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Failure to object to judge in termination case waives argument on appeal

November 18, 2014

A father whose parental rights were terminated by the same judge who presided when he was convicted of child molesting and neglect raised the issue on appeal for the first time, therefore waiving the objection, the Indiana Court of Appeals ruled Tuesday.

The father, who will be in prison until at least 2029, sought reversal of the termination of his parental rights, claiming Dearborn Circuit Judge James D. Humphrey violated Indiana Code section 31-32-8-2 by presiding in both cases.

“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," Chief Judge Nancy Vaidik wrote for the panel in In the Matter of the Termination of the Parent-Child Relationship of E.P. III and E.P. Jr. (Father) v. Indiana Dept. of Child Services, 15A04-1403-JT-134. "We also conclude that there is sufficient evidence to support the trial court’s order terminating Father’s parental rights. We therefore affirm.”

Vaidik wrote that Humphrey informed parties at the beginning of the termination proceeding that he was familiar with the cases of the mother and father, both of whom had been convicted of Class B felony counts of molesting and neglect and sentenced to 20 years in prison. No one objected.

The appeals panel also noted father had been only partially compliant with services before he was imprisoned first for battering the child’s mother and later on the neglect and molestation convictions. By the time he is eligible for release from prison, his child will be an adult.

“In light of all the evidence presented, we concluded that the trial court properly determined that there was a reasonable probability that the conditions resulting in E.P.’s removal or the reasons for his placement outside Father’s home would not be remedied,” Vaidik wrote.
 

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