Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 1 of 4

ATTORNEY FOR APPELLANT

Erin L. Berger

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Termination of the 

Parent-Child Relationship of 

J.K., B.K., and I.R. (Minor 

Children) and 

L.R. (Mother),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

September 7, 2018

Court of Appeals Case No.

18A-JT-529

Appeal from the Vanderburgh 

Superior Court

The Honorable Brett J. Niemeier, 

Judge

The Honorable Renee A. 

Ferguson, Magistrate

Trial Court Cause Nos.

82D04-1711-JT-2034

82D04-1711-JT-2035

82D04-1711-JT-2036

Mathias, Judge.
Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 2 of 4

[1] The Vanderburgh Superior Court terminated L.R.’s parental rights to her 

children without affording her due process under Indiana statute in several, 

separate instances. For this reason, we reverse the trial court’s judgment.

[2] Initially, we observe that on June 9, 2018, our court issued an order addressing 

due process violations in termination of parental rights cases from courts across

the state. Specifically, in the Order, our court noted that DCS has filed motions 

for remand in too many cases conceding, as it did in this case, that the 

Appellant had not been provided with due process or their due process rights 

have been violated. In its motions, DCS requested that the cases be remanded 

to the trial court for further proceedings consistent with due process. Our court 

observed that

The increasing frequency of these motions suggest that there are 

repeated, significant violations of due process occurring in 

termination of parental rights cases throughout this state. This is 

a disturbing trend given the fundamental rights at issue in these 

types of cases. . . .

While the Court commends DCS for essentially conceding error 

in these cases, the Court is obligated to formally admonish DCS 

for its failure to afford litigants throughout this state the due 

process rights they are owed. Furthermore, the Court also 

reminds the trial courts throughout this state of their duty to 

ensure that litigants’ due process rights are not violated. Given 

the fundamental due process rights at issue in termination of 

parental rights cases, affording litigants these fundamental due 

process rights is essential, including not only the litigants but also 

their children.
Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 3 of 4

See Exhibit A,1June 9, 2018 Order in Case No. 18A-JT-527. This case was 

referenced in this Order.

[3] Here, L.R. failed to appear for a “status of counsel” hearing.

2 For this reason 

alone, and on the motion of the Department of Child Services (“DCS”), the 

trial court entered a default judgment against her and terminated her parental 

rights. L.R. filed a timely motion to correct error, and at the hearing held on 

that motion, she was denied the opportunity to explain her failure to appear.

[4] DCS concedes that L.R. “was not provided the due process protection to which 

she is entitled” and the “court's termination order does not satisfy the 

requirements of Indiana Code [section] 31-35-2-8[.]” Appellee’s Br. at 10. 

Specifically, the trial court failed to enter findings of fact and conclusions of law 

as required by Indiana Code section 31-35-2-8. “Compliance with the statutory 

procedure of the juvenile code is mandatory to effect termination of parental 

rights.”

3

In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (quoting In re 

T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005)).

 

1 The June 9, 2018 Order specifically references ten cases. Four of those are from Judge Niemeier’s court.

The order is attached to this opinion as Exhibit A.

2 L.R. was present for an initial hearing held on November 28, 2017. At that hearing, L.R., who waived her 

right to counsel during the CHINS proceedings, requested counsel, and counsel was appointed. The 

chronological case summary describes the December 12, 2017 hearing as a “status of counsel hearing,” and 

L.R. was told that the purpose of the December 12, 2017 hearing was to answer the petition to terminate her 

parental rights. Appellant’s App. p. 15; Tr. p. 7. The December 12, 2017 hearing was not set as a fact-finding 

hearing on the petition.

3 The transcript in this case shows repeated violations of L.R.’s fundamental due process rights. We are at a 

loss as to any possible, just reason for such conduct.
Court of Appeals of Indiana | Opinion 18A-JT-529 | September 7, 2018 Page 4 of 4

[5] For all of these reasons, we reverse the trial court’s order terminating L.R.’s 

parental rights.

[6] Reversed and remanded for proceedings consistent with this opinion.

Bailey, J., and Bradford, J., concur. 
Page 1 of 3

I N T H E

COURT OF APPEALS OF INDIANA

Termination:

A.A.,

Appellant,

v.

Indiana Department of Child 

Services,

Appellee.

Court of Appeals Case No.

18A-JT-527

Order

[1] Appellant’s Brief and Appendix were filed on May 4, 2018. On May 31, 2018,

the Court ordered Appellee Indiana Department of Child Services (“DCS”) to

file its brief by June 18, 2018. Instead of filing a brief, DCS, by counsel, has

filed a Verified Motion to Remand, or in the Alternative, a New Briefing

Schedule. In the motion, DCS essentially concedes that Appellant was not

provided with adequate notice of the termination of parental rights hearing and

that the trial court violated Appellant’s due process rights when it defaulted her

while she was present in the court’s waiting room but excluded from the actual

courtroom. DCS asks that the case be dismissed without prejudice and

remanded to the trial court for further proceedings consistent with due process.

DCS alleges that Appellant does not object to remand.

[2] Over the past six (6) months, DCS has filed eight (8) motions to remand that

are substantively similar to the motion at issue here. See Termination: S.T. v.

Indiana Dep’t of Child Services, No. 48A02-1709-JT-2094; Termination: T.Z. v.

Indiana Dep’t of Child Services, No. 79A02-1710-JT-2406; Termination: K.P. v.

Indiana Dep’t of Child Services, No. 53A05-1712-JT-2830; Termination: N.L. v.

Indiana Dep’t of Child Services, No. 18A-JT-94; Termination: A.B. v. Indiana Dep’t

of Child Services, No. 18A-JT-170; Termination: C.S., et al. v. Indiana Dep’t of Child

Services, No. 18A-JT-280; Termination: J.F., et al. v. Indiana Dep’t of Child Services,

EXHIBIT A
Page 2 of 3

No. 18A-JT-341; Termination: L.R. v. Indiana Dep’t of Child Services, No. 18A-JT529. This is the ninth such motion filed by DCS, and the Court is aware of a 

tenth motion that has been filed in Cause Number 18A-JT-530. The motions 

are always filed after Appellant has filed their brief. In these motions, DCS 

essentially concedes that Appellant has either not been provided with adequate 

notice or that their due process rights have been violated. DCS then, as in this 

case, requests that the matter be remanded to the trial court for further 

proceedings consistent with due process.

[3] It is not clear why DCS has suddenly chosen to file motions to remand in these 

cases rather than file a brief. The result of this, though, is that the Court has 

primarily dealt with these issues through its orders and not in a formal opinion. 

While the orders of this Court carry weight, they do not carry the weight or the 

effect that an opinion from this Court does. By filing a motion to remand, DCS 

has successfully avoided defending repeated, significant violations of due 

process in termination of parental rights cases.

[4] The increasing frequency of these motions suggest that there are repeated, 

significant violations of due process occurring in termination of parental rights 

cases throughout this state. This is a disturbing trend given the fundamental 

rights at issue in these types of cases. See In re Adoption of O.R., 16 N.E.3d 965, 

972 (Ind. 2014) (noting that the Fourteenth Amendment to the United States 

Constitution protects the rights of parents to establish a home and raise their 

children, that parents have a fundamental liberty interest in the care, custody, 

and control of their children, and that the parent-child relationship is one of the 

most valued relationships in our culture). 

[5] While the Court commends DCS for essentially conceding error in these cases, 

the Court is obligated to formally admonish DCS for its failure to afford 

litigants throughout this state the due process rights they are owed. 

Furthermore, the Court also reminds the trial courts throughout this state of 

their duty to ensure that litigants’ due process rights are not violated. Given the 

fundamental due process rights at issue in termination of parental rights cases, 

affording litigants these fundamental due process rights is essential, including 

not only the litigants but also their children. 

[6] Having reviewed the matter, the Court finds and orders as follows:
Page 3 of 3

1. Pursuant to Appellate Rule 37, Appellee’s Verified Motion to Remand is 

granted. This appeal is dismissed without prejudice and remanded to the 

trial court for further proceedings consistent with due process.

2. Appellant may, after filing a new notice of appeal, raise the issues 

Appellant would have raised in this appeal along with any new issues 

created by the trial court’s ruling(s) on remand.

3. The Court directs that this order should be published. The Clerk of this 

Court is directed to send copies of this order to West/Thomson Reuters, 

LexisNexis, and all other sources to which decisions/opinions of this 

Court are normally sent.

4. The Clerk of this Court is directed to send a copy of this order to the 

parties, Judge Brent J. Niemeier of the Vanderburgh Superior Court, 

Magistrate Renee A. Ferguson of the Vanderburgh Superior Court, the

Vanderburgh Circuit and Superior Courts Clerk, Indiana Attorney 

General Curtis Hill, and Terry J. Stigdon, Director of the Indiana 

Department of Child Services.

5. The Vanderburgh Circuit and Superior Courts Clerk is directed to file a 

copy of this order under Cause Numbers 82D04-1711-JT-2195, 82D04-

1711-JT-2196, 82D04-1711-JT-2197, and 82D04-1711-JT-2198, and, 

pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents 

of this order in the Record of Judgments and Orders.

Ordered

Mathias, J., Darden, Friedlander, Sr.JJ., concur.

For the Court,

Chief Judge

7/9/2018