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A failure to properly serve a mother with notice of a hearing voided an order that terminated the mother’s parental rights to her child, the Court of Appeals of Indiana ruled in a reversal Friday.
According to court records, within a month of A.B.’s birth, the Randolph County Department of Child Services filed a petition alleging A.B. was a child in need of services due to mother I.B.’s and father C.B.’s persistent drug use.
Both mother and father admitted A.B. was a CHINS a day after A.B. turned 2 months old.
Due to both parents’ continued drug use and not maintaining a stable home, DCS petitioned to terminate their parental rights.
A summons was sent to I.B. via certified mail addressed to her last known address in Ohio. However, it was returned to DCS and marked as not deliverable.
The Randoph Circuit Court appointed the attorney who represented I.B. in the CHINS proceeding to represent her in the termination of parental rights proceeding. Her counsel appeared at the initial hearing, but I.B. did not.
In November 2022, DCS requested to serve I.B. via publication, which the trial court granted even though DCS did not file an affidavit of diligent inquiry.
DCS also did not file proof of publication, but submitted proof of service upon I.B. based on DCS family case manager Brittany Duffer personally serving Danielle Smith, the father’s mother, at her home in Richmond.
Both DCS and the trial court deemed Smith to have accepted service on I.B.’s behalf.
The trial court held a fact-finding hearing in February, which I.B. did not attend.
At the start of the hearing, I.B.’s counsel stated she tried to contact her and inform her of the hearing multiple times, but never heard from her. Her counsel also stated that she didn’t have a good address for I.B., nor had she heard from her for a long time.
DSC informed the trial court that it “did make in-person service on both parents for the date and time of today’s hearing.”
The trial court then terminated I.B.’s parental relationship with A.B. and stated in its order, “Mother received adequate service of the Petition and of the date and time of these proceedings, and she has willfully chosen not to attend this hearing.”
On appeal, I.B. claimed her due process rights were violated because she was not served with process. But DCS argued I.B. waived her due process argument by failing to raise it in the trial court.
The appellate court acknowledged that is generally correct, but the court has the discretion to address such claims, especially when they involve constitutional rights.
Turning to the merits, the COA noted due process is essential in TPR proceedings.
“The balancing of these factors often turns on the risk of error created by DCS’ actions and the trial court’s actions because a parent’s private interest in the care, custody, and control of his or her child and the State’s parens patriae interest in protecting the welfare of a child are both substantial,” Judge Dana Kenworthy wrote for the appellate court.
Second, the court found DCS did not comply with the Indiana Trial Rules, so the trial court lacked personal jurisdiction over I.B.
“In sum, Trial Rules 4–4.17 provide several methods DCS could have used to serve Mother with process. Because DCS failed to fully comply with any of its available options, the trial court never obtained personal jurisdiction over Mother,” Kenworthy wrote.
The court reversed the trial court’s order terminating I.B.’s parental rights to A.B. and remanded the case to the trial court.
“Put bluntly, the record is replete with procedural irregularities and demonstrates an overall lack of care and caution required in this type of proceeding. Significant and blatant service errors were overlooked by counsel and the trial court,” Kenworthy concluded.
Chief Judge Robert Altice and Judge Leanna Weissmann concurred in In the Matter of the Termination of Parental Rights of: A.B. (Minor Child) and I.B. (Mother) v. Indiana Department of Child Services, 23A-JT-901.
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