Hite v. Vanderburgh Cty Office Fam. & Chil.

• Decision Date: 11 April 2006
• Docket Number: No. 82A05-0509-JV-541.,82A05-0509-JV-541.
• Citation: 845 N.E.2d 175
• Parties: Nicholas HITE, Appellant-Plaintiff, v. VANDERBURGH COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 175

845 N.E.2d 175

Nicholas HITE, Appellant-Plaintiff, v. VANDERBURGH COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Defendant.

No. 82A05-0509-JV-541.

Court of Appeals of Indiana.

April 11, 2006.

Julie A. Fox, Evansville, for Appellant.

Katharine Vanost Jones, Evansville, for Appellee.

OPINION

SHARPNACK, Judge.

Nicholas Hite ("Father") appeals the trial court's termination of his parental rights. Father raises two issues, which we revise and restate as whether the trial court's order terminating Father's parental rights is clearly erroneous because Father did not receive notice of the CHINS petition. We affirm.

The relevant facts follow. In 1997, when Tosha Brooks ("Mother") was fifteen years old, she met Father after he had been released from jail. During the few months when Mother and Father were dating, Father and Mother engaged in an argument that resulted in a fight in which Father picked Mother up by her throat. By September 1997, Father was incarcerated again. P.B. was born to Father and Mother on March 4, 1998.¹

Father was released from the Department of Correction on September 13, 1999, but was arrested again on November 22, 1999. Father was then convicted of attempted theft as a class D felony and sexual misconduct with a minor as a class B felony. Father was sentenced to serve two years on the attempted theft conviction and fifteen years on the sexual misconduct conviction. Father's expected release date is December 12, 2007.

On June 5, 2002, a child protective services investigator was called to Mother's home.² The child protective services investigator arrived at the home and observed that P.B. did not have any clothes on and was "very dirty." Transcript at 35. The investigator observed trash all over the floor, dirty dishes piled in the sink, and "old food" strewn throughout the home, including cheese slices on a coffee table, and "ketchup that was everywhere." Id. at 36. The investigator also noted that a window was missing in the children's bedroom through which the children could have easily climbed out, that the bed in the children's bedroom was broken, and that a vent was missing leaving a four-by-ten-inch hole in the floor in an area to which the children had access. Given the conditions of the home, the Vanderburgh County Office of Family and Children ("VCOFC") took P.B. and Mother's other children into protective custody and placed P.B. with his maternal grandparents.

The VCOFC filed a request for authority to file a verified petition alleging that P.B. was a CHINS and attached a written intake report. The trial court found probable cause to believe that P.B. was a CHINS. The VCOFC then filed a petition alleging that P.B. was a child in need of services, which stated, in part:

That said child, [P.B.], is a Child in Need of Services as defined by I.C. 31-9-2-17 and 31-34-1-1 et. seq., in that the child's physical or mental condition is seriously endangered as a result of the neglect of the child's parents to supply the child with necessary food, clothing, shelter and supervision; to wit: due to an ongoing history of inadequate parenting, inadequate supervision, unsuitable living conditions, and suspected drug/alcohol abuse of said child's parents, said child needs care, treatment or rehabilitation that the child is not receiving or that is unlikely to be provided or accepted without the coercive intervention of the court.

Appellee's Appendix at 1.

On July 10, 2002, Mother submitted the matter to the juvenile court based upon stipulated facts, and the trial court found that P.B. was a child in need of services. Father did not receive notice of the CHINS petition.

On October 22, 2003, the VCOFC filed a petition to involuntarily terminate parental rights but continued to seek reunification of P.B. and Mother. Melody Fordeck, the family case manager with the VCOFC, sent notice to Father regarding the VCOFC's petition to terminate his parental rights. On April 7, 2004, the goal changed to termination rather than reunification. On April 28, 2004, Mother agreed to terminate her parental rights and allow P.B. to be adopted.

On September 15, 2004, Father appeared in person and by counsel for a CHINS review hearing and an initial hearing on termination and denied the allegations of the petition to terminate. On January 25, 2005, Father and counsel appeared for a pretrial hearing on the termination case, and he again denied the allegations of the petition. On March 16, 2005, Father's counsel appeared at a permanency review hearing for the CHINS case.

On April 12, 2005, the trial court held a termination hearing. Father was present and represented by counsel. The trial court granted the petition to terminate Father's parental rights and entered the following findings of fact and conclusions thereon:

This matter having come before the Court upon the Petition for Termination of Parental Rights filed herein and the Court having heard the evidence and being duly advised in the premises and having had matter under advisement, now Finds:

1. The Court has jurisdiction over the parties and the subject matter in this case.

2. The [VCOFC] appeared by its case-worker, Melody Fordeck, and by counsel, Katharine Vanost Jones;

3. The mother, Tosha Brooks, having previously appeared with her counsel, Michael Hayden, and after having been duly advised of her rights and having acknowledged her understanding of same, did voluntarily relinquish her parental rights;

4. The Father, Nicholas Delano Hite, appeared in person and by his counsel, Emil Becker;

5. The Court Appointed Special Advocate appeared in person.

6. A hearing was held at which witnesses were sworn and evidence heard;

7. The Court now finds by clear and convincing evidence that the allegations of the petition are true in that:

a. The child has been removed from his parents for at least six (6) months pursuant to a dispositional decree;

b. There is a reasonable probability that the condition that resulted in the child's removal and/or the reasons for the placement outside the parent's home will not be remedied;

c. The continuation of the parent-child relationship poses a threat to the well-being of the child; and that it is in the best interest for the safety and welfare of the child that the parental rights be terminated;

d. The County Office of Family and Children has a satisfactory plan for the care and treatment of the child.

Appellant's Appendix at 14-15.

The sole issue is whether the trial court's order terminating Father's parental rights is clearly erroneous because Father did not receive notice of the CHINS petition. Father argues that because he did not receive notice of the CHINS hearing: (A) the trial court never had subject matter jurisdiction; and (B) that his due process rights were violated. We will address each argument separately.

A. Jurisdiction

Father argues that the trial court never acquired subject matter jurisdiction because it excluded him from "all proceedings." Appellant's Brief at 7. Specifically, Father appears to argue that the trial court did not acquire subject matter jurisdiction because he did not receive notice of the CHINS petition and that no evidence supported the finding that P.B. was a CHINS.

Jurisdiction is of three types: subject matter jurisdiction, personal jurisdiction and jurisdiction of the case. Pivarnik v. Northern Indiana Public Service Co., 636 N.E.2d 131, 137 (Ind.1994). Subject matter jurisdiction refers only to the power of a court to hear and decide a particular class of cases. Id. The only relevant inquiry in determining whether a court has subject matter jurisdiction is whether the kind of claim advanced by the petitioner falls within the general scope of authority conferred upon such court by the constitution or by statute. Id.

In re K.B., 793 N.E.2d 1191, 1198 n. 6 (Ind.Ct.App.2003).³

In order to properly address Father's claim involving jurisdictional prerequisites, we must review the statutory procedure for the filing of CHINS petitions. See K.B., 793 N.E.2d at 1196. Ind.Code § 31-30-1-1(2) provides that "A juvenile court has exclusive jurisdiction ... in [p]roceedings in which a child, including a child of divorced parents, is alleged to be a child in need of services under IC 31-34."

A child is a child in need of services if before the child becomes eighteen (18) years of age:

(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

Ind.Code § 31-34-1-1.

The origination of a CHINS action is governed by Ind.Code § 31-34-7-1, which provides:

A person may give an intake officer written information indicating that a child is a child in need of services. If the intake officer has reason to believe that the child is a child in need of services, the intake officer shall make a preliminary inquiry to determine whether the interests of the child require further action.

After the preliminary inquiry, "[t]he intake officer shall send to the prosecuting attorney or the attorney for the county office of family and children a copy of the preliminary inquiry" and "shall recommend whether to: (1) file a petition; (2) informally adjust the case; (3) refer the child to another agency; or (4) dismiss the case." Ind.Code § 31-34-7-2 (2004). "The person representing the interests of the state and receiving the preliminary inquiry and recommendations shall decide whether to request authorization to file a petition. This decision is final only as to the office of the person making the decision." Ind. Code § 31-34-7-3 (2004). The juvenile court shall...