Z.G. v. Marion County Department of Child Services

933 N.E.2d 494, 2010 Ind. App. LEXIS 1585
CourtIndiana Court of Appeals
DecidedAugust 26, 2010
DocketNo. 49A04-1002-JT-75
StatusPublished
Cited by7 cases

This text of 933 N.E.2d 494 (Z.G. v. Marion County Department of Child Services) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Z.G. v. Marion County Department of Child Services, 933 N.E.2d 494, 2010 Ind. App. LEXIS 1585 (Ind. Ct. App. 2010).

Opinion

[499]*499OPINION

VAIDIK, Judge.

Case Summary

Z.G. ("Mother") appeals the involuntary termination of her parental rights to her child, C.G. She argues that the Indiana Department of Child Services, Marion County ("DCS"), and the trial court deprived her of due process, the trial court abused its discretion by excluding certain evidence, and the evidence is insufficient to support the trial court's judgment. Concluding that Mother's due process rights were not violated, that the trial court did not commit reversible error in the exclusion of evidence, and that DCS presented clear and convincing evidence to support the trial court's judgment, we affirm.

Facts and Procedural History

Mother is the biological mother of C.G., born in December 2000.1 In January 2008 Mother went to Utah and left C.G. in Indianapolis in the care of Faustino Ley-vas, Mother's boyfriend. During her visit to Utah, Mother was arrested. The United States subsequently filed an indictment against Mother in the United States District Court for the Southern District of Indiana alleging that Mother had committed conspiracy to possess five kilograms or more of cocaine with intent to distribute.

After her arrest, Mother was incarcerated in Utah until she was transferred back to Indiana in April 2008. While she was incarcerated in Utah, Mother contacted Leyvas and asked him to take C.G. to Chauna Ordower, a neighbor who lives in Indianapolis. Ordower is not related to C.G. by blood or marriage. C.G. lived with Ordower from January 2008 until mid-April 2008. Mother could not contact C.G. or Ordower during that time because Mother did not know Ordower's mailing address.

Leyvas picked up C.G. from Ordower's home immediately following Easter and took C.G. with him on a trip. Leyvas and C.G. were gone for five to seven days. When they returned on April 16, 2008, Leyvas left C.G. with one of Ordower's neighbors. Ordower retrieved her from the neighbor's home within a few hours of C.G.'s return. C.G. told Ordower that she did not feel good and that "her privates" hurt. Tr. p. 359. Ordower took C.G. to the hospital that same day, where doctors determined that C.G. had herpes and had been sexually abused.

Hospital staff contacted DCS about C.G. DCS sent Case Manager Stacey Madden to the hospital to investigate. After C.G. was released from the hospital, DCS placed her in foster care. C.G. has remained in foster care with the same family since then.

Case Manager Madden learned from Or-dower that Mother had been arrested in Utah. Case Manager Madden attempted to find Mother by contacting two county jails in Utah and by checking with the Marion County Jail, the Indiana Department of Correction, DCS databases, and the local telephone directory, but she was unsue-cessful. Unknown to DCS, on April 11, 2008, Mother was transferred from Utah to the custody of the United States Marshal's Office for the Southern District of Indiana ("the Marshal"). The Marshal incarcerated Mother at the Henderson County Jail in Kentucky pending trial.

On April 18, 2008, DCS filed a petition alleging that C.G. was a child in need of services ("CHINS"). A court in the Marion Superior Court, Juvenile Division ("the [500]*500CHINS court"), held an initial hearing. The CHINS court appointed a guardian ad litem (CGAL®) for C.G. and ordered that C.G. would remain in the eustody of DCS. The CHINS court noted that the plan for permanency was to reunify C.G. with her parent(s).

On April 30, 2008, DCS filed with the trial court a Praecipe for Service by Publication, seeking leave to give Mother notice by publication of the CHINS case. DCS attached to the Praecipe an Affidavit of Diligent Inquiry that was signed by Case Manager Madden and explained the steps she had taken to locate Mother.

Shortly thereafter, Case Manager Madden left DCS, and C.G.'s case was reassigned to Case Manager Michael Davis. Case Manager Davis tried to locate Mother by checking the same sources that Case Manager Madden had consulted, but he was unsuccessful.

In May and June 2008, DCS again filed Praecipes for Service by Publication with the CHINS court. DCS attached to each Praecipe an Affidavit of Diligent Inquiry, signed by Case Manager Davis, in which he explained the steps he had taken to locate Mother. The CHINS court scheduled a default dispositional hearing and directed DCS to publish notice of the hearing.

On August 6, 2008, the CHINS eourt held a default dispositional hearing. DCS was present, but Mother had not yet been found, and no GAL attended the hearing. The CHINS court heard testimony. Subsequently, the CHINS court issued a dis-positional order formally removing C.G. from Mother's care and making C.G. a ward of DCS. In the dispositional order, the CHINS court further stated that no services would be offered to Mother "until she appears before the Court." Ex. Vol. II, p. 169. At that time, the permanency plan for C.G. remained reunification with her parent(s).

Meanwhile, Mother, who had remained in jail in Kentucky since April 2008, made inquiries among friends and discovered in September 2008 that DCS had custody of C.G. In October 2008 Mother sent a letter to DCS. Case Manager Davis received the letter in November 2008. He sent a letter back to Mother in December 2008. Mother sent DCS two more letters, one in December 2008, and another in February 2009. After receiving Mother's letters, DCS sent Mother an advisement of rights and a copy of the CHINS petition.

On March 16, 2009, Case Manager Davis met with his supervisors, and they agreed to seek the CHINS court's permission to change the permanency plan for C.G. from reunification with Mother to adoption by the foster parents. On March 25, 2009, the CHINS court held a hearing and authorized DCS to change C.G.'s permanency plan. On that same day, DCS filed a petition to terminate the parent-child relationship of Mother and C.G., beginning this case.

On April 7, 2009, DCS filed with the CHINS court a Notice indicating that Mother requested a public defender. The CHINS court appointed counsel for Mother, who subsequently filed an appearance in the CHINS proceedings.

Meanwhile, in the current termination case, Mother also obtained counsel. The trial court scheduled a final hearing on termination. Mother filed a request for a continuance of that hearing. On August 24, 2009, the trial court granted the continuance and rescheduled the final termination hearing for November 5, 2009.

On November 4, 2009, Mother requested another continuance of the final termination hearing. The trial court granted Mother's motion and rescheduled the hear[501]*501ing for November 19, 2009, but determined that there would be no further continuances. Next, Mother filed motions to be transported to the hearing, to participate by teleconferencing, to participate tele-phonically, and for a sixty-day continuance. The trial court granted Mother's request to participate in the hearing by telephone and denied all other requests.

On the day before the November 19, 2009, hearing, Mother filed a motion to bifurcate the fact-finding hearing to allow Mother's witnesses to testify thirty days later. During the hearing, Mother renewed her request for a continuance, which the trial court denied. However, the trial court granted Mother's motion to bifurcate and scheduled the second day of the hearing for January 4, 2010.

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933 N.E.2d 494, 2010 Ind. App. LEXIS 1585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zg-v-marion-county-department-of-child-services-indctapp-2010.