[, reh’g denied].


       Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018         Page 8 of 11
       J.T. v. Marion Cty. Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct.

       App. 2000), reh’g denied, trans. denied, abrogated on other grounds by Baker v. Marion

       Cty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind. 2004) (abrogated

       regarding sufficiency of counsel). In addition, “procedural irregularities in a

       CHINS 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.” A.P., 734 N.E.2d at 1112-13.


[16]   Here, the trial court found, regarding the procedural difficulties in the

       underlying CHINS cases:


               This case involved 5 FCMs and 4 attorneys for the DCS. Two
               FCMs were fired during the pendency of this case based on their
               behavior during this case. The parents have argued that this
               caused them to fail. One could speculate what might have
               happened had this case been handled properly by one FCM.
               That speculation could be that that Mother’s trial home visit
               would have occurred earlier than July 2016 and would have been
               successful with the Chins [sic] case being dismissed. However,
               the Court should not and cannot make such a speculation, nor
               should the Court allow those facts to influence its decision. The
               Court argues [sic] that the chaotic way this case was handled by
               DCS, especially the actions of the two FCMs who were fired,
               contributed to this case not progressing the way it could have.
               However, that is not the deciding factor.




       Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018       Page 9 of 11
       (Mother’s App. Vol. II at 118.) 10 We cannot agree that the egregious behavior

       of some of the DCS employees did not contribute to Mother’s and Father’s

       non-compliance with some services.


[17]   Father’s testimony that FCM Ginanni told him to discontinue services and

       seemingly accelerated the visitation and home placement schedule for

       C.M.S.T., while denying similar escalation of visitation to Mother is just one of

       many instances that lead us to believe the chaotic and unprofessional handling

       of this case violated Mother’s and Father’s due process rights. The State

       concedes this violation of due process.



                                                  Conclusion
[18]   In light of the unusual and alarming circumstances that occurred in the

       underlying CHINS cases, we reverse the termination of Mother’s and Father’s

       parental rights to their respective children. We remand to the trial court for

       reinstatement of the CHINS cases, a re-examination of the requirements for

       reunification, and a revised dispositional order outlining the services Mother

       and Father must complete to reunify with their respective children.


[19]   Reversed and remanded.




       10
          The orders regarding each child have almost identical language. We cite to the trial court’s order
       terminating Mother’s and Father’s parental rights to C.M.S.T.

       Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018                            Page 10 of 11
Baker, J., and Robb, J., concur.




Court of Appeals of Indiana | Opinion 18A-JT-530 | Septmeber 11, 2018   Page 11 of 11
      EXHIBIT A


                                         IN THE

         COURT OF APPEALS OF INDIANA
      Termination:
      A.A.,
      Appellant,                                      Court of Appeals Case No.
              v.                                      18A-JT-527

      Indiana Department of Child
      Services,                                                               FILED
      Appellee.                                                          Jul 09 2018, 3:46 pm

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court


                                            Order
[1]   Appellant’s Brief and Appendix were filed on May 4, 2018. On May 31, 2018,
      the Court ordered Appellee Indiana Department of Child Services (“DCS”) to
      file its brief by June 18, 2018. Instead of filing a brief, DCS, by counsel, has
      filed a Verified Motion to Remand, or in the Alternative, a New Briefing
      Schedule. In the motion, DCS essentially concedes that Appellant was not
      provided with adequate notice of the termination of parental rights hearing and
      that the trial court violated Appellant’s due process rights when it defaulted her
      while she was present in the court’s waiting room but excluded from the actual
      courtroom. DCS asks that the case be dismissed without prejudice and
      remanded to the trial court for further proceedings consistent with due process.
      DCS alleges that Appellant does not object to remand.

[2]   Over the past six (6) months, DCS has filed eight (8) motions to remand that
      are substantively similar to the motion at issue here. See Termination: S.T. v.
      Indiana Dep’t of Child Services, No. 48A02-1709-JT-2094; Termination: T.Z. v.
      Indiana Dep’t of Child Services, No. 79A02-1710-JT-2406; Termination: K.P. v.
      Indiana Dep’t of Child Services, No. 53A05-1712-JT-2830; Termination: N.L. v.
      Indiana Dep’t of Child Services, No. 18A-JT-94; Termination: A.B. v. Indiana Dep’t
      of Child Services, No. 18A-JT-170; Termination: C.S., et al. v. Indiana Dep’t of Child
      Services, No. 18A-JT-280; Termination: J.F., et al. v. Indiana Dep’t of Child Services,


                                                                                           Page 1 of 3
      No. 18A-JT-341; Termination: L.R. v. Indiana Dep’t of Child Services, No. 18A-JT-
      529. This is the ninth such motion filed by DCS, and the Court is aware of a
      tenth motion that has been filed in Cause Number 18A-JT-530. The motions
      are always filed after Appellant has filed their brief. In these motions, DCS
      essentially concedes that Appellant has either not been provided with adequate
      notice or that their due process rights have been violated. DCS then, as in this
      case, requests that the matter be remanded to the trial court for further
      proceedings consistent with due process.

[3]   It is not clear why DCS has suddenly chosen to file motions to remand in these
      cases rather than file a brief. The result of this, though, is that the Court has
      primarily dealt with these issues through its orders and not in a formal opinion.
      While the orders of this Court carry weight, they do not carry the weight or the
      effect that an opinion from this Court does. By filing a motion to remand, DCS
      has successfully avoided defending repeated, significant violations of due
      process in termination of parental rights cases.

[4]   The increasing frequency of these motions suggest that there are repeated,
      significant violations of due process occurring in termination of parental rights
      cases throughout this state. This is a disturbing trend given the fundamental
      rights at issue in these types of cases. See In re Adoption of O.R., 16 N.E.3d 965,
      972 (Ind. 2014) (noting that the Fourteenth Amendment to the United States
      Constitution protects the rights of parents to establish a home and raise their
      children, that parents have a fundamental liberty interest in the care, custody,
      and control of their children, and that the parent-child relationship is one of the
      most valued relationships in our culture).

[5]   While the Court commends DCS for essentially conceding error in these cases,
      the Court is obligated to formally admonish DCS for its failure to afford
      litigants throughout this state the due process rights they are owed.
      Furthermore, the Court also reminds the trial courts throughout this state of
      their duty to ensure that litigants’ due process rights are not violated. Given the
      fundamental due process rights at issue in termination of parental rights cases,
      affording litigants these fundamental due process rights is essential, including
      not only the litigants but also their children.

[6]   Having reviewed the matter, the Court finds and orders as follows:



                                                                                 Page 2 of 3
   1. Pursuant to Appellate Rule 37, Appellee’s Verified Motion to Remand is
      granted. This appeal is dismissed without prejudice and remanded to the
      trial court for further proceedings consistent with due process.
   2. Appellant may, after filing a new notice of appeal, raise the issues
      Appellant would have raised in this appeal along with any new issues
      created by the trial court’s ruling(s) on remand.
   3. The Court directs that this order should be published. The Clerk of this
      Court is directed to send copies of this order to West/Thomson Reuters,
      LexisNexis, and all other sources to which decisions/opinions of this
      Court are normally sent.
   4. The Clerk of this Court is directed to send a copy of this order to the
      parties, Judge Brent J. Niemeier of the Vanderburgh Superior Court,
      Magistrate Renee A. Ferguson of the Vanderburgh Superior Court, the
      Vanderburgh Circuit and Superior Courts Clerk, Indiana Attorney
      General Curtis Hill, and Terry J. Stigdon, Director of the Indiana
      Department of Child Services.
   5. The Vanderburgh Circuit and Superior Courts Clerk is directed to file a
      copy of this order under Cause Numbers 82D04-1711-JT-2195, 82D04-
      1711-JT-2196, 82D04-1711-JT-2197, and 82D04-1711-JT-2198, and,
      pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents
      of this order in the Record of Judgments and Orders.

             7/9/2018
Ordered

Mathias, J., Darden, Friedlander, Sr.JJ., concur.

                                              For the Court,




                                                                  Chief Judge




                                                                      Page 3 of 3
