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.) ( 2019 )

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
proceedings.
[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