In the Matter of The Involuntary Termination of Parent–child Relationship of C.G. v. Marion County Dep't of Child Serv.

• Citation: 954 N.E.2d 910
• Decision Date: 11 October 2011
• Docket Number: No. 49S04–1101–JT–46.,49S04–1101–JT–46.
• Parties: In the Matter of the Involuntary Termination of Parent–Child Relationship of C.G., Minor Child and Her Mother, Z.G.,Z.G. (Mother) Appellant (Respondent below),v.Marion County Department of Child Services, Appellee (Petitioner below),andChild Advocates, Inc., Co–Appellee, (Guardian Ad Litem).
• Court: Supreme Court of Indiana

954 N.E.2d 910

In the Matter of the Involuntary Termination of Parent–Child Relationship of C.G., Minor Child and Her Mother, Z.G.,Z.G. (Mother) Appellant (Respondent below),

v.Marion County Department of Child Services, Appellee (Petitioner below),andChild Advocates, Inc., Co–Appellee, (Guardian Ad Litem).

No. 49S04–1101–JT–46.

Supreme Court of Indiana.

Oct. 11, 2011.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.Shari L. Vanderploeg, Robert J. Henke, Indianapolis, IN, Attorneys for Appellee.DAVID, Justice.

We have granted transfer from the Court of Appeals on this case involving the termination of parental rights between the child, C.G., and the child's mother, Z.G. We write to discuss important issues of due process that have not previously been before this Court. In all other aspects, we summarily affirm the Court of Appeals.

Facts and Procedural History

C.G. (Child) was born on December 22, 2000, to Z.M. (Mother). In 2004, Mother and Child moved to Indianapolis. In January 2008, Mother requested permission from Child's school to take Child to Utah, but the school indicated Child could not miss any more school days. Thereafter, Mother left Child with a male friend, F.L., and traveled to Utah to visit family. In February 2008, F.L. brought Child to stay with CO. (Neighbor). Neighbor knew Child and had watched Child after school the previous year. During the three months that Child was at Neighbor's house, Neighbor purchased clothes and a bed for Child and included Child in family events. However, Neighbor did not speak to Mother at all during this time period. F.L. then took Child on spring break and brought Child back in April 2008, leaving Child at another individual's house in the neighborhood. A few hours later, Neighbor discovered Child was back in the neighborhood. Shortly thereafter, Child began complaining that she “hurt in her privates.” After consulting with the Healthy Families Program, Neighbor took Child to the hospital on that same day. Child was diagnosed with genital herpes and had scarring around the anus and perineum. Child's examining physician concluded Child had likely been sexually abused. Child was hospitalized for two days, during which time Neighbor stayed with Child. On April 17, 2008, upon release from the hospital, the Department of Child Services (DCS) took custody of Child and placed Child in a foster home, where Child still resides.

As is its practice, the first family case manager (FCM 1) for DCS was assigned to assess the case. FCM 1 spoke to Child and Neighbor in the hospital and transported Child to foster care. During this initial assessment, FCM 1 learned that Mother had been arrested in Utah. FCM 1 called the Salt Lake County Jail as well as the state and federal prisons in Utah. On April 18, 2008, DCS filed a Child in Need of Services (CHINS) petition alleging Mother had “abandoned the child in the care of various individuals who are unable and or unwilling to provide the child with appropriate care.”

Shortly after working on Child's case, FCM 1 left DCS. In May 2008, a second family case manager (FCM 2) was assigned to the case. After taking over the case, FCM 2 did not speak to Neighbor. FCM 2 swore in an Affidavit of Diligent Inquiry (ADI) that he had spoken to family acquaintances regarding the whereabouts of Mother, but no such contacts were made. Based upon the ADI, Mother was served by publication in the CHINS case. On August 6, 2008, the child was adjudicated a CHINS.

During the time Mother was incarcerated, she made attempts to inquire about Child. Once Mother learned of Child's involvement with DCS, she wrote DCS on October 14, 2008. The letter was written in Spanish and informed DCS she was incarcerated and asked that an investigation be brought against F.L. The letter also inquired if Child was in DCS custody and if she could have a family member pick up Child. In November 2008, DCS learned that Mother was incarcerated in Henderson, Kentucky, after receiving her letter.

On December 15, 2008, FCM 2 responded in writing, informing Mother that Child was currently in a foster home; asking Mother when her release date from jail would be; and stating that there were “legal procedures that go along with this case which can lead to termination of parental rights.”

On December 23, 2008, Mother sent a second letter to DCS:

Thank you for responding back and letting me know how my daughter is. I have been writing and trying to get in contact since the moment I found out [Child] was in the custody of the state, which was not to [sic] long ago.

I have a court date in April, and am not sure yet what the outcome will be, so I would like a family member to pick my child up. I love her so much and do not want to lose her. The person which had her when I came to jail did not inform me that my daughter had been taken. Instead he was writing me letters leading me to believe she was in good care and was fine, but since I was writing a member of our church we attended I was able to find out the truth. Hopefully everything will get cleared on my end and I will be out soon but until then I would like my mother or a family member to care for my daughter.

Mother received no response to that letter, and she asked a friend to call DCS on her behalf. DCS refused to give Mother's friend any information because she was not a parent. On February 12, 2009, Mother wrote a third letter to DCS, again asking for information about Child. The letter also asked for information about the alleged sexual abuse and inquired whether Child could go live with Child's sister.

Mother never provided DCS with the name of Child's father or the family members with which she wanted Child placed. Candy Duran lived with Mother's brother, Rosalio Cruz, for eleven years, had two children with him, and lived in Salt Lake City. Duran called DCS in an attempt to gain custody of Child but DCS did not consider Duran for possible placement of Child because Mother's brother was incarcerated and Duran is not a blood relative.

DCS filed the petition to terminate Mother's parental rights on March 25, 2009, and served Mother by mail at the Henderson County Jail where she was incarcerated on federal charges. Mother filed motions to be transported to the trial or to allow her to participate by teleconference, but those motions were denied. Mother, however, was allowed to participate telephonically in the proceedings. On January 11, 2010, the juvenile court entered an order terminating the parent-child relationship between Mother and Child. Child has since been adopted by foster parents.¹

Due Process Analysis

Mother contends that numerous due process violations occurred which culminated in the termination of her parental rights. Mother also alleges that there was a lack of evidence to support the trial court's determination. We will address each issue separately.

It is well established that the involuntary termination of parental rights is an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed. In re B.D.J., 728 N.E.2d 195, 199 (Ind.Ct.App.2000). Choices about marriage, family life, and the upbringing of children are among associational rights the United States Supreme Court has ranked as of basic importance in our society and are rights sheltered by the Fourteenth Amendment against the State's unwarranted usurpation, disregard, or disrespect. MLB. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). “If any freedom not specifically mentioned in the Bill of Rights enjoys a ‘preferred position’ in the law it is most certainly the family.” Moore v. City of East Cleveland, 431 U.S. 494, 511, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Brennan, J., concurring).

“The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding.” In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind.Ct.App.2001), trans. denied. Parental rights constitute an important interest warranting deference and protection, and a termination of that interest is a “unique kind of deprivation.” Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). However, children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous relationships. Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process. J.T. v. Marion County Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind.Ct.App.2000), trans. denied. The U.S. Supreme Court has written on the importance of heightened due process protections whenever the State wishes to sever the parental bonds of children:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753–754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Due Process has never been defined, but the phrase embodies a requirement of “fundamental fairness.” E.P. v. Marion County O.F.C., 653 N.E.2d 1026, 1031 (Ind.Ct.App.1995) (quoting Lassiter, 452 U.S. at 26, 101 S.Ct....