                                                                              FILED
                                                                         May 27 2020, 10:13 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      David W. Stone, IV                                         Robert J. Henke
      Anderson, Indiana                                          Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In re the Termination of the                               May 27, 2020
      Parent-Child Relationship of:                              Court of Appeals Case No.
      Tre.S. and Tra.S. (minor                                   19A-JT-2915
      children) and A.S. (Mother)                                Appeal from the
      A.S. (Mother),                                             Madison Circuit Court
                                                                 The Honorable
      Appellant-Respondent,
                                                                 George Pancol, Judge
              v.                                                 Trial Court Cause Nos.
                                                                 48C02-1904-JT-191
                                                                 48C02-1904-JT-192
      Indiana Department of Child
      Services,
      Appellee-Petitioner



      Vaidik, Judge.



                                           Case Summary
[1]   A.S. (“Mother”) appeals the termination of her parental rights to her children,

      arguing that her due-process rights were violated when the trial court denied her
      Court of Appeals of Indiana | Opinion 19A-JT-2915 | May 27, 2020                            Page 1 of 6
      attorney’s emergency motion to continue and held the termination hearing

      without her attorney present. The State concedes that Mother’s due-process

      rights were violated. We reverse the termination order and once again remind

      trial-level DCS attorneys and trial courts that they have a duty to ensure that

      parents’ due-process rights in termination cases are not violated.



                               Facts and Procedural History
[2]   On May 2, 2019, DCS filed petitions to terminate Mother’s parental rights to

      her children, Tre.S. and Tra.S. Thereafter, the trial court appointed counsel for

      Mother and set the fact-finding hearing for October 1. At some point, however,

      DCS asked the court to move the hearing forward because the pre-adoptive

      parents “were hoping to be able to get the matter resolved prior to October

      first[.]” Tr. p. 24.1 On August 6, the trial court rescheduled the hearing to

      August 21 at 1:30 p.m. Appellant’s App. Vol. II p. 3. The CCS does not

      indicate whether Mother or her attorney were notified of this change at that

      time. Two days later, on August 8, DCS served Mother with the “10-day”

      notice of the termination hearing required by Indiana Code section 31-35-2-

      6.5(c)(1). Id. The CCS doesn’t indicate whether the ten-day notice was sent to

      Mother’s attorney, which Section 31-35-2-6.5(c)(2) requires. See id.




      1
          The record does not indicate how or when DCS asked the court to change the date of the hearing.


      Court of Appeals of Indiana | Opinion 19A-JT-2915 | May 27, 2020                                  Page 2 of 6
[3]   At 1:17 p.m. on August 21, Mother’s attorney filed an Emergency Motion for

      Continuance. Id. at 81. Specifically, Mother’s attorney alleged that she believed

      the hearing was still set for October 1 and that she was at an all-day mediation

      training and couldn’t attend the hearing. Id. When the hearing started at 1:30

      p.m., neither Mother nor her attorney was present. The trial court asked DCS

      what it thought about Mother’s motion to continue, and DCS said it objected to

      a continuance. Tr. p. 22. The following exchange then occurred:


              THE COURT: Okay uhm I assume what would happen then is if
              I go ahead and the counsel is not here that we are going to get a
              uhm a due process, have a due process issue, do you agree with
              that?


              [DCS]: I do. I don’t like to agree to it, with it but I do agree with
              you.


                                                     *****


              THE COURT: Unfortunately if we don’t have the attorney here
              and we proceed I’m fairly confident that the appellate court is
              going to give her a new hearing so I’m going to have to continue
              it to October first . . . .


      Id. at 22-24. However, when DCS said October 1 wouldn’t work because the

      family case manager would be on vacation, the court queried, “Mother fails to

      appear having good notice, ten day notice, why can’t we just default her

      today?” Id. at 24. DCS confirmed that Mother had notice. The court then said if

      DCS was “comfortable” proceeding with the hearing that day, then it would

      allow DCS to do so. Id. at 25. DCS responded that it was comfortable
      Court of Appeals of Indiana | Opinion 19A-JT-2915 | May 27, 2020                Page 3 of 6
      proceeding that day. The court then conducted the hearing without Mother or

      her attorney present and later entered an order terminating Mother’s parental

      rights.


[4]   Mother appealed and filed an appellant’s brief, arguing that her due-process

      rights were violated when the trial court denied her attorney’s emergency

      motion to continue and held the hearing without her attorney present. DCS

      moved to remand, conceding that Mother’s due-process rights were violated

      because she “was effectively denied representation by counsel when the court

      denied the emergency motion to continue, proceeded with the trial, and

      terminated Mother’s parental rights.” Verified Motion to Remand, No. 19A-JT-

      2915 (Mar. 5, 2020). Accordingly, DCS asked this Court to dismiss the appeal

      without prejudice, set aside the trial court’s termination of Mother’s parental

      rights, and remand the case to the trial court. Our motions panel denied DCS’s

      motion to remand and ordered it to file an appellee’s brief. DCS then filed an

      appellee’s brief in which it again conceded that Mother’s due-process rights

      were violated and asked us to reverse the trial court and remand the case for

      further proceedings. See Appellee’s Br. p. 13.



                                  Discussion and Decision
[5]   In July 2018, this Court issued an order noting that in the previous six months,

      DCS had moved to remand ten termination cases. See Order, No. 18A-JT-527

      (July 9, 2018). As we explained it, “The motions are always filed after

      Appellant has filed their brief. In these motions, DCS essentially concedes that

      Court of Appeals of Indiana | Opinion 19A-JT-2915 | May 27, 2020          Page 4 of 6
Appellant has either not been provided with adequate notice or that their due

process rights have been violated. DCS then . . . requests that the matter be

remanded to the trial court for further proceedings consistent with due process.”

We continued:


        It is not clear why DCS has suddenly chosen to file motions to
        remand in these cases rather than file a brief. The result of this,
        though, is that the Court has primarily dealt with these issues
        through its orders and not in a formal opinion. While the orders
        of this Court carry weight, they do not carry the weight or the
        effect that an opinion from this Court does. By filing a motion to
        remand, DCS has successfully avoided defending repeated,
        significant violations of due process in termination of parental
        rights cases.


        The increasing frequency of these motions suggest that there are
        repeated, significant violations of due process occurring in
        termination of parental rights cases throughout this state. This is
        a disturbing trend given the fundamental rights at issue in these
        types of cases. See In re Adoption of O.R., 16 N.E.3d 965, 972 (Ind.
        2014) (noting that the Fourteenth Amendment to the United
        States Constitution protects the rights of parents to establish a
        home and raise their children, that parents have a fundamental
        liberty interest in the care, custody, and control of their children,
        and that the parent-child relationship is one of the most valued
        relationships in our culture).


Id. While we commended DCS for conceding error, we said we were “obligated

to formally admonish DCS for its failure to afford litigants throughout this state

the due process rights they are owed.” Id. We also reminded “the trial courts

throughout this state of their duty to ensure that litigants’ due process rights are



Court of Appeals of Indiana | Opinion 19A-JT-2915 | May 27, 2020                Page 5 of 6
      not violated.” Id.; see also In re J.K., 110 N.E.3d 1164, 1166 (Ind. Ct. App.

      2018).


[6]   Nearly two years after we issued this order, DCS continues to file motions to

      remand conceding that parents’ due-process rights have been violated. This

      unfortunately means that throughout this state, there continues to be significant

      violations of parents’ due-process rights in termination-of-parental-rights cases.

      This case is just one example. The trial court set the termination hearing for

      October 1, but the case was moved up because the pre-adoptive parents wanted

      it finalized sooner. On August 6, the court rescheduled the hearing for

      approximately two weeks later, August 21. On the day of the hearing, Mother’s

      attorney filed an emergency motion to continue because she thought the

      hearing was still set for October 1 and was at an all-day mediation training.

      Indeed, the record is unclear whether Mother’s attorney was even notified of

      the August 21 hearing date. The court denied the motion to continue and held

      the hearing without Mother or her attorney present, knowingly disregarding

      Mother’s rights. Both the court and DCS knew that they were committing due-

      process violations and proceeded with the hearing anyway. This must stop. We

      therefore reverse the termination order and issue yet another reminder to trial-

      level DCS attorneys and trial courts that they have a duty to ensure that

      parents’ due-process rights in termination cases are not violated.


[7]   Reversed and remanded.


      May, J., and Robb, J., concur.

      Court of Appeals of Indiana | Opinion 19A-JT-2915 | May 27, 2020            Page 6 of 6
