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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 APPELLANT: ATTORNEY FOR APPELLEE:

DAVID A. NOWAK HEATHER H. KESTIAN
Columbus, Indiana     Department of Child Services
       Columbus, Indiana
    


IN THE
COURT OF APPEALS OF INDIANA



IN THE MATTER OF THE  )
INVOLUNTARY TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF T.Y.,  )
minor child, and S.Y., his mother, and T.M., the  )
putative father , )
   )
T.M.,    )
   )
Appellant-Respondent, )
)
vs. ) No. 03A05-0904-JV-191
)
INDIANA DEPARTMENT OF )
CHILD SERVICES, )
   )
Appellee-Petitioner. )
  



APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
The Honorable Stephen R. Heimann, Judge
The Honorable Heather M. Mollo, Referee
Cause No. 03C01-0709-JT-1878



August 14, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION


BAKER, Chief Judge
Appellant-respondent T.M. (Father) appeals following the juvenile court.s denial of his Motion for Relief from Judgment under Indiana Trial Rule 60(B).  Specifically, Father argues that he did not receive adequate notice of the termination of parental rights hearing with regard to his son, T.Y., that the juvenile court abused its discretion when it denied his motion for relief from judgment, and that his attorney was ineffective.  Finding no error, we affirm.  
FACTS
Father is the putative father of T.Y., who was born to S.Y. (Mother)1 on November 17, 2005.  Father has neither established paternity with respect to, nor sought visitation with, T.Y.  On December 9, 2005, the Indiana Department of Child Services (DCS) removed three-week-old T.Y. from Mother.s care after he tested positive at birth for methamphetamine and amphetamine.  T.Y. was placed with foster parents, who now plan to adopt him.  
1 Mother does not appeal the termination of her parental rights to T.Y.  

On February 28, 2006, T.Y. was adjudicated a Child in Need of Services (CHINS).  On September 28, 2007, DCS filed a petition for the involuntary termination of the parent-child relationship between T.Y and both parents.  Although Father was incarcerated at the New Castle Correctional Facility, he was served with notice of the petition on March 5, 2008.  The certified mail receipt indicated that the notice was accepted by Monica Sullivan, an employee of the Indiana Department of Correction (DOC).  
At the June 26, 2008, pre-trial conference, the juvenile court appointed an attorney to
represent Father and scheduled the termination hearing for August 12, 2008.  However, on July 22, 2008, the juvenile court rescheduled the hearing for August 26, 2008.  Father.s attorney was notified of this change.  
Father was not present at the August 26, 2008, termination hearing, but his attorney was and requested a continuance, which was denied.  Father.s attorney explained that he had been contacted by Father.s mother, but that he had never been contacted by Father.  
At the termination hearing, the DCS family case manager testified that the only contact that she had had with Father was when she had seen him at an unrelated court hearing.  During this brief encounter, Father did not mention any desire to establish paternity, meet with DCS, or attend hearings.  Father.s sole request was that the case manager give T.Y. a hug for him.  The case manager further testified that Father was expected to be incarcerated until 2015 and would be unable to parent T.Y. even if he established paternity.
On October 3, 2008, the juvenile court entered findings of facts and conclusions of law in its order terminating both parents. parental rights to T.Y.  Father filed his notice of appeal to this court on October 28, 2008.  Appellate counsel was appointed on October 30, 2008; however, an appellant.s brief was not filed.  Instead, on December 29, 2008, Father filed a verified motion for relief from judgment pursuant to Indiana Trial Rule 60(B), arguing that there was newly discovered evidence that Father was not present at the termination hearing and that this violated his rights under Indiana Code section 31-35-2-6.5(e).  
On February 9, 2009, the juvenile court denied Father.s motion for relief from judgment without a hearing, concluding, in part, that:
A parent does not have a constitutional right to be present at a termination of parental rights hearing.  The court is cognizant that there are important private interests in a termination proceeding.  However, there are equally important governmental interests, that being achieving timely permanency for the child.  In balancing these competing interests of a parent and the State, the court must consider the risk of error.  In the instant case, [Father] was represented throughout the entire termination proceedings.  Counsel was able to cross-examine the State.s witnesses and in fact, did so.  Further, when there has been a total absence by the putative father in the underlying [CHINS] proceeding, there is a minuscule risk of error in the termination of his parental rights.  [Father] has not been denied due process of law.  

Appellant.s App. p. 15.  Father now appeals.  

DISCUSSION AND DECISION

I. Notice
Father argues that he was not served with notice of the August 26, 2008, termination hearing.   Initially, we note that any issue which either was or could have been raised by a timely motion to correct error or a timely direct appeal may not be the subject of a motion for relief from judgment.  Snider v. Gaddis, 413 N.E.2d 322, 326 (Ind. Ct. App. 1980).  
In the instant case, Father did not file a motion to correct error or an appellant.s brief even though he had filed a notice of appeal.  Instead, Father waited until December 29, 2008, to file a motion to set aside the judgment terminating his parental rights under Indiana Trial Rule 60(B).  Rule 60(B)

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