X.S. v. Ind. Dep't of Child Servs.

• Decision Date: 26 December 2018
• Docket Number: Court of Appeals Case No. 18A-JT-1198
• Citation: 117 N.E.3d 601
• Parties: In the TERMINATION OF the PARENT–CHILD RELATIONSHIP OF: X.S. (Minor Child), and S.S. (Father), Appellant-Respondent, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner, and Lake County Court Appointed Special Advocate, Appellee.
• Court: Indiana Appellate Court

117 N.E.3d 601

In the TERMINATION OF the PARENT–CHILD RELATIONSHIP OF: X.S. (Minor Child),andS.S. (Father), Appellant-Respondent,

v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner,andLake County Court Appointed Special Advocate, Appellee.

Court of Appeals Case No. 18A-JT-1198

Court of Appeals of Indiana.

Filed December 26, 2018

Publication Ordered January 16, 2019

Case Summary

[1] S.S. ("Father") challenges the termination of his parental rights in X.S. ("Child"), claiming that the juvenile court violated his due process right to counsel by conducting a termination hearing at which he did not appear and was not represented by counsel. The Indiana Department of Child Services ("DCS") agrees with Father and requests that we reverse the judgment of the juvenile court and remand for the appointment of counsel and a new hearing. The Lake County court appointed special advocate ("CASA"), however, contends that Father's due process rights were not violated because he was given the opportunity to obtain counsel and meaningfully participate in the termination hearing but did nothing to take advantage of that opportunity. Because we agree with the CASA, we affirm.

Facts and Procedural History

[2] On July 21, 2016, DCS petitioned to have Child declared a child in need of services ("CHINS"). On October 18, 2016, the juvenile court found Child to be a CHINS. Other than appearing at the initial hearing, Father did not participate in the CHINS proceeding, and DCS found it increasingly difficult to maintain contact with him. In early May of 2017, DCS learned that Father was incarcerated in the Lake County jail. On May 5, 2017, Family Case Manager Dylan Sheets ("FCM Sheets") visited Father in jail and reported that he "still wants to be in [Child's] life and wants to do whatever he [can] to get him back." Ex. Vol. p. 62. On August 4, 2017, Father pled guilty to a burglary charge and, on October 6, 2017, was sentenced to three years of incarceration, to be served at Westville Correctional Facility.

[3] On October 24, 2017, DCS petitioned to terminate Father's parental rights in Child. On January 25, 2018, FCM Sheets spoke with Father and later testified about the conversation:

[A]fter I spoke with him on the 25th, I explained to him that we're proceeding forward with the termination of parental rights and there's a few things that he would need to be doing in order to attend those hearings, be represented. So, I wrote him a letter on January 30th, very much detailing everything he needed to do in regards to requesting transportation. And requesting a public defender at the time of the fact finding hearing for termination. He was made aware of this over the phone and said that he wanted to participate. Well, we're now in April and he hasn't. Whenever speaking to him[,] I spoke with [Father] three times throughout the duration of this case, he always makes it aware [sic ] that he wants to participate, but he never follows through with any of the court ordered services, things that he would need to do to, in order to reunify with [Child].

Tr. p. 13.

[4] An alias summons was issued to Father by the clerk of the juvenile court on March 7, 2018, and directed to him in prison. The summons provided, in part, as follows:

YOU ARE HEREBY NOTIFIED that a Petition for the Involuntary Termination of Parental Rights of the above name[d] child, a copy of which is attached hereto, has been filed in the above named Court.

YOU ARE HEREBY NOTIFIED AND COMMANDED TO APPEAR before the Judge of the Lake Superior Court, 3000 W. 93rd Avenue, Crown Point, IN 46307, 219-660-6900 for a(n) Factfinding Hearing on 4/12/2018 at 8:30 AM on the petition for termination of parental rights.

YOU ARE FURTHER NOTIFIED that if the allegations of the petition are found to be true and/or you fail to appear at the hearing[ ], the Court may terminate the parent–child relationship; and if the Court terminates the parent–child relationship, you will lose all parental rights, powers, privileges, immunities, duties, obligations[,] including any rights to custody, control, visitation, or support of the child; and if the Court terminates your parent–child relationship, it will be permanently terminated, and thereafter you may not contest an adoption or other placement of said child, and

YOU ARE ENTITLED TO REPRESENTATION BY AN ATTORNEY , provided by the State if necessary, throughout these proceedings to terminate the parent–child relationship.

If this SUMMONS is duly served upon you and you fail to appear for the INITIAL and/or FACT FINDING HEARING, adjudication on said petition and termination of your parental rights may be entered against you without further notice.

CASA's App. p. 3 (emphases in original). Father was personally served with the summons on March 12, 2018, when it was hand-delivered to him by a prison official. In a report filed March 22, 2018, DCS indicated that Father had not yet requested "transportation and a public defender." Ex. Vol. p. 88. In the end, Father would make no request for counsel or transportation and no other attempt to participate in the termination proceedings.

[5] On April 12, 2018, a termination hearing was held at which Father failed to appear personally or by counsel, after which the juvenile court ordered that Father's parental rights in Child be terminated. The juvenile court's order provided, in part, as follows:

[DCS's] case manager spoke with [Father] in May 2017. At that time, he indicated he was not able to care for the child due to incarceration in jail but that he wanted to be a part of [Child's] life. He did nothing to participate, to follow up, or to assert his rights. He made similar comments when [FCM Sheets] telephoned him in Westville on January 30^[1], 2018. Despite these comments, Father has never made any efforts to be a part of the child's life after [DCS] became involved on July 21, 2016. He has not contacted [FCM Sheets].

During that January 30, 2018 telephone conversation, [FCM Sheets] discussed these termination proceedings in detail with Father. They discussed what Father needed to do to assert his rights. Father has done nothing. He has never followed up in writing to the court and he has never attempted to assert his rights. He did not request the appointment of counsel.

Appellant's App. p. 3.

Discussion and Decision

Whether Father Was Denied Due Process

[6] The traditional right of a parent to establish a home and raise his children is protected by the Fourteenth Amendment to the United States Constitution. Bester v. Lake Cty. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005). We acknowledge that the parent–child relationship is "one of the most valued relationships of our culture." Id. (citation omitted). However, parental rights are not absolute, and the law allows for the termination of such rights when a parent is unable or unwilling to meet his responsibilities as a parent. In re T.F. , 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied . The purpose of terminating parental rights is to protect the child, not to punish the parent. Id.

[7] While remaining mindful of the above, we have long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S. , 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). "In determining whether the evidence is sufficient to support the judgment terminating parental rights, this court neither reweighs the evidence nor judges the credibility of witnesses." Id. "We consider only the evidence that supports the judgment and the reasonable inferences to be drawn there from." Id. "Findings of fact are clearly erroneous only when the record lacks any evidence or reasonable inferences to support them." Id. Father does not contend that DCS failed to present evidence sufficient to sustain the trial court's termination of his parental rights in Child. As restated, Father contends that he was denied the process due to him in a termination proceeding, namely, that he was effectively denied the statutory right to counsel.

[8] Indiana Code section 31-32-2-5 provides that "[a] parent is entitled to representation by counsel in proceedings to terminate the parent–child relationship." Moreover,

[i]f:

(1) a parent in proceedings to terminate the parent–child relationship does not have an attorney who may represent the parent without a conflict of interest; and

(2) the parent has not lawfully waived the parent's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal);

the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time.

Ind. Code § 31-32-4-3(a). However, "[a] parent who is entitled to representation by counsel may waive that right if the parent does so knowingly and voluntarily." Ind. Code § 31-32-5-5.

A. Notice

[9] As an initial matter, Father contends that DCS failed to produce sufficient evidence to establish that he was ever even informed of his right to counsel. DCS, however, produced evidence that FCM Sheets told Father of this right over the telephone and detailed it in a letter sent a few days later and that the juvenile court informed him in an alias summons. Father denies only that he received the letter from FCM Sheets, failing to address the telephone call from FCM Sheets or the alias summons in his argument. We take these omissions as admissions that the telephone call occurred and that Father actually received the summons, both of which informed him of his right to counsel. So, even if we assume the Father did not receive the letter (which we do not), we conclude that the evidence is still more than sufficient to support a finding that Father was informed of his right to counsel. To the extent that Father asks us to find that he did not receive the letter from FCM Sheets, this is an invitation to reweigh the evidence, which we will not do.

[10] That said, on a somewhat related matter, one of the bases of DCS's desire to concede this appeal is the lack of any indication...