The Honorable Mary R. Harper, Judge of the Porter Superior Court, may think that as long as the outcome is the same the process by which one gets there is superfluous. Fortunately, a panel of the Indiana Court of Appeals has found otherwise. What Harper felt was unnecessary was notifying a father that his child had been taken from the mother by the Porter County office of the Indiana Department of Child Services [PCDCS] who sought to terminate the parent-child relationship.
I'll start by telling you that these are not model parents. The evidence demonstrates that the mother uses crack cocaine and had placed the child in, or potentially in, serious harm. Father has been incarcerated for nine of the past 12 years and has had little contact with his child.
Father had signed a paternity affidavit at the hospital where the child was born and was listed as the child's father on the child's birth certificate. So when his paternal rights were terminated he appealed to the Indiana Court of Appeals which rendered its decision in the published opinion, Involuntary Termination of the Parental Rights of JSO, on 07 December 2010.
After mother crashed her car with the six-weeks of age child in it police found crack cocaine and drug paraphernalia in the vehicle. At the time of Mother's arrest, Mother informed the authorities that the child's biological father was incarcerated, and that there was no other adult available to assume custody of the child.
The following day, PCDCS investigating case manager Michael Fiala spoke with Mother at the Porter County Jail. Mother admitted to Fiala that she had bought and used crack cocaine prior to getting into the car and driving with the child the previous night. Mother also provided Fiala with Father's name, stated he was the child's biological father, and further explained that Father was incarcerated in the Lake County Jail on an outstanding robbery warrant. Fiala included this information regarding Father's name and whereabouts in his “Detention Hearing Report to the Court” filed on July 10, 2008.
On July 16, 2008, PCDCS filed a verified CHINS petition which did not name Father as the child's biological or alleged biological father, but instead contained the following language: “Paternity of [the child] has not been established . . . .” A blatant lie. Subsequently, father was not provided a copy of the CHINS petition, nor informed of the CHINS initial hearing date.
On August 6, 2008, PCDCS filed its pre-dispositional report with the trial court, which indicated under the sub-heading “Parental History” that “paternity has not yet been established for [Father].” The report later indicated, however, that the child's family formerly “consisted of [the child] and his parents. The father is currently in Lake County Jail . . . .”. Nevertheless, Father was not made a party to the CHINS proceedings, he was not offered and/or referred for reunification services, he was not provided with a copy of the pre-dispositional report, and he was never advised that a dispositional hearing had been set for August 19, 2008.
In March 2009, PCDCS filed a petition seeking the involuntary termination of both Mother's and Father's parental rights to their child. This time, however, PCDCS named Father as a party to the proceedings and mailed a copy of its termination petition to Father. Father, who remained incarcerated, thereafter participated in all termination hearings, either in person or telephonically.
The Legal Requirements to Provide Notice
Pursuant to Indiana Code section 31-34-3-4, notice that a child has been taken into custody under Indiana Code chapter 31-34-2 “must” be given “to each of the child's parents as described in sections 1 through 3 of this chapter.” Ind. Code § 31-34-3-4(2) (emphasis added). Father, although known, was not notified.
Indiana code section 31-34-3-2 requires PCDCS to make a good faith effort, not more than six (6) hours after the child has been taken into custody, to leave written notice at the last known address of the child's parent and that the child has been taken into custody. The record reveals no such notice was ever provided to Father in the present case, despite PCDCS's admitted knowledge of Father's whereabouts. Moreover, Father was never provided with notice of any subsequent CHINS hearings or copies of CHINS documents, including PCDCS case plans and trial court orders, in violation of numerous additional CHINS statutes.
One of those statutes is I. C. § 31-34-4-6 which states that the county office of family and children shall submit written information to parent of alleged CHINS regarding parent's legal rights to be represented by counsel, cross-examine witnesses, and present evidence on their behalf at each CHINS court proceeding.
Further, I. C. § 31-34-9-7 states that the child's parents are parties to CHINS proceedings and have all rights of parties under Indiana Rules of Trial Procedures.
Directly to the responsibility of the court is I. C. § 31-34-10-5 which states that the trial court has duty to inform parents that if a child is adjudicated a CHINS, parents may be required to participate in a program of care, treatment, or rehabilitation for the child, be held financially responsible for services rendered to the child, and may controvert any allegations made during dispositional or other hearings concerning the parent's participation.
Finally, I. C. § 31-34-15-3 states that a copy of completed case plans shall be sent to the child's parents and I. C. § 31-34-16-4 mandates that the trial court shall advise parent that failure to participate in services as required by dispositional order of court can lead to termination of parental rights. Neither of these was done for Father in this case.
Due Process Case Law
A panel of this court has previously held that a parent's interest in the care, custody, and control of his or her children is arguably one of the oldest of our fundamental liberty interests. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Further, in particular, this termination action concerns Father's interest in the care, custody, and control of his child, which has been repeatedly recognized as one of the most valued relationships in our society. In re E.D., 902 N.E.2d 316, 321 (Ind. Ct. App. 2009), trans. denied.
Terminating Father's relationship with his child, whatever it may be, requires significant due process as clearly indicated in the Indiana Code sections shown herein. Court's have long held that the bond between a parent and a child is a sacred right which should only be terminated as a last resort.
Yet, in this case, Judge Harper had already decided that Father was unfit and was not worthy of being provided notice of the CHINS proceedings or an opportunity to be heard on the matter.
Even if notice had been supplied to Father and he was able to fully participate in the proceedings the result would have likely been the same. Justice Kirsch in a dissent stated, "Other than sperm donation, the Father has made no contributions to the life of this child. He has no relationship with the child, has seen the child only two or three times since he was born, and has not seen him at all since July 2008. He has not contributed to the support of his child in any way. He has had a drug addiction that spans most of his adult life and has spent a significant portion of that life in prison."
However, this panel of the Court of Appeals rightfully concluded, [W]e simply cannot ignore PCDCS's and the trial court's failure to follow numerous and substantial statutory mandates in this matter. As such, the situation demands that we reverse the trial court's termination order on procedural due process grounds.
Simply put, it is of no issue if the eventual result is obvious, the law makes no provision to short-cut the process. Due process is a requirement as it should be, especially when the matter involves the custody of child and the right of that child to have a relationship with his or her parents.
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