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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.

FILED
Feb 08 2008, 10:06 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DIANE RAE HURTT Law Office of Diane Rae Hurtt, P.C. Lafayette, Indiana

ATTORNEY FOR APPELLEES: CRAIG JONES Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the ) Parent- Child Relationship of B.H., B.H., and B.H., ) and Ronald H., natural Father, ) ) RONALD H., ) ) Appellant-Respondent, ) ) vs. ) ) TIPPECANOE COUNTY DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee-Petitioner. )

No. 79A04-0704-JV-199

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Loretta H. Rush, Judge Cause Nos. 79D03-0607-JT-150, -153, and -154

February 8, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION KIRSCH, Judge

Ronald H. ("Father") appeals the involuntary termination of his parental rights, in Tippecanoe Superior Court, to his three children, B.K.H., B.N.H., and B.F.H. Father raises several issues on appeal, which we consolidate and restate as: I. Whether the trial court had subject matter jurisdiction over the CHINS proceedings; Whether the Father's constitutional right to due process was violated; and, Whether the trial court's judgment terminating Father's parental rights to the children was supported by clear and convincing evidence.

II.

III.

We affirm. FACTS AND PROCEDURAL HISTORY The facts most favorable to the judgment reveal that Father and his wife, Rhonda H. ("Mother") are the legal parents of B.K.H., born on September 25, 1996, B.N.H., born on April 27, 2000, and B.F.H., born on August 2, 2001.1 On November 4, 2004, William and Leann Thornton (collectively, "the Thorntons") filed a petition for guardianship over all three children in Tippecanoe Circuit Court, alleging that both Mother and Father were unable to care for the children and that it was necessary for a guardian to be appointed for the children "in order to provide for their care, custody, support and maintenance due to their minority." Appellant's App. at 651. The parents had arranged for and consented to the guardianship because of Father's incarceration and Mother's pending incarceration. On November 16,

Father and Mother were married at the time of the birth of all three children and are the children's legal parents. However, Richard W. is the biological father of B.F.H. Richard W. has had no contact with B.F.H. since the time of her birth and did not participate in this appeal or in any of the proceedings below. Mother is also not a party to this appeal.

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2004, the Tippecanoe Circuit Court entered an order appointing the Thorntons as guardians, finding that the allegations contained in the petition were true. The guardianship proceeded thereafter without apparent incident while both parents remained incarcerated. However, Leann became concerned for the well-being of the children because Mother informed Leann that she intended to secure custody of the children as soon as she was released from prison. Leann had many concerns pertaining to Mother's past treatment and care of the children; so, when Mother contacted Leann after she was released from prison and stated that she wanted the children back, Leann directed Mother to contact the Tippecanoe County Department of Child Services ("TCDCS"). Mother subsequently contacted the TCDCS, and on June 1, 2005, Mother, Leann and the TCDCS entered into an Informal Adjustment. The Informal Adjustment required Mother, among other things, to exercise supervised visitation, and to participate in individual and family counseling and parenting classes. Mother was minimally cooperative and eventually dropped from some services. On September 15, 2005, in Tippecanoe County Superior Court III (the county's designated juvenile court), the TCDCS filed a request to take the children into custody and a request for authorization to file a petition alleging the children were in need of services ("CHINS" petition) because Mother had failed to fully participate in services under the Informal Adjustment. The juvenile court granted both requests. Upon being advised of the CHINS proceedings in the juvenile court, the Tippecanoe Circuit Court issued an order stating that it no longer had jurisdiction over the children. The TCDCS filed its CHINS petition, and the juvenile court set the initial hearing for
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October 24, 2005. In October 2005, Mother returned to prison where she remained incarcerated with an earliest possible release date of July 14, 2007. During the October 24th hearing on the CHINS petition, Father, with the advice of counsel, admitted to the CHINS petition and to the allegations contained in the Affidavit of Probable Cause. Mother denied the allegations. On December 21, 2005, the juvenile court held a fact-finding hearing where Mother admitted to the CHINS petition and to the allegations of the probable cause affidavit. The court then found the children to be CHINS and entered a dispositional order. Throughout the CHINS proceedings, both Father and Mother were incarcerated. The juvenile court's parental participation decree ordered both Father and Mother to avail themselves of all available services through the facilities in which they were incarcerated. On July 12, 2006, the TCDCS filed its petitions to terminate Father's and Mother's parental rights to the children. The fact-finding hearing commenced on October 10, 2006,2 and completed on November 13, 2006. At the termination hearing, TCDCS case supervisor Angela Guimond ("Guimond") testified that when the TCDCS became involved with the case "it was merely a continuation of the concerns that Benton County had had when they took protective custody of the children." Appellant's App. at 52. Guimond further testified that both parents were "unable to provide any stability or permanency for the children[,]"

It appears from the record that sometime prior to the termination hearing, Father filed a preliminary motion to dismiss based on the fact he was not present or represented by counsel at the permanency hearing during the CHINS proceedings, see Appellant's App. p. 11-12; however, a copy of the motion was not included in the record. The trial court denied Father's motion to dismiss. Id. at 13. Father does not specifically appeal the trial court's denial of his motion to dismiss, but does complain on appeal that he was not represented by council at the permanency hearing. We remind counsel that "[a]ny record material cited in an appellate brief must be reproduced in an Appendix or the Transcript or exhibits." Ind. Appellate Rule 22(C).

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despite services offered through both Tippecanoe County and Benton County offices and that she believed there was a reasonable probability that the condition that resulted in the children's removal would not be remedied. Id. at 52-53. Similarly, when Rhonda Friend ("Friend"), TCDCS family case manager, was asked if she believed that the conditions that led to removal of the children had a reasonable probability of being remedied, she testified as follows: This case more than probably any case I've ever dealt with in the 20 years I've been a caseworker has demonstrated to me the most instability, the most neglect, irresponsible behavior of the parents towards their children that I have seen . . . . [B.K.H.] has lived in 13 different homes, she is just now 10 . . . . [H]er mom has been in jail 11 times since [she] was born. [B.K.H.] has attended seven different schools . . . before her second grade of school. She has been molested at least three times. She has been physically abused. . . . [B.K.H.] has no desire to return to her mom's home . . . . That is not a normal situation. Most children that we work with want to go home no matter what their parent has done to them. [B.K.H.] does not want to do that. She is begging that she not be made to go back home. She does not feel that she will be safe if she goes back home. *** [B.N.H.] in the six years of her life has been with her mother off and on for three and a half years and has moved with her parents eight times and that's not including her three foster home placements, her aunt and uncle's home when we removed [her through a CPS removal] and a grandparent's home. . . . [B.N.H.] also does not have a desire to go home . . . and that is also unusual given her age at six. . . . [B.F.H.] has only been with her mom about two years out of her five years of life. She has moved with her parents three different times that we can list and that also does not include her [three] stays in foster care . . . her aunt and uncle['s] and a grandparent's. [B.F.H.] was molested at five months of age; she was also beaten to the point that she had to be life[]lined to Riley Hospital. She still has seizures today because of the abuse that she has suffered. Appellant's App. at 100-104. Friend further testified that she "[a]bsolutely" felt it was in the best interests of the children to terminate Mother's and Father's parental rights to the children

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and that the children needed permanency. Id. at 106, 143. Likewise, Angie Wilhoit ("Wilhoit"), the court appointed special advocate ("CASA") for the children, testified that she agreed with the TCDCS's recommendation to terminate parental rights in this case because, after visiting the children and talking to therapists and family members, including the parents, she felt the "behavior pattern of the parents will . . . never change." Id. at 205. She went on to testify, "The girls . . . feel so safe and comfortable right now with the Thornton[s] and I feel . . . it's not fair to keep jerking them around. . . . [T]hey love the Thornton[s] and they hope they never have to leave their house . . . . They deserve to have the comfort and security of a forever home." Id. Jennifer Samuels ("Samuels"), the family preservation counselor testified that she had concerns with the stability of the relationship between the parents and the children stating, "There was a history of domestic violence in the marriage; there was also issues with drugs, lack of supervision. [Mother's] denial . . . [a]nd I just believe the kids need permanency, they've been in and out of the system for several years and they need permanency." Id. at 80. On February 20, 2007, the juvenile court issued its judgment terminating both Mother's and Father's parental rights to B.K.H., B.N.H., and B.F.H. This appeal ensued. DISCUSSION AND DECISION I. Subject Matter Jurisdiction Father first challenges the trial court's subject matter jurisdiction. Specifically, Father asserts, without any citation to authority, that when the TCDCS filed its CHINS petition, the juvenile court was required to "first determine the legal primary caregiver of the child. If the caregiver is a legally appointed guardian, the court must then ascertain whether the
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allegations relate to the actions or omissions of the guardian. If not, the juvenile court no longer has subject matter jurisdiction of the case and must dismiss the [p]etition." Appellant's Br. at 12. Indiana trial courts possess two kinds of jurisdiction. Subject matter jurisdiction is the power to hear and determine cases of the general class to which any particular proceeding belongs. K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). Personal jurisdiction requires that appropriate process be effected over the parties. Id. Where these two exist, a court's decision may be set aside for legal error only through direct appeal and not through collateral attack. Id. Our Supreme Court has recently explained, "Attorneys and judges alike frequently characterize a claim of procedural error as one of jurisdictional dimension. The fact that a trial court may have erred along the course of adjudicating a dispute does not mean it lacked jurisdiction." Id. at 541. The Court further explained that, "Indiana has adhered to the rule that the judgment of a court having jurisdiction of the subject matter of the suit and of the person, however irregular, is not void and not impeachable collaterally, unless it may be for fraud." Id. Father's assertion that the juvenile court lacked subject matter jurisdiction rests on I.C.

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