ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
STEVEN J. HALBERT Marion County Office of Family & Children:
Indianapolis, Indiana JACQUELINE MOORE
Child Advocates, Inc.:
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF A.C. AND D.C., MINOR )
CHILDREN AND THEIR FATHER, JAMES )
JAMES CLENNA, )
vs. ) No. 49A02-0108-JV-521
MARION COUNTY OFFICE OF FAMILY )
AND CHILDREN, )
CHILD ADVOCATES, INC., )
Appellee-Guardian ad Litem. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Charles J. Dieter, Judge
Cause No. 49D08-0007-JT-710
July 2, 2002
OPINION - FOR PUBLICATION
James Clenna appeals the judgment of the trial court terminating his parental rights
to A.C., his minor child. He raises the following issues for review:
I. Whether he received adequate notice of the termination hearing.
II. Whether there was sufficient evidence that the Marion County Office of Family and
Children (MCOFC) notified him of the hearing date by letter.
FACTS AND PROCEDURAL HISTORY
MCOFC filed a petition to terminate Clennas parental rights to A.C. The
petition and summons were served by publication. The hearing on the petition
was set for March 19, 2001, but the court concluded that Clenna had
not been given adequate notice of the hearing, and continued the hearing to
May 25, 2001.
On March 22, 2001, MCOFC sent a letter to Clenna at the address
he provided, 6715 E. Meadowlark Street in Indianapolis, stating that the termination hearing
would be held on May 25, 2001. Clenna did not appear at
the hearing, and the trial court conducted the hearing over Clennas counsels objection
to doing so in Clennas absence. Clennas counsel withdrew at the start
of the hearing. After the hearing, the trial court issued an order
terminating Clennas parental rights. He now appeals.
DISCUSSION AND DECISION
Clenna argues that the notice of the termination hearing he was given did
not comply with applicable statutory requirements. A proceeding to terminate parental rights
is basically an in rem proceeding and is governed by the Indiana Rules
of Procedure. Abell v. Clark County Dept. of Pub. Welfare, 407 N.E.2d
1209, 1210 (Ind. Ct. App. 1980). Trial Rule 4.9 allows service of
summons to be made by publication pursuant to Trial Rule 4.13. Id.
Service should be made, however, in the best possible manner reasonably calculated
to inform the respondent of the pending action. Id.
T. R. 4.13 provides that service may be had by publication after submission
of a request and praecipe for summons along with supporting affidavits stating that
a diligent search has been made and that the defendant cannot be found,
has concealed his whereabouts, or has left the state. As applicable here,
the notice must contain the following information: (1) the name of the
person being sued, the person to whom the notice is directed, and a
statement that the persons whereabouts are unknown; (2) the name of the court
and cause number assigned to the case; (3) the title of the case
as shown by the complaint; (4) the name and address of the
attorney representing the person seeking service; (5) a brief statement of the nature
of the suit, including a description of the relationship involved in the action,
and a statement that the person being sued claims some interest therein; (6)
a statement that the person being sued must respond within thirty days after
the last notice of the action is published, and in case he fails
to do so, judgment by default may be entered against him for the
relief demanded in the complaint. This notice must be published three times
at least seven but not more than fourteen days apart each in a
newspaper in that county. Id.
In this case, Clenna received service by publication of the filing of the
petition to terminate his parental rights to A.C. The record before us
reflects that after the petition was filed, MCOFC published service to Clenna informing
him that an action had been filed to terminate his parental rights to
A.C. and that if he failed to appear and answer the allegations in
the petition, a default judgment could be entered against him. The notice
contained the court name and cause number, the title of the action, and
the name and address of MCOFCs attorney. It appeared once in each
of three consecutive weeks in a newspaper circulated in Marion County. Thus,
MCOFC complied with the service requirements of the Indiana Rules of Procedure.
Presumably because of the great interests at stake in termination proceedings, our legislature
has enacted an additional notice requirement in this context. IC 31-35-2-6.5(b) requires
the person or entity who filed the petition to terminate the parent-child relationship
to send notice of the termination hearing at least ten days prior to
the hearing date to a number of interested persons, including the parents.
Again, the record reflects that MCOFC sent a letter to Clenna at the
address provided to it several weeks prior to the final termination hearing.
Thus, the statutory notice requirement for termination hearings has also been met.
Harris v. Delaware County Div. of Family & Children Servs., 732
N.E.2d 248 (Ind. Ct. App. 2000) for the proposition that he was entitled
to service of process specifically for the termination hearing. While we acknowledge
Harris, we note that in that case, the appellee failed to file a
brief. Thus, the court applied the lower standard of a prima facie
showing of reversible error. Id. at 249.
Harris is factually distinguishable. In Harris, the father received notice of
the hearing date on the termination petition, but the hearing was continued by
the court. The father did not receive notice of the continued hearing,
and it was that omission that led to our decision to reverse.
By contrast, here, MCOFC did file a brief, and therefore our normal standard
of review applies. Applying that standard to these facts, we hold that
the notice given Clenna was adequate. While service of process serves to
provide notice of the proceeding, it has a constitutional component and is a
prerequisite to jurisdiction. The notice of the hearing which is required by
IC 31-35-2-6.5 is a statutory procedural requirement which does not rise to constitutional
dimension. Paragraph (b) of the statute provides that the petitioner shall send
notice. It does not provide for service of process. Trial Rules
4 to 4.17 govern service of process. Rule 5 governs service of
subsequent papers and pleadings in the action; Trial Rule 5(B) sets out how
service can be accomplished. Trial Rule 5(B)(2) specifically authorizes service by mail.
Here, MCOFC served process of the petition on Clenna. Thus, the trial
court had jurisdiction and was constitutionally impowered to act. MCOFC served the
notice of hearing upon Clennas attorney and sent notice to Clenna at his
last known address. Thus, both the statute and the trial rules were
satisfied. To the extent that
Harris seems to require service of process
for the fact-finding hearing, we decline to follow it.
No constitutional, statutory, or procedural provision requires service of the notice of the
hearing to rise to the same level as service of process. To
impose such a requirement would permit a parent or other party entitled to
notice to frustrate the process by failing to provide a correct address and
would add unnecessarily to the expense and delay in termination proceedings when existing
provisions adequately safeguard a parents due process rights.. Accordingly, we hold that
under these facts, Clenna received adequate notice of the hearing on MCOFCs termination
Clenna further contends that MCOFC presented insufficient evidence at the termination hearing that
it sent the letter to him notifying him of the termination hearing.
At the hearing, Gretchen Gentry, the family case manager at MCOFC with responsibility
for A.C., testified that she was familiar with the file in the case,
and that the March 25, 2001 letter introduced into evidence was the same
as the copy in her case file. She testified that the author,
Bridget Bennett, is a paralegal at MCOFC.
Clenna argues that the letter should not have been admitted both because the
foundation was insufficient and because it was hearsay. We review a trial
courts decision to admit or exclude evidence for an abuse of discretion.
Steuben County v. Family Dev. Ltd., 753 N.E.2d 693, 696 (Ind. Ct. App.
2001). We will reverse such an exercise of discretion only when the
decision is clearly against the logic and effect of the facts and the
Clenna argues that the foundation for the letter was insufficient. Indiana Rule
of Evidence 901(a) states: The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims. Moreover, Rule
901(b)(1) provides that evidence may be authenticated by the testimony of a witness
with knowledge that a matter is what it is claimed to be.
Herrera v. State, 710 N.E.2d 931, 938 (Ind. Ct. App. 1999).
Under this rule, exhibits must be authenticated or identified prior to their admission
Cohen v. State, 714 N.E.2d 1168, 1174 (Ind. Ct. App.
1999), trans. denied by Glenn v. State, 726 N.E.2d 308 (1999); Herrera, 710
N.E.2d at 938. To establish a proper foundation for the admission of
exhibits, there must be a reasonable probability that the exhibit is what it
purports to be and that its condition is substantially unchanged as to any
material feature. Cohen, 714 N.E.2d at 1174; Herrera, 710 N.E.2d at 938;
Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied.
Absolute proof of authenticity is not necessary. Cohen, 714 N.E.2d at
1174; Lahr, 640 N.E.2d at 761. Rather, a proper foundation for the
introduction of physical evidence is laid if a witness is able to identify
the item and the item is relevant to the disposition of the case.
Cohen, 714 N.E.2d at 1174.
Herrera, 710 N.E.2d at 938, a defendant challenged the foundation of documents
admitted into evidence at trial. A co-conspirator testified that he had seen
the defendant prepare the documents and that they were in substantially the same
condition as when the co-conspirator received them. We held that this testimony
was sufficient to authenticate the documents. Id.
Similarly, in Lahr, 640 N.E.2d at 761, another defendant challenged a note admitted
into evidence as lacking adequate foundation. A trustee identified the note as
the one he received from the defendant. The intended recipient of the
note also testified that he recognized the defendants handwriting and that the note
had been written by him. We held that the note was adequately
identified, and its admission was not error. Id.
Here, Gentry testified that Bennett prepared the letter to Clenna as part of
her duties as a paralegal at MCOFC and that a copy of it
was in her case file. From this testimony, the trial court could
conclude that there was a reasonable probability that the letter was what it
purported to be, that is, a notification letter from MCOFC to Clenna.
The trial court did not abuse its discretion in determining that this evidentiary
foundation was sufficient.
Clenna also maintains that the letter was inadmissible hearsay. Hearsay is defined
as a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted. Ind. Rule of Evidence 801(c). A statement is not
hearsay if offered for another purpose.
Bufkin v. State, 700 N.E.2d 1147,
1150 (Ind. 1998).
Utley v. Healy, 663 N.E.2d 229, 232-33 (Ind. Ct. App. 1996), trans.
denied, the defendant in a personal injury suit arising from a car accident,
attempting to shift responsibility to the city, offered a street department work order
indicating a problem with the intersection where the accident took place. The
trial court admitted the work order over an objection that the document was
hearsay. We held that admission of the work order was proper for
the non-hearsay purpose of establishing that the city had notice of a dangerous
situation, which was relevant to the defendants non-party defense. Id.
Similarly, here, the letter was not hearsay because it was offered not for
the truth of the matter asserted, that is, to establish that there would
be a court hearing on May 25, 2001. Instead, it was offered for
the non-hearsay purpose of establishing that MCOFC sent a notification letter to Clenna.
Accordingly, the trial court did not err in admitting the letter over
the hearsay objection of Clennas counsel.
The letter was sufficient evidence that MCOFC
complied with the notice requirement of IC 31-35-2-6.5(b).
SULLIVAN, J., concurs.
ROBB, J., concurs with separate opinion.
COURT OF APPEALS OF INDIANA
JAMES CLENNA, )
MARION COUNTY OFFICE OF FAMILY )
AND CHILDREN ) No. 49A02-0108-JV-521
CHILD ADVOCATES, INC., )
Appellee-Guardian ad Litem. )
ROBB, Judge, concurring in result with separate opinion.
I reach the same conclusion as does the majority but write separately to
explain my disagreement with a portion of the majoritys characterization of Harris v.
Delaware County Div. Of Family & Children Servs., 732 N.E.2d 248 (Ind. Ct.
App. 2000). I disagree regarding the characterization of Harris to the extent
the majority implies our decision in that case resulted from our application of
a lesser standard of review due to the appellees failure to file a
brief. Rather, we determined the Delaware County Division failed to give notice
to Harris by publication because he was incarcerated at the time, and therefore
the County knew exactly where he was. In other words, the decision
in Harris did not hinge upon the County using an improper method of
notice; rather, it turned upon a lack of notice to the father.
It was this issue, not the application of a lesser standard of review,
that caused our decision to reverse.
However, I agree with the majority that
Harris is factually distinguishable from the
present case, and thus I concur in the majoritys result.
Clenna also cites this courts opinion in
In re D.L.M.,
725 N.E.2d 981 (Ind. Ct. App. 2000) in support of his argument that
service of process of the termination hearing was required by the statute.
However, in that case, the issue before the court was whether service of
notice of a termination hearing to a partys attorney was sufficient to comply
with the statute. We held that given the language of the statute
and the important interests at stake, the party herself must be served, and
service of notice to the partys attorney is inadequate. Here, by contrast,
MCOFC did serve Clenna and his attorney with notice of the hearing.
Thus, D.L.M. is inapposite.