Termination of mother’s rights reversed for insufficient service

Orders terminating a mother’s parental rights were void for lack of personal jurisdiction because the Indiana Department of Child Services didn’t properly serve the mother, the Court of Appeals of Indiana has ruled.

The mother, D.C., is the parent of a son, C.C., and a daughter, De.C.

DCS removed C.C. from the mother’s care two days after his birth because he was born “drug exposed” and the mother lacked safe and stable housing.

The Marion Superior Court adjudicated C.C. to be a child in need of services in December 2020 and ordered the mother to participate in services.

DCS also removed De.C. from the mother’s care two days after her birth in April 2021 for the same reasons.

The mother admitted De.C. was a CHINS in August 2021, and the trial court again ordered her to participate in services.

In April 2022, the trial court held a permanency hearing in the children’s CHINS cases. DCS recommended that the plan for the children be changed from reunification to adoption.

The mother did not attend the hearing, but according to the court’s hearing order, her counsel attended and objected to the recommendation.

The trial court approved the DCS plan.

DCS then filed separate petitions to terminate the mother’s parental relationships with C.C. and De.C., along with motions to set the initial hearings on the termination petitions.

The mother was not present at the hearing on May 19, 2022, and the court asked DCS if it had served her.

DCS said it didn’t “have good service yet” and requested a continuance.

The court rescheduled the initial hearing for June 16, 2022, but did not mention the mother’s right to counsel or ask whether the mother had counsel.

A week before the rescheduled hearing, DCS filed a summons directed to the mother’s home address, which provided that an initial hearing on two termination petitions had been scheduled. It also provided that a process server would serve it.

The mother again wasn’t present at the hearing.

The court asked DCS if it served her, and the agency said it “sent out service and [had] not received … anything back.”

DCS didn’t request another continuance. Instead, the agency requested a “default hearing” in 90 days. The trial court then scheduled the hearing for Sept. 15, 2022, but did not mention the mother’s right to counsel or ask whether she had counsel.

Two weeks before the hearing, DCS filed a summons directed at the mother’s home address, which provided the same things as the other summons.

Before the hearing, the agency filed a motion to continue the default hearing because it still didn’t have “good service” for the mother.

The trial court granted the motion and rescheduled the hearing for Nov. 17, 2022 — again without mentioning the mother’s right to counsel or asking if she had counsel.

DCS went through the same summons process before the hearing, this time specifying that the hearing would be virtual.

DCS again filed a motion to continue the default hearing, saying the service contained links to the virtual hearing that no longer worked.

The trial court rescheduled the hearing for Feb. 23 — again without mentioning the mother’s right to counsel or asking if she had counsel.

Two months before the hearing, DCS filed a summons for service by publication and specified that service would be accomplished by publication in the Indianapolis Star once each week for three consecutive weeks. But there is no evidence in the record that the summons was published.

On Feb. 13, DCS sent a 10-day notice of the termination hearing to the mother’s home.

Four days later, DCS filed a summons directed to the mother at her home.

The mother did not attend the hearing and was not represented by counsel.

At the hearing, DCS explained that the mother’s last known address “burnt down,” so the address was no longer good.

The trial court asked the guardian ad litem if she objected to proceeding that day, and the GAL did not object.

Testimony from a family case manager included that the mother had been personally serviced while she was in the hospital giving birth to her third child, and that the mother hadn’t completed any of the services DCS provided.

The trial court found the mother had received “personal service” and failed to appear the hearing.

The court issued orders terminating the mother’s parental relationships with the children.

On appeal, the mother argued DCS failed to establish service of process upon her because the claimed service wasn’t verified by the DCS employee who claims to have served her.

The Court of Appeals agreed, citing Indiana Trial Rule 4.12(A), which provides that service “shall be effective if made by a person not otherwise authorized by these rules, but proof of such service by such a person must be made by him as a witness or by deposition without allowance of expenses therefor as costs.”

Applying statutory construction to the trial rule, the appellate court concluded the rule is “unambiguously mandatory.”

DCS failed to comply with the rule, the Court of Appeals ruled, by not calling as a witness the DCS employee who claims to have served the mother or introducing the employee’s deposition into evidence.

“Accordingly,” the opinion says, “the trial court did not acquire personal jurisdiction over Mother and the orders terminating Mother’s parental relationships with C.C. and De.C. are void.”

The termination orders were reversed.

The mother also argued DCS failed to timely serve the 10-day statutory notice of the terminating hearing.

The Court of Appeals said it agreed with the mother but did not need to address the issue because it already reversed the termination orders.

The case was remanded “for further proceedings consistent with Mother’s due process rights.”

Judge Rudolph Pyle wrote the opinion. Judges Nancy Vaidik and Paul Mathias concurred.

The case is In Re: The Termination of the Parent-Child Relationship of C.C. and De.C. (Minor Children); D.C. (Mother) v. The Indiana Department of Child Services, and Kids’ Voice of Indiana, 23A-JT-848.