In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.S. (Minor Child), and A.S. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 20 2019, 9:58 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary February 20, 2019 Termination of the Parent-Child Court of Appeals Case No. Relationship of: 18A-JT-2242 J.S. (Minor Child), Appeal from the Madison Circuit Court and The Honorable G. George Pancol, A.S. (Father), Judge Appellant-Respondent, Trial Court Cause No. 48C02-1802-JT-16 v.

The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019 Page 1 of 4

Baker, Judge. [1] A.S. (Father) appeals the order terminating his parent-child relationship with

J.S. Father argues that we should reverse because the Department of Child

Services (DCS) did not provide the statutorily required notice of the final

termination hearing. Finding that Father failed to preserve the issue for appeal,

we affirm. [2] J.S. was found to be a child in need of services (CHINS) on February 5, 2014.

Father failed to participate successfully with any of the court-ordered services in

the CHINS case, including visits with his child. On February 6, 2018, DCS

filed a petition to terminate Father’s parental rights.1 At that time, Father was

incarcerated and was personally served in jail with all relevant documents,

including notice of an initial hearing that would occur on March 5, 2018. [3] On March 5, 2018, the trial court held the initial hearing in the termination

proceedings. Father failed to appear; the trial court appointed counsel for him

and scheduled a factfinding hearing for May 29, 2018. [4] At the May 29, 2018, factfinding hearing, Father failed to appear but his

attorney was present. Counsel for DCS stated that “there are no parents

present although all had proper service.” Tr. Vol. II p. 4. Father’s attorney did

not object regarding service or notice; therefore, no further discussion took

1 The parental rights of J.S.’s mother were also terminated but she has not appealed that order.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019 Page 2 of 4

place regarding the issue. On September 17, 2018, the trial court terminated the

parent-child relationship between Father and J.S. Father now appeals. [5] Father’s sole argument on appeal is that DCS failed to provide him with notice

in conformity with the requirements of Indiana Code section 31-35-2-6.5, which

requires that DCS send notice to a parent at least ten days before the

termination of parental rights factfinding hearing. This Court has explained

that

[c]ompliance with the statutory procedure of the juvenile code is mandatory to effect termination of parental rights. Although statutory notice is a procedural precedent that must be performed prior to commencing an action, it is not an element of [DCS’s] claim. Failure to comply with statutory notice is thus a defense that must be asserted. Once placed in issue, [DCS] bears the burden of proving compliance with the statute.

In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (internal quotation marks

and citations omitted) (emphasis added). [6] Here, Father did not raise the issue of notice at the termination hearing.

Because Father did not raise the issue, DCS had no opportunity to present

evidence of the notice and the trial court did not have the chance to determine

whether notice was provided or, if there was no notice provided, whether the

procedural irregularity violated Father’s due process rights. [7] Father argues that even if he waived the issue, the error was fundamental

because it violated his due process rights. Initially, we note that we cannot

discern if any error occurred at all because there is no evidence aside from Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019 Page 3 of 4

Father’s self-serving statement that DCS did not, in fact, provide the required

notice. Moreover, he had actual notice that the termination petition had been

filed, he knew the date and time of the initial hearing, and the trial court

appointed counsel to represent him. His attorney was able to cross-examine

witnesses and to present and object to the admission of evidence at the

factfinding hearing. See, e.g., In re K.W., 12 N.E.3d 241, 248-49 (Ind. 2014)

(holding that parents do not have a constitutional right to be physically present

at a termination hearing). [8] From this record, we cannot determine whether any error occurred at all. And

if it did, we do not find that it was fundamental or that Father’s constitutional

rights were violated. [9] The judgment of the trial court is affirmed.

May, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2242 | February 20, 2019 Page 4 of 4