                                                                   Mar 16 2015, 9:49 am




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joann M. Price                                             Gregory F. Zoeller
Merrillville, Indiana                                      Attorney General of Indiana

                                                           Robert J. Henke
                                                           David E. Corey
                                                           Deputy Attorneys General
                                                           Indianapolis, Indiana

                                                           Donald W. Wruck
                                                           Wruck Paupore PC
                                                           Dyer, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           March 16, 2015
of the Parent-Child Relationship                           Court of Appeals Case No.
of: D.P. and D.P.E.                                        45A03-1410-JT-358
and                                                        Appeal from the Lake Superior
J.P. (Mother)                                              Court
                                                           The Honorable Thomas P.
Appellant-Respondent,                                      Stefaniak, Jr., Judge
                                                           Cause Nos. 45D06-1403-JT-81
        v.                                                 45D01-1403-JT-82


Indiana Department of Child
Services,
Appellee-Petitioner




Bailey, Judge.


Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015                    Page 1 of 13
                                                 Case Summary
[1]   J.P. (“Mother”) appeals the trial court’s order granting the petition of the

      Department of Child Services (“DCS”) to terminate Mother’s parental rights as

      to D.P. and D.P.E. (“the Children”). Mother raises two issues for our review,

      which we reframe as a single issue: whether the trial court deprived Mother of

      due process of law when, in Mother’s absence and without representation of

      counsel, it converted the nature of the proceedings and then terminated her

      parental rights.


[2]   Finding this a deprivation of due process guarantees, we reverse.



                                 Facts and Procedural History
[3]   D.P. was born to Mother in 2010; D.P.E. was born in 2011.1 Mother had a

      learning disability and was unable to care for Children without supervision

      from a friend or relative.


[4]   On January 22, 2012, Mother was forced out of the home she shared with her

      aunt. She found shelter in a friend’s home, who alerted DCS that Mother was

      homeless and that Mother could not care for the Children without help.

      Mother’s aunt was aware of this when she ejected Mother from the home.

      Because of Mother’s disability, she received social security disability income




      1
          D.E., alleged father of both children, is not an active party to this appeal.


      Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015             Page 2 of 13
      which was managed by her aunt. Without the ability to manage her own

      finances, Mother was unable to finance other housing. DCS removed the

      Children from Mother’s care, and on January 24, 2012, the Children were

      adjudicated as Children in Need of Services (“CHINS”).


[5]   Over the course of the CHINS action, the Children were placed into a foster

      home in which they thrived. Mother used some services, but was unable to

      obtain permanent housing. She also missed numerous appointments with

      service providers, often because she would leave Gary for Chicago, Illinois, and

      find herself without money to return. Mother also missed several hearings and

      other meetings associated with the CHINS action and DCS-provided services.

      Beginning in June 2014, Mother ceased appearing for visitation with the

      Children.


[6]   On June 17, 2014, a permanency plan of termination of parental rights was

      adopted, and DCS subsequently filed a petition to terminate Mother’s parental

      rights as to the Children.2 The order adopting the permanency plan provided

      that on October 3, 2014, a hearing would be conducted on the plan. On August

      19, 2014, an initial hearing on the petition was conducted (“the August 19

      hearing”). Mother did not appear for the hearing, and DCS sought to proceed




      2
        None of the parties to this appeal have provided this Court with a copy of the Chronological Case
      Summary (“CCS”) or other docketing information from the trial court. We remind all parties that our
      appellate rules require that at least one party to an appeal provide this document in an Appendix. See Ind.
      Appellate Rules 50(a)(2)(a) & 50(a)(3). Nor have we been provided with a copy of DCS’s petition for
      termination of parental rights.

      Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015                           Page 3 of 13
      at that time with an evidentiary hearing on the petition. The trial court denied

      DCS’s request, and instead scheduled an omnibus hearing for September 24,

      2014.


[7]   On August 21, 2014, DCS sent mail to Mother’s last known address to inform

      her of the upcoming hearing. The letter stated:

               Please find enclosed with this letter a copy of the Court Order of
               August 19, 2014 setting your termination of parental rights matter for
               Omnibus Hearing[3] on September 24, 2014 at 8:30 p.m…. If you fail
               to appear, the court will proceed in your absence. You have the right
               to appear in person or by sending a letter if unable to appear in person.
               You also have the right to an appointed attorney if you cannot afford
               to hire one yourself.
      (App’x at 8.)


[8]   The order enclosed with the letter included a list of those present and absent

      from the August 19 hearing, recorded a finding of adequate service of process,

      and included the statement that the court “Resets for a(n) Omnibus Hearing on

      9/24/2014 at 8:30 AM.” (App’x at 9.)


[9]   On September 23, 2014, the day prior to the scheduled omnibus hearing, a DCS

      caseworker called Mother and confirmed over the phone that mother knew

      about the hearing. Mother stated that she had arranged for transportation to



      3
        Neither the letter nor the court’s order defined the term “omnibus.” The term is not used in the statutory
      language of our termination of parental rights statutes. The purpose of an omnibus date, as set forth in our
      criminal statutes, “is to establish a point in time from which various deadlines … are established.” Ind. Code
      § 35-36-8-1(b). The Indiana Code no longer uses the term omnibus hearing in statutory language, but the
      term generally refers to certain pretrial status hearings in criminal cases. See, e.g., Fajardo v. State, 859 N.E.2d
      1201 (Ind. 2007).

      Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015                                Page 4 of 13
       the hearing, and the DCS caseworker told Mother that if her arrangements fell

       through, she could contact a DCS service provider for transportation assistance.


[10]   Mother did not appear for the hearing on September 24, 2014 (“the September

       24 hearing”). The individuals present in the courtroom, in addition to

       courtroom staff, were an attorney for DCS, an attorney for the Children’s Court

       Appointed Special Advocate (“CASA”), a DCS caseworker, and the Children’s

       foster mother. Mother did not have counsel, nor had counsel been appointed

       for her. 4


[11]   In the absence of Mother or counsel for Mother, DCS moved the trial court to

       proceed forward that day to an evidentiary hearing on the petition to terminate

       Mother’s parental rights. The CASA agreed with DCS’s request to proceed to a

       final evidentiary hearing. After hearing evidence concerning service of notice

       upon Mother of the “omnibus hearing” and her failure to appear for other

       appointments, the trial court permitted DCS to introduce evidence in support of

       the petition to terminate Mother’s parental rights.




       4
         At some point during the proceedings, Mother was provided with a court-appointed guardian ad litem who
       was present at some proceedings on Mother’s behalf; that guardian ad litem is Mother’s appellate counsel in
       the instant appeal. Because we lack a complete record of the proceedings below during the pendency of the
       CHINS case, see supra n.2, we have no record of whether the guardian was contacted concerning DCS’s
       termination petition.

       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015                         Page 5 of 13
[12]   At the conclusion of the hearing, the trial court announced in open court that

       DCS had met its evidentiary burden, and terminated Mother’s parental rights.

       A written order was entered the same day.


[13]   This appeal ensued.



                                  Discussion and Decision
[14]   On appeal, Mother’s contends that she was deprived of due process, first

       claiming as inadequate the notice concerning the nature of the September 24,

       2014 hearing, and second claiming as a violation of her due process rights the in

       absentia hearing resulting in the termination of her parental rights.


[15]   Our standard of review is highly deferential in cases concerning the termination

       of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This

       Court will not set aside the trial court’s judgment terminating a parent-child

       relationship unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544

       (Ind. Ct. App. 1997).


[16]   Parental rights are of a constitutional dimension, but the law provides for the

       termination of those rights when the parents are unable or unwilling to meet

       their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839

       N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not

       to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,

       208 (Ind. Ct. App. 1999), trans. denied.



       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015     Page 6 of 13
[17]   Here, Mother contends that the notice she received and the trial court’s decision

       to hear evidence and enter a judgment despite her absence constituted a

       violation of her due process rights. “[W]hen the government seeks to terminate

       the parent-child relationship, it must do so in a manner that meets the

       requirements of due process.” Q.B. v. Marion Cnty. Dep’t of Child Servs., 873

       N.E.2d 1063, 1067 (Ind. Ct. App. 2007). These include not only compliance

       with the various statutory requirements of the Indiana Code, but also the

       fundamental constitutional requirements prohibiting “‘state action that deprives

       a person of life, liberty, or property without a fair proceeding.’” In re A.B., 922

       N.E.2d 740, 744 (Ind. Ct. App. 2010) (quoting In re B.J., 879 N.E.2d 7, 16 (Ind.

       Ct. App. 2008), trans. denied).


[18]   Among the protections written into our statutes, Indiana Code section 31-35-2-

       6.5 provides the requirements for notice of a hearing on a petition to terminate

       parental rights:

               (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).
       Individuals entitled to notice under the statute include a child’s parents and

       legal counsel who has entered an appearance on behalf of the parents. I.C. §§

       31-35-2-6.5(c)(1) & (2).
       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015            Page 7 of 13
[19]   Compliance with the statute is mandatory and is a procedural precedent, but

       not an element of a plaintiff’s claim. In re H.K., 971 N.E.2d 100, 103 (Ind. Ct.

       App. 2012). Rather, a claim of inadequate notice under the statute is a defense

       that must be asserted. Id. Once notice is placed at issue, the plaintiff must bear

       the burden of proving compliance with the statute. Id.


[20]   Further, our statutes afford parents the opportunity to be heard and to make

       recommendations concerning their children. I.C. § 31-35-2-6.5. Parents are

       also entitled to cross-examine witnesses, obtain witnesses and other evidence by

       means of compulsory process, and introduce evidence. I.C. §§ 31-32-2-3(b)(1)-

       (3). Finally, parents are entitled to court-appointed counsel when they have not

       already waived that right, I.C. § 31-32-4-3, and “‘if the State imparts a due

       process right, then it must give that right.’” In re G.P., 4 N.E.3d 1158, 1166

       (Ind. 2014) (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)).


[21]   “Due process has never been defined, but the phrase embodies a requirement of

       ‘fundamental fairness.’” In re C.G., 954 N.E.2d at 917. The U.S. Supreme

       Court has stated, “the fundamental requirement of due process is the

       opportunity to be heard at a meaningful time and in a meaningful manner.”

       Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “The process due in a

       termination of parental rights proceeding turns on 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 governmental

       interest supporting use of the challenged procedure.” C.G., 954 N.E.2d at 917.



       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015     Page 8 of 13
[22]   Here, Mother claims that DCS’s notice of the upcoming hearing was

       inadequate, and thus places at issue compliance with the notice statute. She

       also contends that the trial court’s decision to terminate her parental rights in

       her absence, without representation of counsel, was a violation of her statutory

       and constitutional due process rights.


[23]   We agree.


[24]   Turning first to the adequacy of the notice, Mother does not contend that she

       received no notice of the hearing. Rather, she argues that the notice she

       received was not adequate to inform her of the nature of the proceeding.


[25]   DCS sent Mother a letter on August 21, 2014, which stated, “Please find

       enclosed with this letter a copy of the Court Order of August 19, 2014 setting

       your termination of parental rights matter for Omnibus Hearing on September

       24, 2014 at 8:30 am…. If you fail to appear the court will proceed in your

       absence.” (App’x at 8.) Further, Geralyn Martin (“Martin”), a DCS

       caseworker, called Mother the day before the hearing and spoke with Mother

       on the telephone. Martin testified that she told Mother of the hearing and

       “informed [her] that no matter if she is here or not here, the hearing will

       proceed. And I stressed to her that she needed to be here this morning.” (Tr. at

       7.)


[26]   Mother argues that all of this was insufficient to inform her that her absence

       from the September 24, 2014 hearing would result in the hearing becoming a

       final fact-finding hearing on DCS’s petition to terminate her parental rights.

       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015   Page 9 of 13
       Indeed, the hearing was not initiated as one intended to serve as an evidentiary

       hearing on DCS’s petition. Rather, as the trial court observed, the hearing was

       scheduled as an omnibus hearing. When, in light of Mother’s absence, DCS

       again moved during the September 24 hearing to present evidence on its

       petition for termination of Mother’s parental rights, the trial court requested

       and was provided with evidence concerning DCS’s efforts to give Mother notice

       of and obtain Mother’s participation in the omnibus hearing. DCS presented

       testimonial and documentary evidence concerning Mother’s pattern of non-

       attendance at hearings and at sessions and appointments related to DCS-

       provided services, and the Children’s Court-Appointed Special Advocate

       (“CASA”) made similar representations to the court. After hearing this, the

       trial court granted DCS’s motion to proceed in Mother’s absence with an

       evidentiary hearing on the termination petition.


[27]   We note, however, that Mother did not have counsel present during either the

       August 19 hearing or the September 24 hearing, nor was counsel appointed.

       Thus, there was no one present at either hearing to ensure that Mother’s due

       process rights were protected. This is even more egregious than A.B., which

       likewise involved a deprivation of due process rights. 922 N.E.2d at 746. In

       A.B., we reversed the termination of parental rights for a parent who was not

       present for an already-scheduled final evidentiary hearing on a termination

       petition. Id. at 743-44. A.B.’s mother was not present at the beginning of the

       hearing, which began more than an hour after its scheduled time. Id. at 743.

       The trial court permitted A.B.’s mother’s attorney to withdraw from the


       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015   Page 10 of 13
       representation after the attorney had been unable to make contact, meet, or

       speak with mother, and proceeded with the hearing. Id. A.B.’s mother

       eventually arrived at the courthouse and, when the trial court was informed of

       her presence, the court permitted mother to meet with counsel but refused to

       allow mother into the hearing, stating, “‘We’re almost done here.’” Id.

       (quoting the trial transcript).


[28]   On appeal in A.B., this Court determined that this amounted to a due process

       violation as to A.B.’s mother. Reversing the order terminating parental rights,

       the A.B. Court observed:

               [T]the risk of error is substantial where, as here, the juvenile court
               terminates Mother’s parental rights after conducting a short hearing
               during which only one witness for the State testifies, no cross-
               examination is conducted, Mother is not represented by counsel, and
               Mother is prohibited from attending the hearing and/or presenting
               evidence in her favor although present in the courthouse before the end
               of the hearing, albeit late.
       Id. at 745.


[29]   In reaching this conclusion, the A.B. Court relied upon an earlier case from this

       Court, Thompson v. Clark Cnty. Div. of Family & Children, 791 N.E.2d 792 (Ind.

       Ct. App. 2003). In Thompson, a divided panel of this Court observed that

       Thompson had engaged in “deception and delay[ing] tactics,” id. at 796, which

       resulted in numerous delays of a final hearing on a termination petition. Id. at

       795. At the final hearing, “Thompson sought yet another continuance,” which

       the trial court denied. Id. Upon motion and over the objection of Thompson’s

       attorney, the trial court proceeded with an expedited proceeding and terminated

       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015     Page 11 of 13
       Thompson’s parental rights. Id. Yet despite Thompson’s repeated deceptions

       and delays, this Court concluded that “the trial court could have conducted the

       final termination hearing in her absence where witnesses testified, cross-

       examination was conducted, and exhibits were properly admitted into

       evidence.” Id. at 796. Because none of this occurred, the Thompson Court

       reversed the termination order.


[30]   In the case now before us, two witnesses testified for DCS. One was a DCS

       caseworker whose testimony and documents were the bulk of the evidence.

       The other witness was Children’s foster mother, who was asked a total of four

       questions and provided short, one-sentence answers. (Tr. at 29-30.) At the

       conclusion of the hearing, the trial court ruled orally from the bench that DCS

       had met its burden and granted the petition to terminate Mother’s parental

       rights.


[31]   Our review of the record discloses no opportunity for Mother to seek counsel,

       save for a single sentence in the letter from DCS notifying Mother that she was

       entitled to counsel; Mother did not, then, affirmatively waive counsel. See G.P.,

       4 N.E.3d at 1164-65 (concluding that waiver of counsel and decision to proceed

       pro se at an earlier stage of a CHINS proceeding does not work a permanent

       waiver of right to appointed counsel upon a petition for termination of parental

       rights). And while DCS regards Mother’s failure to seek counsel as a matter of

       little moment—or even as waiver—under the totality of the circumstances, we

       cannot agree. As in both A.B. and Thompson, Mother was denied a meaningful

       opportunity for cross-examination, presentation of evidence, and indeed—

       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015   Page 12 of 13
       unlike both A.B. and Thompson—representation of counsel. This is particularly

       worrisome given DCS’s knowledge of Mother’s apparently significant learning

       and cognitive problems, and the placement of the Children in a stable foster

       home where the foster parent intended to adopt the children.


[32]   The magnitude of Mother’s parental rights and the risk of error in the State’s

       procedural approach in this case outweigh the State’s interests in its chosen

       procedural path. See C.G., 954 N.E.2d at 917. Both constitutional and

       statutory guarantees were transgressed. Accordingly, we cannot conclude that

       Mother’s due process rights received adequate protection in this matter. We

       therefore reverse the trial court’s order terminating Mother’s parental rights,

       and remand for further proceedings.


[33]   Reversed and remanded.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1410-JT-358| March 16, 2015   Page 13 of 13
