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
