In the Matter of the Termination of Parent Rights of: B.J. (Minor Child), and T.J. (Mother) v. The Indiana Department of Child Services

FILED
Oct 17 2018, 10:19 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Curtis T. Hill, Jr.
Anderson, 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 October 17, 2018
of Parent Rights of: Court of Appeals Case No.
B.J. (Minor Child), 18A-JT-1266
and Appeal from the Madison Circuit
Court
T.J. (Mother),
The Honorable G. George Pancol,
Appellant-Respondent, Judge
v. Trial Court Cause No.
48C02-1702-JT-18
The Indiana Department of
Child Services,
Appellee-Petitioner
Baker, Judge.
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 1 of 8
[1] T.J. (Mother) appeals the trial court’s order terminating her parent-child
relationship with B.J. (Child). Mother argues that the trial court erred by
denying her motion to continue the termination hearing based on DCS’s failure
to provide her with statutorily required notice of the hearing. We find that
DCS failed to comply with the statute but that the trial court acted within its
discretion in denying the motion to continue. Therefore, we affirm.
Facts
[2] In December 2014, Child was found to be a Child In Need of Services (CHINS)
after Child’s sibling, G.K., sustained “extensive contusions and bleeding in the
brain” that were allegedly caused by Mother. Tr. DCS Ex. 2 p. 2. Mother
eventually pleaded guilty to criminal charges stemming from G.K.’s injuries
and was sentenced to the Department of Correction (DOC). 1
[3] On February 20, 2017, DCS filed a petition to terminate the parent-child
relationship between Child and Mother. The trial court set a factfinding date of
June 6, 2017. DCS filed a motion to continue, which the trial court granted,
resetting the hearing for November 7, 2017. On October 30, 2017, Mother’s
attorney filed a motion to continue the factfinding hearing because Mother was
scheduled to be released from the DOC on November 1, 2017, and wished to
have more time to improve her parent-child relationship before the factfinding.
On October 31, 2017, the trial court granted the motion and continued the
1
G.K. is not a party to this case.
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 2 of 8
hearing to January 30, 2018. On November 1, 2017, the trial court sent notice
of the new hearing date to Mother’s last known address, which was the DOC
facility where she had been incarcerated.
[4] After being released from the DOC on November 1, 2017, Mother failed to
maintain consistent contact with DCS. She had some brief contacts with her
Family Case Manager (FCM) shortly after she was released, but at the time of
the termination hearing, the last contact of any sort was a text message to the
FCM on December 5, 2017. She did not provide DCS with her new address
and the FCM was under the impression that she was aware of the progress of
the case and of the hearing scheduled for January 30, 2018.
[5] On January 29, 2018, Mother’s attorney filed a motion to continue the
factfinding hearing, arguing that DCS had not provided sufficient notice to
Mother of the hearing. On January 30, 2018, Mother failed to appear at the
hearing. The trial court heard argument on the motion to continue, denied it,
and proceeded with the factfinding hearing. On April 26, 2018, the trial court
entered an order granting the termination petition. In relevant part, it found as
follows:
On 10/30/17, Mother, by her appointed counsel, filed a motion
to continue the termination proceedings, asserting that Mother’s
incarceration was ended and that she deserved further
opportunity to preserve her parent-child relationship with the
Child. The Court granted this Motion made by Mother on
10/31/17 and reset the matter for trial on 1/30/18, with notice
provided to all parties of the new hearing date obtained at
Mother’s request. During the termination hearing, the Court’s
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 3 of 8
staff verified that the Court’s own file noted that notice of the
new trial date of 1/30/2018 had been sent to Mother at her
Department of Corrections facility address after the Court had
granted her own motion to continue the previous trial setting.
Appealed Order p. 4. Mother now appeals.
Discussion and Decision
[6] Mother’s sole argument on appeal is that DCS failed to give her statutorily
required notice of the factfinding hearing and that as a result, her due process
rights were violated when the trial court denied her motion to continue.
[7] The decision to grant or deny a motion to continue is within the trial court’s
sound discretion, and we will reverse only where the trial court reaches a
conclusion that is clearly against the logic and effect of the facts or the
reasonable and probable deductions that may be drawn therefrom. J.P. v. G.M.,
14 N.E.3d 786, 789 (Ind. Ct. App. 2014). To the extent that this appeal
requires us to interpret a statute, we note that we apply a de novo standard of
review to matters of statutory interpretation. In re Bi.B., 69 N.E.3d 464, 466
(Ind. 2017).
[8] Indiana Code section 31-35-2-6.5 provides, in relevant part, as follows:
(a) This section applies to hearings under [the termination of
parental rights] chapter relating to a child in need of
services.
(b) At least ten (10) days before a hearing on a petition or
motion under this chapter:
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 4 of 8
(1) the person or entity who filed the petition to
terminate the parent-child relationship under section
4 of [the termination of parental rights] chapter; . . .
shall send notice of the review to the persons listed in
subsections (c) and (d).
(c) Except as provided in subsection (h), the following persons
shall receive notice of a hearing on a petition or motion
filed under this chapter:
(1) The child’s parent, guardian, or custodian.
***
(e) The court shall provide to a person described in subsection
(c) or (d) an opportunity to be heard and make
recommendations to the court at the hearing. . . .
[9] There is no evidence in the record that DCS provided notice of the January
2018 factfinding hearing to Mother. We must determine first, whether such
notice was required; and second, whether, if required, the lack of notice entitles
Mother to relief.
[10] First, the plain language of the statute clearly requires that DCS provide notice
of a termination hearing to a child’s parent at least ten days before the hearing.
See In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (holding that while
formal service of process is not required, DCS is required to send notice of a
termination hearing to the parent’s last known address at least ten days before
the hearing). Here, that did not occur. We strongly encourage DCS to comply
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 5 of 8
with the notice requirements of Indiana Code section 31-35-2-6.5 in the future,
especially given its recent struggles with due process compliance.2 See A.A. v.
Ind. Dep’t of Child Servs., 100 N.E.3d 708, 708-09 (Ind. Ct. App. July 9, 2018)
(order condemning the “repeated, significant violations of due process
occurring in termination of parental rights cases throughout this state” and
formally admonishing “DCS for its failure to afford litigants throughout this
state the due process rights they are owed”).
[11] That said, we must still determine whether the lack of such notice in this case
entitles Mother to relief. Initially, we note that 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.
2
DCS argues that the statute “does not say that the 10-day notice cannot be provided [to] the parent by the
court, in lieu of DCS.” Appellee’s Br. p. 27. We are not persuaded by this analysis, as the statute quite
plainly and clearly requires that the party that filed the termination petition—which will nearly always be
DCS—is required to provide this notice. The statute contains no provision permitting another person or
entity to provide the notice in DCS’s stead.
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 6 of 8
[12] In this case, the termination hearing was continued, at Mother’s own request, from
November 7, 2017, to January 30, 2018. The trial court sent Mother notice of
the new hearing date at her last known address, which was the DOC facility
where she had been incarcerated. She apparently did not receive the notice
because she was released from the DOC on or about November 1, 2017, which
is the same date on which the trial court sent her the order. But after leaving
the DOC, Mother failed to maintain consistent, substantive communication
with DCS, and she did not provide DCS, her attorney, or the trial court with a
current address. Therefore, even if DCS had attempted to provide the required
notice, it, too, would have had to send it to her last-known address—which was
the DOC facility. In other words, Mother was not prejudiced as a result of
DCS’s failure to provide her with the required notice—she would have been no
better off had DCS done so.
[13] Under these circumstances, we find that the trial court did not err by denying
Mother’s motion to continue the termination hearing. We likewise find that the
procedural irregularity did not violate Mother’s due process rights under the
specific facts of this case because the original hearing date was continued at her
own request and she failed to provide current contact information after being
released from the DOC. See In re T.W., 831 N.E.2d 1242, 1247 (Ind. Ct. App.
2005) (holding that a procedural irregularity is not automatically a violation of
a parent’s due process rights).
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 7 of 8
[14] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018 Page 8 of 8