Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

ALLEGED FATHER

Amy Karozos

Indianapolis, Indiana

ATTORNEY FOR APPELLANT MOTHER

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of M.L., B.L., & L.L. (Children) 

and S.A. (Alleged Father) and 

T.L. (Mother);

S.A. (Alleged Father) and T.L. 

(Mother),

Appellants-Defendants,

v.

The Indiana Department of 

Child Services,

March 27, 2020

Court of Appeals Case No.

19A-JT-2267

Appeal from the Knox Superior 

Court

The Honorable Gara U. Lee, 

Judge

Trial Court Cause No.

42D01-1902-JT-2

42D01-1902-JT-3

42D01-1902-JT-4
Court of Appeals of Indiana | Memorandum Decision 19A-JT-2267 | March 27, 2020 Page 2 of 11

Appellee-Plaintiff

May, Judge.

[1] T.L. (“Mother”) and S.A. (“Father”) 1 (collectively, “Parents”) appeal the 

involuntary termination of their parental rights to M.L., B.L., and T.L. 

(collectively, “Children”). They present multiple issues for our review, which 

we restate as:

1. Whether the trial court properly exercised personal jurisdiction 

over Mother when the Department of Child Services (“DCS”) 

allegedly failed to serve Mother with notice of the termination 

proceedings; and

2. Whether DCS violated Father’s due process rights when it did 

not file a paternity action on Father’s behalf.

We affirm.

Facts and Procedural History

1 The record reveals Father took a DNA test to prove he was Children’s biological father, but he did not 

complete steps to establish legal paternity. Because he did not establish legal paternity of Children, Father is 

listed as Alleged Father in the orders terminating his parental rights to Children.
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[2] Parents are the biological parents of B.L., born March 18, 2011; M.L., born 

March 27, 2012; and L.L., born June 12, 2015. On August 22, 2106, DCS 

received a report that M.L. and B.L. were “wandering the streets looking for 

food. . . . [B.L] was wearing only a diaper [and] [M.L.] was dirty and clothed 

only in pants.” (App. Vol. II at 25.)2

 When confronted by DCS, Father 

admitted “this was the third such incident” and Mother admitted that M.L. and 

B.L. “had eloped from the home seven times in the past couple of months.” 

(Id.) During an earlier incident when M.L. and B.L. left the house 

unsupervised, police found marijuana in Father’s pocket and Father was 

arrested for possession of marijuana.

[3] On August 24, 2016, DCS filed a petition alleging Children were Children in 

Need of Services (“CHINS”) based on Parents’ failure to supervise Children 

and Father’s substance abuse problem. The same day, the trial court held 

detention and initial hearings on the matter, during which Parents waived 

counsel and admitted Children were CHINS. On September 27, 2016, the trial 

court entered its dispositional order requiring Parents to

contact the DCS Family Case Manager (FCM) weekly; notify the 

FCM of address changes or changes in household composition; 

notify the FCM of any arrests or criminal charges; refrain from 

criminal activity; keep all appointments; maintain safe, stable 

housing; secure and maintain a legal source of income; remain 

2 The trial court entered individual termination of parental rights orders for each child. The orders are 

virtually identical; therefore, we will quote the termination order involving M.L. unless a finding was made 

specific to a particular child.
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drug and alcohol free; submit to a substance abuse assessment 

and follow all treatment recommendations; submit to random 

drug/alcohol screens; submit to a parenting assessment and 

successfully complete all recommendations; attend all scheduled 

visitation with Child[ren]; . . . and provide the Child[ren] with a 

safe, secure, and nurturing environment.

(Id. at 26.) At the dispositional hearing, the trial court placed Children with 

their maternal grandmother; however, they were eventually placed in foster 

care, where they remained during the proceedings.

[4] At a status hearing on July 24, 2017, the trial court changed Children’s 

permanency plan from reunification to adoption based on Parents’ noncompliance with the case plan, services, and therapy. On February 27, 2019, 

DCS filed its petition to terminate Parents’ parental rights to Children.3

 The 

trial court held factfinding hearings on April 26, June 14, and June 25, 2019. 

Father appeared at all factfinding hearings; Mother did not appear at all 

hearings, but she was represented by counsel at all hearings. On August 26, 

2019, the trial court entered its order terminating Parents’ rights to Children.

Discussion and Decision

3 The record indicates DCS first filed a petition to terminate Parents’ rights to Children on February 23, 2018. 

That petition was dismissed on August 22, 2018. DCS filed a second petition to terminate Parents’ rights to 

Children on August 20, 2018. That petition was dismissed on February 19, 2019, approximately one week 

prior to the current petition to terminate Parents’ rights to Children. It is unclear from the record why the 

two prior petitions were dismissed.
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[5] We review termination of parental rights with great deference. In re K.S., D.S., 

& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh 

evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. 

Ct. App. 2004), trans. denied. Instead, we consider only the evidence and 

reasonable inferences most favorable to the judgment. Id. In deference to the 

juvenile court’s unique position to assess the evidence, we will set aside a 

judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S., 

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

534 U.S. 1161 (2002).

[6] “The traditional right of parents to establish a home and raise their children is 

protected by the Fourteenth Amendment of the United States Constitution.” In 

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must 

subordinate the interests of the parents to those of the children, however, when 

evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d 

at 837. The right to raise one’s own children should not be terminated solely 

because there is a better home available for the children, id., but parental rights 

may be terminated when a parent is unable or unwilling to meet parental 

responsibilities. Id. at 836.

1. Personal Jurisdiction

[7] Mother contends DCS did not prove she was given proper notice of any of the 

factfinding hearings and thus the trial court did not have personal jurisdiction 

over her. “‘Personal jurisdiction refers to a court’s power to impose judgment 
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on a particular defendant.’ A challenge to personal jurisdiction is a question of 

law, which we review de novo.” Matter of K.P.G., 99 N.E.3d 677, 680 (Ind. Ct. 

App. 2018) (quoting Boyer v. Smith, 42 N.E.3d 505, 509 (Ind. 2015)), trans. 

denied. “The existence of personal jurisdiction requires effective service of 

process.” Ellis v. M&I Bank, 960 N.E.2d 187, 192 (Ind. Ct. App. 2011). 

However, a “party can waive lack of personal jurisdiction and submit himself to 

the jurisdiction of the court if he responds or appears and does not contest the 

lack of jurisdiction.” Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1007 (Ind. 

Ct. App. 2009).

[8] During the first factfinding hearing on April 26, 2019, Mother did not appear. 

Mother’s counsel, who was present at the hearing, requested a continuance 

because Mother “called the Court this morning and indicated that she is ill with 

a couple of different conditions and is unable to appear this morning, so she had 

asked that I request a continuance for that reason.” (Tr. Vol. II at 16.) The trial 

court asked Mother’s counsel if Mother was hospitalized, and counsel indicated 

Mother was not. The trial court denied Mother’s motion to continue and told 

Mother’s counsel: “If you want to take a minute to contact her and notify her of 

that, I mean, let her know that if she wanted to still try to show up today, just 

because she’s not right here this second, doesn’t mean she couldn’t appear at 

some point during the proceedings.” (Id.) Mother’s counsel indicated that 

Mother had directed her to, in the event the trial court denied her motion to 

continue, “basically continue to make arguments on her behalf[.]” (Id.) During 

the second and third factfinding hearings on June 14, and June 25, 2019, 
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Mother did not appear, but her counsel was present. There was no discussion 

regarding Mother’s absences from those factfinding hearings. 

[9] Mother’s counsel was present at all hearings and did not raise the issue of 

personal jurisdiction, and thus it is waived. See In re Paternity of T.M.Y., 725 

N.E.2d 997, 1005 (Ind. Ct. App. 2000) (putative father waived personal 

jurisdiction argument on appeal because he did not first present it to the trial 

court), reh’g denied, trans. denied. To escape waiver, Mother argues DCS did not 

comply with the notice requirements set forth in Indiana Code section 31-35-2-

6.5, which states in relevant part:

(b) At least ten (10) days before a hearing on a petition or motion 

under this chapter:

(1) the person or entity who filed the petition to terminate 

the parent-child relationship under section 4 of this 

chapter; or

(2) the person or entity who filed a motion to dismiss the 

petition to terminate the parent-child relationship under 

section 4.5(d) of this chapter;

shall send notice of the review to the persons listed in subsections 

(c) and (d).

(c) Except as provided in subsection (h), the following persons 

shall receive notice of a hearing on a petition or motion filed 

under this chapter:

(1) The child’s parent, guardian, or custodian.
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[10] “Compliance with the statutory procedure of the juvenile code is mandatory to 

effect termination of parental rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind.

Ct. App. 2005). Although statutory notice “is a procedural precedent that must 

be performed prior to commencing an action,” it is not “an element of 

plaintiff’s claim.” Id. Failure to comply with statutory notice is thus “a defense 

that must be asserted.” Id. Once placed in issue, “the plaintiff bears the burden 

of proving compliance with the statute.” Id.

[11] However, Mother also did not raise the issue of notice before the trial court, 

and thus it is waived. See In re E.E., 853 N.E.2d 1037, 1043 (Ind. Ct. App. 2006) 

(father waived notice issue when he did not first present it before the trial 

court), trans. denied. To escape waiver, Mother could have argued any alleged 

lack of notice amounted to fundamental error. Fundamental error occurs when 

there exists “egregious trial errors. 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.” In re E.E., 853 N.E.2d at 

1043 (internal citation omitted). Mother did not assert fundamental error on 

appeal.

[12] Waiver notwithstanding, we cannot conclude that any failure by DCS to serve 

Mother notice of the factfinding hearings is fundamental error. Mother was 

represented by counsel throughout the proceedings, which we have held is 

appropriate as long as the party’s counsel is able to make argument and cross 

examine witnesses, which Mother’s counsel did here in all three factfinding 
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hearings. See J.T. v. Marion Cty. Ofc. of Family & Children, 740 N.E.2d 1261, 

1264 (Ind. Ct. App. 2000) (no fundamental error when father not physically 

present at termination hearing because father was represented by counsel who 

presented argument and cross-examined witnesses), reh’g denied, trans. denied, 

abrogated on other grounds by Baker v. Marion Cty. Ofc. of Family & Children, 810 

N.E.2d 1035, 1039 (Ind. 2004).

4

2. Establishing Father’s Legal Paternity

[13] As part of his services in the CHINS proceedings, Father worked with service 

providers on establishing legal paternity of Children; however, he had not done 

so by the time of the termination factfinding hearings. Under Indiana Code 

section 31-34-15-6 (2012), which was active5 at the time of the trial court’s 

order: 

(a) . . . whenever a child who was born out of wedlock is:

4 Father argues his “due process rights may have been impacted by Mother’s absence [because] Mother could 

have supported Father’s arguments[.]” (Br. of Father at 17.) In order for Father to assert a claim based on an 

allegation regarding personal jurisdiction over Mother, he must have standing to do so. To have standing, “a 

plaintiff must demonstrate a personal stake in the outcome of the lawsuit and must show that he or she has 

sustained or was in immediate danger of sustaining, some direct injury as a result of the conduct at issue.” 

Higgins v. Hale, 476 N.E.2d 95, 101 (Ind. 1985). Father has not presented any more than speculative injury, 

and thus his argument fails. See State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005) (no 

standing when injury is hypothetical), trans. denied.

5 Effective July 1, 2018, during the pendency of these proceedings, the statutory language of Indiana Code 

section 31-34-15-6(b) changed such that “shall” changed to “may,” leaving to DCS’s discretion whether to 

file a paternity action under these circumstances. Compare Ind. Code § 31-34-15-6(b) (2102) with Ind. Code § 

31-34-15-6(b) (2018).
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(1) or is alleged to be a child in need of services; and

(2) under the supervision of the department or a local 

office as a result of a court ordered out-of-home 

placement.

(b) The department or the local office shall refer a child’s case to 

the local prosecuting attorney’s office for the filing of a paternity 

action if the:

(1) identity of the alleged father is known; and

(2) department or the local office reasonably believes that 

establishing the paternity of the child would be beneficial 

to the child.

[14] DCS acknowledges it did not refer Children’s paternity matters to the local 

prosecutor’s office. However, Father did not present this issue before the trial 

court, which would have allowed the trial court to determine if DCS reasonably 

did not believe that “establishing paternity of the child would be beneficial to 

the child.” Ind. Code § 31-35-15-6(b) (2012). Thus, Father has waived this 

issue from our review. See McBride v. Monroe Cty. Ofc. of Family and Children, 798 

N.E.2d 185, 194 (Ind. Ct. App. 2003) (issue waived because it was not first 

presented before the trial court).

Waiver notwithstanding, we note that Indiana Code section 31-34-15-6 is part 

of a series of statutes regarding the services provided as part of a CHINS case. 

As the failure to provide services as part of a CHINS proceeding cannot be used 

to attack an order of termination, we reject Father’s argument. See In re H.L., 
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915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (“failure to provide services does 

not serve as a basis on which to directly attack a termination order as contrary 

to law”).

Conclusion

[15] The trial court properly exercised personal jurisdiction over Mother because 

Mother availed herself to the trial court’s personal jurisdiction by 

communicating her absence to the trial court on the day of the first factfinding 

hearing. Additionally, Father lacks standing to appeal the issue of the trial 

court’s personal jurisdiction over Mother. Finally, Father waived his argument 

regarding DCS’s noncompliance with Indiana Code section 31-34-15-6(b) 

(2012) because he did not present the issue before the trial court. Waiver 

notwithstanding, Father cannot use a failure to provide services in a CHINS 

proceeding to attack a termination order. Accordingly, we affirm the 

involuntary termination of Parents’ rights to Children.

[16] Affirmed.

Crone, J., and Pyle, J., concur.