J.W. v. Indiana Department of Child Services

FILED IN THE Feb 28 2025, 11:05 am

Court of Appeals of Indiana CLERK Indiana Supreme Court Court of Appeals and Tax Court

J.W., Appellant-Respondent

v.

Indiana Department of Child Services, Appellee-Petitioner

February 28, 2025 Court of Appeals Case No. 24A-JT-2370 Appeal from the St. Joseph Probate Court The Honorable Loris P. Zappia, Judge The Honorable Ashley Mills Colborn, Magistrate Trial Court Cause Nos. 71J01-2405-JT-51, 71J01-2405-JT-52

Opinion by Chief Judge Altice Judges Brown and Tavitas concur.

Altice, Chief Judge. Court of Appeals of Indiana | Opinion 24A-JT-2370 | February 28, 2025 Page 1 of 9

Case Summary [1] J.W. (Father) appeals following the involuntary termination of his parental

rights to M.W. and R.W. (Children). Father contends that the trial court

violated his due process rights by entering judgment against him without

conducting a proper final hearing. [2] We affirm.

Facts & Procedural History [3] Father and M.L. (Mother) are the biological parents of M.W., born December

15, 2015, and R.W., born March 28, 2018. 1 Children were removed from

Father’s care on January 6, 2022, after the Indiana Department of Child

Services (DCS) received an allegation of possible neglect because Children’s

half-brother was found unconscious after ingesting an unknown substance in

Father’s home. Children were in the home when this occurred. In addition to

the medical emergency, DCS was concerned that Mother had abandoned

Children, leaving them in Father’s care. Children were then placed in relative

care where they are believed to have been victims of sexual abuse by an adult in

the home. At the time of the removal from Father’s home, Father had pending

charges for possession of cocaine and methamphetamine.

1 Mother’s parental rights were also terminated. Mother does not participate in this appeal.

Court of Appeals of Indiana | Opinion 24A-JT-2370 | February 28, 2025 Page 2 of 9 [4] On January 10, 2022, DCS filed a petition alleging Children were children in

need of services (CHINS). On April 25, 2022, after a fact-finding hearing, the

court adjudicated Children to be CHINS. On May 18, 2022, the court held a

dispositional hearing and ordered Father to participate in services designed for

reunification with Children. On March 7, 2024, the court amended Children’s

permanency plan to include a concurrent plan of adoption. DCS filed petitions

to terminate Father’s parental rights to Children on May 22, 2024. A summons

informing Father that a hearing on the termination petition was set for July 8,

2024, and warning him that, should he fail to appear, the trial court could

terminate his parental rights in his absence, was served on Father on June 4,

2024. 2 Father did not appear for the July 8 hearing. In his absence, the court

allowed DCS to present its evidence. [5] At the hearing, DCS called two witnesses—Family Case Manager (FCM) Colin

Miller and Court Appointed Special Advocate (CASA) Katie Bailey. FCM

Miller testified that Father had not alleviated the reason for Children’s removal

and continued placement outside the home because he had not completed any

of his court-ordered services and that Father was not in a position to have

Children placed back in his home. FCM Miller also testified that Children

exhibit sexually maladaptive behaviors and must be supervised when around

other children for extended periods of time and that Father did not have the

2 Father does not deny that he received notice of the hearing.

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ability to care for both of them. FCM Miller opined that termination of

Father’s parental rights was in the best interests of Children. [6] CASA Bailey testified that Children did not want to see Father. She also noted

her understanding that Father was living at the home where Children alleged

they were sexually abused by an adult in the home.3 CASA Bailey testified that

Father had no legitimate employment and no suitable place to live. She also

informed the court that Father had been stopped on his way to supervised

visitation with one of his other children and found to be in possession of “THC

oil or gummies or something.” Transcript at 8. Whether Father would face

charges had yet to be determined. CASA Bailey testified that it was her opinion

that termination of Father’s parental rights was in Children’s best interests.

After CASA Bailey testified, the court found that DCS had met its burden with

respect to Father. This hearing lasted five minutes and was continued to

August 12, 2024, so DCS could serve Mother with notice of the hearing by

publication. [7] At the August hearing the court heard evidence regarding Mother. Father,

despite notice, did not appear. FCM Miller again testified as to the reason for

DCS involvement and confirmed that neither parent had successfully remedied

the reasons for removal of Children. FCM Miller confirmed that Children did

not want to see Father and that Father had not participated in services. He

3 There is no suggestion that Father was the perpetrator of the alleged abuse.

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again testified that termination of Father’s parental rights was in the best

interests of Children and that adoption of Children was a satisfactory plan. [8] CASA Bailey also testified at this hearing, stating that Father had not done

anything to remedy the original reason for DCS involvement and opining that

the parent-child relationship posed a threat to Children. Noting that Father had

been pulled over and found to be in possession of CBD oil or marijuana and

that he had not submitted to random drug screens, CASA Bailey could not say

that Father would be a sober caregiver for Children. She also stated, “To my

knowledge, [Father] doesn’t have [] stable employment nor stable housing.” Id.

at 17. CASA Bailey restated her opinion that termination was in Children’s

best interests and that adoption was a satisfactory plan. At the conclusion of

this eight-minute hearing, the court stated on the record its determination that

DCS had met its burden as to Father and Mother. The same day, the trial court

issued its written order terminating Father’s parental rights. The court set out

its findings of fact and its conclusions that DCS had met the elements of its

petition. Father now appeals.

Discussion & Decision [9] The Due Process Clause of the United States Constitution prohibits state action

that deprives a person of life, liberty, or property without a fair proceeding.

Thompson v. Clark Cnty. Div. of Family & Children, 791 N.E.2d 792, 794-95 (Ind.

Ct. App. 2003), trans. denied. When the State seeks to terminate the parent-child

relationship, it must do so in a manner that meets the requirements of due

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process. Lawson v. Marion Cnty. Off. of Family & Children, 835 N.E.2d 577, 579

(Ind. Ct. App. 2005). “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) (quotation omitted). The nature

of 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. Id.; A.P. v. Porter Cnty. Off. of Family & Children, 734 N.E.2d 1107,

1112 (Ind. Ct. App. 2000), trans. denied. The balancing of these factors

recognizes that although due process is not dependent on the underlying facts of

the particular case, it is nevertheless “flexible and calls for such procedural

protections as the particular situation demands.” Mathews, 424 U.S. at 334

(quotation omitted). [10] Obviously, both the private interests and the countervailing governmental

interests that are affected in a termination of parental rights proceeding are

substantial. See Thompson, 791 N.E.2d at 795 (discussing private and

governmental interests in termination of parental rights proceedings). Thus,

whether a parent’s due process rights have been violated comes down to the risk

of error created by the challenged procedure as balanced against the competing

interests. See id. [11] Father does not challenge the court’s findings of fact as unsupported by the

evidence, nor does he contest that he had notice of the termination hearing and

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failed to appear. Father argues only that the court’s order terminating his

parental rights should be set aside because concepts of due process require DCS

to enter exhibits into evidence and to elicit more details from its witnesses.

Father also argues that principles of due process required the trial court to play

a role in the fact-finding process. He suggests that the trial court’s failure to

require additional evidence or to question witnesses on his behalf created a

“risk of error” in the court’s conclusions because DCS’s evidence was “entirely

unchallenged.” Id. at 9. [12] In support of his argument, Father relies on Thompson, supra. In that case,

mother did not appear for the final hearing, and, over her counsel’s objection,

the trial court denied her request for yet another continuance. 4 The trial court

then conducted the hearing as a summary proceeding where no witnesses

testified and no cross-examination was conducted. That is, counsel for DCS

and mother gave summaries of what their witnesses would have testified to had

a full hearing been conducted and the trial court permitted the attorneys to

introduce exhibits without sponsoring witnesses or foundations. The majority

concluded that even though mother was provided with the opportunity to be

heard at a meaningful time, she was not given the opportunity to be heard in a

meaningful manner. The majority therefore held that mother was denied due

4 In the twelve months prior to the final hearing, mother sought and was granted six separate requests for a continuance. On the day of the scheduled final hearing at issue, mother contacted her attorney and the court and claimed that she had checked herself into a drug and alcohol abuse treatment facility and wanted another continuance. The court ultimately discovered that mother had lied to the court concerning her whereabouts.

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process as the manner in which the evidence was presented amounted to “no

hearing at all” on the termination petition. 791 N.E.2d at 796. [13] This case is distinguishable from Thompson. Here, DCS called two witnesses to

testify under oath as to each element of its termination petition. Through these

witnesses, DCS established that Children had been removed from the home for

the requisite period of time, the reason for their removal, that Father had not

participated in services or established that the circumstances that resulted in

placement outside the home would be remedied, that there was a satisfactory

plan for the care and treatment of Children, and that termination of Father’s

parental rights was in Children’s best interests. DCS was not required to

present more evidence than necessary to prove each element of its termination

petition. See Young v. Elkhart Cnty. Off. of Family & Children, 704 N.E.2d 1065

(Ind. Ct. App. 1999) (noting that although a party need not attend a final

hearing, a hearing must be conducted at which evidence is presented to

establish all of the elements necessary for termination). Had Father appeared

for the termination hearing, he could have asked the witnesses to further

explain themselves and asked the questions posed in his brief. [14] Father suggests that the trial court was required to cross-examine the witnesses.

A trial court is permitted to question witnesses to aid in the fact-finding process,

i.e., to develop the truth or obtain facts that may have been overlooked by the

parties. See, e.g., Rosendaul v. State, 864 N.E.2d 1110, 1115 (Ind. Ct. App. 2007),

trans. denied. Nevertheless, “[a]t all times the trial court must maintain an

impartial manner and refrain from acting as an advocate for either party. A

Court of Appeals of Indiana | Opinion 24A-JT-2370 | February 28, 2025 Page 8 of 9 violation of due process occurs where a trial judge combines the roles of judge and advocate.” Chappey v. Storey, 204 N.E.3d 932, 939 (Ind. Ct. App. 2023) (internal quotes omitted), trans. denied. Thus, contrary to Father’s argument, the trial court was not required to, and indeed should not have, assumed the role of defense attorney and advocated for Father when he chose not to attend the termination hearing. As noted above, DCS presented testimony from two witnesses as to the elements of the termination petition. The court found FCM Miller and CASA Bailey to be credible and accepted their respective testimonies. Although the hearing was short, Father has not established that the manner in which the court conducted the termination hearing violated his due process rights. Judgment affirmed. Brown, J. and Tavitas, J., concur.

ATTORNEY FOR APPELLANT A. Robert Masters South Bend, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General

Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

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