In the Matter of the Termination of the Parental Rights of: J.B. & S.B. (Minor Children) and A.I. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 13, 2019
• Docket: 18A-JT-1219
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 13 2019, 8:48 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 13, 2019 of the Parental Rights of: Court of Appeals Case No. 18A-JT-1219 J.B. & S.B. (Minor Children) Appeal from the Dearborn Circuit and Court A.I. (Mother), The Honorable James D. Appellant-Respondent, Humphrey, Judge Trial Court Cause Nos. v. 15C01-1709-JT-26 15C01-1709-JT-27 The Indiana Department of Child Services, Appellee-Petitioner

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1219 | June 13, 2019 Page 1 of 5 [1] A.I. (Mother) appeals the trial court’s orders terminating the parent-child

relationship between Mother and her two minor children. Mother argues that

the trial court violated her due process rights when it denied her motion to

continue the termination factfinding hearing. Finding no due process violation,

we affirm.

Facts [2] On January 9, 2017, the Department of Child Services (DCS) filed a petition

alleging that Mother’s two children were children in need of services (CHINS)

based on Mother’s substance abuse issues. The trial court found that the

children were CHINS on February 7, 2017, based on Mother’s admissions.

[3] After Mother failed to cooperate with DCS, participate with court ordered

services, or make meaningful progress, DCS filed a petition to terminate her

parental rights on September 22, 2017. DCS served Mother with a summons1

and notice of the termination proceedings. She was personally served by

process server; additionally, DCS mailed copies of the documents to her last

known address, but they were returned as undeliverable and unable to forward.

Mother appeared at the initial termination hearing in October 2017 and the trial

court appointed a public defender to represent her during the termination

proceedings.

1 Evidently DCS mistakenly included a CHINS summons instead of a termination summons, but we find that this inadvertent error had no impact on the proceedings.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1219 | June 13, 2019 Page 2 of 5 [4] The first day of the termination factfinding hearing took place on November 28,

2017. Mother was not present, but the trial court had moved up the hearing

date and acknowledged that Mother may not have had notice of the change.

The parties presented their opening statements, but the trial court emphasized

that everything stated during that hearing would be repeated at the next hearing

when, hopefully, Mother would be present. The trial court scheduled two more

days of factfinding to occur on December 18, 2017, and March 15, 2018, with

both dates coinciding with previously scheduled hearings in her CHINS case.

[5] The joint CHINS permanency and termination hearing took place on

December 18, 2017. Mother was not present. Her attorney told the trial court

that she had spoken with Mother that morning and Mother had said she was on

the way but stuck in traffic because of a wreck. DCS finished its opening

statement and no evidence was presented.

[6] The third day of the termination hearing took place on March 15, 2018.

Mother’s counsel moved for a continuance, reporting that two days earlier,

Mother had called her to tell her she would not be attending because she could

not legally drive, could not afford an Uber, and did not have enough minutes

on her phone to participate telephonically. Counsel stated, “I’m not sure that

she’s been properly served on this matter.” Tr. Vol. II p. 25. DCS responded

that Mother had notice of the proceedings and that it had been unable to reach

Mother for most of the case; the Guardian ad Litem (GAL) agreed that she had

been unable to reach Mother since early November 2017.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1219 | June 13, 2019 Page 3 of 5 [7] The trial court found that every effort had been made to communicate with

Mother and provide her with notice, that the hearing was intentionally set on

the same date as a CHINS hearing of which she undisputedly had notice, and

that Mother actually knew about the hearing and was not present. Therefore,

the motion to continue was denied and the hearing took place as scheduled.

On March 24, 2018, the trial court issued its orders terminating Mother’s

parent-child relationship with her two children. She now appeals.

Discussion and Decision [8] Mother’s only argument on appeal is that she was not properly served with

notice of the termination hearings and, as a result, the trial court’s denial of her

motion to continue violated her due process rights.

[9] Indiana Code section 31-35-2-6.5 requires that DCS send notice to a parent at

least ten days before a termination of parental rights factfinding hearing. We

have recently considered this requirement, finding as follows:

. . . the statute does not contain a remedy for the failure to provide a parent with notice of a hearing. It does, however, state that the trial court “shall continue the hearing if, at the time of the hearing, the department has not provided the court with signed verification from the foster parent” that the foster parent received notice. I.C. § 31-35-2-6.5(f). The statute contains no such continuance requirement with respect to the child’s parent. We interpret that to mean that the legislature left it to the trial court to determine, in its discretion, whether a continuance is warranted if DCS failed to provide this statutorily required notice.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1219 | June 13, 2019 Page 4 of 5 In re B.J., 110 N.E.3d 1178, 1181 (Ind. Ct. App. 2018).

[10] Assuming for argument’s sake that DCS failed to provide this statutorily

required notice in this case, the trial court properly considered all of the

circumstances before it in denying Mother’s motion to continue. Specifically,

Mother had actual notice of the hearing; she was represented by counsel at the

hearing; and she had failed to remain in contact with DCS or the GAL, neither

of whom had her current contact information. There is no evidence in the

record that Mother reached out to DCS, the GAL, or any service providers for

assistance with transportation to the hearing. Under these circumstances, we

find that the trial court did not err by denying Mother’s motion to continue and

that Mother’s due process rights were not violated as a result of these

[11] The judgment of the trial court is affirmed.

Najam, J., concurs. Robb, J., concurs in result without an opinion.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1219 | June 13, 2019 Page 5 of 5