IN THE
Court of Appeals of Indiana In re the Termination of the Parent-Child Relationship of A.R., R.R., and C.R. (Minor Children), and J.R. (Mother) and R.R. (Father), FILED Appellants-Respondents Oct 23 2025, 10:02 am
CLERK v. Indiana Supreme Court Court of Appeals and Tax Court
Indiana Department of Child Services, Appellee-Petitioner
October 23, 2025 Court of Appeals Case No. 25A-JT-917 Appeal from the Clark Circuit Court The Honorable Lisa Reger, Judge The Honorable Susan L. Orth, Senior Judge Trial Court Cause No. 10C04-2411-JT-62 10C04-2411-JT-63 10C04-2411-JT-64
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 1 of 22 Opinion by Judge DeBoer Chief Judge Altice and Judge Pyle concur.
DeBoer, Judge.
Case Summary [1] J.R. (Mother) and R.R. (Father) (collectively, Parents) jointly appeal the trial
court’s order terminating their parental rights to A.R., R.R., and C.R.
(collectively, the children). Without challenging any substantive findings of fact
or conclusions of law, Parents argue that the trial court abused its discretion
when it denied their attorneys’ motions to continue the termination fact-finding
hearing and proceeded with the hearing in Parents’ absence. They also argue
that a party petitioning to terminate the parent-child relationship should be
required to use heightened methods of service when sending statutory notice of
the termination hearing to interested parties under Indiana Code section 31-35-
2-6.5, and that, in this case, the Indiana Department of Child Services (DCS)
did not present sufficient evidence that Parents were properly notified of the
hearing. We affirm.
Facts and Procedural History [2] Parents have three children: A.R., born October 28, 2015; R.R., born March 15,
2018; and C.R., born January 15, 2021.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 2 of 22 [3] On December 1, 2021, DCS received a report that the children were being
neglected by Parents.1 The report alleged that Parents used drugs, engaged in
domestic violence in front of the children, and were not meeting the children’s
basic needs. A week later, DCS family case manager (FCM) Jamila Smith
made an unannounced visit to the family’s home and, after multiple knocks on
the door, the two eldest children answered the door. After FCM Smith asked
the children to get their parents, A.R. told her that Father “was sleeping on the
[kitchen] floor.” Exhibits Vol. 3 at 33. FCM Smith yelled for Parents but could
not get their attention. Law enforcement and emergency medical services came
to the home and found Father unresponsive on the kitchen floor and Mother
sleeping upstairs. Mother, who appeared “impaired and confused” and had a
swollen, bloodied lip, told FCM Smith that the Christmas tree had fallen on
her. Id. at 33. Father also looked impaired and told FCM Smith that Mother
had hit him over the head while he was feeding the children and knocked him
out. The home was a mess with clothes, broken furniture, toys, and trash
“scattered throughout the home.” Transcript at 18.
[4] Based on these circumstances, DCS detained the children and Parents were
arrested and charged with multiple felony and misdemeanor counts of neglect
of a dependent. In September 2022, Mother pled guilty to two counts of felony
neglect of a dependent. The court entered judgment of convictions as
1 Parents and A.R. had prior involvement with Indiana’s child welfare system. In 2012, Father had his parental rights to three children terminated, none of whom were Mother’s children. A.R. was adjudicated a CHINS in 2016 but was successfully reunified with Parents the next year.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 3 of 22 misdemeanors and sentenced her to consecutive one-year suspended terms.
The charges against Father were ultimately dismissed.
[5] A few days after the December 2021 events, DCS petitioned to adjudicate the
children as children in need of services (CHINS). The trial court did so in May
2022. Between these adjudications and the July dispositional hearing, A.R. had
two trial home visits (THV), one with Mother and one with Father, both of
which were unsuccessful due to Parents’ actions. 2 The court held a
dispositional hearing in July and later entered its order requiring Parents to
participate in standard dispositional services, terminating Father’s THV, and
suspending Parents’ visitation.
[6] At an October review hearing, the court found that Mother had partially
complied with the children’s case plan and engaged in some services. Father
was noncompliant. The court reinstated Mother’s visitation with the children
but declined to do so for Father. At a December permanency hearing, the court
found that A.R. was in a residential placement for diagnostic testing. Later, she
was diagnosed with an intellectual disability. R.R. and C.R. were living in
foster homes and both were found to be progressing well. Parents “ha[d]
2 DCS suggests that A.R.’s THV with Father was unsuccessful because he “allowed her to go with” Mother who was then arrested for operating a vehicle while intoxicated (OVWI) with A.R. in the car. Tr. at 23; see Appellee’s Br. at 9. However, to support these facts, DCS cites to an exhibit showing the chronological case summary of an October 2023 charge Mother received for OVWI endangering a person. See Ex. Vol. 3 at 112- 13. This is all to say that the timeline of these events is unclear because there are discrepancies between the apparent time of the THV and the date this offense was charged. Nevertheless, any confusion about the timing of this THV or the reason it was deemed unsuccessful does not bear on our decision.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 4 of 22 started cooperating with service providers and DCS” and were “mak[ing]
progress toward reaching the goal of reunification.” Ex. Vol. 3 at 65. The
court noted similar progress and compliance at a March 2023 review hearing.
[7] But in June 2023, Mother stabbed Father with a knife and was charged with
two counts of felony domestic battery. In October, she pled guilty to Level 6
felony domestic battery resulting in moderate bodily injury and was sentenced
to 540 days on community corrections. However, in December, the court
revoked her placement on community corrections and ordered her to serve 180
days in jail. Mother was also charged with felony operating a vehicle while
intoxicated (OVWI) endangering a person and misdemeanor invasion of
privacy for violating a protective order near the end of 2023. She later pled
guilty to misdemeanor OVWI with no endangerment and misdemeanor
invasion of privacy and received suspended sentences in each case.
[8] Meanwhile, in October 2023, the trial court found Father in contempt of court
for willfully failing to comply with court-ordered drug screening, therapy, and
“not engag[ing] with his children appropriately during therapeutic visits.” Id. at
67. The court also changed the children’s permanency plan from reunification
to adoption, noting Parents’ noncompliance with the case plan, Father’s
contempt, Mother’s incarceration, and Parents’ inability “to provide a stable
and safe home environment for the children.” Id. at 69.
[9] At a December 2023 permanency hearing, the trial court noted that R.R. had
been briefly placed on a THV. The THV ended unsuccessfully after another
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 5 of 22 domestic violence incident occurred between parents. R.R was returned to the
same foster home he had lived in before the THV, but the court found that he
was not progressing well due to the disruptive nature of the failed THV and
because his autism made change difficult for him. The court found that “[a]ll
three children ha[d] high level needs” and needed stability, which Parents had
been unable or unwilling to provide. Id. at 75. Although it noted that Mother
had applied for services while in jail and Father had enrolled in a drug
rehabilitation program, the court affirmed adoption as the permanency plan for
all three children.
[10] Over the course of DCS’s involvement, Parents consistently failed to submit to
drug screens and tested positive for illegal substances. Mother tested positive
for methamphetamine as well as various unprescribed substances. Father tested
positive for fentanyl, THC, cocaine, and other unprescribed substances.
Parents were still noncompliant with drug screening in the months leading up
to the February 27, 2025 termination fact-finding hearing, and service providers
believed Parents had not addressed their substance use issues.
[11] In the summer of 2023, DCS referred Father to medication management
services after it determined that the way he was combining his Xanax and
Suboxone prescriptions was leading to impairment. However, he did not
follow the medical provider’s recommendation to stop taking these medications
together.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 6 of 22 [12] For three years before their termination hearing, Parents participated in Family
Recovery Court (FRC) to address their substance use issues. The program
facilitated various services, including case management, recovery support,
random drug screens, and transportation support. At the time of the
termination hearing, neither Parent had successfully completed the program.
Mother was administratively discharged from FRC in September 2024 because
she was incarcerated. She was permitted to re-enroll, but she only ever
achieved “very brief” compliance with FRC while she participated before she
went into an inpatient facility in January 2025. Tr. at 57. Father was
discharged from FRC in September 2024 after being “extremely combative,
argumentative[,] and disrespectful to court staff.” Id. at 59. He was
noncompliant with program services and, on one occasion, attempted to tamper
with a drug screen. The FRC program coordinator believed Parents were not
safe and appropriate caregivers for the children because of unremedied issues
with substance use and domestic violence.
[13] At an August 2024 review hearing, the trial court suspended Father’s visitation
because the police had been contacted in response to Father’s aggressive
behavior during visits with the children, he was not participating in parenting
classes or submitting to drug screens, and he had been charged with
misdemeanor theft and criminal mischief. Following an October hearing, the
court reaffirmed the children’s permanency plan of adoption, noting Parents’
lack of compliance with FRC, drug screening, and therapy.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 7 of 22 [14] On November 13, DCS filed petitions to terminate Parents’ parental rights to all
three children. Parents appeared at the November 19 initial hearing. Father
said he was going to hire private counsel, and Mother requested and was
appointed a public defender. The trial court set a status conference to ensure
Father secured counsel and set the fact-finding hearing for January 2, 2025.
Parents acknowledged that the court could proceed with the case in their
absence if they “fail[ed] to appear for the fact-finding hearing[.]” Id. at 12.
[15] Mother’s attorney entered an appearance on December 10. At the December
19 status conference, Father reported that he had not secured counsel and
requested more time to do so. The trial court granted his request and modified
the fact-finding hearing setting to a status conference that date. Despite
Father’s failure to appear for the January 2, 2025 status conference, the court
appointed him an attorney and reset the fact-finding hearing for February 27.
Father’s attorney filed an appearance on January 15. Notably, Father’s
attorney in the termination proceeding had represented him in the CHINS
proceeding since August 2023. Mother’s attorney had represented her since
September 2023.
[16] On January 21, DCS formally notified the court that it had complied with its
statutory notice obligations by informing the parties that the fact-finding
hearing on DCS’s petitions to terminate parental rights would be held on
February 27, 2025 at 1:30 P.M in the Clark Circuit Court (address provided).
The certificate of service with the filing certifies that the notice was served upon
both Parents at an address in Charlestown, Indiana.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 8 of 22 [17] Parents failed to appear for the February 27 fact-finding hearing, but their
attorneys were present. At the beginning of the hearing, the trial court noted
that Parents were ten minutes late and asked the attorneys how they wanted to
proceed. Counsel for DCS stated, “I would ask to go forward today on this.
We’ve already had this hearing set, and then it was continued. They have been
properly notified of the hearing. I did file the 10-day notice to them, so they
were made aware of today’s date.” Id. at 14. Father’s attorney requested a
continuance, simply noting that his client was not present. Mother’s attorney
joined that motion without explanation. Over the objections of Parents’
attorneys, the court proceeded with the fact-finding hearing in Parents’ absence,
reasoning that the matter “ha[d] already been continued once[,] . . . notice was
sent to both parties[,] . . . and we have waited, and they aren’t here.” Id.
[18] In addition to the evidence set out above, Parents had each obtained new
criminal charges in the weeks before the fact-finding hearing, and Father had
pending warrants in separate criminal cases.
[19] At the time of the fact-finding hearing, the children were in separate foster
homes. A.R. and C.R. had bonded with and were thriving in the homes of their
respective pre-adoptive foster parents during the years they had been living with
them. R.R. was in a new placement that was not pre-adoptive, and DCS
continued to look for an adoptive home for him. The children’s FCM and
court-appointed special advocate testified that termination of parental rights
was in the children’s best interests and both providers indicated that the reasons
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 9 of 22 for the children’s removal had not been remedied. A.R.’s therapist also testified
that it was not in A.R.’s interest to return to Parents’ care.
[20] The trial court granted DCS’s petition on the record at the end of hearing. On
March 17, it entered an order terminating Parents’ parental rights to the
children which included extensive findings of fact and conclusions of law.
Parents now jointly appeal.
Discussion and Decision [21] On appeal, Parents do not challenge any of the trial court’s substantive findings
and conclusions supporting its order involuntarily terminating their parental
rights to the children. 3 Instead, Parents challenge the trial court’s decision to
deny their attorneys’ day-of-hearing motions to continue the fact-finding
hearing. They separately argue that heightened methods of service and
evidence of compliance should be required under Indiana Code section 31-35-2-
6.5 given the gravity of proceedings to involuntarily terminate parental rights,
and DCS did not prove Parents were properly notified in this case. See Troxel v.
Granville, 530 U.S. 57, 65 (2000) (“[T]he interest of parents in the care, custody,
and control of their children [] is perhaps the oldest of the fundamental liberty
interests recognized by [the United States Supreme Court].”).
3 Parents do challenge the trial court’s procedural finding that they were properly notified of the fact-finding hearing.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 10 of 22 1. Continuance and Due Process [22] Parents argue that the trial court’s denial of their motions to continue the
termination fact-finding hearing “was an abuse of discretion that trampled on
their due process rights.” Appellants’ Brief at 15. A court’s ruling on a motion
to continue is generally subject to review for an abuse of discretion. In re K.W.,
12 N.E.3d 241, 243-44 (Ind. 2014). “‘An abuse of discretion may be found in
the denial of a motion for a continuance when the moving party has shown
good cause for granting the motion,’ but ‘no abuse of discretion will be found
when the moving party has not demonstrated that he or she was prejudiced by
the denial.’” Id. at 244 (quoting Rowlett v. Vanderburgh Cnty. Off. of Fam. &
Child., 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied).
[23] While parents do not have an “absolute constitutional right . . . to be present at
a termination hearing,” they must be afforded various protections to ensure
they receive due process of law in termination proceedings. Id. at 248. They
must receive an “opportunity to be heard at a meaningful time and in a
meaningful manner.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011) (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Statutorily, they are entitled to
cross-examine witnesses, obtain witnesses or tangible evidence, and introduce
evidence on their behalf. Ind. Code § 31-32-2-3(b). Parents are also entitled to
proper notice under Indiana Code Section 31-35-2-6.5, which we address later
in this opinion. Overall, “[t]he 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
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 11 of 22 procedure; and (3) the countervailing governmental interest supporting use of
the challenged procedure.” C.G., 954 N.E.2d at 917. This flexible standard
contemplates that the procedural protections owed may vary based on the
demands of the situation. Id.
[24] In arguing that the trial court’s denial of their motions to continue the
termination hearing was an abuse of discretion and violated their due process
rights, Parents rely heavily on our Supreme Court’s decision in K.W. There, a
mother facing involuntary termination of her parental rights was incarcerated at
the time of the termination fact-finding hearing and her attorney requested a
two-week continuance until her anticipated release. K.W., 12 N.E.3d at 243.
The trial court denied the motion and held the hearing in mother’s absence,
which resulted in the termination of her parental rights. Id.
[25] On transfer, the Supreme Court vacated the portion of the trial court’s order
terminating mother’s parental rights, finding that the proceeding had been
fundamentally unfair and prejudicial. Id. at 249. In doing so, the Court applied
an eleven-factor test it had adopted in C.G. when considering a motion to
transport an incarcerated parent to a termination hearing. Id. at 244. Although
the Court noted that it “was not compelled” to apply the test under these
different circumstances, it did so because “a number of th[e] eleven factors
[were] helpful in [its] review of the trial court’s exercise of its discretion.” Id.
The factors are as follows:
[T]he trial court judge should balance the following factors: (1) [t]he delay resulting from parental attendance; (2) the need for an Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 12 of 22 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; (6) the interests of the incarcerated parent in presenting his or her testimony in person rather than by alternate means; (7) the affect [sic] 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.
Id. (quoting C.G., 954 N.E.2d at 922-23). Because we too find that these
“factors will help illuminate our review” of whether Parents showed good cause
and whether the trial court abused its discretion in denying their motions, we
will consider them in this case. Id. Having done so, we find no abuse of
discretion and no denial of due process in the trial court’s decision to deny
Parents’ motions to continue and proceed in their absence.
[26] Regarding Factor (1), the delay resulting from Parents’ failure to appear is
difficult to quantify because unlike mother’s incarceration for a finite period in
K.W., Parents provided no explanation for their failure to attend the hearing.
As DCS notes, Father had outstanding warrants for his arrest, “so he could
simply have been avoiding arrest.” Appellee’s Br. at 26. As a result of Parents’
unexplained failure to appear, it is unclear what length of continuance would
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 13 of 22 have been necessary to secure their participation. As to Factor (2), although
there was no specific need for urgency, the children ranged from four to nine
years old and needed permanency following DCS’s involvement for over three
years. Contra K.W., 12 N.E.3d at 245 (finding a decreased need for a speedy
decision on the termination petition because the child was “less than two years
old and already placed outside the home”). Regarding Factor (3), the CHINS
proceedings were filed more than three years before the termination fact-finding
hearing, and the termination petitions were filed over three months prior to the
fact-finding hearing. See id. (noting “the more relevant timeframe” is the
pendency of the termination proceedings). The fact-finding hearing had already
been continued once due to Father’s failure to obtain counsel.
[27] Considering a child’s best interests under Factor (4), the Supreme Court has
simultaneously recognized that while a parent’s physical appearance at the
hearing “might provide a more accurate outcome, . . . ‘children have an interest
in terminating parental rights that prevent adoption and inhibit establishing
secure, stable, long-term, continuous relationships.’” Id. (quoting C.G., 954
N.E.2d at 917). While the K.W. court found that “if the continuance risked an
unnecessary delay in K.W.’s adoption, [F]actor (4) would certainly weigh
against granting [the mother’s] motion[,]” it also determined that the delay was
“minimal” because K.W. was “already out of [the mother’s] care and in a pre[-
]adoptive home.” Id. The same is not exactly true here because although A.R.
and C.R. were in pre-adoptive homes at the time of the fact-finding hearing,
R.R. was not, and importantly, the trial court was given no reason for Parents’
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 14 of 22 absence and no timeframe for securing their participation. We also note that
Parents’ attorneys had each represented them for a significant portion of the
CHINS proceedings and were thus familiar with their clients and the evidence,
and they were equipped and given the opportunity to cross-examine DCS’s
witnesses and defend against termination.
[28] As to Factor (5), the potential availability of the parent’s testimony through
alternative means, we acknowledge that it would have been “best practice” for
Parents’ attorneys to attempt to secure their telephonic participation. Id. at 246.
However, given that the reason for Parents’ failure to appear is unknown rather
than due to incarceration, we cannot assume they would have been “readily
available” to participate remotely as was the case in K.W. Id. Nevertheless,
given Parents’ significant interest in testifying at the fact-finding hearing, we
find that Factor (5) and the related Factor (6) weigh in their favor because with
no attempt to obtain their remote participation, Parents had no final
opportunity to present their own testimony.
[29] Regarding Factor (7)—the effect of Parents’ participation on the likelihood of
their success on the merits—the record demonstrates there was significant
evidence against Parents supporting the trial court’s decision to terminate their
parental rights. Throughout the underlying CHINS case, Parents consistently
struggled to comply with DCS’s case plan, engaged in domestic violence, tested
positive for illegal substances, and continued to engage in criminality. While
we find it exceedingly difficult to believe that Parents’ testimony would have
altered the trial court’s judgment, we acknowledge that we are working with a
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 15 of 22 one-sided record because Parents were unable to provide “rebuttal evidence or
explain[] potentially valid reasons for non-compliance[.]” Appellants’ Br. at 19.
[30] Because Factors (8) and (9) are specific to motions to transport incarcerated
parents, they are inapplicable to our review. With Factor (10), we understand
that a continuance—even a short one—would have inconvenienced the trial
court, attorneys, and witnesses. See K.W., 12 N.E.3d at 247 (recognizing that
“a two-week continuance would be an inconvenience”). Though the Court
reasoned in K.W. that the inconvenience of the short continuance requested was
mitigated by the fact that several DCS witnesses already planned to testify
telephonically, id., the witnesses who testified in this case were, by all
indications, present at the courthouse and thus would have been
inconvenienced if they needed to return for a rescheduled hearing. We reiterate
that beside the fact that the termination hearing had already been continued
once to allow Father to secure counsel, it is unclear what length of time would
have been sufficient to secure Parents’ participation.
[31] After weighing the K.W. factors, we conclude that the trial court’s denial of
Parents’ motions to continue the fact-finding hearing was not clearly against the
logic and effect of the circumstances before the court. Unlike the mother’s
involuntary absence in K.W., Parents’ absences here were unexplained, their
attorneys did not articulate good cause for their day-of-hearing motions, and
our evaluation of the K.W. factors does not show it was an abuse of discretion
for the court to find as such and deny the motions.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 16 of 22 2. Notice [32] Next, Parents advocate for a change in Indiana law to require petitioners who
seek to terminate the parent-child relationship to use heightened methods of
service when sending statutory notice of the termination hearing to interested
parties under Indiana Code section 31-35-2-6.5. 4 They also challenge the trial
court’s finding that they were properly notified.
[33] At the outset, we note that Parents waived these arguments by failing to raise
them before the trial court. “[A]ppellate review presupposes that a litigant’s
arguments have been raised and considered in the trial court.” Plank v. Cmty.
Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). A party waives a claim of
error, “including a claimed violation of due process rights, by raising it for the
first time on appeal.” In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). Specific to
their statutory notice arguments, this Court has found that compliance with
Indiana Code section 31-35-2-6.5 is “‘mandatory to effect termination of
parental rights.’” In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (quoting
In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005)). However, statutory
notice is not an element of the petitioner’s claim, so “[f]ailure to comply with
statutory notice is thus ‘a defense that must be asserted.’” Id. (quoting T.W., 831
4 We note that after the termination petition was filed and the termination hearing was held in this case, our legislature amended Indiana Code section 31-35-2-6.5. However, the amendment made only a minor change to subsection (h) and the provisions of the statute pertinent here were unchanged.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 17 of 22 N.E.2d at 1246) (emphasis added). When properly placed at issue, the
petitioner has the burden of proving compliance with the statute. Id.
[34] At the beginning of the termination fact-finding hearing, DCS, as well as the
trial court, noted that Parents had been properly notified of the hearing yet
failed to appear. See Tr. Vol. 2 at 14. Despite this prompting, Parents’
attorneys did not argue their clients lacked statutory notice or advocate for the
heightened service requirements Parents now seek. For these reasons, Parents
did not give “the trial court a bona fide opportunity to pass upon the merits” of
these arguments and have therefore waived our consideration of them. Endres v.
Ind. State Police, 809 N.E.2d 320, 322 (Ind. 2004) (noting policy reasons behind
this requirement, including “preservation of judicial resources, opportunity for
full development of the record, utilization of trial court fact-finding expertise,
and assurance of a claim being tested by the adversary process”); see also In re
C.C., 170 N.E.3d 669, 676 (Ind. Ct .App. 2021) (finding mother waived
insufficient notice argument when she failed to appear at the termination fact-
finding hearing and her attorney “failed to argue lack of statutory notice in the
trial court”).
[35] Waiver notwithstanding, we are not persuaded by Parents’ arguments. Indiana
Code section 31-35-2-6.5 provides, in relevant part:
At least ten [] days before a hearing on a petition [to terminate the parent-child relationship,] . . . the person or entity who filed the petition . . . shall send notice of the review to . . . [t]he child’s parent[.]
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 18 of 22 I.C. § 31-35-2-6.5(b)(1), (c)(1).
[36] The statute “does not require compliance with Indiana Trial Rule 4, which
governs service of process and incorporates a jurisdictional component.” C.C.,
170 N.E.3d at 675. Instead, the petitioner need only comply with Indiana Trial
Rule 5(B), which governs the service of subsequent pleadings and papers and
requires “[s]ervice upon the attorney or party . . . by delivering or mailing a
copy of the papers to [the attorney or party] at his last known address.” Id. at
675-76 (quoting In re B.J., 879 N.E.2d 7, 15 (Ind. Ct. App. 2008), trans. denied).
If service is made by mail, Trial Rule 5(B)(2) requires proof of service by
“written acknowledgment of service, by affidavit of the person who mailed the
papers, or by certificate of service” and deems service “complete upon mailing.”
In C.C., we reiterated the policy behind adhering to these standards in
termination cases:
To require service of subsequent papers, such as hearing notices, to rise to the level of service of process 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 parent’s due process rights.”
170 N.E.3d at 676 (quoting B.J., 879 N.E.2d at 15).
[37] On appeal, Parents ask us to “heighten the requirements of Rule 5 for parental
termination cases to accommodate the importance of” these proceedings.
Appellants’ Br. at 22. They argue that we “should require actual delivery . . . or
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 19 of 22 require [DCS] to use certified mailers with return receipt requested.” Id. at 23.
They also contend that “more than a certificate of service should be required”
to prove compliance with the statutory notice requirement by clear and
convincing evidence. Id.
[38] In support of these arguments, Parents point to Santosky v. Kramer, 455 U.S. 745
(1982). But Santosky simply enshrined a principle that Indiana law has long
since observed—that DCS must prove its allegations by clear and convincing
evidence before the trial court may sever the parent-child relationship. Id. at
747-48; see also Ellis v. Knox Cnty. Dep’t of Pub. Welfare, 433 N.E.2d 847, 848
(Ind. Ct. App. 1982) (recognizing Santosky and finding unconstitutional the
preponderance of evidence burden of proof in termination of parental rights
cases set forth in a past Indiana statute); I.C. § 31-37-14-2 (“A finding in a
proceeding to terminate parental rights must be based upon clear and
convincing evidence.”).
[39] Parents’ reliance on Seastrom, Inc. v. Amick Const. Co., 306 N.E.2d 125 (Ind. Ct.
App. 1974) is similarly misplaced. That case dealt with the methods for filing
“papers”—there, a motion to correct error—with the court under a prior version
of Rule 5(F). Id. at 126-27. Ultimately, Parents’ arguments have not persuaded
us that a departure from established law is required regarding appropriate
methods of service and evidence of compliance under Indiana Code section 31-
35-2-6.5.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 20 of 22 [40] Finally, without challenging the timeliness or substance of the notice, or the
address to which it was sent, Parents challenge Finding 63 in the trial court’s
termination order. 5 Specifically, the court found:
Although properly notified of the date and time, Mother and Father failed to appear for the termination hearing, further demonstrating their unwillingness to work towards saving their parental rights.
Appellants’ Appendix Vol. 2 at 10.
[41] This challenge is premised on our acceptance of Parents’ earlier arguments that
evidence of actual delivery or service by certified mail with return receipt
requested is necessary to comply with Indiana Code section 31-35-2-6.5, and
that a standard certificate of service is not sufficient to prove compliance by
clear and convincing evidence. Because we have determined that those
arguments fail, we similarly reject Parents’ argument regarding Finding 63 and
conclude that this finding was not erroneous.
Conclusion [42] The trial court did not abuse its discretion in denying Parents’ motions to
continue the termination fact-finding hearing, and we decline Parents’
invitation to alter established Indiana law as it relates to methods of service and
5 While the trial court issued separate orders with respect to each child, those orders are nearly identical. However, this finding is Finding 64 in the trial court’s order terminating Parents’ parental rights to A.R.
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 21 of 22 evidence of compliance requirements for petitioners to effectuate their statutory
notice obligations under Indiana Code section 31-35-2-6.5.
[43] Affirmed.
Altice, C.J., and Pyle, J., concur.
ATTORNEYS FOR APPELLANTS Mickey K. Weber New Albany, Indiana
Andrew R. Rutz Lorch, Naville and Ward, LLC New Albany, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana
David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-JT-917 | October 23, 2025 Page 22 of 22