MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Mar 27 2020, 5:59 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
ALLEGED FATHER                                           Curtis T. Hill, Jr.
Amy Karozos                                              Attorney General of Indiana
Indianapolis, Indiana
                                                         David E. Corey
ATTORNEY FOR APPELLANT MOTHER                            Deputy Attorney General
Cara Schaefer Wieneke                                    Indianapolis, Indiana
Wieneke Law Office, LLC
Brooklyn, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 27, 2020
of the Parent-Child Relationship                         Court of Appeals Case No.
of M.L., B.L., & L.L. (Children)                         19A-JT-2267
and S.A. (Alleged Father) and                            Appeal from the Knox Superior
T.L. (Mother);                                           Court
S.A. (Alleged Father) and T.L.                           The Honorable Gara U. Lee,
(Mother),                                                Judge

Appellants-Defendants,                                   Trial Court Cause No.
                                                         42D01-1902-JT-2
        v.                                               42D01-1902-JT-3
                                                         42D01-1902-JT-4

The Indiana Department of
Child Services,



Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020               Page 1 of 11
      Appellee-Plaintiff




      May, Judge.

[1]   T.L. (“Mother”) and S.A. (“Father”) 1 (collectively, “Parents”) appeal the

      involuntary termination of their parental rights to M.L., B.L., and T.L.

      (collectively, “Children”). They present multiple issues for our review, which

      we restate as:


               1. Whether the trial court properly exercised personal jurisdiction
               over Mother when the Department of Child Services (“DCS”)
               allegedly failed to serve Mother with notice of the termination
               proceedings; and


               2. Whether DCS violated Father’s due process rights when it did
               not file a paternity action on Father’s behalf.


      We affirm.


                              Facts and Procedural History




      1
        The record reveals Father took a DNA test to prove he was Children’s biological father, but he did not
      complete steps to establish legal paternity. Because he did not establish legal paternity of Children, Father is
      listed as Alleged Father in the orders terminating his parental rights to Children.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020                      Page 2 of 11
[2]   Parents are the biological parents of B.L., born March 18, 2011; M.L., born

      March 27, 2012; and L.L., born June 12, 2015. On August 22, 2106, DCS

      received a report that M.L. and B.L. were “wandering the streets looking for

      food. . . . [B.L] was wearing only a diaper [and] [M.L.] was dirty and clothed

      only in pants.” (App. Vol. II at 25.) 2 When confronted by DCS, Father

      admitted “this was the third such incident” and Mother admitted that M.L. and

      B.L. “had eloped from the home seven times in the past couple of months.”

      (Id.) During an earlier incident when M.L. and B.L. left the house

      unsupervised, police found marijuana in Father’s pocket and Father was

      arrested for possession of marijuana.


[3]   On August 24, 2016, DCS filed a petition alleging Children were Children in

      Need of Services (“CHINS”) based on Parents’ failure to supervise Children

      and Father’s substance abuse problem. The same day, the trial court held

      detention and initial hearings on the matter, during which Parents waived

      counsel and admitted Children were CHINS. On September 27, 2016, the trial

      court entered its dispositional order requiring Parents to


               contact the DCS Family Case Manager (FCM) weekly; notify the
               FCM of address changes or changes in household composition;
               notify the FCM of any arrests or criminal charges; refrain from
               criminal activity; keep all appointments; maintain safe, stable
               housing; secure and maintain a legal source of income; remain



      2
       The trial court entered individual termination of parental rights orders for each child. The orders are
      virtually identical; therefore, we will quote the termination order involving M.L. unless a finding was made
      specific to a particular child.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020                   Page 3 of 11
               drug and alcohol free; submit to a substance abuse assessment
               and follow all treatment recommendations; submit to random
               drug/alcohol screens; submit to a parenting assessment and
               successfully complete all recommendations; attend all scheduled
               visitation with Child[ren]; . . . and provide the Child[ren] with a
               safe, secure, and nurturing environment.


      (Id. at 26.) At the dispositional hearing, the trial court placed Children with

      their maternal grandmother; however, they were eventually placed in foster

      care, where they remained during the proceedings.


[4]   At a status hearing on July 24, 2017, the trial court changed Children’s

      permanency plan from reunification to adoption based on Parents’ non-

      compliance with the case plan, services, and therapy. On February 27, 2019,

      DCS filed its petition to terminate Parents’ parental rights to Children. 3 The

      trial court held factfinding hearings on April 26, June 14, and June 25, 2019.

      Father appeared at all factfinding hearings; Mother did not appear at all

      hearings, but she was represented by counsel at all hearings. On August 26,

      2019, the trial court entered its order terminating Parents’ rights to Children.



                                   Discussion and Decision



      3
       The record indicates DCS first filed a petition to terminate Parents’ rights to Children on February 23, 2018.
      That petition was dismissed on August 22, 2018. DCS filed a second petition to terminate Parents’ rights to
      Children on August 20, 2018. That petition was dismissed on February 19, 2019, approximately one week
      prior to the current petition to terminate Parents’ rights to Children. It is unclear from the record why the
      two prior petitions were dismissed.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020                    Page 4 of 11
[5]   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).


[6]   “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.


                                        1. Personal Jurisdiction
[7]   Mother contends DCS did not prove she was given proper notice of any of the

      factfinding hearings and thus the trial court did not have personal jurisdiction

      over her. “‘Personal jurisdiction refers to a court’s power to impose judgment


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020   Page 5 of 11
      on a particular defendant.’ A challenge to personal jurisdiction is a question of

      law, which we review de novo.” Matter of K.P.G., 99 N.E.3d 677, 680 (Ind. Ct.

      App. 2018) (quoting Boyer v. Smith, 42 N.E.3d 505, 509 (Ind. 2015)), trans.

      denied. “The existence of personal jurisdiction requires effective service of

      process.” Ellis v. M&I Bank, 960 N.E.2d 187, 192 (Ind. Ct. App. 2011).

      However, a “party can waive lack of personal jurisdiction and submit himself to

      the jurisdiction of the court if he responds or appears and does not contest the

      lack of jurisdiction.” Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1007 (Ind.

      Ct. App. 2009).


[8]   During the first factfinding hearing on April 26, 2019, Mother did not appear.

      Mother’s counsel, who was present at the hearing, requested a continuance

      because Mother “called the Court this morning and indicated that she is ill with

      a couple of different conditions and is unable to appear this morning, so she had

      asked that I request a continuance for that reason.” (Tr. Vol. II at 16.) The trial

      court asked Mother’s counsel if Mother was hospitalized, and counsel indicated

      Mother was not. The trial court denied Mother’s motion to continue and told

      Mother’s counsel: “If you want to take a minute to contact her and notify her of

      that, I mean, let her know that if she wanted to still try to show up today, just

      because she’s not right here this second, doesn’t mean she couldn’t appear at

      some point during the proceedings.” (Id.) Mother’s counsel indicated that

      Mother had directed her to, in the event the trial court denied her motion to

      continue, “basically continue to make arguments on her behalf[.]” (Id.) During

      the second and third factfinding hearings on June 14, and June 25, 2019,


      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020   Page 6 of 11
      Mother did not appear, but her counsel was present. There was no discussion

      regarding Mother’s absences from those factfinding hearings.


[9]   Mother’s counsel was present at all hearings and did not raise the issue of

      personal jurisdiction, and thus it is waived. See In re Paternity of T.M.Y., 725

      N.E.2d 997, 1005 (Ind. Ct. App. 2000) (putative father waived personal

      jurisdiction argument on appeal because he did not first present it to the trial

      court), reh’g denied, trans. denied. To escape waiver, Mother argues DCS did not

      comply with the notice requirements set forth in Indiana Code section 31-35-2-

      6.5, which states in relevant part:


              (b) At least ten (10) days before a hearing on a petition or motion
              under this chapter:


                       (1) the person or entity who filed the petition to terminate
                       the parent-child relationship under section 4 of this
                       chapter; or


                       (2) the person or entity who filed a motion to dismiss the
                       petition to terminate the parent-child relationship under
                       section 4.5(d) of this chapter;


              shall send notice of the review to the persons listed in subsections
              (c) and (d).


              (c) Except as provided in subsection (h), the following persons
              shall receive notice of a hearing on a petition or motion filed
              under this chapter:


                       (1) The child’s parent, guardian, or custodian.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020   Page 7 of 11
[10]   “Compliance with the statutory procedure of the juvenile code is mandatory to

       effect termination of parental rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind.

       Ct. App. 2005). Although statutory notice “is a procedural precedent that must

       be performed prior to commencing an action,” it is not “an element of

       plaintiff’s claim.” Id. Failure to comply with statutory notice is thus “a defense

       that must be asserted.” Id. Once placed in issue, “the plaintiff bears the burden

       of proving compliance with the statute.” Id.


[11]   However, Mother also did not raise the issue of notice before the trial court,

       and thus it is waived. See In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006)

       (father waived notice issue when he did not first present it before the trial

       court), trans. denied. To escape waiver, Mother could have argued any alleged

       lack of notice amounted to fundamental error. Fundamental error occurs when

       there exists “egregious trial errors. In order for this court to reverse based on

       fundamental error, the error must have been a clearly blatant violation of basic

       and elementary principles, and the harm or potential for harm must be

       substantial and appear clearly and prospectively.” In re E.E., 853 N.E.2d at

       1043 (internal citation omitted). Mother did not assert fundamental error on

       appeal.


[12]   Waiver notwithstanding, we cannot conclude that any failure by DCS to serve

       Mother notice of the factfinding hearings is fundamental error. Mother was

       represented by counsel throughout the proceedings, which we have held is

       appropriate as long as the party’s counsel is able to make argument and cross

       examine witnesses, which Mother’s counsel did here in all three factfinding

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020   Page 8 of 11
       hearings. See J.T. v. Marion Cty. Ofc. of Family & Children, 740 N.E.2d 1261,

       1264 (Ind. Ct. App. 2000) (no fundamental error when father not physically

       present at termination hearing because father was represented by counsel who

       presented argument and cross-examined witnesses), reh’g denied, trans. denied,

       abrogated on other grounds by Baker v. Marion Cty. Ofc. of Family & Children, 810

       N.E.2d 1035, 1039 (Ind. 2004). 4


                             2. Establishing Father’s Legal Paternity
[13]   As part of his services in the CHINS proceedings, Father worked with service

       providers on establishing legal paternity of Children; however, he had not done

       so by the time of the termination factfinding hearings. Under Indiana Code

       section 31-34-15-6 (2012), which was active 5 at the time of the trial court’s

       order:


                (a) . . . whenever a child who was born out of wedlock is:




       4
         Father argues his “due process rights may have been impacted by Mother’s absence [because] Mother could
       have supported Father’s arguments[.]” (Br. of Father at 17.) In order for Father to assert a claim based on an
       allegation regarding personal jurisdiction over Mother, he must have standing to do so. To have standing, “a
       plaintiff must demonstrate a personal stake in the outcome of the lawsuit and must show that he or she has
       sustained or was in immediate danger of sustaining, some direct injury as a result of the conduct at issue.”
       Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985). Father has not presented any more than speculative injury,
       and thus his argument fails. See State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005) (no
       standing when injury is hypothetical), trans. denied.
       5
         Effective July 1, 2018, during the pendency of these proceedings, the statutory language of Indiana Code
       section 31-34-15-6(b) changed such that “shall” changed to “may,” leaving to DCS’s discretion whether to
       file a paternity action under these circumstances. Compare Ind. Code § 31-34-15-6(b) (2102) with Ind. Code §
       31-34-15-6(b) (2018).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020                    Page 9 of 11
                        (1) or is alleged to be a child in need of services; and


                        (2) under the supervision of the department or a local
                        office as a result of a court ordered out-of-home
                        placement.


               (b) The department or the local office shall refer a child’s case to
               the local prosecuting attorney’s office for the filing of a paternity
               action if the:


                        (1) identity of the alleged father is known; and


                        (2) department or the local office reasonably believes that
                        establishing the paternity of the child would be beneficial
                        to the child.


[14]   DCS acknowledges it did not refer Children’s paternity matters to the local

       prosecutor’s office. However, Father did not present this issue before the trial

       court, which would have allowed the trial court to determine if DCS reasonably

       did not believe that “establishing paternity of the child would be beneficial to

       the child.” Ind. Code § 31-35-15-6(b) (2012). Thus, Father has waived this

       issue from our review. See McBride v. Monroe Cty. Ofc. of Family and Children, 798

       N.E.2d 185, 194 (Ind. Ct. App. 2003) (issue waived because it was not first

       presented before the trial court).


       Waiver notwithstanding, we note that Indiana Code section 31-34-15-6 is part

       of a series of statutes regarding the services provided as part of a CHINS case.

       As the failure to provide services as part of a CHINS proceeding cannot be used

       to attack an order of termination, we reject Father’s argument. See In re H.L.,

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020   Page 10 of 11
       915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (“failure to provide services does

       not serve as a basis on which to directly attack a termination order as contrary

       to law”).



                                               Conclusion
[15]   The trial court properly exercised personal jurisdiction over Mother because

       Mother availed herself to the trial court’s personal jurisdiction by

       communicating her absence to the trial court on the day of the first factfinding

       hearing. Additionally, Father lacks standing to appeal the issue of the trial

       court’s personal jurisdiction over Mother. Finally, Father waived his argument

       regarding DCS’s noncompliance with Indiana Code section 31-34-15-6(b)

       (2012) because he did not present the issue before the trial court. Waiver

       notwithstanding, Father cannot use a failure to provide services in a CHINS

       proceeding to attack a termination order. Accordingly, we affirm the

       involuntary termination of Parents’ rights to Children.


[16]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020   Page 11 of 11
