MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                                FILED
this Memorandum Decision shall not be                                      Sep 27 2018, 6:01 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
Gregory L. Fumarolo                                       Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          September 27, 2018
of the Parent-Child Relationship                          Court of Appeals Case No.
of D.K.R. (Child) and D.W.R.                              18A-JT-613
(Father);                                                 Appeal from the Allen Superior
D.W.R. (Father),                                          Court
                                                          The Honorable Charles F. Pratt,
Appellant-Respondent,
                                                          Judge
        v.                                                Trial Court Cause No.
                                                          02D08-1705-JT-104
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018                   Page 1 of 8
[1]   D.W.R. (“Father”) appeals the involuntary termination of his parental rights to

      D.K.R. (“Child”). Father argues the Department of Child Services (“DCS”)

      did not present sufficient evidence to prove the elements required to terminate

      his parental rights to Child because he was not given an opportunity to engage

      in services prior to termination. As Father’s argument is better framed as one

      challenging due process, we will consider whether he was denied due process

      during the proceedings. Concluding Father received due process, we affirm.



                                 Facts and Procedural History
[2]   Child was born to P.R. (“Mother”) 1 on March 24, 2011. Mother and Father 2

      were not married. Mother testified Father was not present at Child’s birth, but

      he visited Child “periodically” after she came home from the hospital. (Tr. Vol.

      II at 43.) When Child was one and a half years old, Mother moved to Fort

      Wayne, Indiana, and Child stayed with Father in Chicago for three to four

      months while Mother “settled in.” (Tr. Vol. II at 43.) Mother testified Father

      had provided approximately $400-$500 in child support during Child’s lifetime

      and he had not seen Child for “three (3) to four (4) years.” (Id. at 45.)


[3]   On September 29, 2014, Child and her four siblings 3 were removed from

      Mother’s care because Mother “left [Child] unattended and had been arrested



      1
          Mother’s rights to Child were also involuntarily terminated, but she does not participate in this appeal.
      2
          Father allegedly established paternity in Illinois, but that document is not in the record before us.
      3
          Mother’s parental rights to Child’s siblings were also terminated, but they are not the subject of this appeal.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018                           Page 2 of 8
      and convicted of resisting law enforcement, criminal recklessness, reckless

      driving and operating a vehicle without a license.” (App. Vol. II at 10.) On

      October 1, 2014, DCS filed a petition to adjudicate Child and her siblings as

      Children in Need of Services (“CHINS”). Mother provided DCS with Father’s

      last known address, and the certificate of service for the petition indicates DCS

      sent a copy of the petition to him.


[4]   On October 24, 2014, DCS filed an amended petition to adjudicate Child a

      CHINS. Father’s address was listed as unknown on that petition. On October

      27, 2014, Child and her siblings were adjudicated CHINS after Mother

      admitted the allegations contained in the CHINS petition. The trial court

      entered a dispositional decree as to Mother the same day, ordering her to

      participate in certain services and visit with Child and her siblings. Father did

      not appear before the court at these proceedings.


[5]   On June 1, 2017, DCS filed a petition to terminate the parental rights of Mother

      and Father to Child. DCS sent a copy of the petition to Father’s last known

      address. Father’s sister contacted DCS in August 2017, and Father spoke with

      the DCS Family Case Manager at that time. The trial court held a dispositional

      hearing as to Father in the CHINS case for the Child on September 20, 2017,

      but the court did not issue a dispositional order at that time. DCS began the

      process to arrange therapeutic visits between Father and Child, and Child

      completed the intake appointment on October 26, 2017, but Father did not

      complete the required intake appointment.



      Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018   Page 3 of 8
[6]   On November 6 and 7, 2017, the trial court held fact-finding hearings for the

      petition to terminate Mother’s and Father’s parental rights. Father was present

      at these hearings, and his counsel cross-examined witnesses, but Father did not

      testify. On February 7, 2018, the trial court entered an order terminating

      Mother’s and Father’s parental rights to Child based on Mother’s lack of

      compliance with services and visitation, as well as the fact that Father “[had]

      not visited or provided for [Child].” (Id. at 13.)



                                      Discussion and Decision
[7]   Father challenges the involuntary termination of his parental rights on the basis

      that there existed insufficient evidence from which the trial court could

      conclude termination was appropriate pursuant to the requirements set forth in

      Ind. Code § 31-35-2-4(b)(2). 4 However, his arguments center around his




      4
          To terminate a parent-child relationship, the State must allege and prove:

                 (B) that one (1) of the following is true:
                          (i) There is a reasonable probability that the conditions that resulted in the
                          child’s removal or the reasons for placement outside the home of the parents will
                          not be remedied.
                          (ii) There is a reasonable probability that the continuation of the parent-child
                          relationship poses a threat to the well-being of the child.
                          (iii) The child has, on two (2) separate occasions, been adjudicated a child in
                          need of services;
                 (C) that termination is in the best interests of the child; and
                 (D) that there is a satisfactory plan for the care and treatment of the child.
      Ind. Code § 31-35-2-4(b)(2).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018                      Page 4 of 8
       contention he did not receive certain due process throughout the proceedings,

       and we will address them as such.


[8]    When the State seeks to involuntarily terminate a parent’s right to his child, it

       must do so in a manner that meets the requirements of due process. Hite v.

       Vanderburg Cty. Office of Family & Children, 845 N.E.2d 175, 181 (Ind. Ct. App.

       2006). “Due process in parental rights cases involves the 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 government

       interest supporting use of the challenged procedure.” Id.


[9]    Here, Father’s private interest in maintaining a relationship with Child is

       substantial insomuch as his parental rights have been terminated. See J.T. v.

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

       2000) (“a parent’s interest in the care, custody, and control of his child is

       ‘perhaps the oldest of the fundamental liberty interests’”) (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (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). However, the State of

       Indiana also has a compelling interest in protecting the welfare of children. In

       the Matter of E.M., 581 N.E.2d 948, 952 (Ind. Ct. App. 1991), trans. denied.

       Thus, we must consider the risk of error in the chosen procedure.


[10]   Here, Father was identified by name as alleged father of Child in the September

       30, 2014, petition to adjudicate Child as a CHINS. His date of birth and


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018   Page 5 of 8
       address were also listed on the petition. (Ex. Vol. II at 60.) 5 The petition

       indicates it was served on Father. (Id. at 63.) The certificate of service on the

       trial court’s Preliminary Inquiry Order, entered on October 1, 2014, indicated

       Father was served with that order. (Id. at 67.) The certificate of service for the

       order on initial hearing and detention order, entered on October 1, 2014,

       indicated Father was served with that order. (Id. at 76.) However, the

       certificate of service for the amended petition to adjudicate Child a CHINS,

       filed on October 24, 2014, indicates Father’s address was unknown. (Id. at 84.)


[11]   On May 30, 2017, DCS filed its verified petition for involuntary termination of

       the parent-child relationship between Father and Child. In that petition, DCS

       listed Father’s address, which was a different address than was provided for

       Father in 2014. (Id. at 13.) On September 27, 2017, the publisher of The

       Chicago Crusader signed an affidavit that she had published legal notice of the

       termination proceedings in The Chicago Crusader on September 9, 16, and 23,

       2017. (Id. at 18.) On October 5, 2017, an employee of Evolution Process

       Service filed an Affidavit of Service indicating he had served the notice of the

       termination of parental rights proceedings to “Mona Parker” at the address

       provided for Father, and “Mona Parker” verified Father resided at that address.

       (Id. at 6.)




       5
         The pages of the Exhibit Volume are not numbered, so we identify the page based on the page indicated by
       the electronic version of the record.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018               Page 6 of 8
[12]   Father appeared at a dispositional hearing on September 20, 2017, and the trial

       court indicated it would enter a dispositional order as to Father as part of the

       CHINS proceedings. Shortly following the dispositional hearing, DCS

       requested therapeutic visits be held between Father and Child, and Child was

       brought for the initial intake for those visits on October 26, 2017. Father did

       not complete an assessment prior to the termination hearing on November 6,

       2017. Father attended the termination hearings on November 6 and 7, 2017.


[13]   At the hearing, Mother testified she spoke with Father “every other week” and

       affirmed that throughout the proceedings they had been communicating at least

       monthly. (Tr. Vol. II at 49.) Mother testified Father “ask[ed] about [Child] all

       the time.” (Id. at 52.) Mother affirmed she had told Father that Child was no

       longer in her care, and they “talked over the years about it and how to get

       [Child] back and everything.” (Id. at 53.) Mother indicated Father knew Child

       had been removed from her care by Child’s birthday in March 2015. While

       Father attended the hearing and his counsel cross-examined witnesses, Father

       did not testify.


[14]   The record simply does not demonstrate that Father was denied the opportunity

       to participate in the proceedings. The record indicates DCS contacted Father at

       the address given for him as long as an address was provided, and Father did

       not testify that he did not receive notice of the CHINS proceedings. Mother

       testified Father knew Child was no longer in her care since at least 2015, but

       Father did not contact the court to appear in the CHINS proceedings at that

       point. Thus, we conclude the risk of error is not substantial because Father was

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018   Page 7 of 8
       given the opportunity to participate in the latter portions of the CHINS action

       and in the termination proceedings, and Father has not demonstrated he failed

       to receive service of those items sent to him at the initiation of the proceedings.

       See Hite, 845 N.E.2d at 184 (risk of error not substantial because father was not

       denied the opportunity to be heard in the latter portions of the CHINS action

       and during the termination proceedings). Father cannot ignore notice of

       CHINS proceedings and then attempt to prolong the process by suddenly

       appearing after DCS files a termination petition almost three years after Child

       was removed from Mother’s care. See In re E.M., 4 N.E.3d 636, 648 (Ind. 2014)

       (permanency is a paramount need for children, and “children cannot wait

       indefinitely for their parents to work toward preservation or reunification”).



                                               Conclusion
[15]   Father’s due process rights were not violated as part of the CHINS or

       termination of parental rights processes. Accordingly, we affirm the trial

       court’s involuntary termination of Father’s parental rights to Child.


[16]   Affirmed.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-613 | September 27, 2018   Page 8 of 8
