Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: MONICA C. GILMORE The Law Offices of Matt Parmenter Vincennes, Indiana

ATTORNEYS FOR APPELLEE: GARA U. LEE Indiana Department of Child Services, Knox County Vincennes, Indiana ROBERT J. HENKE Indiana Department of Child Services Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
G.B. and B.B., Appellants-Respondents, vs. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner. ) ) ) ) ) ) ) ) )

FILED
Dec 22 2010, 9:53 am
of the supreme court, court of appeals and tax court

CLERK

No. 42A05-1005-JT-318

APPEAL FROM THE KNOX SUPERIOR COURT The Honorable W. Timothy Crowley, Judge Cause Nos. 42D01-0912-JT-50, 42D01-0912-JT-51 and 42D01-0912-JT-52

December 22, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE G.B. ("Mother") appeals the trial court's order terminating her parental rights over her minor children G.B., K.B., and E.B.1 Mother raises a single issue for our review, namely, whether the trial court violated her due process rights when it conducted a final termination hearing without first advising her of her right to counsel and without affording her a meaningful opportunity to cross-examine witnesses or present evidence. We reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY Mother is the biological mother of minor children G.B., K.B., and E.B. In

November 2008, the Indiana Department of Child Services ("DCS") filed petitions alleging that each of the three children were children in need of services ("CHINS").2 DCS placed the children with their maternal grandfather ("Grandfather"), and they were adjudicated as CHINS. During a dispositional hearing on December 10, the trial court ordered Mother to comply with a case plan, which included maintaining contact with the family case manager, Elizabeth Argo; completing a drug and alcohol evaluation; submitting to regular drug screens; visitation with the children; and participation in home-based parenting education sessions. While Mother initially participated

"somewhat" in the ordered services, Argo lost contact with Mother in August 2009. Transcript at 17.

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B.B. ("Father") was a party below but has not filed an appearance in this appeal.

Mother has not included copies of the CHINS petitions in the record on appeal. From what we glean from the parties' briefs, the children were removed from Mother's care for issues related to Mother's methamphetamine abuse.

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In December 2009, DCS filed petitions to terminate Mother's parental rights with regard to each of the three children. Because Mother had not maintained contact with Argo or Grandfather, in January 2010, DCS filed notice by publication of the initial hearing scheduled for February 26, 2010. Sometime in February 2010, Mother contacted Argo to request visitation with the children. Mother advised Argo at that time that she was aware of the termination proceedings against her. Argo then advised Mother that she could still try to comply with her case plan in an effort to try to get custody of the children back, and Argo "made the referrals" for Mother. Id. at 19. But Mother never followed through with any of the services or attempted visitation, and Argo again lost contact with Mother. Mother did not attend the initial hearing on February 26, and Mother did not have counsel present. Accordingly, DCS requested that Mother be defaulted, and the trial court entered default judgment against Mother on the petitions to terminate her parental rights. Father was present and represented by counsel at the initial hearing, and the trial court scheduled the final factfinding hearing for April 8. At the time of the factfinding hearing, Mother was incarcerated, and the trial court ordered that she be transported from jail to the hearing.3 Accordingly, Mother was present for the final hearing on the

termination petitions, but she was neither advised of her right to counsel nor represented by counsel. Nor was Mother provided an opportunity to present evidence or cross-

On appeal, the parties do not discuss the trial court's apparent inconsistency in ordering Mother to attend the factfinding hearing when she had already been "defaulted" after failing to show at the initial hearing. We will address this issue further below.
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examine witnesses. Instead, after evidence was heard,4 the trial court asked Mother whether she had "anything [she] want[ed] to say" before he entered judgment on the termination petitions. Id. at 22. Mother declined. The trial court issued separate orders terminating Mother's parental rights to each of the three children.5 The trial court found and concluded in relevant part as follows: 5. It was established by clear and convincing evidence that the allegations of the petition are true in that: a. The child has been removed from his parents for a continuous period of at least six (6) months under a dispositional decree . . . . b. There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for the placement outside the parent's home will not be remedied in that the father, [B.B.], has voluntarily terminated his parental rights and the mother, [G.B.], is currently incarcerated, has failed to cooperate in services in the [CHINS] proceeding . . . and has failed to maintain contact with the child and the Family Case Manager for many months. c. Termination is in the best interest of the child in that the parents have failed to make steps towards reunification in the [CHINS] proceeding and the child has been in his current placement since removal and is very bonded with his grandfather and requires stability and permanency in his life which adoption can provide. d. The Indiana Department of Child Services has developed a satisfactory plan of care and treatment for the child, which is adoption of the child. Appellant's App. at 8-9. This appeal ensued. DISCUSSION AND DECISION Mother contends that the trial court violated her rights to due process when it conducted a final termination hearing without first advising her of her right to counsel
Incidentally, at the factfinding hearing, before any evidence was presented, Father submitted to the trial court signed forms voluntarily relinquishing his parental rights with respect to all three children.
5 4

Each of the three orders is identically worded.

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and without affording her a meaningful opportunity to cross-examine witnesses or present evidence. We set out the applicable law in D.A. v. Monroe County Department of Child Services, 869 N.E.2d 501, 510 (Ind. Ct. App. 2007), as follows: Indiana Code Section 31-35-2-6.5(e), which governs hearings for petitions to terminate a parent-child relationship, provides that "[t]he court shall provide to a [parent] an opportunity to be heard and make recommendations to the court at the hearing. The right to be heard and to make recommendations under this subsection includes the right of a [parent] to submit a written statement to the court. . . ." Furthermore, Indiana Code Section 31-32-2-3(b) provides that in proceedings to terminate the parent-child relationship, "[a] parent, guardian, or custodian is entitled: (1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian." In addition to these statutory provisions, 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 County Div. of Family and Children, 791 N.E.2d 792, 794-95 (Ind. Ct. App. 2003), trans. denied. When the State seeks to terminate the parentchild relationship, it must do so in a manner that meets the requirements of due process. Lawson v. Marion County Office of Family and 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." Thompson, 791 N.E.2d at 795 (quoting Mathews v. Edlridge, 424 U.S. 319, 333 (1976)). 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. Lawson, 835 N.E.2d at 580. 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." Thompson, 791 N.E.2d at 795 (quoting Mathews, 424 U.S. at 334). In this case, both the private interests and the countervailing governmental interests that are affected by the proceeding are substantial. In particular, the action concerns a parent's interest in the care, custody, and
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control of his children, which has been recognized as one of the most valued relationships in our culture. Lawson, 835 N.E.2d at 580. Moreover, it is well settled that the right to raise one's children is an essential, basic right that is more precious than property rights. Id. As such, a parent's interest in the accuracy and justice of the decision is commanding. Id. Furthermore, a parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship. See I.C.

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