In contrast, the use of a procedure like that typically used in criminal cases (requiring that the trial court generate a record and thoroughly investigate a request to waive counsel) could be quite expensive and time-consuming, especially in cases like this one, where transportation from a correctional facility to a waiver hearing would likely have to be arranged.

The dissent points to indications in the record that Father was denied counsel at the initial hearing in the CHINS proceeding that came before this termination, despite requesting it. Although Father does not make this argument, we acknowledge that "procedural irregularities in a CHINS proceedings may be of such import that they deprive a parent of procedural due process with respect to the termination of his or her parental rights." A.P. v. Porter Cty. Office of Family & Children , 734 N.E.2d 1107 , 1112-13 (Ind. Ct. App. 2000), trans. denied . In A.P. , the following errors occurred and were found to require reversal:

(1) the [Porter County Office of Family and Children] admittedly failed to provide Brenda and Elvis with copies of at least some, and possibly all, of A.P.'s case plans as required by Indiana Code Chapter 31-34-15; (2) the termination petition filed in this cause did not comport with the requirements of Indiana Code Section 31-35-2-4 ; (3) the original underlying CHINS petition filed with respect to A.P. was unsigned and unverified in violation of Indiana Code Section 31-34-9-3 ; (4) no permanency hearing was ever held as required by Indiana Code Section 31-34-21-7 ; (5) the original CHINS dispositional order, the modification of that order providing for A.P.'s out-of-home placement, and every other order entered by the trial court, with the exception of the termination judgment, contained no written findings and conclusions upon the record concerning its reasons for those dispositions as required by Indiana Code Section 31-34-19-10 ; (6) the trial court entered a no-contact order against Elvis without following the statutory prerequisites for entry of such an order as contained in Indiana Code Chapter 31-34-17 [now repealed]; and (7) Elvis was deprived, on at least two occasions, of his right to be present at review hearings in A.P.'s CHINS case in violation of Indiana Code Section 31-34-21-4(b).

Id. at 1117 . This case, however, is a far cry from A.P. Even if we assume that Father did request counsel in the CHINS case and was denied, this does not approach the wholesale violations in A.P. More importantly, the dissent points to no indication that any denial of counsel in the CHINS case prejudiced Father, much less in any way that carried over into the termination. Put another way, whatever may have happened in the CHINS case, Father was advised multiple times of his right to counsel in this case.

Mathias, Judge, dissenting.

[19] I respectfully dissent because I do not believe Father was provided with notice that meets the requirements of due process. I also conclude that Father did not knowingly and voluntarily waive his right to counsel. These conclusions lead me to balance the Mathews factors differently than my colleagues. As the State may only undertake the extreme measure of terminating a parent's rights in a manner that comports with the standards of due process, and these standards have not been met, I believe a remand is required.

Standard of Review

[20] The majority correctly notes that we have long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S. , 750 N.E.2d 832 , 836 (Ind. Ct. App. 2001). However, whether a party was denied due process is a question of law that we review de novo . Wolf Lake Pub, Inc. v. Review Bd. Of Ind. Dep't of Workforce Dev. , 930 N.E.2d 1138 , 1141 (Ind. Ct. App. 2010) (citing Miller v. Ind. Dep't of Workforce Dev. , 878 N.E.2d 346 , 351 (Ind. Ct. App. 2007) ). While due process is not dependent on the underlying facts of the particular case, it is nevertheless "flexible and calls for such procedural protections as the particular situation demands." Thompson v. Clark Cty. Div. of Family & Children , 791 N.E.2d 792 , 795 (citing Mathews v. Eldridge , 424 U.S. 319 , 334, 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976) ).

Discussion and Analysis

Notice

Service of the Alias Summons

[21] The "affidavit" filed by DCS regarding service upon Father shows the alias summons was not served in compliance with the Indiana Rules of Trial Procedure. In addition, the same document does not contain sufficient indicia of reliability required by the Rules of Evidence.

[22] Indiana Trial Rule 4.3 governs service of summons upon institutionalized persons. It provides:

Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution. It shall be the duty of said official to immediately deliver the summons and complaint to the person being served and allow him to make provisions for adequate representation by counsel. The official shall indicate upon the return whether the person has received the summons and been allowed an opportunity to retain counsel.

"A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Ind. Evidence Rule 602. Unsigned affidavits do not constitute admissible evidence. T.R. 11(B); In re Paternity of P.W.J. , 846 N.E.2d 752 , 757-58 (Ind. Ct. App. 2006).

[23] The document entitled "Affidavit of Service" purports to show that a process server delivered an Alias TPR Summons and corresponding documents to Father at Westville Correctional Center, where he was incarcerated. 4 This document provides that:

I, J. Michael Jenkins, being duly sworn, depose, and say: I am over the age of 18 years and not a party to this action, and that within the boundaries of the state where service was effected, I was authorized by law to make service of the documents and informed said person of the contents herein.

DCS App. p. 3.

[24] In the "Additional Comments" section of the document, a notation provides: "1) Successful Attempt: Mar 12, 2018, 1:19 pm CDT at Westville Correctional Center: 5501 S. 1100 W, Westville IN 46391 received by Shawn Staggs. Other: Defendant was served by WCC Investigator Christine Kallok." The CCS shows this "Affidavit of Service" was filed by DCS on March 15, 2018. No signature is affixed to this "Affidavit of Service."

[25] The defects in service of the alias summons are abundant. First, this "Affidavit of Service" is unsigned and therefore inadmissible evidence. Secondly, the notation in the "Additional Comments" section shows that even if Mr. Jenkins had signed the affidavit, whether Father received the summons was outside of his personal knowledge as it was purportedly delivered to Father by an investigator employed by the prison. Moreover, the statement from a prison official that the recipient has also been allowed an opportunity to retain counsel required by T.R. 4.3 is not contained in the record. In order to prove service of this summons, an executed affidavit of service from the individual who actually delivered the summons to Father and an indication from a prison official that Father was provided with an opportunity to retain counsel is required. The record contains neither.

Father's Communications with the FCM

[26] The CASA argues, and the majority agrees, that the FCM's telephone conversation and letter he sent to Father were sufficient to provide notice of the termination.

[27] The FCM's testimony shows that he had a telephone conversation with Father. In this conversation, he advised him that DCS intended to proceed to termination. Father indicated to him during their phone conversation that he wanted to participate. The FCM also testified that he sent him a letter detailing "everything he needed to do in regards to requesting transportation. And requesting a public defender at the time of the fact[-]finding hearing for termination." Tr. p. 13. He further testified that every time he spoke with him throughout the duration of his case, Father "always makes it [sic] aware that he wants to participate," but he never followed through. Id.

[28] The letter FCM testifies that he sent is not in the record, and we are unaware of its specific contents. We have no indication that Father actually received this letter, or that the FCM was able to accurately advise him of the processes and procedures required for him to take the actions within his prison and within the juvenile court system.

Right to Counsel

[29] A parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship. Ind. Code §§ 31-32-4-1 and 31-32-2-5. Indiana Code "[s]ection 31-34-4-6 is an explicit provision of just such a statutory right, though subject to its own internal qualifications, and is consistent with the operation of the rest of the statutory scheme. And it exists independently of - though informed and influenced heavily by - any constitutionally compelled right to counsel pursuant to the Due Process Clause of the Fourteenth Amendment." In re G.P. , 4 N.E.3d 1158 , 1163 (Ind. 2014). Indiana Code section 31-32-4-3 provides:

(a) If:

(1) a parent in proceedings to terminate the parent-child relationship does not have an attorney who may represent the parent without a conflict of interest; and

(2) the parent has not lawfully waived the parent's right to counsel under IC 31-32-5 (or IC 31-6-7-3 before its repeal); the juvenile court shall appoint counsel for the parent at the initial hearing or at any earlier time .

(b) The court may appoint counsel to represent any parent in any other proceeding.

Ind. Code § 31-32-4-3 (emphasis added).

[30] Although the termination statute provides that a parent is entitled to appointed counsel in a termination proceeding, the case law indicates that a parent's indigency is a prerequisite to having the court appoint counsel. "A parent who is entitled to representation by counsel may waive that right if the parent does so knowingly and voluntarily ." Ind. Code § 31-32-5-5 (emphasis added). Similarly, a parent has a right to counsel in a CHINS proceeding. Ind. Code § 31-34-4-6 (a)(2) ; In re G.P. , 4 N.E.3d at 1163 . And, as the Indiana Supreme Court has stated, Mathews analysis aside, "if the State imparts a due process right, then it must give that right." In re G.P. , 4 N.E.3d at 1166 ("So if a parent were deprived of representation by counsel at a TPR proceeding, for example, the deprivation would constitute a failure to afford that parent the process to which the General Assembly says he or she is due.").

[31] While CHINS and TPR are distinct proceedings, the results of a CHINS proceeding has obvious consequences for the TPR proceeding. In re E.P. , 653 N.E.2d 1026 , 1032 (Ind. Ct. App. 1995) ; In re G.P. , 4 N.E.3d at 1166 ("In their most typical arrangement, CHINS, TPR, and adoption proceedings line up somewhat like dominoes; although one proceeding may not necessarily tip over into the next, neither can it usually fall without being pushed by the proceeding before it."); A.P. v. Porter County Office of Family and Children , 734 N.E.2d 1107 , 1112-13 (Ind. Ct. App. 2000) ("procedural irregularities in a CHINS proceedings [sic] may be of such import that they deprive a parent of procedural due process with respect to the termination of his or her parental rights."), trans. denied. However, a parent's right to counsel is even greater in a termination proceeding than in a CHINS proceeding. See Smith v. Marion Cty. Dep't of Pub. Welfare , 635 N.E.2d 1144 , 1148 (Ind. Ct. App. 1994) (holding that because a parent's rights are not terminated in a CHINS proceeding, parents do not have the same statutory right to counsel that they have in termination hearings), trans. denied . A litigant who has been told that they would receive appointed counsel is not required to continually re-request counsel at each and every hearing where an attorney is not provided. In re G.P. , 4 N.E.3d at 1164 .

[32] Here, in the CHINS proceeding, the order on the initial detention hearing, dated July 22, 2016, shows that Father denied the allegations in the CHINS petition. The order then states, "[b]eing advised of the right to Counsel the Father does request an Attorney." 5 Ex. Vol., State's Ex. C. This order does not indicate whether Father's request for counsel was granted or denied, or whether the trial court made any inquiry into indigency. And in this same order, a public defender was discharged. The CCS for the CHINS matter does not show an appearance for Father by any attorney. Because the termination proceedings are often necessarily dependent upon and inextricably intertwined with the results of CHINS proceedings, I cannot dismiss the unexplained failure to appoint counsel at the initial detention hearing as immaterial.

[33] Turning to the termination proceeding, as previously discussed herein, the record contains no reliable indication that Father received the alias summons that contained the advisory regarding his right to counsel. As such, we have no reliable proof that he was advised to his right to counsel in the termination proceedings. We only have testimony from the FCM that he told him how to request counsel and that Father had indicated to him that he wanted to participate in the proceedings.

[34] Existing Indiana case law does not address whether advice of a right to counsel by an FCM alone, outside the presence of the court, is sufficient to determine that a parent has knowingly and voluntarily waived his or her right to counsel in a termination proceeding. As previously discussed, the letter the FCM allegedly sent is not before us, there is no proof that Father received the letter, and we have no way of knowing the specific contents of the letter. Moreover, even if he received the letter, this fact, without more, does not constitute a knowing and voluntary waiver of his right to counsel.

Mathews Balancing

[35] Having concluded that proper notice in accordance with the trial rules was not provided and the record contains no evidence of a knowing and voluntary waiver of the right to counsel, I balance the Mathews factors differently than my colleagues.

A. Private Interests

[36] The private interests in this matter are substantial for both the parent and the child. The care, custody, and control of one's children is "perhaps the oldest of the fundamental liberty interests[.]" Troxel v. Granville , 530 U.S. 57 , 65, 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000). It is well settled that the right to raise one's children is an essential, basic right that is more precious than property rights. In re M.G.S. , 756 N.E.2d 990 , 1005 (Ind. Ct. App. 2001). Parental rights constitute an important interest warranting deference and protection, and a termination of that interest is a "unique kind of deprivation." Lassiter v. Dep't of Soc. Servs. , 452 U.S. 18 , 27, 101 S.Ct. 2153 , 68 L.Ed.2d 640 (1981).

[37] However, children have an interest in finality. Lehman v. Lycoming Cty. Children's Servs. Agency , 458 U.S. 502 , 513, 102 S.Ct. 3231 , 73 L.Ed.2d 928 (1982). "[A] trial court need not wait until a child is irreversibly influenced by a deficient lifestyle such that [his or] her physical, mental, and social growth is permanently impaired before terminating the parent-child relationship." In re E.S. , 762 N.E.2d 1287 , 1290 (Ind. Ct. App. 2002).

[38] A child also has an interest in a judicially efficient determination. See Lehman , 458 U.S. at 513 , 102 S.Ct. 3231 . "It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty[.]" Id. While always significant, a child's concern for delay becomes less commanding when the record shows placement in a stable, positive foster home. See In re G.Y. , 904 N.E.2d 1257 , 1265 (Ind. 2009) ("Particularly given the highly positive reports about the quality of the placement here, we are unable to conclude that the continuation of the CHINS foster care arrangement here will have much, if any, negative impact on G.Y.'s well-being.") Additionally, parental rights should not be terminated simply because there is a better home available. In re K.S. , 750 N.E.2d at 837 (citing In re V.A. , 632 N.E.2d 752 , 756 (Ind. Ct. App. 1994) ).

Risk of Error

[39] Our supreme court has stated:

proceedings in which the State seeks to regulate or terminate a parent's relationship with his or her children are among the most delicate and difficult that judicial officers and attorneys must face. And we have repeatedly emphasized the importance of caution and care in these sorts of cases - from all involved - as the repercussions that flow from them can be devastating to every member of a family.

In re K.W. , 12 N.E.3d 241 , 242-43 (Ind. 2014). A parent's interest in the accuracy and justice of the decision to terminate his parental rights is commanding. In re V.A. , 51 N.E.3d 1140 , 1144 (Ind. 2016) (citing Santosky v. Kramer , 455 U.S. 745 , 749, 102 S.Ct. 1388 , 71 L.Ed.2d 599 (1982).

Governmental Interest

[40] I agree with the majority that the State's interests are in the speedy, efficient, and cost-effective resolution of termination proceedings, as well as its parens patriae interest in protecting the interest of the child. J.T. v. Marion Cty. Office of Family & Children , 740 N.E.2d 1261 , 1264 (Ind. Ct. App. 2000), trans denied, abrogated on other grounds by Baker v. Marion Cty. Office of Family & Children , 810 N.E.2d 1035 (Ind. 2004).

Balancing

[41] Here, the record demonstrates an overall lack of care and caution required in these proceedings. The Indiana Rules of the Trial Procedure and the Indiana Rules of Evidence are based on long-standing principles designed to ensure reliability and accuracy in legal proceedings. Constitutional law jurisprudence firmly establishes that the rights that attach to family members within termination proceedings are among the most fundamental.

[42] I believe the high risk of error in the chosen procedures at issue here require remand. Father was not provided counsel when he requested counsel at the initial detention hearing when DCS first alleged CHINS. Nor is there reliable proof that Father knowingly and voluntarily waived his right to counsel in the termination proceeding. Moreover, he indicated his desire to participate to the FCM.

[43] When the court proceeded to termination, there is no reliable proof of notice of the fact-finding hearing. Significant and blatant procedural service errors were blankly accepted by the trial court, which, as the majority relays, is "required to be an attentive and involved participant in the process" for the purpose of protecting the rights of all parties. See Baker , 810 N.E.2d at 1041 (quoting In re Adoption of T.M.F. , 392 Pa.Super. 598 , 573 A.2d 1035 , 1042 (1990), appeal denied.

[44] While delay, especially preventable delay, in the legal process and therefore the permanency of any child who is the subject of a CHINS or TPR proceeding is concerning to me, given the positive reports of the current placement, the lack of any time-sensitive matters, and the young age of the child, I am unable to conclude that delay will have as significant of harm to the child as it might under other circumstances. 6

Conclusion

[45] Insistence on reliable proof of service in compliance with the Indiana Rules of Trial Procedure and the Indiana Rules of Evidence are not extraordinary measures for the purposes of meeting the requirements of procedural due process. I also find no reliable evidence that Father knowingly and voluntarily waived his right to counsel. As such, I believe the requirements of due process require reversal and remand.

Order

[1] Appellee, Lake County Court Appointed Special Advocate, has filed a Motion to Publish.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellee's Motion to Publish is granted.

2. This Court's opinion heretofore handed down in this cause on December 26, 2018, marked Memorandum Decision, is now ordered published.

3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 1/16/2019 .

[4] Bailey, Mathias, Bradford, JJ., concur.