IN RE: JA.P. (Child Alleged to be in Need of Services) (2021)

MEMORANDUM DECISION

[1] B.M. (“Father”) appeals the adjudication of his child, Ja.P. (“Child”) as a Child in Need of Services (“CHINS”). He presents multiple issues for our consideration, which we restate as:

1. Whether DCS violated Father's due process rights when it did not add him as a party in the initial CHINS petition;

2. Whether the trial court violated Father's due process rights when it allegedly did not hold a fact-finding hearing as to Father within the timeframe required by statute; and

2. Whether the trial court erred when it adjudicated Child as a CHINS as it related to Father.

We affirm.

Facts and Procedural History

[2] C.W. (“Mother”)¹ gave birth to Child on November 7, 2005. At the time Child was born, Mother was married to Jo.P. Child was the product of a relationship that occurred when Jo.P. and Mother were separated. Mother remained married to Jo.P., and Child lived with Mother when the CHINS proceedings commenced. Father has been incarcerated since 2017 for “convictions relating to dealing cocaine.” (App. Vol. II at 117.) Father's earliest possible release date is January 2022.

[3] On July 31, 2018, DCS removed Child from Mother's care because Mother struck Child on his arm and called him a racial slur. Police arrested Mother and the State charged her with domestic battery. DCS contacted Jo.P. and he told DCS that he and Mother were married but that he was not the biological father of Child. Jo.P. did not report information about Child's biological father. DCS initially placed Child in foster care, but he was soon moved to relative care with his maternal uncle.

[4] On August 1, 2018, DCS filed a petition alleging Child was a CHINS based on the domestic violence incident with Mother. The petition did not list Father as Child's father; instead it listed Jo.P. as Child's legal father. On September 19, 2018, the trial court held a fact-finding hearing on the CHINS petition. Mother and Jo.P. admitted Child was a CHINS. On September 25, 2018, the trial court issued its order adjudicating Child as a CHINS.

[5] DCS issued a predispositional report on October 11, 2018, and, for the first time, listed Father as a parent of Child. However, the second page of that report also listed Jo.P. as Child's legal father. On October 24, 2018, the trial court issued its dispositional order as to Mother and Jo.P., ordering them to participate in certain services. The trial court did not order Father to complete services.

[6] On December 7, 2018, DCS filed a progress report with the trial court that mentioned Father as Child's father, however it noted “[n]o services at this time due to his incarceration in prison.” (Id. at 68.) Jo.P. does not appear in that progress report, which also indicated Mother was generally non-compliant with services. DCS filed a periodic case review on January 3, 2019. The case review did not mention Father and listed Jo.P. as Child's legal father. On May 8, 2019, DCS filed a progress report with the trial court that did not mention Jo.P. and listed Father as Child's father. When asked why Father was not added as a party in the initial CHINS petition despite DCS's knowledge of his existence, a DCS supervisor testified that DCS does not “do anything else” if there is a “legal father” and DCS does not “try to find any possible fathers.” (Tr. Vol. II at 29-30.)

[7] From August 2018 to November 2019, Mother worked with DCS Case Manager Kelly Jones. During that time, Jones testified Mother told her:

She, um, acknowledged – or alleged that [Father] was [Child's] biological father, um, and that [Jo.P.] could not be his biological father because of the, uh, because [Child] is mixed [race] and Jo.P. is white. Uh, and she was never – she never provided me with me [sic] any documentation, DNA, or court custody order saying that, uh, Father was the father and there was no name on the birth certificate.

(Tr. Vol. II at 33.) Jones then testified that at

roughly the end of October, uh, November of 2019 [Mother] provided me – she was working on a, uh, custody order for – to be able to take custody from [Father] and wanted some information and I – she provided me with a, uh, cause number out of, I believe it was Putnam County, um, for a court order. I contacted Putnam County and they provided us with a, uh, Court Order stating that [Father] was the father of [Child].

(Id.)

[8] On November 19, 2019, DCS filed an amended CHINS petition, adding Father as a party and alleging Child was a CHINS. The trial court held a hearing on December 4, 2019, during which Father appeared and was appointed counsel. On December 18, 2019, the trial court held a hearing during which Father appeared with counsel and requested a continuance, which the trial court granted. On January 15, 2020, the trial court held an initial hearing on the CHINS petition during which Father appeared with counsel and denied Child was a CHINS. The trial court set a fact-finding hearing on the matter for February 5, 2020.

[9] On February 4, 2020, Father filed a motion to dismiss the CHINS petition, alleging he had not been afforded a fact-finding hearing within 120 days of the filing of the original CHINS petition and that DCS did not follow proper procedure when it failed to name him as Child's father in the original petition even though DCS allegedly “possessed knowledge of [Father] being the father of [Child] prior to the detention hearing[.]” (App. Vol. II at 114.) The trial court denied Father's motion to dismiss on February 5, 2020. At the factfinding hearing, Father testified he was incarcerated for a conviction of Level 4 felony dealing in cocaine and his earliest possible release date was January 11, 2022. Father testified that, prior to his incarceration, he visited with Child “2 or 3, uh, weekends out of a month, occasionally.” (Tr. Vol. II at 24.) Father testified he last spoke to Child in “maybe 2000 – I believe it was 17 or 18 around” (id. at 25), and he last saw Child in person in 2016. Father testified he could not take care of Child because he is incarcerated.

[10] On February 18, 2020, the trial court adjudicated Child a CHINS as to Father. On March 9, 2020, Father filed a motion to correct error arguing that DCS denied him due process when it did not include him as a party during the initial CHINS proceedings and that Child was not a CHINS as to Father based solely on Father's incarceration. Father's motion to correct error was deemed denied forty-five days later pursuant to Indiana Trial Rule 53.3.

[11] On July 1, 2020, the trial court held a dispositional hearing as to Father and a permanency hearing ² as to Child. During this hearing, the Family Case Manager testified “there's nothing that [Father] would be able to do to comply [with a dispositional order] as the services wouldn't be, um, offered to him until he's released.” (Id. at 90.) However, the Family Case Manager stated it was his “understanding” that Father would be “in compliance with this Dispositional Decree, uh, until he's released and has an opportunity to, uh, to not do services at all[.]” (Id.) During the hearing, DCS recommended Child's placement plan be changed from reunification to guardianship with a concurrent plan of adoption.

[12] On July 15, 2020, the trial court approved DCS's proposed placement plan for Child and changed Child's placement plan from reunification to termination and adoption, with a concurrent plan of guardianship. On July 21, 2020, the trial court issued its dispositional order as to Father. The trial court declined Father's request to require DCS to order services for Father to complete while incarcerated or to “reset the Dispositional Hearing to a second date to find services that can be completed while in prison.” (App. Vol. II at 155.) The trial court ordered Father to complete certain services, though the majority of those services, such as parenting assessment and classes, visitation with Child, and employment and suitable housing, could not be completed during Father's incarceration.

Discussion and Decision

1. Due Process

[13] “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh'g denied. Indeed, the parent-child relationship is “one of the most valued relationships of our culture.” Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).

CHINS proceedings carry a significant potential to “interfere with the rights of parents in the upbringing of their children.” Accordingly, due process concerns at all stages of a CHINS proceeding are of paramount concern. Indeed, “procedural irregularities ․ in a CHINS proceeding may be of such import that they deprive a parent of procedural due process with respect to a potential subsequent termination of parental rights.”

Matter of Eq.W., 124 N.E.3d 1201, 1209 (Ind. 2019) (internal citations omitted). “Indiana places extra emphasis on these proceedings and urges parties to cautiously and meticulously move through each stage of a CHINS proceeding.” Id. at 1210.

[14] Due process is essentially “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). A due process analysis in a CHINS adjudication turns on the balancing of three factors: “(1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure.” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012). Father contends DCS violated his due process in two ways – first, by not notifying him as a party in the initial CHINS proceeding, and second, by failing to hold his fact-finding hearing within sixty days of the filing of the initial CHINS petition.

[15] Father concedes he did not raise his due process claims before the trial court, and thus they are waived. See Matter of D.H., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019) (“party waives on appeal an issue that was not raised before the trial court”). To escape waiver, Father asserts fundamental error, which permits this court to review his claim. Id. Fundamental error occurs when there exist egregious trial errors. In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006), trans. denied. “In order for this court to reverse based on fundamental error, the error must have been a clearly blatant violation of basic and elementary principles, and the harm or potential for harm must be substantial and appear clearly and prospectively.” Id.

A. Adding Father as a Party to the CHINS Petition

[16] First, Father argues DCS violated his due process rights when it did not include him as a party in the initial CHINS proceeding. Pursuant to Indiana Code section 31-34-9-7(2), the parties to a CHINS proceeding include the “child's parents[.]” “Parent,” for the purposes of juvenile proceedings generally, “means a biological or adoptive parent[.]” Ind. Code § 31-9-2-88(a). Additionally, parent, “for the purposes of IC 31-34-1, IC 31-34-8, IC 31-34-16, IC 31-34-19, IC 31-34-20 and IC 31-35-2, includes an alleged father.” Ind. Code § 31-9-2-88(b). Indiana Code section 31-32-1-4 requires all parties receive notice of a CHINS proceeding.

[17] When DCS filed its petition to declare Child a CHINS on August 1, 2018, Jo.P. indicated he was not Child's biological father, but he did not indicate Child's biological father was known. Child's last name is the same as Jo.P.’s last name, and there is no evidence Mother told DCS that Father was Child's biological father until after the petition was filed. Thus, at the time DCS filed its CHINS petition, Father was not considered a parent for the purposes of Indiana Code section 31-34-9-7(2) based on the statutory definition of “parent” in Indiana Code section 31-9-2-88(a). Therefore, based on the information DCS had at the time the initial CHINS petition was filed, DCS was not required to include Father as a party. See Ind. Code § 31-14-7-1 (child is presumed to be the child of a man who is married to child's biological mother); Lawson v. Marion Cty. Office of Family & Children, 835 N.E.2d 577, 578 n.2 (Ind. Ct. App. 2005) (mother's husband named as party in CHINS petition as father of child despite the possibility that he was not the biological father of child).

[18] Additionally, when Mother provided DCS with documentation that Father's status had been legally recognized, which did not occur until the “end of October, uh, November of 2019,” (Tr. Vol. II at 33), DCS promptly filed an amended CHINS petition to include Father on November 19, 2019. As DCS amended the CHINS petition to include Father once it received the paternity order proving he met the definition of “parent” under Indiana Code section 31-9-2-88(a) and thus was entitled to be a party under Indiana Code section 31-34-9-7(1), we conclude DCS did not violate Father's due process rights as it pertains to this issue. See In re N.E., 903 N.E.2d 80, 89 (Ind. Ct. App. 2009) (once a non-custodial parent's rights are established to a child, DCS is required to amend an existing CHINS petition or file a new CHINS petition with that parent as a party), trans. granted 915 N.E.2d 991 (Ind. 2009), affirmed in relevant part and vacated in part 919 N.E.2d 102 (Ind. 2010) (CHINS petition “focuses on the condition of the child” and does not apportion fault to any parent, thus a child may be adjudicated as a CHINS even if both parents are not a part of that proceeding).

B. Fact-Finding Hearing

[19] Pursuant to Indiana Code, a trial court must hold a fact-finding hearing “not more than sixty (60) days after a petition alleging that a child is a child in need of services is filed in accordance with IC 31-34-9.” Ind. Code § 31-34-11-1(a). That deadline may be extended by sixty days upon agreement of all parties. Ind. Code § 31-34-11-1(a). If the fact-finding hearing is not held within the timeframe set forth by Indiana Code sections 31-34-11-1(a) and (b), “upon a motion with the court, the court shall dismiss the case without prejudice.” Ind. Code § 31-34-11-1(d). Father argues the trial court violated his right to due process by failing to provide him with a fact-finding hearing as to DCS's petition alleging Child to be a CHINS until “553 days after the filing of the initial CHINS petition.” (Br. of Appellant at 18.) However, as we discussed supra, DCS was not required to include Father as a party in the initial CHINS petition because DCS did not know he met the definition of “parent” until after DCS received the paternity order establishing him as a legal parent, and thus Father's calculation of the amount of time from the petition to his hearing is incorrect.

[20] DCS filed its amended CHINS petition including Father on November 19, 2019. It held a fact-finding hearing on that petition on February 5, 2020, which was seventy-eight days after DCS filed the amended petition. Father does not argue he objected to the extension of the sixty-day requirement for the factfinding hearing. Moreover, Father requested a continuance on December 18, 2019, which delayed his initial hearing until January 15, 2020. Under these circumstances, we cannot conclude the trial court denied Father due process when it held the fact-finding hearing seventy-eight days after the amended CHINS petition was filed.

2. CHINS Adjudication

[21] A CHINS proceeding is civil in nature, so DCS must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). The CHINS petition was filed pursuant to Indiana Code section 31-34-1-1, which states:

A child is a child in need of services if before the child becomes eighteen (18) years of age:

(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

Under Indiana Code section 31-34-1-2, the State must prove that “the child's physical or mental health is seriously endangered due to injury by the act or omission of the child's parent, guardian, or custodian.”

[22] A CHINS adjudication focuses on the needs and condition of the child, and not on the culpability of the parent. In re N.E., 919 N.E.2d at 105. The purpose of a CHINS adjudication is not to punish the parent, but to provide proper services for the benefit of the child. Id. at 106. “[T]he acts or omissions of one parent can cause a condition that creates the need for court intervention.” Id. at 105. “A CHINS adjudication can also come about through no wrongdoing on the part of either parent[.]” Id.

While we acknowledge a certain implication of parental fault in many CHINS adjudications, the truth of the matter is that a CHINS adjudication is simply that - a determination that a child is in need of services. Standing alone, a CHINS adjudication does not establish culpability on the part of a particular parent. Only when the State moves to terminate a particular parent's rights does an allegation of fault attach. We have previously made it clear that CHINS proceedings are “distinct from” involuntary termination proceedings. The termination of the parent-child relationship is not merely a continuing stage of the CHINS proceeding. In fact, a CHINS intervention in no way challenges the general competency of a parent to continue a relationship with the child.

Id. (internal citations omitted). Father argues the trial court erred when it adjudicated Child a CHINS following DCS's amended CHINS petition involving Father because “DCS failed to present any evidence to show that, at the time of the factfinding hearing, Child's needs were not being met.” (Br. of Appellant at 21.)

[23] Father did not dispute that he could not care for Child because of his incarceration. The trial court initially adjudicated Child as a CHINS based on domestic violence in Mother's home. At the time of Father's fact-finding hearing, Child was in foster placement with the family of Child's friend. This placement occurred as a result of the CHINS adjudication and, while the foster placement indicated Child could stay in their home as long as needed, the family had no legal rights to Child absent a guardianship. As there was not a guardianship in place at the time of Father's fact-finding hearing, Mother and Father were unable to provide Child the care he required and State intervention was necessary to procure that care. Thus, the trial court did not err when it adjudicated Child a CHINS following Father's fact-finding hearing.³ See In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014) (CHINS adjudication requires “that the parent's actions or inactions have seriously endangered child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion.”), reh'g denied.

Conclusion

[24] Father's due process rights were not violated because DCS was not required by statute to include him as a party to the initial CHINS proceedings. Additionally, Father does not argue, nor do we conclude, that he was prejudiced in any way when the trial court delayed his fact-finding hearing by eighteen days past the sixty-day statutory deadline. Finally, the trial court did not err when it adjudicated Child as a CHINS following Father's fact-finding hearing. Accordingly, we affirm.

[25] Affirmed.

FOOTNOTES

1.   Mother admitted Child was a CHINS and does not participate in this appeal.

2.   During the time Child had been out of Mother's home, he had been in several different placements. After his initial placement in foster care, he was placed with maternal uncle. However, Child did not do well in school and was expelled during this placement, so Child was moved from maternal uncle's care and to residential placement, where he received treatment for mental health issues. Child requested placement with his older half-brother, however, that placement did not work out because older half-brother's work schedule did not permit him to meet Child's needs. Child then moved in with the family of one of his friends, with whom he had lived in the past. This family provided ample care for Child and is willing to take guardianship over Child.

3.   Father contends he “was notified so late in the proceedings that he lost well over a year of time to participate in services and to continue having meaningful contact with Child. Termination of Father's parental rights is all but a foregone conclusion.” (Reply Br. of Appellant at 6.) However, as noted in the facts herein, during Father's dispositional hearing, DCS conceded that Father would be in compliance with services until he was released from incarceration and could begin participating therein. (See Tr. Vol. II at 90 (confirming it was the Family Case Manager's understanding that Father would be in compliance with services until he was released from incarceration).) We are confident DCS will comply with that plan and offer the proper services to Father when he is released from incarceration. Therefore, the delay in DCS's amended CHINS petition actually benefits Father, as it gives him additional time to participate in services and work toward reunification.

May, Judge.

Bailey, J., and Robb, J., concur.