Secrest v. Marion County Office of Family & Children

Citations: 853 N.E.2d 1037; 2006 Ind. App. LEXIS 1889Docket: No. 49A02-0602-JV-146

Court: Indiana Court of Appeals; September 15, 2006; Indiana; State Appellate Court

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Eric Secrest appeals the involuntary termination of his parental rights to his children, E.E., D.E., and Er.E. The court found that although the Department of Child Services (DCS) notice regarding the final termination hearing was ambiguous, Secrest did not raise an objection, resulting in a waiver of the issue. Even if not waived, the ambiguity was not considered a fundamental error. Secrest's procedural due process rights were not violated as he failed to complete court-ordered services, was represented by counsel at the hearing, and does not possess a constitutional right to attend the hearing. Consequently, the trial court's decision was affirmed.

The case originated on May 25, 2004, when the Marion County Office of Family and Children (now MCDCS) filed a petition alleging that the three children were in need of services due to the mother's substance abuse, which resulted in the children being placed in foster care. Secrest, who had not established paternity, admitted to the allegations of the CHINS petition, and the court set a permanency plan for reunification. A Participation Decree mandated him to engage in various services, including counseling and drug testing. 

On January 11, 2005, the MCDCS filed a petition for the involuntary termination of Secrest's parental rights. Although he initially denied the allegations, he failed to appear at a subsequent pre-trial hearing, and after a series of continuances and scheduling changes, the final termination hearing was set for January 20 and March 8, 2006.

Secrest did not appear at the pre-trial hearing, although his attorney, Steve McNutt, was present. The following day, the MCDCS sent a letter to Secrest's last known address, notifying him of the involuntary termination of parental rights trial scheduled for January 20, 2006, and March 8, 2006. The letter warned that failure to appear could result in a default judgment terminating his parental rights, along with loss of visitation and child support rights. Copies of this letter were also sent to McNutt. 

At the January 20 hearing, Secrest again failed to appear. McNutt requested a continuance, which the court denied. After the State presented its case, McNutt stated he had no evidence to present on Secrest's behalf due to his absence. The trial court then issued an Order Terminating Parental Rights, referencing the notice letters and concluding that sufficient notice had been given to both parents. 

The trial court found several key points regarding Secrest: he tested positive for illegal drugs, failed to attend recommended drug treatment and screenings, did not reunite with his children during the CHINS matter, and did not complete court-ordered services for reunification. The court determined that there was a reasonable probability that the conditions leading to the children's removal would not be remedied and that continuing the parent-child relationship would pose a threat to the children's well-being due to safety concerns related to drug use. Consequently, the court concluded that terminating the parent-child relationship was in the best interest of the children.

Secrest is appealing, raising two issues: first, he argues that the MCDCS's notice was ambiguous and defective under the statute; second, he claims that his procedural due process rights were violated when the trial court denied his attorney’s continuance request and proceeded with the hearing in his absence.

Secrest challenges the notice provided by the Marion County Department of Child Services (MCDCS) regarding the date of his fact-finding hearing, claiming it was ambiguous and therefore defective under Indiana Code 31-35-2-6.5, which mandates clear notice in termination proceedings. This statute requires that notice be sent to the parent, guardian, or custodian at least ten days prior to the hearing. Although Secrest acknowledges receiving the notice in a timely manner, he contends that the wording was unclear, particularly the terms "first choice" and "second choice" regarding the hearing dates of January 20, 2006, and March 8, 2006. The court finds the notice ambiguous as it suggests the possibility of needing to attend both dates, despite the later reference to a singular date. The court advises against the use of such confusing language in future notices, emphasizing that the notice must reasonably inform the recipient of the hearing date and time. However, since Secrest did not object to the notice or seek clarification, he has waived this issue. He additionally argues that the fundamental error doctrine, applicable to significant trial errors, should apply, but this doctrine is typically reserved for more serious mistakes than those presented in this case.

To reverse a decision based on fundamental error, the error must be a blatant violation of basic principles with substantial harm evident. In this case, Secrest did not demonstrate that the MCDCS’s notice, which provided two dates for the hearing and instructed him to contact his attorney with questions, constituted fundamental error, leading to an affirmation of the trial court's decision.

Secrest also argued that his procedural due process rights were violated when the trial court denied his attorney's motion for a continuance during the termination hearing and proceeded without him. The Due Process Clause requires fair proceedings when the State seeks to terminate a parent-child relationship, which involves balancing the affected private interests, the risk of error from the State’s procedures, and the governmental interests at stake. The interests at play are significant, with a parent's right to custody being paramount, while the State has a compelling interest in child welfare.

Secrest had previously failed to appear at two hearings and did not complete court-ordered services, which the court considered in its decision. Although he claimed a high risk of error due to the presentation of the MCDCS's case, the court found that his rights were not significantly compromised. The testimony indicated that the inability to determine his drug use stemmed from his non-completion of treatment, not his absence. Furthermore, Secrest was represented by an attorney throughout the proceedings, who was able to cross-examine witnesses during the final hearing. Ultimately, the court noted that Secrest does not have a constitutional right to be present at such hearings.

Secrest's attorney represented him during a hearing where Secrest was absent, failing to complete required court-ordered services, which prevented caseworker Wilson from assessing his drug use status. The court found that Secrest did not have a constitutional right to be present at the hearing, resulting in a minimal risk of error from the trial court's denial of a continuance requested by his attorney. Weighing Secrest's interests against those of the State, the court determined that the denial did not violate due process. The trial court's actions were affirmed, with Judges Baker and Crone concurring. Attorney McNutt expressed concerns about protecting Secrest's interests due to his absence, while the trial court also terminated parental rights of another individual, Evans, which is not part of this appeal.