MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Mar 15 2017, 6:56 am
the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Julianne L. Fox                                          Curtis T. Hill, Jr.,
Vanderburgh County                                       Attorney General of Indiana
Public Defender’s Office                                 Robert J. Henke
Evansville, Indiana                                      James D. Boyer
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                             March 15, 2017
Parent-Child Relationship of:                            Court of Appeals Case No.
Co.S., E.S., Cl.S., P.S. and M.S.                        82A01-1609-JT-2111
(minor children)                                         Appeal from the Vanderburgh
and                                                      Superior Court
                                                         The Honorable Renee A.
D.S. (Father),                                           Ferguson, Magistrate
Appellant-Respondent,                                    Trial Court Cause Nos.
                                                         82D04-1604-JT-682
        v.                                               82D04-1604-JT-683
                                                         82D04-1604-JT-684
The Indiana Department of                                82D04-1604-JT-685
Child Services,                                          82D04-1604-JT-686
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017            Page 1 of 4
      Mathias, Judge.


[1]   The Vanderburgh Superior Court terminated D.S.’s (“Father”) parental rights

      to his five minor children, and Father appeals raising two issues: 1) whether the

      magistrate erred when she denied Father’s request for the juvenile court judge

      to preside over the termination proceedings, and 2) whether sufficient evidence

      supports the finding that termination of Father’s parental rights is in the

      children’s best interests.

[2]   The orders terminating Father’s parental rights were not approved by the

      juvenile court judge. We therefore remand this case to the trial court for

      proceedings consistent with this opinion.


                                     Facts and Procedural History

[3]   Father has five minor children, and one of the children has cerebral palsy and

      hearing loss. In 2010 and 2012, the children were adjudicated children in need

      of services (“CHINS”), due at least in part to Father’s methamphetamine use.

      Father participated in substance abuse treatment, and the case files were closed.

[4]   In July 2015, the Indiana Department of Child Services (“DCS”) received a

      report that Father was homeless,1 using methamphetamine and heroin, and had




      1
        Father is not married to the children’s mother, who was also named as a party to the CHINS proceedings.
      The children’s mother voluntarily relinquished her parental rights after the DCS filed the petitions to
      terminate her parental rights to her five children.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017           Page 2 of 4
      neglected the children’s medical care and education. Shortly thereafter, the

      children were again adjudicated CHINS.

[5]   Father did not participate in services as ordered at the dispositional hearing. He

      failed to participate in a substance abuse evaluation, failed to maintain contact

      with DCS, failed to obtain housing, failed to enroll in parent education, and

      failed to attend more than one visit with the children. The DCS filed petitions

      to terminate Father’s parental rights to all five children on April 22, 2016.


[6]   On the date of the fact-finding hearing, Father was incarcerated in the

      Vanderburgh County Jail on charges for auto theft. At the hearing, Father

      requested that the case be continued so that the juvenile court judge could

      preside over the hearing in lieu of the magistrate. Father’s request was denied.

      During his testimony, Father admitted that he did not have the current ability

      to take care of the children.

[7]   The children have been placed with either their maternal or paternal

      grandmother, and the grandmothers arrange visits between the children. The

      DCS intends for the grandmothers to adopt the children.


[8]   The magistrate who presided over the termination hearing issued findings from

      the bench. Written orders terminating Father’s rights to each of the five children

      were issued thereafter. The orders were signed by the magistrate but were not

      signed by or approved by the juvenile court judge. Father now appeals.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017   Page 3 of 4
                                         Discussion and Decision

[9]    The orders terminating Father’s parental rights to his five minor children, which

       were consolidated for the purposes of appeal, were signed by the magistrate

       who presided over the termination proceedings. The orders were not approved

       by the juvenile court judge.

[10]   The authority of magistrates to act is determined by statute. Pursuant to 33-23-

       5-5(11), a magistrate may conduct an evidentiary hearing or trial. No statutory

       provision allows a magistrate to issue a final order in a parental termination of

       rights proceeding.


[11]   Importantly, Indiana Code section 33-23-5-9(a) provides that, except in

       criminal proceedings, a magistrate “shall report findings” in an evidentiary

       hearing or trial and that “the court shall enter the final order.” See also In re

       Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015). Because the record does

       not establish judicial approval of the magistrate's findings in this case, we

       remand to the juvenile court for its consideration of the magistrate’s findings

       and further action consistent with this opinion.


[12]   Remanded.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1609-JT-2111 | March 15, 2017   Page 4 of 4
