MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                             Jan 31 2020, 8:33 am

court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Andrew R. Bernlohr                                        Attorney General of Indiana
Marion County Public Defender Agency
                                                          Robert J. Henke
Appellate Division                                        Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          January 31, 2020
of the Parent-Child Relationship                          Court of Appeals Case No.
of J.C., Mother, and M.H. and                             18A-JT-3147
M.H., Jr., Minor Children,                                Appeal from the
J.C.,                                                     Marion Superior Court
                                                          The Honorable
Appellant-Respondent,
                                                          Marilyn A. Moores, Judge
        v.                                                The Honorable
                                                          Scott Stowers, Magistrate
                                                          Trial Court Cause Nos.
Indiana Department of Child
                                                          49D09-1807-JT-854
Services,                                                 49D09-1807-JT-855
Appellee-Petitioner.



Kirsch, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020              Page 1 of 23
[1]   J.C. (“Mother”) appeals the termination of her parental rights to her two minor

      children. On appeal, Mother raises the following restated issue: whether the

      default judgment to terminate Mother’s rights should be set aside because the

      Indiana Department of Child Services (“DCS”) did not provide Mother with

      notice ten days before the termination as required by statute.


[2]   We affirm.


                                   Facts and Procedural History
[3]   The facts most favorable to the judgment are as follows. Mother is the

      biological parent of M.H. and M.H., Jr. (“Children”), who were born on

      September 27, 2010 and January 19, 2013, respectively.1 On September 6,

      2016, DCS filed a verified petition alleging that each of the Children was a child

      in need of services (“CHINS”). Specifically, the CHINS petition alleged that

      Children were victims of abuse or neglect, based on, among other things,

      Mother’s failure to provide Children with an “appropriate living environment

      free from sexual abuse.” Appellant’s Ex. Vol. I at 15.2 Mother appeared for a

      September 7, 2016 hearing, and notwithstanding Mother’s denial of the CHINS




      1
        On December 18, 2018, Children’s father executed a consent for Children to be adopted. Appellant’s App.
      Vol. II at 91, 92. The CHINS court dismissed father from the termination action, and he is not part of the
      instant appeal. Id. at 93-96. Therefore, we focus on the facts pertaining to the termination of Mother’s
      parental rights.
      2
       The exhibit volume is sequentially paginated; therefore, we omit the exhibit numbers and cite only to the
      page numbers.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020                 Page 2 of 23
      allegations, the CHINS court found sufficient evidence to order Children

      removed from Mother’s care and custody.


[4]   Mother appeared at an October 18, 2016 hearing, and Children were

      adjudicated CHINS upon Mother’s admission. During that hearing, the

      CHINS court heard evidence that Mother completed a parenting assessment,

      Mother was engaged with Children during parenting time sessions, and her

      visitation facilitator had no concerns during visits. That same day, the CHINS

      court issued a dispositional order and a parent participation order, directing

      Mother to participate in reunification services, including home-based case

      management, home-based therapy, and a parenting assessment.


[5]   Mother attended a periodic review hearing on January 24, 2017,3 during which

      the DCS family case manager (“FCM”) reported that Mother was doing well in

      all of her services, had completed her parenting assessment, had an

      appointment for a clinical assessment, and was engaged in parenting time. The

      FCM recommended that Mother complete a domestic violence and

      psychological assessment. The guardian ad litem, Mary Goodwin (“GAL”),

      reported that Children were doing well in their placement. The GAL, however,

      was concerned that Children were hesitant about seeing Mother. The CHINS




      3
        To understand the proceedings that led to termination of Mother’s rights, we used Mother’s Quest number
      to search within the CMS system, located within the Indiana Court Information Technology Extranet
      (INcite).

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020              Page 3 of 23
      court ordered that Children remain in placement but kept reunification as the

      permanency plan.


[6]   Mother and Jackie Leigh Butler (“Butler”), Mother’s public defender, attended

      a May 16, 2017 periodic review hearing. The FCM and GAL reported that

      Children were engaged in therapy and doing well in their placement. Mother,

      too, was engaged in therapy. The FCM reported that even though there had

      been discussions with Mother about inconsistency with parenting time, Mother

      had missed parenting time sessions subsequent to those conversations. Mother

      tried to complete a clinical evaluation through her own provider but was

      unsuccessful; DCS had to make a referral. Mother was participating in

      domestic violence treatment through her home-based therapist, specifically,

      Mother was working on accepting that M.H. had been sexually abused. The

      CHINS court determined that Children should remain outside Mother’s care

      but kept reunification as the permanency plan. DCS increased Mother’s

      parenting time and allowed Children’s maternal grandmother to be present for

      some of those visits.


[7]   Mother and Butler were present at the August 29, 2017 permanency hearing, at

      which DCS asked that reunification remain the permanency plan. The FCM

      testified that Mother was engaged in services and had completed a clinical

      interview but said further treatment was recommended. Mother was re-referred

      to home-based case management. DCS was concerned that Mother was (1)

      inconsistent with parenting time and (2) still denying that M.H. had been

      sexually abused. The FCM reported that Children were doing well in

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 4 of 23
      placement yet noted that Children had some concerning behaviors that were

      being addressed in therapy. The visitation facilitator expressed concern that

      Mother had cancelled eighteen parenting time sessions. The plan remained

      reunification, and the CHINS court set a hearing for December 12, 2017, which

      was the projected reunification date.


[8]   Mother and Butler were also present at the December 12, 2017 permanency

      hearing, during which the FCM reported that Mother had completed domestic

      violence treatment. DCS requested that Mother participate in home-based

      therapy through a DCS provider because DCS had been unable to obtain

      records from Mother’s private therapist. DCS also requested that Mother

      complete treatment for non-offending parents of children who have been

      sexually abused. The GAL reported that Children were doing well in

      placement. The FCM and GAL agreed that the permanency plan should

      remain reunification. Mother said that her parenting time was going well and

      asked DCS to assist with a safety plan. Butler reported that Mother is engaged

      in therapy and shared Mother’s concern that Children have not been in therapy

      for more than three months. Butler asked that Children be placed with Mother.

      DCS objected to such placement. The CHINS court: (1) denied Mother’s

      request for placement; (2) kept reunification as the permanency plan; (3) denied

      Mother’s request for increased parenting time; and (4) limited maternal

      grandmother to attending just twenty-five percent of Mother’s parenting time

      sessions, to better assess Mother’s relationship with Children. DCS was

      ordered to hold a child and family team meeting before mid-January 2018.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 5 of 23
[9]   Mother and Butler appeared at the March 20, 2018 CHINS periodic review

      hearing. DCS requested continued wardship over Children and asked the court

      to set a permanency hearing. The GAL noted concerns about Children’s

      previous placement, concerns that she had communicated with DCS. Newly

      appointed DCS family case manager Karon Donaldson (“FCM Donaldson”)

      reported: (1) Children were predominantly doing well in placement; (2)

      Mother’s providers, including her home-based therapist, noted Mother’s contact

      had decreased and asked that Mother’s case be closed as unsuccessful; (3)

      Mother’s home-based case management was closed as unsuccessful but Mother

      had been re-referred; (4) DCS was investigating alternate placement in relative

      or kinship care; and (5) DCS had been unable to schedule a child and family

      team meeting due to Mother’s absence. A Unified Solutions therapist said she

      had worked with Mother for eight months but was planning to discharge her as

      unsuccessful. Butler asked that Children be placed with their godmother.4

      Following the hearing, the CHINS court concluded that the reasons for

      Children’s removal had not been remedied. The court (1) agreed that DCS

      could refer Mother to all appropriate services; and (2) ordered DCS to make

      necessary arrangements for Mother’s parenting. Children were moved to a new

      placement in May 2018.




      4
        Children were later placed with their godmother in pre-adoptive placement. In December 2018 Children’s
      father consented to the termination of his parental rights so that the godmother could adopt Children.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020             Page 6 of 23
[10]   Butler appeared without Mother at the June 19, 2018 permanency hearing.

       DCS reported that Mother had not engaged in services and had not visited the

       Children since March 2018. Appellant’s Ex. Vol. I at 37. In fact, Mother had

       specifically “refused to engage with DCS providers” and had “declined” to visit

       Children. Id. at 37, 38. The CHINS court found that Mother had “therapeutic

       goals to reach” before she would be “in a position to appropriately care for the

       [C]hildren and meet their physical and emotional needs.” Id. at 38. Mother,

       however, was not willing “to engage in the services to reach those therapeutic

       goals.” Id. The GAL reported that Children were doing well in current

       placement and asked that the plan change to adoption. Id. The CHINS court

       changed the permanency plan “from reunification to adoption.” Id. at 39.


[11]   FCM Donaldson sent Mother an email on June 20, 2018, saying:


               Let me know when you would like to come and pick up your
               court report and the court order, it is too many papers to scan.


               The plan did change to adoption and your parenting time has been
               suspended until you have participated in services for no less than
               30 days and the recommendation of all providers, GAL and
               DCS.


       Motion to Proceed in Forma Pauperis, Ex. 1 (emphasis added). On June 21, 2018,

       Mother replied on the same email chain, saying:


               Since you are unable to scan, send documents to me via mail.

               P.O. Box [“2”]
               Indianapolis, Indiana

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 7 of 23
               Have a Good Day


       Id. Post Office Box “2” was assigned to Mother through the Indiana Attorney

       General Office’s Address Confidentiality Program (“ACP”).5 Motion to Proceed

       in Forma Pauperis, Ex. 2. “The ACP is a free program that allows victims of

       domestic violence, sexual assault, or stalking who have protective orders to

       maintain a confidential address through the Attorney General’s Office.”

       https://www.in.gov/attorneygeneral/3093.htm (last visited Jan. 13, 2020).

       Mother had a protective order against Children’s father.


[12]   On July 16, 2018, DCS filed a verified petition for involuntary termination of

       parental rights (“TPR”) as to Mother. DCS alleged, in pertinent part, that (1)

       there is a reasonable probability that the conditions that resulted in Children’s

       removal or reason for placement outside the home would not be remedied or

       (2) there was a reasonable probability that continuation of the parent-child

       relationship poses a threat to the well-being of Children. The juvenile court

       prepared a TPR Summons and Notice of Hearing and Notice of Possible

       Default Judgment on July 18, 2018. That notice informed Mother:


               YOU ARE HEREBY NOTIFIED that a Petition for the
               Involuntary Termination of Parental Rights of the above name[d]




       5
         We do not use the actual box numbers. Mother was initially assigned P.O. Box “1,” which was the address
       contained in the juvenile court’s records. However, during the time period when the TPR proceedings were
       ongoing, the mail addressed to P.O. Box “1” was automatically forwarded to P.O Box “2.” Motion to Proceed
       in Forma Pauperis, Ex. 2.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020             Page 8 of 23
        children, a copy of which is attached hereto, has been filed in the
        above-named Court.


        YOU ARE HEREBY NOTIFIED AND COMMANDED TO
        APPEAR before the Judge of the Marion Superior Court, 2451
        N. Keystone Avenue, Indianapolis, IN 46218, 317-327-8392 for
        a(n) Initial Hearing on 7/27/2018 at 1:30 PM in JUVENILE
        COURT ROOM 02 4th Floor on the petition for termination of
        parental rights.


        YOU ARE FURTHER NOTIFIED that if the allegations of the
        petition are found to be true and/or you fail to appear at the
        hearings, the Court may terminate the parent-child relationship;
        and if the Court terminates the parent-child relationship, you will
        lose all parental rights, powers, privileges, immunities, duties,
        obligations including any rights to custody, control, visitation, or
        support of the child; and if the Court terminates your parent-child
        relationship, it will be permanently terminated, and thereafter
        you may not contest an adoption or other placement of said
        children, and


        YOU ARE ENTITLED TO REPRESENTATION BY AN
        ATTORNEY, provided by the State if necessary, throughout
        these proceedings to terminate the parent-child relationship.


        If this SUMMONS is duly served upon you and you fail to
        appear for the INITIAL and/or FACT-FINDING HEARING,
        adjudication on said petition and termination of your parental
        rights may be entered against you without further notice.


Id. at 41 (emphasis in original). A process server went to Mother’s last known

address to serve notice on July 21, July 24, July 25, and July 27, 2018. Id. at

47, 59. Three of those times, she left a card, and twice she called the complex

Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 9 of 23
       office, trying to confirm Mother’s residency. Id. Unsuccessful, the process

       server executed an Affidavit of Non-Service on July 27, 2018. The CHINS

       court sent a copy of the notice to P.O. Box “1.” Id. at 38. Mail addressed to

       P.O. Box “1” was automatically forwarded to P.O. Box “2,” the address

       Mother, via email, told FCM Donaldson to use. Motion to Proceed in Forma

       Pauperis, Exs. 1, 2.


[13]   Mother did not appear at the July 27, 2018 TPR initial review hearing, and the

       juvenile court set the matter for a continued initial hearing on August 17, 2018.

       Appellant’s App. Vol. II at 52, 53. On or about July 30, 2018, FCM Donaldson

       filed an “Affidavit of Diligent Inquiry,” affirming that Mother had reported no

       change of address to the Management Gateway for Indiana Kids (“MaGIK”)

       database. Appellant’s Ex. Vol. I at 12. The affidavit notified the juvenile court

       that DCS’s efforts to notify Mother of the upcoming TPR hearings had been

       unsuccessful. Id. FCM Donaldson stated that, under her instruction, DCS had:

       (1) attempted to serve notice on Mother at her last known addresses; (2) sent

       Mother emails; (3) called Mother at various numbers; and (4) searched for

       Mother in the databases of MaGIK, Indiana Bureau of Motor Vehicles, Indiana

       Department of Correction and its offender database, Federal Bureau of Prisons

       and its offender database, and the White Pages. Appellant’s Ex. Vol. I at 12.

       FCM Donaldson also checked the county jail. Tr. Vol. I at 8.


[14]   When Mother did not appear at the August 17, 2018 continuation of the initial

       hearing, the juvenile court granted DCS’s request for a default date as to

       Mother and set that hearing for November 21, 2018. In its August 17, 2018

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 10 of 23
       order, under the heading “Advisement of Rights,” the juvenile court noted,

       “Mother not present, sets for Default.” Id. at 60. Under the title, “Next

       Hearing,” the juvenile court stated, “The Court now sets a(n) Continued Initial

       Hearing on 9/7/2018 at 1:30 PM in Court #2 and Default Hearing on

       11/21/2018 at 9:00 AM in Court #2. The parties, their assigned or appointed

       counsel, and the assigned DCS [FCM] are ordered to appear at the hearing

       without further notice.” Id. at 61. As evidenced by the notation “Copied:” at

       the bottom of the order, the juvenile court sent a copy of that order to Mother at

       P.O. Box “1,” which at that time automatically forwarded mail to Mother’s

       stated address of P.O. Box “2.” Id.


[15]   Unable to reach Mother by other means, DCS sought the court’s permission to

       publish notice, and on August 28, 2018, the juvenile court “enter[ed] an order

       authorizing Summons by Publication on [Mother].” Id. at 21. Notice was

       published in The Indianapolis Star three times, August 31, 2018, September 7,

       2018, and September 14, 2018. Appellant’s Ex. Vol. I at 8. The notice included

       the date, time, and location of the TPR hearing, as well as a phone number to

       call. Id. at 6.


[16]   Mother was not present at the November 21, 2018 default hearing where FCM

       Donaldson was the sole witness. She testified that Children were removed from

       Mother’s care in September 2016 under allegations that Children were CHINS

       because Mother “failed to provide [C]hildren a safe, stable, and appropriate

       living environment free from sexual abuse, and that [M.H.] had been touched

       in an inappropriate and sexual manner by . . . mother’s paramour, without

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 11 of 23
       necessary action from [Mother], and that [Mother] has a history of mental

       health issues.” Tr. Vol. II at 6. On October 18, 2016, Children were

       adjudicated CHINS based on Mother’s admission. Id. That same date, the

       CHINS court entered a dispositional order requiring Mother to participate in

       and follow recommendations of home-based therapy, home-based case

       management, a parenting assessment, and a clinical evaluation. Id.


[17]   FCM Donaldson, who had been with the case for about a year, stated that

       Mother initially participated, with some exceptions, in home-based case

       management and home-based therapy. Id. at 6-7. Mother also participated in

       supervised parenting time. Id. As time progressed, Mother stopped

       participating and her supervised visits became “very inconsistent.” Id. at 7.

       FCM Donaldson testified that, because Mother had made insufficient progress,

       she could not recommend an increase in supervised parenting time. Id.


[18]   FCM Donaldson confirmed that the permanency plan changed to adoption.

       DCS filed a TPR petition on July 16, 2018; by then Children had been removed

       from Mother’s care for more than six months. Id. FCM Donaldson testified

       that, if Mother’s parental rights were terminated, DCS’s plan for the care and

       treatment of Children was adoption. Id. at 8. FCM Donaldson testified that

       she had visited Children who were “doing very well” in pre-adoptive

       placement; they were doing very well at home and in school. Saying it was in

       Children’s best interest to have Mother’s parental rights terminated, FCM

       Donaldson testified that Children are bonded and “their daily medical, dental,

       and eye, and things like that are maintained, um, and they are happy.” Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 12 of 23
       DCS had no concerns about Children’s safety. FCM Donaldson informed the

       juvenile court about the various attempts it had made to inform Mother of the

       hearings to terminate her parental rights. No evidence was presented on

       Mother’s behalf.


[19]   On November 21, 2018, the juvenile court entered both a default judgment and

       a separate order granting DCS’s petition as follows:


               Upon evidence presented, the Court now finds by clear and
               convincing evidence:


               1. Efforts of diligent inquiry have been made to ascertain the
               whereabouts of [Mother], to no avail, and service by publication
               is the most reasonable form of service in this matter.


               2. Notice was published, pursuant to Indiana Trial Rule 4.13, on
               [Mother] three consecutive weeks and last being made on
               September 14, 2018, more than thirty (30) days before this trial
               date.


               3. [Mother] is the mother of [M.H.] and [M.H., Jr.], both minor
               children.


               4. [M.H.] was born on September 27, 2010 and is presently eight
               (8) years old. [M.H., Jr.] was born on January 19, 2013 and is
               presently five (5) years o1d.


               5. [M.H., Sr.] is the [C]hildren’s father.


               6. A Child in Need of Services (“CHINS”) Petition was filed on
               the [C]hildren on September 6, 2016, under Cause Numbers
               49D09-1609-JC-003363-[003364], following allegations that
       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 13 of 23
        [Mother] failed to provide the [C]hildren with a safe and
        appropriate living environment free from sexual abuse.


        7. The [C]hildren were detained and ordered removed from
        [M]other’s care and custody at the September 7, 2016
        “Initial/Detention Hearing.”


        8. The [C]hildren were adjudicated to be CHINS as to [M]other
        on October 18, 2016, when she admitted to an amended CHINS
        allegation. Specifically, “[M.H.] has disclosed being touched in
        an inappropriate and sexual manner. The family will benefit
        from therapeutic services supplied by DCS. Therefore, Court
        intervention is necessary.”


        9. Also on October 18, 2016, the CHINS Court proceeded to
        disposition as to [Mother]. She was ordered to participate in
        Home Based Therapy; Home Based Case Management;
        Parenting Assessment; and to complete a Clinical Evaluation.
        The [C]hildren remained removed from [M]other’s care and
        custody pursuant to the Dispositional Decree.


        10. . . . . [Mother] . . . has only seen the [C]hildren one time
        since March 2018.


        11. The [C]hildren had been removed from [M]other’s care and
        custody for at least six (6) months under a dispositional decree
        prior to this Termination Action being filed on July 12, 2018.


        12. There is a reasonable probability that the conditions that
        resulted in the [C]hildren’s removal and continued placement
        outside of the home will not be remedied by [Mother]. Mother’s
        whereabouts remain unknown as does her ability and willingness
        to parent. She has made no meaningful or sustainable progress
        toward reunification.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 14 of 23
               13. The continuation of the parent-child relationship poses a
               threat to the [C]hildren’s well-being in that it would serve as a
               barrier for them obtaining permanency through an adoption
               when [Mother] is unavailable to offer permanency and parent.


               14. Termination of the parent-child relationship is in the
               [C]hildren’s best interests. Termination would allow them to be
               adopted into a stable and permanent home where their needs will
               be safely met.


               15. There exists a satisfactory plan for the future care and
               treatment of the children, that being adoption.


               16. The [C]hildren ha[ve] been placed in “kinship” care since
               May 2018. They are bonded and doing well. This is a pre-
               adoptive placement.


               17. The Guardian ad Litem agrees with the permanency plan of
               adoption as being in the [C]hildren’s best interests.


       Appellant’s App. Vol. II at 80-81. Mother now appeals.


                                      Discussion and Decision
[20]   “We initially observe that our court has long had a highly deferential standard

       of review in cases concerning the termination of parental rights.” In re H.T.,

       911 N.E.2d 577, 579 (Ind. Ct. App. 2008). “Accordingly, we will not set aside

       the juvenile court’s judgment unless it is clearly erroneous.” Id. We do not

       reweigh the evidence or judge the credibility of the witnesses. Id. Instead, we

       consider only the evidence and reasonable inferences that are most favorable to

       the judgment. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 15 of 23
[21]   The traditional right of a parent to establish a home and raise her children is

       protected by the Fourteenth Amendment to the United States Constitution. In

       re S.S., 120 N.E.3d 605, 609 (Ind. Ct. App. 2019). Although parental rights are

       of a constitutional dimension, these rights are not absolute, and the law

       provides for the termination of parental rights when a parent is unable or

       unwilling to meet his or her parental responsibilities. Id. We subordinate the

       interests of the parents to those of the child when evaluating the circumstances

       surrounding a termination. Id.


[22]   Mother argues that the juvenile court’s default judgment terminating her

       parental rights to Children should be set aside because DCS failed to provide

       her notice as required by Indiana Code section 31-35-2-6.5. “Section 31-35-2-

       6.5 provides, in relevant part, that ‘at least ten (10) days before a hearing on a

       petition or motion under this chapter ... the person or entity who filed the

       petition to terminate the parent-child relationship [here, DCS] . . . shall send

       notice of the review to . . . [t]he child’s parent . . .’” In re H.K., 971 N.E.2d 100,

       102-03 (Ind. Ct. App. 2012). Mother argues that DCS took insufficient steps to

       locate her prior to the termination hearing. Specifically, she argues:


               DCS certainly did take some action to provide [Mother] with
               notice. [DCS] endeavored to find her through the BMV, all
               relevant detention facilities and attempted contact through her
               last known phone number and address. [DCS] then published
               notice in a newspaper of general circulation in the county of
               jurisdiction. . . .




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 16 of 23
               What stands out from the record are the ways that DCS did not
               attempt to find and provide notice to [Mother]. The [C]hildren
               were placed in kinship care, meaning they were placed with
               family of either [Mother] or [C]hildren’s father. In either event,
               the most logical means of finding [Mother] would have been to
               check with her family. . . .


               The goal of DCS must be to actually find the person they are
               seeking. The goal cannot be to establish they did just enough to
               satisfy a court that notice was made in order to secure a default
               judgment.


       Appellant’s Br. at 7-8.


[23]   It is well-settled that the State must satisfy the requirements of the Due Process

       Clause of the Fourteenth Amendment to the United State Constitution when it

       seeks to terminate a parent-child relationship.6 Castro v. State Office of Family &

       Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006), trans. denied. Although due

       process has never been precisely defined, it requires “an opportunity to be

       heard, and an opportunity to confront witnesses.” In re M.L.K., 751 N.E.2d

       293, 295-96 (Ind. Ct. App. 2001). “Thus, before an action affecting a party’s

       interest can proceed, ‘the State, at a minimum, must provide notice reasonably

       calculated, under all the circumstances, to apprise interested parties of the

       pendency of the action and afford them an opportunity to present their




       6
        In her motion to show cause and request for appointed counsel, filed April 5, 2019, Mother, acting pro se,
       contends that the juvenile court denied her due process.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020               Page 17 of 23
       objections.’” In re H.T., 911 N.E.2d at 579 (quoting In re M.L.K., 751 N.E.2d at

       296).


[24]   Indiana Trial Rule 4.1(A) allows service to be made upon an individual by

       leaving a copy of the summons at the dwelling house or usual place of abode;

       however, such form of service must be followed-up by a summons, sent by first

       class mail to the last known address of the person being served. Ind. Trial Rule

       4.1(B).7 Here, DCS filed its TPR petition on July 16, 2018 and drafted the

       summons and notice on July 18. The notice set out the time and place of the

       initial hearing, the court’s phone number, and informed Mother that failure to

       appear could result in termination of her parental rights without further notice.

       Appellant’s App. Vol. II at 41. A process server went to Mother’s last known

       address and tried to make service on July 21, 24, 25, and 27. Id. at 47, 59. The

       process server left a card three times and twice called the complex office trying

       to confirm Mother’s residency. Id. The process server executed an Affidavit of

       Non-Service on July 27, 2018. A copy of the notice was also sent to the P.O.




       7
         Our court has previously held that notice of a hearing pursuant to Indiana Code section 31-35-2-6.5 does
       not require compliance with Trial Rule 4, which governs service of process and incorporates a jurisdictional
       component. In re C.C., 788 N.E.2d 847, 851 (Ind. Ct. App. 2003), trans. denied. Rather, in order to comply
       with Indiana Code section 31-35-2-6.5, a party need only meet the requirements of Indiana Trial Rule 5,
       which governs service of subsequent papers and pleadings in the action. Id. We note that Mother cites to
       neither trial rule in her brief. However, because we understand Mother’s argument to be a complaint about
       the propriety of the original service of summons, we, like the juvenile court, analyze Mother’s claim under a
       Trial Rule 4 analysis. See In re J.H., 898 N.E.2d 1265, 1269 (Ind. Ct. App. 2009) (analysis under Trial Rule 4
       when claim is direct challenge to the service of process), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020                 Page 18 of 23
       Box that Mother had given FCM Donaldson . Id. at 38. Mother did not appear

       at the July 27 hearing.


[25]   Meanwhile, having received no contact from Mother, FCM Donaldson filed an

       affidavit of diligent inquiry affirming, under penalty of perjury, that Mother

       could not be found and had not reported a change of address to the MaGIK

       database. Appellant’s Ex. Vol. I at 12. FCM Donaldson affirmed that, at her

       instruction, DCS had: (1) attempted to serve notice on Mother at her last

       known address; (2) sent Mother emails; (3) called Mother; and (4) searched for

       Mother in the databases of MaGIK, Indiana Bureau of Motor Vehicles, Indiana

       Department of Correction and offender database, Federal Bureau of Prisons

       and offender database, and the White Pages. Id. FCM Donaldson also

       checked with the county jail. Tr. Vol. I at 8.


[26]   When the person to be served cannot be found a “summons may be served in

       the manner provided by Rule 4.9 (summons in in rem actions).” Ind. Trial

       Rule 4.5; see In re J.H., 898 N.E.2d 1265, 1268 (Ind. Ct. App. 2009) (“A

       proceeding to terminate parental rights is basically an in rem proceeding and is

       governed by the Indiana Rules of Procedure.”), trans. denied. Trial Rule 4.9

       allows service of summons to be made by publication pursuant to Indiana Trial

       Rule 4.13. Indiana Trial Rule 4.13 provides that when notice by publication is

       to be used, the person or entity seeking such service by publication “shall

       submit [the] request therefor upon the praecipe for summons along with

       supporting affidavits that diligent search has been made [and] that the [party]

       cannot be found . . ., and shall prepare the contents of the summons to be

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 19 of 23
       published.” Service should be made, however, in the best possible manner

       reasonably calculated to inform the respondent of the pending action. In re

       A.C., 770 N.E.2d 947, 949 (Ind. Ct. App. 2002).


[27]   Unable to reach Mother by other means, DCS sought permission to publish

       notice, and on August 28, 2018, the juvenile court “enter[ed] an order

       authorizing Summons by Publication on [Mother].” Appellant’s App. Vol. II at

       21. Notice was published in The Indianapolis Star three times, August 31,

       2018, September 7, 2018, and September 14, 2018. Appellant’s Ex. Vol. I at 8.

       The published notice included the date, time, and location of the TPR hearing,

       as well as a phone number to call. Id. at 6. Mother does not complain about

       the content of the publication; instead, she argues that DCS did not do enough

       to find her. We disagree. Here, DCS sent Mother notice at all the addresses it

       had, including the last address provided by Mother. Through FCM

       Donaldson’s email, Mother knew that the plan had changed to adoption and

       yet took no action. DCS attempted to contact Mother by personal service,

       leaving notes and attempting to confirm Mother’s residency with the complex.

       FCM Donaldson called and emailed Mother without response. Under the facts

       of this case, we find that DCS complied with the Indiana Trial Rules regarding

       service and its attempted service comported with the Due Process Clause of the

       Fourteenth Amendment.


[28]   We note Mother’s frustration that appointed appellate counsel appealed only

       the issue of notice and did not contest any of the juvenile court’s underlying



       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 20 of 23
       findings of facts or conclusions.8 Had counsel done so, the result would be the

       same. To terminate Mother’s parental rights, DCS had to prove by clear and

       convincing evidence: (1) Children were removed from Mother’s care for at

       least six months; (2) there is a reasonable probability that the conditions that

       resulted in Children’s removal would not be changed; (3) the termination of

       Mother’s parental rights is in the Children’s best interest; and (4) there exists a

       satisfactory plan for the Children’s care and treatment. Ind. Code § 31-35-2-

       4(b)(2). The parties agree that Children have been out of Mother’s care for

       more than six months.


[29]   The Children were removed from Mother’s care based on an allegation of

       Mother’s failure to provide Children with an appropriate living environment

       free from sexual abuse. At the time of the termination hearing, Mother had

       stopped participating in services and her supervised visits became “very

       inconsistent.” Tr. Vol. II at 7. FCM Donaldson testified that Mother “ha[d] not

       demonstrated her desire, nor her ability as a parent, to provide a safe home and

       environment for her children, and to keep them safe from any sexual abuse, . . .

       [and] she has not made herself available, . . . she’s not willing to provide that

       continued care.” Id. at 9. Based on the facts before the court, the juvenile




       8
         Mother expressed her concern in her request to Withdraw Appointed Counsel, which was received by our
       court on September 17, 2019. While it is unclear whether this document was filed with the court, because the
       termination of parental rights is such a serious matter, we briefly address Mother’s concerns.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020              Page 21 of 23
       court’s conclusion that conditions that resulted in Children’s removal would not

       be remedied was not clearly erroneous.


[30]   To determine the best interests of children, our court is required to look beyond

       the factors identified by the department of child services and look to the totality

       of the evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

       185, 203 (Ind. Ct. App. 2003). In so doing, the trial court must subordinate the

       interests of the parents to those of the children. Id. The juvenile court “need

       not wait until the child is irreversibly harmed such that the child’s physical,

       mental and social development is permanently impaired before terminating the

       parent-child relationship.” In re E.M., 4 N.E.3d 636, 648 (Ind. 2014). By the

       time of the TPR fact-finding hearing, Mother had refused to participate in

       services and had stopped going to parenting time sessions. The GAL, by

       affidavit, and FCM Donaldson, during the TPR fact-finding hearing, testified

       that it was in the best interest of Children for Mother’s parental rights to be

       terminated. Appellant’s Ex. Vol. I at 4; Tr. Vol. II at 9. Our court “has previously

       determined that the testimony of a child’s guardian ad litem regarding the

       child’s need for permanency supports a finding that termination is in the child’s

       best interests.” McBride, 798 N.E.2d at 203.


[31]   Finally, DCS proposed a permanency plan that Children be adopted by their

       godmother, a person liked by both Mother and Children’s father. The juvenile

       court’s finding that DCS has a suitable plan for Children care and treatment is

       not clearly erroneous. See In re D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004)

       (permanency “plan need not be detailed, so long as it offers a general sense of

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 22 of 23
       the direction in which the child will be going after the parent-child relationship

       is terminated”), trans. denied.


[32]   Concluding that DCS adequately complied with the requirements to provide

       proper notice to Mother and finding that the outcome would have been the

       same even if Mother had been present, we affirm the termination of her

       parental rights to Children.


[33]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020   Page 23 of 23
