In re the Termination of the Parent-Child Relationship of M.M.E. (Minor Child) and J.H. (Father) J.H. v. 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 Mar 11 2020, 8:54 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Renee M. Ortega INDIANA DEPARTMENT OF Lake County Juvenile Public CHILD SERVICES Defender’s Office Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana ATTORNEY FOR APPELLEE LAKE COUNTY COURT APPOINTED SPECIAL ADVOCATE Donald W. Wruck Wruck Paupore PC Dyer, Indiana

IN THE COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2139 | March 11, 2020 Page 1 of 10

In re the Termination of the March 11, 2020 Parent-Child Relationship of Court of Appeals Case No. M.M.E. (Minor Child) and 19A-JT-2139 J.H. (Father) Appeal from the J.H., Lake Superior Court The Honorable Thomas P. Appellant-Respondent, Stefaniak, Jr., Judge v. Trial Court Cause No. 45D06-1903-JT-65 Indiana Department of Child Services, Appellee-Petitioner,

and

Lake County Court Appointed Special Advocate, Appellee-Casa

Vaidik, Judge.

Case Summary [1] J.H. (“Father”) appeals the termination of his parental rights to M.M.E.

(“Child”). He doesn’t present a sympathetic case: Child was conceived when

Father, then thirty-five or thirty-six years old, illegally had sex with his fifteen-

year-old stepdaughter. Under Indiana law, though, even fathers like J.H. are

entitled to procedural due process, and here procedural irregularities deprived

him of that due process. Therefore, we are compelled to reverse. However,

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because Father has now been convicted of sexual misconduct with a minor for

his wrongdoing, the proceedings on remand should be expedited.

Facts and Procedural History [2] Father’s stepdaughter, D.W. (“Mother”), gave birth to Child in December

2014, a few weeks after she turned sixteen. In March 2015, the Department of

Child Services (DCS) filed a petition alleging that Child was a child in need of

services (CHINS) after he was hospitalized with serious injuries consistent with

being shaken. The petition identified Child’s father as F.E., who had signed the

birth certificate and who had inflicted Child’s injuries. A few months into the

CHINS proceeding, however, Mother reported that Father started having sex

with her when she was eleven and that he could be the biological father. In

October 2015, the State charged Father with several counts of child molesting

and sexual misconduct with a minor, and he has been incarcerated ever since. [3] In late 2015 or early 2016, DNA testing in the criminal case confirmed that

Father is Child’s biological father. DCS then served Father with a summons, a

notice of hearing, and a copy of the CHINS petition at the Lake County Jail.

The CHINS court held an initial/detention hearing with regard to Father in

August 2016. Father did not appear at the hearing, nor was he represented by

counsel, and the trial court did not appoint an attorney to represent Father.

After that, neither the court nor DCS took any further action regarding Father

in the CHINS case. DCS did not file an amended CHINS petition naming or

making allegations against Father or include Father in any of the subsequent

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case plans, and the court did not hold a fact-finding hearing, hold a

dispositional hearing, or issue a dispositional decree with respect to Father or

distribute any of its orders to Father at the jail. [4] Father eventually pled guilty to Class B felony sexual misconduct with a minor,

and in January 2018 he was sentenced to twelve years in prison. DCS then

initiated proceedings to terminate the parental rights of Mother, F.E., and

Father. The termination hearing was held in August 2019. Father had been

transferred to New Castle Correctional Facility and was not transported for the

hearing, and he was not represented by an attorney. Two weeks after the

hearing, the trial court issued an order terminating the rights of all three

respondents. [5] Father now appeals (but Mother and F.E. do not).

Discussion and Decision [6] Father raises several issues on appeal, but we find the first to be dispositive. He

contends that procedural irregularities in the CHINS proceeding violated his

constitutional right to due process and require reversal of the termination. As

Father notes, we have held that “procedural irregularities in a CHINS

proceeding[] may be of such import that they deprive a parent of procedural due

process with respect to the termination of his or her parental rights.” In re A.P.,

734 N.E.2d 1107, 1112-13 (Ind. Ct. App. 2000), reh’g denied, trans. denied. Here,

Father cites the following irregularities: (1) DCS never filed an amended

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CHINS petition identifying him as a parent of or alleging why Child was in

need of services with regard to him; (2) the initial/detention hearing concerning

him was not held within ten days of the filing of the CHINS petition, as

required by Indiana Code section 31-34-10-2; (3) the trial court did not enter a

denial on his behalf and hold a factfinding hearing, even though Indiana Code

section 31-34-10-6 provides that a failure to respond to a CHINS petition

constitutes a denial; (4) no dispositional hearing was held with regard to him;

(5) no dispositional decree was issued with regard to him; and (6) he did not

receive any case plans. [7] DCS acknowledges most of these irregularities but argues that Father waived

his due-process claim for purposes of appeal by failing to raise it in the trial

court.1 As DCS notes, we have held that when a parent makes a due-process

claim based on CHINS irregularities for the first time on appeal, we “may”

consider the claim waived. In re S.P.H., 806 N.E.2d 874, 877 (Ind. Ct. App.

2004). However, as the word “may” implies, “we have discretion to address

such claims[.]” In re D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019), aff’d on

reh’g, 122 N.E.3d 832, trans. denied. For two reasons, we choose to exercise that

discretion in this case. First, the irregularities at issue were not isolated or

1 There is nothing in the record indicating that Father has ever formally established, or even attempted to formally establish, his paternity pursuant to Indiana’s paternity statutes. See Ind. Code art. 31-14. However, DCS makes no argument that Father was not entitled to due process in the CHINS case because of his failure to take such action. Moreover, we have held that DCS can petition to terminate the parental rights of a man who might be the father but who has not yet taken any action to establish paternity. In re S.M., 840 N.E.2d 865, 870-72 (Ind. Ct. App. 2006).

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minor. Other than serving Father with the CHINS petition (which did not

include him as a parent or say anything about him) and holding an initial

hearing (at which Father was neither present nor represented by counsel), the

trial court and DCS essentially did nothing with regard to Father for the

remainder of the CHINS proceedings. There was no factfinding hearing,

dispositional hearing, or dispositional decree regarding Father, DCS did not

send him any case plans, and the trial court did not send any of its orders to

Father at the jail. Second, the trial court did not appoint counsel for Father in

the termination case, in violation of Indiana Code section 31-32-4-3(a)

(providing that if a parent in a termination case does not have an attorney and

has not waived the right to one, the court “shall appoint counsel for the parent

at the initial hearing or at any earlier time”).2 If the court had complied with

that statute by appointing an attorney for Father, perhaps the due-process claim

would have been raised before appeal. [8] DCS also argues that Father was not harmed by the procedural irregularities in

the CHINS proceeding. We acknowledge that the odds of Father and Child

being reunified were (and are) incredibly slim given the disturbing

2 There were actually two termination cases. In the first, the court appointed an attorney for Father, as required by Section 31-32-4-3. That attorney then moved to have the case dismissed “due to failure to complete within the time frame.” Appellant’s App. Vol. III p. 34. The court dismissed the case without prejudice. Three days later, DCS filed a new termination petition. The court held another initial hearing without Father present and did not appoint an attorney for Father. Father remained unrepresented for the rest of the trial-court proceedings (though, because of the quick transition from the first termination proceeding to the second, he may have believed that he was still represented by the attorney from the first proceeding).

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circumstances of this case, but under Indiana law even fathers like J.H. are

entitled to due process. The process Father was afforded in this case was

woefully inadequate. Therefore, we must reverse the termination of Father’s

parental rights and remand this matter for further proceedings in the CHINS

case (starting with the filing of an amended CHINS petition that includes

allegations against Father). [9] All that being said, because Father has now been convicted of sexual

misconduct with a minor, with Mother as a victim, DCS could proceed very

quickly to termination on remand. While DCS is generally required to “make

reasonable efforts” to reunify parents and children during CHINS proceedings,

Ind. Code § 31-34-21-5.5(b), such efforts “are not required” if the court finds

that a parent of a child in need of services has been convicted of, among other

things, sexual misconduct with a minor against a victim who is the other parent

of the child, Ind. Code § 31-34-21-5.6(b)(1). And if the court makes such a

finding, DCS can immediately file a petition for termination. See Ind. Code §

31-35-2-4(b)(2)(A)(ii). These statutes were not in play during the original

CHINS proceeding because Father was not convicted until January 2018,

nearly three years after the CHINS case was opened and after DCS had already

decided to seek termination. Of course, it is up to DCS to decide on remand

whether to ask the trial court for a finding under Section 31-34-21-5.6(b)(1). In

any event, we remind the trial court that Father has a right to counsel in all

future CHINS or termination proceedings. Ind. Code § 31-34-4-6(a)(2)(A)

(CHINS); Ind. Code §§ 31-32-2-5; 31-32-4-1; 31-32-4-3 (termination).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2139 | March 11, 2020 Page 7 of 10 [10] Reversed and remanded.

Najam, J., concurs.

Tavitas, J., concurs with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2139 | March 11, 2020 Page 8 of 10

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the Court of Appeals Case No. Parent-Child Relationship of 19A-JT-2139 M.M.E. (Minor Child) and J.H. (Father) J.H., Appellant-Respondent,

v.

Indiana Department of Child Services, Appellee-Petitioner,

and

Lake County Court Appointed Special Advocate, Appellee-Casa.

Tavitas, Judge. [11] Although I concur, I write separately to note that I sympathize with the trial

court’s difficulty in addressing the amount of rights to which J.H. was entitled

here. The facts of this case highlight a discrepancy in Indiana law. Under the

current statutes, a putative father in a termination of parental rights proceeding Court of Appeals of Indiana | Memorandum Decision 19A-JT-2139 | March 11, 2020 Page 9 of 10

unfortunately is entitled to more due process rights than a putative father in an

adoption case. [12] Under the adoption statutes, a putative father must either: (1) establish paternity

before a petition for adoption has been filed; or (2) timely register with the

putative father registry pursuant to Indiana Code Section 31-19-5-12. See, e.g.,

Ind. Code § 31-9-2-100 (defining the term “putative father”); Ind. Code § 31-10-

5-12(a) (requiring a putative father to register to be entitled to notice of an

adoption). In a termination of parental rights proceeding, however, DCS and

trial courts are required to give notice to alleged fathers. See, e.g., Ind. Code §

31-9-2-88 (defining “parent” to include an “alleged father”3); Ind. Code § 31-35-

2-6.5(c)(1) (providing that a child’s parent “shall receive notice of a hearing” in

proceedings related to the termination of one’s parental rights). [13] Both adoption proceedings and termination of parental rights proceedings sever

the parental relationship between a parent and a child. A putative father’s

obligations under each type of proceeding, however, are different. Moreover, in

our statutes and caselaw, we use the terms “legal father”, “biological father”,

“alleged father”, and “putative father”, which creates confusion regarding the

due process rights to be given to each. I write separately to bring attention to

this inconsistency.

3 Indiana Code Section 31-9-2-9 defines “alleged father” for “purposes of IC 31-14” to mean “any man claiming to be or charged with being a child’s biological father.” Indiana Code Article 31-14, however, pertains to the establishment of paternity.

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