In re Termination of Parental Rights of J.H., No. 02A05-0807-JV-410, ___ N.E.2d ___ (Ind. Ct. App., Jan. 12, 2009)


Appellant-Respondent Anthony Hough (“Father”) appeals the juvenile court’s termination of his parental rights to his daughter, J.H. Upon appeal, Father claims that he did not receive proper notice of the proceedings and that the juvenile court therefore lacked jurisdiction to terminate his parental rights. We affirm.

J.H., who was born on November 1, 2003, was adjudicated to be a Child in Need of Services (“CHINS”) in Allen Superior Court on July 18, 2006. Following a March 22, 2007 permanency hearing at which Father was present, on April 13, 2007, the juvenile court found that termination of parental rights was in J.H.’s best interest, and it adopted a permanency plan which included terminating parental rights. On June 21, 2007, the Allen County Department of Child Services (“ACDCS”) filed a petition seeking the involuntary termination of Father’s parental rights. On August 30, 2007, Father appeared at a review hearing regarding the CHINS adjudication. That same day, Father was served with a summons regarding the termination proceedings. The summons, which was attached to a copy of the termination petition, commanded Father to appear at the Allen Superior Court, Family Relations Division, Room 208, in Fort Wayne on October 15, 2007, at 1:30 p.m. for a termination trial and any further proceedings. Father signed the summons, acknowledging receipt of service.

At the October 15 termination hearing, Father was present but objected to the court’s jurisdiction on the grounds that he had not received proper service of process. The trial court denied his objection based upon Indiana Code section 31-32-9-1(d) (2006), which provides that service of summons is not required if the person entitled to be served attends the hearing. Following the termination hearing, which continued on October 19 and December 4, 2007, the juvenile court entered an order on March 4, 2008, terminating Father’s parental rights. This appeal follows.

. . . .

Here, section 31-32-9-1(d), which provides that service of summons is not necessary for persons attending the hearing, arguably operates as an exception to the generally applicable procedural rules in Trial Rules 4(A) and (C) regarding service of process and the required substance of a summons. See id. Although the ACDCS argues that juvenile jurisdiction and proceedings operate independently of the civil jurisdiction and proceedings prescribed by the trial rules, its argument on this point is undercut by the very statute it cites, namely section 31-32-9-2, which provides that in termination actions, service to parents must be in accordance with Trial Rule 4.1 (“Summons: Service on 8 Individuals”) or 4.13 (“Summons: Service by Publication”), both of which require a summons. Having recognized this potentially impermissible incompatibility between the trial rules and section 31-32-9-1(d), we are reluctant to accept ACDCS’s argument that section 31-32-9-1(d) dispenses with Father’s challenge to the adequacy of the summons in this case. Accordingly, we turn to the merits of Father’s argument.

. . . .

A review of the summons demonstrates that it did not contain (1) Father’s address, (2) the street address or telephone number of the court, (3) the name, address, and telephone number of ACDCS’s attorney, or (4) the time period for a response and a statement regarding the consequences of a failure to respond. However, as Indiana Trial Rule 4.15(F) provides, “No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.”

. . . .

Here, Father’s address was not included in the summons, but the summons was handed to him personally, so we are unpersuaded that his missing address somehow implicated the adequacy of the notice. In addition, while the court’s street address and telephone number were also missing, its location, namely the Fort Wayne Courthouse, Room 208, was included. Given that Father was involved in and present at J.H.’s CHINS proceedings in this same court, we are similarly unconvinced that the lacking street address and phone number somehow compromised the adequacy of the notice. Furthermore, while the summons itself did not contain the name, address, and telephone number of DCS’s attorney, the petition referenced by and attached to the summons did. We are unable to say that the failure of this information also to appear in the summons materially affects the adequacy of the notice. As for the summons’ alleged failure to indicate a time period for a response or a statement regarding the consequences of failing to respond, we are similarly unpersuaded that Father was inadequately informed on these grounds. The summons listed the date and time of the termination trial and indicated the subject matter at issue was the termination of Father’s parent-child relationship with J.H. While we would encourage the ACDCS to more plainly indicate in future summonses the required response time and the consequences of a failure to respond, a simple inference from the information provided demonstrates that the termination trial was the necessary deadline for a response, and the consequences of a failure to respond would be the termination of Father’s parental rights to J.H. Of course, all of the above reasoning may have proven faulty if Father had failed to appear for the termination hearing. But Father appeared, reinforcing our conclusion that the defects in the summons did not run afoul of due process protections or indicate that it was not reasonably calculated to apprise him of the pendency and location of the termination action and the necessary time for a response. Pursuant to Trial Rule 4.15(F) and with due consideration for due process principles, we are convinced that process was sufficient to permit the trial court to exercise jurisdiction over Father. See D.C., 887 N.E.2d at 955-56 (citing Munster, 829 N.E.2d at 58).

Having concluded that neither A.C. nor Indiana Code section 31-32-9-1(d) operates to exempt ACDCS from required compliance with the Indiana Trial Rules regarding service of process, but having concluded that ACDCS nevertheless adequately complied with such rules to satisfy due process considerations, we reject Father’s challenge to the trial court’s termination of his parental rights to J.H. on the grounds that it did not have personal jurisdiction over him.

The judgment of the juvenile court is affirmed.

FRIEDLANDER, J., and MAY, J., concur.

Read Full Opinion