David, J.
We have granted transfer from the Court of Appeals on this case involving the termination of parental rights between the child, C.G., and the child‘s mother, Z.G. We write to discuss important issues of due process that have not previously been before this Court. In all other aspects, we summarily affirm the Court of Appeals.
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Due Process Analysis
Mother contends that numerous due process violations occurred which culminated in the termination of her parental rights. Mother also alleges that there was a lack of evidence to support the trial court‘s determination. We will address each issue separately.
It is well established that the involuntary termination of parental rights is an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed. In re B.D.J., 728 N.E.2d 195, 199 (Ind. Ct. App. 2000). Choices about marriage, family life, and the upbringing of children are among associational rights the United States Supreme Court has ranked as of basic importance in our society and are rights sheltered by the Fourteenth Amendment against the State‘s unwarranted usurpation, disregard, or disrespect. M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996). “If any freedom not specifically mentioned in the Bill of Rights enjoys a ‘preferred position’ in the law it is most certainly the family.” Moore v. City of East Cleveland, 431 U.S. 494, 511 (1977) (Brennan, J., concurring).
“The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding.” In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001), trans. denied. Parental rights constitute an important interest warranting deference and protection, and a termination of that interest is a “unique kind of deprivation.” Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 27 (1981). However, children have an interest in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long–term, continuous relationships. Lehman v. Lycoming County Children‘s Servs. Agency, 458 U.S. 502, 513 (1982). When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process. J.T. v. Marion County Office of Family & Children, 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied. The U.S. Supreme Court has written on the importance of heightened due process protections whenever the State wishes to sever the parental bonds of children:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.
Santosky v. Kramer, 455 U.S. 745, 753–754 (1982). Due Process has never been defined, but the phrase embodies a requirement of “fundamental fairness.” E.P. v. Marion County O.F.C., 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting Lassiter, 452 U.S. at 26). The U.S. Supreme Court has written that “the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The process due in a termination of parental rights proceeding turns on the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State‘s chosen procedure; and (3) the countervailing governmental interest supporting use of the challenged procedure. A.P. v. Porter County Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000,) trans. denied (citing Mathews, 424 U.S. at 335). The balancing of these factors recognizes that although 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.” Mathews, 424 U.S. at 334. Finally, we must keep in mind the general principle that “if the State imparts a due process right, then it must give that right.” A.P. v. Porter County, 734 N.E.2d at 1112. A parent in a proceeding to terminate the parent–child relationship is statutorily entitled to (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence by compulsory process, and (3) introduce evidence on behalf of the parent. Ind. Code § 31-32-2-3(b) (2008).
In balancing the three–prong Mathews test, we first note that the private interest affected by the proceeding is substantial—a parent‘s interest in the care, custody, and control of her child. In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003). We also note the countervailing Mathews factor, that the State‘s parens patriae interest in protecting the welfare of a child is also substantial. Id. Both the State and the parent have substantial interests affected by the proceeding. So, we turn to the third Mathews factor, the risk of error created by DCS‘s actions and the trial court‘s actions. We address each of Mother‘s allegations in order.
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C. Personal Attendance at Termination Hearing
Finally, Mother argues that her due process rights were violated by denying her the opportunity to be present at trial due to the standing order existing in Marion County, which prohibited the transportation of incarcerated parents to the Marion County Juvenile court proceedings. On October 1, 2006, the Marion Superior Court issued an “Order Prohibiting Transportation of Incarcerated Adults to the Marion County Juvenile Center.” In that order, the executive committee of the Marion Superior Court determined it would no longer transport incarcerated adults to participate in juvenile court proceedings. The order stated,
WHEREAS, incarcerated adults have routinely been transported to the Marion County Juvenile Center for participation in juvenile court proceedings; and
WHEREAS, the Executive Committee of the Marion Superior Court has determined that this practice should be discontinued.
IT IS THEREFORE ORDERED, that incarcerated adults be prohibited from transport to the Marion County Juvenile Center, effective immediately. This Order does not apply to transportation of incarcerated adults to court facilities other than the Marion County Juvenile Center.
IT IS FURTHER ORDERED, that the Marion County Sheriff‘s Department seek clarification for any pending transportation order from the court issuing that order, if it would require the transportation of an incarcerated adult to the Marion County Juvenile Center.
The record reflects that some adults had been transported to the Marion County Juvenile Center until March 2009, when it became a safety concern due to the ―no sight, no hearing‖ policy of holding adults and juveniles in the same facility. [Footnote omitted.]
The Court of Appeals first addressed this issue in Tillotson v. Clay County Dep‘t of Family and Children, 777 N.E.2d 741 (Ind. Ct. App. 2002). The Court of Appeals found that parents were not denied due process when they were not transported to their termination hearing. Id. at 746. The Court of Appeals, however, cautioned that alternative procedures should be used to allow a parent who could not be present in the courtroom to fully participate. It wrote such alternative procedures could include, “using a speaker phone at the hearing or continuing the hearing after the State has presented its case and allowing the parent time to review a transcript or audio tape of the hearing and then respond to allegations raised by the State‘s witnesses.” Id. at 746 n.7. We note that Mother participated in both days of the termination hearing telephonically, with interpreters in the courtroom translating the proceeding into Spanish. However, there are risks when a party in such a delicate proceeding is not transported to the hearing.
We first recognize that trial judges are in the best place to assess witness credibility, and by not having a parent present at a termination hearing, a trial judge is not as easily able to ascertain the credibility of a witness over the phone. Credibility of a witness must be ascertained from “circumstantial evidence, including the demeanor of the witness, the plausibility of the testimony, and the relative strengths of the evidence supporting and opposing the testimony.” Simpson v. State, 165 Ind. App. 619, 622, 333 N.E.2d 303, 304 (1975). “From consideration of this evidence, the trier of fact can form an opinion of the ‘probability’ that a particular witness is relating an accurate account of the incident.” Id. Our trial rules shed light on the deference we give the trial court judge when she is the trier of fact:
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witness.
Ind. Trial Rule 52(A) (emphasis added). We recognize the unique position of the trial court to assess the evidence and judge the credibility of the witnesses, and only set aside a judgment terminating a parent-child relationship if it is clearly erroneous. Egly v. Blackford County Dept. of Pub. Works, 592 N.E.2d 1232, 1234–1235 (Ind. 1992).
In the present case there were several procedural safeguards undertaken by the trial court. The courtroom was cleared out to provide Mother an opportunity to privately speak to her counsel. The trial was bifurcated, giving Mother an opportunity to review the testimony presented by DCS with her counsel. Counsel had ample opportunity to confer with Mother, having been on the case for over six months. Finally, we note the potential significant cost of transporting Mother from Henderson, Kentucky, to Indianapolis, Indiana, for this hearing. It is possible that our analysis may have been different had Mother been across town in the Marion County Jail.
After examining a number of other jurisdictions, we observe that the commonly held viewpoint is that there is no absolute right to be present at a termination hearing.
Of the states we have surveyed that have found no absolute right of a parent to be present at a termination hearing, they take different paths to arrive at their conclusions. The first jurisdiction to address this issue was North Dakota. Many courts have taken the lead from North Dakota, which found that
a convict does not have a constitutional right to personally appear in a civil suit where he has been permitted to appear through counsel and by deposition, if appropriate. Any right to appear personally would have to rest upon convincing reasons and would ultimately be left to the sound discretion of the trial court.
In re F.H., 283 N.W.2d 202, 209 (N.D. 1979). Many courts have followed the North Dakota model, and provided discretion to the trial court judge, while finding that representation by counsel and the opportunity to appear via deposition are the two key components required in a due process analysis of a parent who is not in attendance at a proceeding in which her parental rights are terminated. Pignolet v. State Dept. of Pensions and Security, 489 So.2d 588, 590–591 (Ala. Civ. App. 1986); In re Appeal in Pima County Juvenile Action No. S-949, 638 P.2d 1346, 1347 (Ariz. Ct. App. 1981); In re C.G., 885 P.2d 355, 357 (Colo. App. 1994); In re Juvenile Appeal, 446 A.2d 808, 813 (Conn. 1982); In re F.L.S., 502 S.E.2d 256, 257 (Ga. Ct. App. 1998); In re Baby Doe, 936 P.2d 690, 694–695 (Idaho Ct. App. 1997); In re M.R., C.R., D.R., M.R. and M.R., 736 N.E.2d 167, 169–170 (Ill. App. Ct. 2000); In re J.S., 470 N.W.2d 48, 52, (Iowa Ct. App. 1991); In Interest of S.A.D., 481 So.2d 191, 193–194 (La. Ct. App. 1985); In re Adoption/Guardianship No. 6Z980001, 748 A.2d 1020, 1022–1024 (Md. Ct. Spec. App. 2000); In re Welfare of H.G.B., 306 N.W.2d 821, 826 (Minn. 1981); H.W.S. v. C.T., 827 S.W.2d 237, 242 (Mo. Ct. App. 1992); In re Raymond Dean L., 109 A.D.2d 87, 90 (N.Y. App. Div. 1985) [Footnote omitted.]; In re John Henry Rich, IV, 604 P.2d 1248, 1252–1253 (Okla. 1979); In re A.P., 692 A.2d 240, 243–244 (Pa. Super. Ct. 1997); Najar v. Oman, 624 S.W.2d 385, 387 (Tex. App. 1981); State ex rel. M.A.V. v. Vargas, 736 P.2d 1031, 1033–1034 (Utah Ct. App. 1987); Darrow v. State, 649 P.2d 858, 861 (Wash. Ct. App. 1982).
Other courts have found that parents are afforded an even higher due process right than merely being represented and the opportunity for testimony via deposition. Nebraska followed the North Dakota model and established criteria to aid its trial courts in determining whether to allow a parent‘s attendance at a termination of parental rights hearing. Nebraska wrote that courts should consider trial delay, expense on the State in transporting the parents, potential danger or security risk which may occur, the reasonable availability of the parent‘s testimony by other means, and the best interest of the child. In re L.V., 482 N.W.2d 250, 258 (Neb. 1992). Other courts have followed Nebraska‘s lead and found extra protections, such as the right to review transcripts, right to appear via telephone, and even bifurcating of the trial to allow counsel and parent additional time. E.J.S. v. State, Dept. of Health and Social Servs., 754 P.2d 749, 752 (Alaska 1988); In re Heller, 669 A.2d 25, 32 (Del. 1995); In re Randy Scott B., 511 A.2d 450, 453–454 (Me. 1986); Adoption of Edmund, 739 N.E.2d 274, 277 (Mass. App. Ct. 2000); In re Vasquez, 501 N.W.2d 231, 234–235 (Mich. Ct. App. 1993); In re Baby K., 722 A.2d 470, 472–474 (N.H. 1998); State, ex rel. Children, Youth and Families Dept. v. Ruth Anne E., 974 P.2d 164, 168–171 (N.M. Ct. App. 1999); State ex rel. Juvenile Dept. v. Stevens, 786 P.2d 1296, 1299 (Or. Ct. App. 1990); State ex rel. Jaenette H. v. Pancake, 529 S.E.2d 865, (W. Va. 2000); In re Christopher D., 530 N.W.2d 34, 42 (Wis. Ct. App. 1995). We also note that a recent Kansas opinion overturned an adoption which resulted in the termination of a father‘s right because he was not transported even though he was incarcerated in-state. In re Adoption of B.J.M. 209 P.3d 200 (Kan. Ct. App. 2009).
We believe West Virginia has outlined a very practical test, which we now adopt. Whether or not an incarcerated parent is permitted to attend a termination of parental rights hearing is within the sound discretion of the trial court judge. In exercising that discretion,
the trial court judge should balance the following factors: (1) The delay resulting from parental attendance; (2) the need for an early determination of the matter; (3) the elapsed time during which the proceeding has been pending; (4) the best interests of the child(ren) in reference to the parent‘s physical attendance at the termination hearing; (5) the reasonable availability of the parent‘s testimony through a means other than his or her attendance at the hearing [Footnote omitted.]; (6) the interests of the incarcerated parent in presenting his or her testimony in person rather than by alternate means; (7) the affect of the parent‘s presence and personal participation in the proceedings upon the probability of his or her ultimate success on the merits; (8) the cost and inconvenience of transporting a parent from his or her place of incarceration to the courtroom; (9) any potential danger or security risk which may accompany the incarcerated parent‘s transportation to or presence at the proceedings; (10) the inconvenience or detriment to parties or witnesses; and (11) any other relevant factors.
State of West Virginia ex rel. Jaenette H., 529 S.E.2d at 877 (W.Va. 2000).
A blanket order prohibiting transporting a prisoner to a termination hearing is frought with danger. If the trial courts were allowed to hide behind such a blanket order, on review our appellate courts would be left with little to no information, forcing them to surmise why the trial court issued the order. This is not good policy. However, in the case at bar, the trial court would have arrived at the conclusion to not transport the mother, as we have previously discussed.
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Conclusion
In this case, several errors were made by DCS which should not have been made. However, none of the errors rose to the level of violating Mother‘s due process rights or warranting reversal. Therefore, we affirm the order of the trial court terminating Mother‘s parental rights. We also set forth the above mentioned factors for our trial courts to determine whether an incarcerated parent is permitted to attend a hearing on the termination of his or her parental rights.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.