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Tuesday, April 26, 2016

Ind. Decisions - Another Supreme Court opinion today

In In the Matter of the Term. of the Parent-Child Relationship of: N.G., L.C., & M.C. (Minor Children), and A.C. and J.G. (Their Parents) A.C. (Mother) v. Ind. Dept. of Child Services (mem. dec.), an 8-page, 5-0 opinion, Justice Dickson writes:

This is an appeal by a mother whose parental rights were terminated as to three of her four children. We affirm the trial court. * * *

The mother's appeal identifies three claims: (1) the trial court findings are not supported by the evidence; (2) the trial court judgment terminating the mother's parental rights and finding such action was in the best interest of the children is not supported by sufficient clear and convincing evidence; and (3) the trial court clearly erred when it failed to dismiss the petitions for termination of parental rights due to the concealment of recordings of counselling sessions in violation of the mother's due process rights. * * *

We conclude that there is probative evidence from which a reasonable fact-finder could have found findings #36 and #37 proven by clear and convincing evidence, and thus such findings are supported by sufficient evidence. * * *

We hold that a reasonable finder of fact could conclude based on clear and convincing evidence both (a) there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for placement outside the home of the parents will not be remedied, and (b) the termination is in the best interests of the children. * * *

The mother's third appellate claim is that the trial court violated her due process rights by failing to dismiss the petition for termination of parental rights when evidence was presented that the DCS knew or should have known that the therapy sessions for L.C. and M.C. were vide-otaped, but failed to provide the videotapes when a subpoena was issued for them. Appellant's Br. at 9. We find that the mother has procedurally defaulted this claim on appeal by not making an objection in the trial court herself and by not joining the father's oral motion in the trial court. Furthermore, when the court asked how the parties were "doing with respect to the counseling videotapes," the mother's attorney answered, "[t]he matter is resolved, Your Honor." Tr. at 506. The mother's due process claim is thus waived. Furthermore, a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal. McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003). We decline to consider the mother's claim of due process violation.

We affirm the judgments of the trial court terminating the parental relationships of the parents, A.C. and J.G., with their children, N.G., L.C., and M.C.

Posted by Marcia Oddi on April 26, 2016 02:36 PM
Posted to Ind. Sup.Ct. Decisions