Term. of the Parent-Child Rel. of: S.S., J.S., and C.S. (Minor Children) and, T.S. (Mother) v. The Indiana Dept. of Child Services , 2013 Ind. App. LEXIS 309 ( 2013 )

Jun 27 2013, 9:10 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. TRAYLOR-WOLFF CHRISTINE M. REDELMAN
Public Defender DCS Central Administration
Logansport, Indiana
ROBERT J. HENKE
MARK LEEMAN DCS Central Administration
Public Defender Indianapolis, Indiana
Logansport, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
S.S.; J.S.; and C.S. (Minor Children) and, )
T.S. (Mother), )
)
Appellants-Respondents, )
)
vs. ) No. 09A02-1211-JT-936
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE CASS CIRCUIT COURT
The Honorable Leo T. Burns, Judge
Cause Nos. 09C01-1207-JT-15, 09C01-1207-JT-16, 09C01-1207-JT-20
June 27, 2013
OPINION—FOR PUBLICATION
BAKER, Judge
In this case, appellant-respondent T.S. (Mother) argues that she was denied due
process when the juvenile court terminated her parental rights to three of her children
after denying her motion for a continuance. More particularly, Mother contends that she
should have been permitted additional time to be present at the termination hearing
because she resides in Florida.
Child protective services from three different states have been involved with
Mother and her three children, C.S., S.S., and J.S. (collectively, “the Children”) at some
point over approximately the past three years; however, it was the appellee-petitioner
Indiana Department of Child Services (DCS) that filed a petition alleging the Children to
be Children in Need of Services (CHINS) and eventually filing a petition for the
termination of the parent-child relationship between Mother and the Children.
After the Children had been removed from Mother’s care, but before the
termination hearing, Mother moved to Florida where she was expecting her fourth child.
The DCS and Mother’s attorney communicated with Mother, and she was aware of the
date of the termination hearing. Nevertheless, on that day, Mother’s attorney filed a
motion for a continuance based on Mother’s absence. The juvenile court denied the
motion.
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Although Mother’s interest in the care and custody of her children is significant,
the State’s interest in protecting these children is also very significant in light of Mother’s
inability to protect herself from domestic abuse and to properly attend to the Children’s
medical and mental needs. When this is balanced against the low risk of error because
Mother was represented by counsel, voluntarily left Indiana, and was aware of the
termination hearing, we conclude that she was not denied due process when the juvenile
court denied her motion to continue. Accordingly, we affirm.
FACTS
Mother began dating S.S. (Father), when she was fifteen years old and became
pregnant with their first child when she was seventeen. The couple had three children
who are the subject of these proceedings: C.S. was born on February 7, 2007; S.S. was
born on November 26, 2009; and, J.S. was born on October 22, 2010.
In 2010, Florida Child Protective Services (CPS) intervened after Father
physically assaulted Mother while she was pregnant with J.S. Father was arrested for
aggravated battery on Mother and was sentenced to thirteen months imprisonment. A No
Contact Order was issued, but Mother brought J.S. to visit Father twice after his birth.
Upon Father’s release in 2011, he was deported to Mexico and is not a party to these
proceedings.
At some point in 2011, the family moved to Kentucky. Apparently, Mother and
the Children experienced difficulties while residing there because Kentucky CPS
intervened. Specifically, an investigation had been ongoing since May 2011. The family
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had been evicted, was homeless, and Mother was “low functioning.” Appellee’s App. p.
63.
On July 8, 2011, Kentucky CPS requested that the DCS conduct a courtesy
interview because Mother was residing in Cass County. On July 15 and 18, 2011, the
DCS received a report that J.S. had been diagnosed with failure to thrive, was scheduled
to have a G-tube installed, and there were concerns regarding Mother’s ability to care for
J.S.
During the DCS interview, Mother and R.H. (Boyfriend), who was also Mother’s
first cousin, exhibited problems. Additionally, C.S. became aggressive and would bite
S.S. on the face, causing significant bruising. S.S. also had untreated ringworm. The
assessment further revealed that:
 Mother believed that C.S. had only a few days left of her seizure
medication; however, Mother had been overmedicating C.S., and there was
no prescription for a refill when the medication ran out.
 C.S. was nonverbal, and Mother failed to follow up on concerns that the
child had autism.
 C.S. received stitches after hitting her head on a table at the hospital.
 Mother left C.S. restrained in a stroller for long periods of time because she
was active and would get into things.
 Mother arrived at the hospital with C.S. and S.S. but did not bring any
clothing for them.
 Mother refused to discipline the children because as a child, Mother had
been removed from her mother’s care because of physical abuse.
 Boyfriend did not feel that the children were safe with Mother.
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 Mother left eight-month-old J.S. alone at Riley Children’s Hospital (Riley)
for several days before she arrived.
 Mother was unable to pass G-tube training, unable to feed J.S., and J.S.
failed to gain weight under her care.
 Mother was not sure where she would live in the near future and was not
even certain she would stay in Indiana, which was a concern for Riley
because medical personnel had to mail J.S.’s medication.
 Mother was pregnant with Boyfriend’s child and was not receiving prenatal
care.
Appellee’s App. p. 63-64.
The DCS removed the children, and on July 21, 2011, the DCS requested and
received permission to file a petition alleging that C.S., S.S., and J.S. were CHINS. On
October 19, 2011, a fact-finding hearing was held on the CHINS petition, and the
juvenile court determined that the Children were CHINS after Mother admitted that her
housing was unstable, J.S. was diagnosed with failure to thrive, C.S. was diagnosed with
autism, Mother needed assistance obtaining medical care for the Children, and
intervention was necessary for the Children to receive the needed services. Appellee’s
App. p. 41-43.
On December 1, 2011, the juvenile court entered its dispositional order ordering
Mother, among other things, to:
 Contact the DCS weekly;
 Notify the DCS of any change in address, household composition,
telephone number, employment, arrest, or criminal charges;
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 Enroll and participate in any recommended services without delay or
missed appointments;
 Maintain safe, stable housing;
 Secure and maintain legal income;
 Assist in the formulation of a protection plan;
 See that the children are properly clothed, fed, and supervised;
 Participate in home-based services to address issues of housing, budgeting,
parenting, and sobriety;
 Complete a parenting assessment and follow all recommendations;
 Meet all medical, mental health, and dental needs of the children, including
attending all appointments, following directions, and giving medications;
 Refrain from domestic violence and report it if it occurs;
 Comply with the terms of the no-contact order or protective order;
 Attend all visits, meet the children’s needs during that time, and implement
parenting techniques learned in home-based services.
Appellee’s App. p. 76-78.
Instead of following the orders in the dispositional decree, Mother left Indiana in
December 2011. She claimed that she was going to Alabama to visit family and would
return. Christina Scherer, a home-based service provider, remained in contact with
Mother through February 2012 and attempted to determine when Mother would return.
However, Mother changed her phone number and refused to provide her address to
Scherer or the DCS.
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Although Mother informed Scherer that she would attend the May 16, 2012
permanency hearing, she failed to appear. Furthermore, Mother did not inform the DCS
that she was traveling to Florida. The DCS discovered that Mother was in Florida when
Florida CPS contacted the DCS about Mother.
On July 5, 2012, the DCS filed a petition to involuntarily terminate the parent-
child relationship between Mother and the Children. On July 31, 2012, the DCS mailed a
copy of the summons to Mother’s Florida address to notify her of the termination
hearing. On August 23, 2012, the summons was returned showing that Mother was
personally served on August 8, 2012.
Mother failed to appear at the August 29, 2012 initial hearing. Mother also failed
to appear at the September 26, 2012 evidentiary hearing but was represented by counsel.
At the beginning of the hearing, Mother’s counsel requested a continuance “until a time
when my client can be here” because she lives in Florida. Tr. p. 6.
The DCS responded that Mother had contacted the DCS the week before and had
discussed the court date with the case manager. The DCS further pointed out that Mother
had signed the summons, proving that she had adequate notice of the hearing. As for
practical considerations, the DCS highlighted the fact that Mother had been living in
Florida since the previous December and had not visited the Children in ten months.
Finally, the DCS stressed that continuing the case would only “further delay permanency
for the children.” Tr. p. 7. The juvenile court denied Mother’s motion to continue.
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The evidentiary hearing proceeded on the termination petition. Laura Knutson, a
family case manager with the DCS who was assigned to Mother’s case until a few
months before the termination hearing, testified that she had called Mother because she
was concerned after Mother missed a visit. Mother informed Knutson that Boyfriend had
assaulted her and that she was staying at a neighbor’s house. Mother’s injuries included a
sore lip, a black eye, and one-half of her face was very swollen. Perhaps the most
distressing aspect of the situation was that Mother was pregnant with Boyfriend’s child at
the time.
Knutson contacted law enforcement, and a service provider transported Mother to
a domestic violence shelter. During intake, Mother disclosed that domestic violence had
occurred between her and Boyfriend “too many [times] to count.” Tr. p. 85.
Although Mother was encouraged to stay at the domestic violence shelter longer,
she only stayed there for forty-five days because “she was only ordered to stay there
forty-five days by the judge.” Id. at 69-70, 84. Mother filed a police report but declined
a protective order. Charges were filed against Boyfriend, and a no contact order was
issued. Boyfriend was arrested at his father’s house where he was living with Mother.
Because of this incident, Mother qualified for her own housing, but Mother missed
her initial appointment. Additionally, Mother left the shelter to move back in with
Boyfriend and his father, who was also her uncle, and she became “very secretive.” Id. at
92. Mother continued to live with Boyfriend and his father despite the charges against
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him, which were later dropped because she would not cooperate with the prosecutor’s
office.
In light of the fact that Mother declined a protective order, lost her housing
eligibility because she left the shelter and moved back in with Boyfriend, and dropped the
charges against Boyfriend, Scherer did not think that Mother could keep the Children safe
because “[Mother] has a difficult time keeping herself safe.” Tr. p. 71.
The Children suffered from medical conditions that required treatment and
preventative measures. The Children have very bad teeth that require caps.
Nevertheless, Mother brought candy and sugary drinks to visits to bribe the children into
behaving.
Similarly, despite repeated instruction from medical personnel at Riley that
Mother had to feed J.S. slowly through his G-tube to prevent aspiration, Mother would
speed up his feeding. Mother failed parent care instructions and could not feed J.S.
without assistance.
At first, Mother showed some motivation to work with home-based services about
looking for employment and housing, independent living, good decision making, and role
modeling. However, after a few months, Mother was not willing to participate in any
services that did not benefit her personally, such as getting an identification card. Mother
was denied SSI and did not have any income or transportation.
Mother did not progress beyond fully supervised visits because she did not
understand safety for the Children and failed to make sufficient progress. More
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specifically, Mother left the Children unattended during visits and was not able to focus
on more than one child at a time. J.S. could not sit up by himself and during one visit,
Mother left him sitting alone on the couch while she took C.S. to the bathroom. Mother
did not redirect C.S.’s aggressive behavior and was often resistant to parenting prompts
from the visit supervisor.
In short, Mother did not make “lasting changes or acknowledge[] the need for
improved parenting” by the time of the termination hearing. Tr. p. 102, 106. The DCS
never considered placing the Children back with Mother because “[s]he did not have the
ability to process the information she was provided and in turn use it effectively when she
was with the children. . . . They were not safe.” Id. at 92-93.
Since the children’s removal, C.S. was diagnosed with Rett’s syndrome and is
taking medication. Autism is the main symptom of Rett’s syndrome. According to the
Children’s foster mother, C.S. is “like a completely different child.” Id. at 53.
S.S. continues to have some speech and communication delays and is learning
how to play. She has a developmental therapist and will have a psychological evaluation,
but is otherwise doing well. Tr. p. 54.
J.S. suffers from ear infections and can only receive nutrition through his G-tube.
But, he now weighs twenty-four pounds and is “pretty healthy.” Id. at 55. Unfortunately,
doctors believe that J.S. will always aspirate his food because his body does not respond
normally when he aspirates to allow him to cough up food. The medical professionals in
the neurology department at Riley believe that J.S. has cerebral palsy but have yet to
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formally diagnose him. The medical personnel also believe that the type of cerebral
palsy that J.S. has is likely caused by “trauma that was experienced in the first half of in
utero pregnancy.” Id. at 60.
Both the foster mother and the Court Appointed Special Advocate (CASA),
Jessica Risher, testified that although Mother loved her children, she could not
appropriately care for them and keep them safe. Risher recommended the termination of
Mother’s parental rights.
Similarly, accordingly to Jeff Stanton, the guardian ad litem (GAL), Mother “does
not have the ability to provide the care necessary.” Tr. p. 15. Mother “has a very, very
low functioning capacity.” Id. at 16. Stanton opined that this is “probably one of the
most extreme cases that [he has] ever reviewed where a parent has been absent from the
children.” Id. Stanton further testified that he “would be hard-pressed to imagine that
there’s a bond between the children and their mother based on this absence.” Id. at 17.
Based on this fact and the Children’s inability to thrive, Stanton also recommended
termination of Mother’s parental rights.
Knutson believed that termination was in the Children’s best interests because
they need permanency and stability that Mother cannot provide. Additionally, Mother
cannot remedy the situation because of her learning disabilities and her presence in their
lives poses a physical threat to their wellbeing. The plan for the Children was adoption.
On October 22, 2012, the juvenile court issued its order terminating the parent-
child relationship between Mother and the Children. Mother now appeals.
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DISCUSSION AND DECISION
Mother’s sole argument on appeal is that she was denied procedural due process
when the juvenile court terminated her parental rights after denying her motion for a
continuance. We review a juvenile court’s ruling on a motion for continuance in a
termination of parental rights proceeding for an abuse of discretion. In re E.D., 902
N.E.2d 316, 321 (Ind. Ct. App. 2009). It is axiomatic that an abuse of discretion occurs if
a parent is denied due process in termination proceedings. Indeed, we have said:
The Due Process Clause of the United States Constitution prohibits state
action that deprives a person of life, liberty, or property without a fair
proceeding. When the State seeks to terminate the parent-child
relationship, it must do so in a manner that meets the requirements of due
process. The nature of 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.
In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003) (internal citations omitted).
In this case, the private interests of Mother are substantial. To be sure, we have
repeatedly recognized that parents’ interest in the care, custody, and control of their
children is one of the most valued relationships in our society. In re B.J., 879 N.E.2d 7,
16 (Ind. Ct. App. 2008); In re C.C., 788 N.E.2d at 852. Specifically, “the right to raise
one’s child is an ‘essential, basic right that is more precious than property rights.’” In re
B.J., 879 N.E.2d at 16 (quoting In re C.C., 788 N.E.2d at 852)).
The second factor requires us to assess the risk of error created by the challenged
procedure. Here, the challenged procedure is Mother’s absence from the termination
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evidentiary hearing. At the outset, we observe that although Indiana Code section 31-35-
2-6.5(e) states that a court must provide a party the opportunity to be heard, it does not
confer a constitutional right to be present at the hearing. In re B.J., 879 N.E.2d at 16.
In this case, Mother was represented by counsel throughout the termination
hearing. Indeed, her counsel requested the continuance that is the subject of this appeal,
questioned witnesses, and gave a closing argument. Tr. p. 5, 101-102.
Moreover, Mother has failed to show prejudice. Specifically, Mother’s counsel
stated that Mother had her telephone number and knew how to contact her. Id. at 6-7.
Additionally, Mother was aware of the date of the termination hearing because she signed
the summons and spoke with Tamela Samuels, the current case manager, about the
hearing. Id. at 99-100. Under these facts and circumstances, the risk of error created by
the juvenile court denying Mother’s motion for a continuance is minimal.
The third factor, the countervailing government interest, considers the State’s
significant parens patriae interest in protecting the welfare of children by intervening
when parental neglect, abuse, or abandonment are at issue. In re E.D., 902 N.E.2d at 321.
In assessing this factor, we have recognized that delays in adjudication impose significant
costs on the children involved. In re B.J., 879 N.E.2d at 17.
Here, Mother has experienced significant exposure to domestic violence.
Specifically, Florida CPS became involved after Mother was physically assaulted by
Father while she was pregnant with J.S. Appellee’s App. p. 64. And medical
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professionals at Riley believe that J.S. has cerebral palsy that is likely from “trauma that
was experienced in the first half of in utero pregnancy.” Tr. p. 60.
Similarly, while Mother was pregnant with Boyfriend’s child, Boyfriend assaulted
her. Id. at 81-82. Mother had a sore lip, a black eye, and one-half of her face was
swollen. Id. at 82. Mother was transported to a domestic violence shelter, but stayed for
only the minimum time ordered by the judge. Id. at 69-70. Mother moved back in with
Boyfriend and his father even though she was encouraged by her family case worker and
family consultant to stay in the shelter. Id. at 84. In short, Mother has difficulty
“keeping herself safe.” Id. at 71.
Mother also has problems meeting the Children’s medical needs. Although the
Children have very bad teeth, Mother would bring sugary snacks and drinks to visits to
bribe them into behaving. Tr. p. 64-65. Mother overmedicated C.S. with her seizure
medication, and Mother disobeyed repeated instructions to feed J.S. slowly through his
G-tube. Id. at 68-69.
Moreover, after removing the Children, the DCS never considered placing them
back with Mother because she lacked the ability to process information and use it
effectively when parenting the children. Tr. p. 92-93. Likewise, Mother failed to make
any lasting changes; instead, she left the state shortly after the dispositional order was
entered. Appellee’s App. p. 76-78; Tr. p. 72.
Perhaps most compelling, since the Children’s removal, C.S. has been properly
diagnosed and medicated and is “like a completely different child.” Tr. p. 53. S.S. has
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some developmental delays, but is working with a therapist and doing well. Id. at 54.
And J.S. now weighs twenty-four pounds and is “pretty healthy.” Id. at 55. Further,
Mother voluntarily left her children and did not see them for ten months. Indeed, the
GAL testified that he “would be floored if there was . . . any bond whatsoever based upon
the absence of the parent.” Id. at 18. To be sure, the State’s interest in protecting these
children from harm is great.
Upon balancing the Mother’s interest, the risk of error by not having Mother
present, and the State’s interest in protecting the welfare of these children, we conclude
that under the facts and circumstances of this case, the juvenile court did not deny Mother
due process of law when it denied her motion for a continuance.
The judgment of the juvenile court is affirmed.
MAY, J., and MATHIAS, J., concur.
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