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In re Termination of Parent-Child Relationship of E.P.

Court of Appeals of Indiana

November 18, 2014

IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF E.P. III (Minor Child) and E.P. JR. (Father), Appellant-Respondent,
v.
INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner

APPEAL FROM THE DEARBORN CIRCUIT COURT. The Honorable James D. Humphrey, Judge. Cause No. 15C01-1303-JT-5.

ATTORNEY FOR APPELLANT: JENNIFER A. JOAS, Joas & Stotts, Madison, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, ROBERT J. HENKE, CHRISTINE REDELMAN, Deputy Attorneys General, Indianapolis, Indiana.

VAIDIK, Chief Judge. FRIEDLANDER, J., and MAY, J., concur.

OPINION

Page 916

VAIDIK, Chief Judge

Case Summary

E.P. Jr. (" Father" ) pled guilty to Class B felony child molesting and Class B felony neglect of a dependent in 2013. S.H., the victim, is the half-sibling of E.P. III (" E.P." ), Father's son. Father was sentenced to twenty years in the Department of Correction; he is scheduled to be released in 2029. Shortly after pleading

Page 917

guilty, Father's parental rights to E.P. were terminated. Father now appeals, arguing that the termination order should be reversed because the same judge, the Honorable James D. Humphrey, presided over his termination and criminal cases in violation of Indiana Code section 31-32-8-2. He also contends that there is insufficient evidence to support the termination order.

We conclude that Father's claim regarding Judge Humphrey implicates procedural error, and because he failed to object at any time to Judge Humphrey presiding over both the termination and criminal matters, he has waived any claim of error in that context. We also conclude that there is sufficient evidence to support the trial court's order terminating Father's parental rights. We therefore affirm.

Facts and Procedural History

Father is the biological father of E.P., born August 23, 2011. E.P.'s half-sister, S.H., was born in 2008.[1] Both children were removed from the care of Father and A.H. (" Mother" )[2] in November 2011 after the Dearborn County Department of Child Services (" DCDCS" ) learned that S.H. had been treated at the local hospital for severe burns to her genital area and buttocks. Neither parent could explain how S.H. had been burned.

DCDCS filed a petition alleging that E.P. and S.H. were children in need of services (" CHINS" ), and in March 2012, Mother and Father admitted that both children were CHINS. Both parents were ordered to do a number of things to facilitate reunification with the children, including participate in services. Neither parent made any discernible progress toward reunification, however: Father was incarcerated shortly after the CHINS adjudication for battering Mother,[3] and upon his release a month later, both parents were arrested and charged with molesting and neglecting S.H. The charges against Mother and Father stemmed from the burns S.H. suffered in 2011.

Mother and Father ultimately pled guilty to Class B felony child molesting and Class B felony neglect of a dependent. At the guilty-plea hearing, Father admitted the truth of the allegations against him. See Appellant's App. p. 295 (Trial Court: " Sir, do you understand that by pleading guilty that you're going to be . . . admitting that you committed the crime you're charged with?" Father: " Yes your honor." ); 310 (" Trial Court: Those allegations presented by the prosecutor today, are those allegations true?" Father: " Yes your honor." ). The trial court, the Honorable James D. Humphrey, sentenced Father to twenty years; he is scheduled to be released in 2029.[4] Father is a credit-restricted felon.

Five months later DCDCS filed an amended petition to terminate Mother's and Father's parental rights, and in early 2014, Judge Humphrey, who was also assigned to the parents' termination case, held a hearing on the petition.[5] At the beginning of the hearing, Judge Humphrey informed counsel that he was familiar with the parents' criminal cases and

Page 918

their guilty pleas to child molesting and neglect. Tr. p. 9 (" I'm familiar with [the criminal] cases and I believe both of your clients entered a plea of guilty on those offenses." ). At no point did any party object to Judge Humphrey presiding over the termination case.

DCDCS caseworkers proceeded to testify that E.P., who was only a few months old when he was removed from his parents' care years earlier, was thriving in his foster-care placement. Family Case Manager Steven Crusz (" FCM Crusz" ) testified that termination of Father's rights was in E.P.'s best interests because he was doing so well in foster care. Id. at 23. Alex Parniuk, the guardian ad litem (" GAL" ) assigned to the case, opined that Father's rights should be terminated because Father would not be available to parent E.P. any time in the near future. Id. at 42.

Father also testified at the hearing. When asked about his participation in services before his incarceration, Father admitted that he had only been partially compliant. Id. at 55-57. Nonetheless, he told the court that he loved E.P., had been sending him letters from prison, and if he " got out of jail, somehow[,] someway," he would participate in services to try to regain custody of E.P. Id. at 58, 59. Father also denied molesting or neglecting S.H., saying that he wanted to withdraw his guilty plea and go to trial, " but that's not in the court's system." Id. at 53. Father proclaimed that he " never once said I did anything wrong, even except [sic] I took a plea," and only pled guilty because he " was going to get found guilty [sic] no matter what" and did not want S.H. " to have to go through [the legal proceedings] no more." Id. at 59, 63. Yet Father later stated that " if [S.H.] said something happened, then I guess something may have happened . . . I'm sorry for that." [6] Id. at 64.

The trial court took the matter under advisement. In February 2014 the court entered its order terminating both parents' parental ...


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