Wednesday, January 5, 2011

Due Process requirements to Fathers in Termination and Adoption Proceedings

On Friday 07 January 2011 members of the Indiana Custodial Rights Advocates will be at the Madison County Courthouse for an adoption hearing. Madison County is the worldwide focal point of due process and constitutional right violations recently. This case will bring together two of the best; Judge Thomas Newman who feels that agnostic parents are not fit to have custody of children and the document forging, thieving attorney Jane G Cotton who will begin serving her suspension in February 2011.

This got me to thinking about the due process rights of parents, particularly fathers, in adoption proceedings and also termination of parental rights proceedings. I have found an outstanding case to examine for this. First, some of the rulings by reviewing courts related to these due process rights.

The long held standard for due process in child custody proceedings is found in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18, (1976). Tantamount to due process is the opportunity to be heard at a meaningful time in a meaningful place.

No where are due process rights more important than in child custody proceedings, especially those seeking to terminate a parent's rights be it through a DCS action or adoption. The United States Supreme Court has long held that parents have a constitutionally protected right to “establish a home and bring up children” pursuant to the Due Process clause of the 14th Amendment to the United States Constitution. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

The Indiana Supreme Court has also recognized 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).

The involuntary termination of parental rights is the most extreme sanction that a court can impose on a parent because termination severs all rights of the parent to his or her children. Involuntary termination should therefore only occur as a last resort, available only when all other reasonable efforts have failed. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

It is also well settled that the right to raise one's child is an “essential, basic right that is more precious than property rights.” In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans. denied.

For an adoption to take place without parental consent, statutory exceptions for abandonment or failure to communicate with or support the child must be shown by clear, cogent, and indubitable evidence. McElvain v. Hite, 800 N.E.2d 947 (Ind. Ct. App. 2003); In re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999); and In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 1990).

Termination of Parental Rights

The case I have for you, the Involuntary Termination of the Parent-Child Relationship of J.S.O., S.O. v Indiana Department of Child Services, comes from Mary R. Harper, Judge of the Porter County Superior Court. It was decided by the Indiana Court of Appeals on 07 December 2010 in a ruling that reversed the trial court.

S.O., the father, claimed that he was denied procedural due process when the Indiana Department of Child Services, Porter County (PCDCS), failed to provide him with notice of all hearings and copies of all orders and other documents issued during the child in need of services (CHINS) proceedings despite PCDCS's actual knowledge of his name and whereabouts.

J.O. was born in Oklahoma in May 2008. S.O. signed a paternity affidavit at the hospital and was listed as J.O.'s father on the J.O's birth certificate.

In July 2008, local law enforcement officers responded to the scene of a reported car wreck. Upon their arrival, police officers discovered Mother and then six-week-old J.O. in a vehicle that was in a ditch off the side of the road. While assisting Mother, the responding officers observed crack cocaine and drug paraphernalia inside Mother's vehicle. Consequently, Mother was arrested on D felony possession of cocaine and possession of paraphernalia charges, and J.O. was taken into protective custody.

The following day, PCDCS investigating case manager Michael Fiala (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 J.O. the previous night. Mother also provided Fiala with Father's name, stated he was J.O.'s biological father, and provided information as to his whereabouts. 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 S.O. as J.O.'s biological or alleged biological father, but instead contained the following language: “Paternity of [J.O.] has not been established . . . .” PCDCS then sought to terminate the parental rights of J.O.'s parents.

So now that you know, as did the PCDCS and the court, that S.O. is J.O's biological father, listed on the birth certificate and his whereabouts are known let's examine the statutory requirements for the termination proceeding.

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).

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 . . . that the child has been taken into custody.”

Indiana Code 31-34-10-5 provides that the trial court has duty to inform parents that if a child is adjudicated a CHINS that they may be required to participate in program of care, treatment, or rehabilitation for child, be held financially responsible for services rendered to child, and may controvert any allegations made during dispositional or other hearing concerning their participation.

Here are a few more of the procedural requirements. I. C. § 31-34-16-4 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. I. C. § 31-34-5-1 notice of time, place, and purpose of detention hearing shall be given to child's parent if the person can be located; I. C. § 31-34-10-2 summons to attend initial hearing on CHINS petition shall be issued to parent of child; I. C. § 31-34-18-6 copy of pre-dispositional report and/or factual summary of report shall be made available to parent before dispositional hearing.

It should be clear now that there are extensive statutory requirements for providing notice, reports and an opportunity to parents for their participation in a CHINS proceeding and subsequent termination proceeding. So with this same knowledge here is what the PCDCS and the court did, or maybe didn't do.

A review of the record confirms Father's allegations that PCDCS was well-aware of his name, place of residence, and alleged paternity of J.O. throughout the entirety of the CHINS proceedings. However, Father was left5 out from the start. He was not provided a copy of the CHINS petition, nor informed of the CHINS initial hearing date.

On July 19, 2008, following the initial CHINS hearing, the trial court issued an order adjudicating J.O. a CHINS. Father was not present at the CHINS hearing and was not represented by counsel. The CHINS order again indicated that paternity of J.O. had not been established and did not contain Father‟s name as either the biological or alleged father. In addition, PCDCS did not provide Father with a copy of the CHINS order.

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].” 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.

PCDCS never attempted to contact Father, notify Father of the dispositional hearing or any other periodic case review hearing, provide Father with any copies of the case plans, or mail Father any copies of the trial court's orders. Finally, in March 2009, PCDCS ambushed Father with a petition seeking the involuntary termination of both Mother's and Father's parental rights to J.O. This time, however, PCDCS named Father as a party to the proceedings and mailed a copy of its termination petition to him.

During the termination hearing, Father repeatedly, yet unsuccessfully, objected to the termination proceedings, claiming his due process rights had been violated when PCDCS and the trial court failed to comply with the CHINS statutes by not making him a party in the underlying CHINS proceedings, not providing Father with notice of any CHINS hearings, not advising Father of the conduct he needed to perform in order to gain reunification with J.O., and not providing Father with any of the trial court‟s orders.

PCDCS case manager Amy Hilzley-Pittman (Pittman) repeatedly acknowledged during the termination hearing that although she was given his name and discovered his whereabouts shortly after J.O. was initially removed from Mother's care, Pittman did not attempt to contact Father but instead filed “paternity paperwork with the Child Support Prosecutor.”

At this point anyone should be very disturbed about the blatant disregard by PCDCS for the rights of Father or the rights of the child to maintain familial bonds. What should really do it for you though is that the supposed impartial tribunal was anything but and actually colluded with PCDCS to keep Father from becoming aware of the proceedings.

Our Indiana Court of Appeals concluded that "the trial court's blatant disregard of statutory law mandating that Father be provided with notice of all CHINS hearings and copies of all CHINS orders and case plans, resulted in a violation of Father's right to due process."


The case I have for you, In re the Matter of the Adoption of D.C., H.R. v R.C., comes from J. Terrence Cody, Judge of the Floyd County Circuit Court. It was decided by the Indiana Court of Appeals on 29 May 2008 in a ruling that reversed the trial court.

Following a 1994 divorce, in July 1997, Biological Mother lost her place of residence, and the trial court subsequently awarded D.C.’s custody to Father. Biological Mother was granted visitation rights and ordered to pay support.

On November 22, 1998, Father married Adoptive Mother. In February 1999, Father joined the military and was stationed at Fort Campbell, Kentucky, near Hopkinsville. He did not notify the divorce court of his move to Kentucky. In August 2001, Biological Mother, who was unaware of Father’s move, was notified that her support was to be paid in Christian County, Kentucky. Biological Mother subsequently learned from Father’s former neighbor that Father had joined the army and moved to Hopkinsville. Biological Mother registered with and made child support payments through Friend of the Court in Hopkinsville. Biological Mother’s payments satisfied only a small part of her full support obligation. Biological Mother visited D.C. in Hopkinsville. According to Biological Mother, Father denied some of her efforts to exercise her parenting time.

Father relocated again and did not notify the trial court of his new address. In December of 2002 Father returned to Indiana where Mother again had parenting time with D.C. However, she did not continue with parenting time but did pay support although not in full.

In June of 2003 Biological Mother sought a modification of her parenting time. Biological Mother did not contact Adoptive Mother or Father in the years 2004 or 2005.

On January 27, 2005, Adoptive Mother petitioned the court to adopt D.C. At the time of the 2005 adoption petition, Biological Mother was over $14,000 in arrears on her support obligation and had not contacted D.C. or Father in over a year.

For an adoption to take place without parental consent, statutory exceptions for abandonment or failure to communicate with or support the child must be shown by clear, cogent, and indubitable evidence. McElvain v. Hite, 800 N.E.2d 947 (Ind. Ct. App. 2003); In re Adoption of J.P., 713 N.E.2d 873 (Ind. Ct. App. 1999); and In re Adoption of Subzda, 562 N.E.2d 745 (Ind. Ct. App. 1990).

The evidence appears clear in this case that Biological Mother did not communicate with D.C. for a period of two years which meets the statutory requirement. However, Biological Mother continued to make child support payments sporadically including three days prior to the adoption hearing and for two years afterward.

What Biological Mother did do, which this case hinges upon, is keep the child support payment office appraised of her current address. What the attorney for Adoptive Mother did do was send notice to an old address and when it was returned as undeliverable the attorney made publication in a local newspaper. Unfortunately this is not an uncommon tactic used by adoption attorneys who want to fulfill adoptions without a battle.

When Biological Mother did not appear for hearing the court granted Adoptive mother's petition to adopt. It wasn't until 18 months later that Biological Mother learned of the adoption.

Biological Mother filed her motion for relief from judgment alleging, inter alia, that the judgment was void for lack of personal service. In denying Biological Mother’s motion, the trial court determined that the adoption proceedings had been defective for lack of personal notice but that pursuant to the terms of Indiana Code section 31-19-14-4, the time period to challenge the adoption due to any such defect had expired. Biological Mother then appealed.

Biological Mother argues that the trial court lacked personal jurisdiction over her in the instant case and that the adoption decree is therefore necessarily null and void. Ineffective service of process prohibits a trial court from having personal jurisdiction over a respondent. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 659 (Ind. Ct. App. 2001). A judgment rendered without personal jurisdiction over a defendant violates due process and is void. See Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind. 1998). Because a void judgment is a complete nullity and without legal effect, it may be collaterally attacked at any time, and the “reasonable time” limitation under Indiana Trial Rule 60(B)(6) does not apply. Stidham v. Whelchel, 698 N.E.2d 1152, 1154, 1156 (Ind. 1998).

Indiana Trial Rule 4.1 requires that service be made by certified or registered mail and that a written acknowledgment of receipt be received. If service cannot be made in this manner then Indiana Trial Rule 4.13 provides that service can be made through publication and that must be submitted to the court along with supporting affidavits that a diligent search has been made that the defendant who cannot be found.

In this case no diligent effort was made to find Biological Mother. If fact, a simple phone call to the child support office would have provided Adoptive Mother with the current address of Biological Mother but no such simple effort was made.

The Court of Appeals concluded that Adoptive Mother’s efforts at service were not reasonably calculated to apprise Biological Mother of the adoption proceedings and therefore did not comport with due process. Accordingly, the trial court did not have personal jurisdiction over Biological Mother, and the adoption proceedings terminating her parental rights were therefore void. Stidham v. Whelchel, 698 N.E.2d 1152, 1154-1155 (Ind. 1998).

Thus, because personal service had never been perfected upon Biological Mother the adoption was void and subject to collateral attack at any time. However the trial court relied upon Indiana Code 31-19-14-4 which provides that a person whose parental rights are terminated may not lodge an untimely challenge to an adoption decree even if, under subsection (1), the putative father did not receive notice; or, under subsection (2), the proceedings were in any other manner defective.

IC 31-19-14-4 does not contemplate a challenge by a biological mother and thus a biological mother is not time barred by that statute. In Stidham v. Whelchel, 698 N.E.2d 1152, 1154-56 (Ind. 1998), the Indiana Supreme Court, interpreting Indiana Trial Rule 60(B)(6), clarified that a default judgment rendered without personal jurisdiction over a defendant violated due process, was null and void, and could be set aside at any time. Therefore, the trial court's ruling that Biological Mother's Rule 60(B) motion was time barred was in error.

In essence, a putative father has one year after the adoption decree was entered to challenge it even if, like Biological Mother in this case, he was never provided notice and did not learn of the adoption until more than a year later. Thus, mothers are given more parental rights protections than fathers.

This disparate treatment has been acknowledged by the courts. Such statutorily distinct treatment for putative fathers does not run afoul of the Constitution. In Lehr v. Robertson, 463 U.S. 248, 261 (1983), the United States Supreme Court determined, with respect to fathers, that their substantial due process protections arose out of their commitment to the responsibilities of parenthood rather than from any biological link to the child. The Court additionally determined that, to the extent one parent had established a custodial relationship with the child and the other parent had not, a State’s according different rights to each parent did not violate the Equal Protection Clause of the Fourteenth Amendment. Lehr v. Robertson, 463 U.S. 248, 267-268 (1983).

It then becomes a legislative issue as to whether we provide equal rights to parents regardless of gender.


With gender discrimination built into the law it is no surprise that judges will expand that to their general rulings, especially in awarding sole custody of children to the mother as so often happens. In the matter of due process and the right to be notified, however, there is no distinction among gender.

Judge Cody did find that due process had not been afforded to the responding party in this adoption case. However, Cody made an error in judgment through the misapplication of the statute which, had it been applied to a putative father, would have not been error. This case provides a great example of why we need the reviewing courts. I have no such gentle treatment for Judge Harper though.

Judge Mary R. Harper should be ashamed of her conduct. As with Judge Newman she should also remove herself from the bench because of the intentional violation of the constitutional rights of parents in child custody proceedings. Lumping these despicable judges in with those who truly care and seek to serve the true best interest of children does a disservice to the judiciary.

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