MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                Jul 31 2020, 10:04 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.


ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                     Curtis T. Hill, Jr.
Brooklyn, Indiana                                         Attorney General of Indiana

Kimberly A. Jackson                                       David E. Corey
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the Parent-                         July 31, 2020
Child Relationship of:                                    Court of Appeals Case No.
                                                          19A-JT-678
Ta.B., J.B., & Ty.B. (Minor
Children)                                                 Appeal from the Vigo Circuit
                                                          Court
      and
                                                          The Honorable Sarah K. Mullican,
C.B. (Mother) and J.B., Sr.                               Judge
(Father)                                                  Trial Court Cause Nos.
Appellants-Respondents,                                   84C01-1804-JT-371, 84C01-1804-
                                                          JT-372, 84C01-1804-JT-373
        v.

Indiana Department of Child
Services,
Appellee-Petitioner



Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                      Page 1 of 24
      Altice, Judge.


                                                Case Summary


[1]   C.B. (Mother) and J.B. (Father) (collectively, Parents) separately appeal from

      the involuntary termination of their parental rights to their three minor

      children. This appeal, as well as the underlying trial proceedings, has been

      unnecessarily prolonged, and we are loath to cause additional delay. Parents,

      however, are entitled to due process, which they did not receive below due to a

      myriad of errors.


[2]   We reverse and remand.


                                        Facts & Procedural History


[3]   Mother and Father are married and have three children together, Ta.B., J.B.,

      and Ty.B. The children are now ages sixteen, thirteen, and eleven, respectively.

      The Indiana Department of Child Services (DCS) became involved with the

      family in October 2011, after the family moved to Indiana from Kentucky.


[4]   After arrival in Indiana, it was discovered that Ta.B. had been the victim of

      sexual abuse by two adult cousins while living in Kentucky. By the age of

      eight, Ta.B. began acting out sexually toward her siblings and was aggressive

      with other children and adults too. DCS worked with the family to develop a

      safety plan, and Ta.B. began seeing a behavioral therapist. DCS eventually

      determined that Parents were not adequately responding to the dire situation, so

      DCS filed a CHINS petition in April 2012. Following a contested factfinding

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 2 of 24
      hearing, the trial court adjudicated the children CHINS in September 2012.

      The CHINS order provided in part:


              [Mother and Father] acknowledge that the actions of their oldest
              daughter, [Ta.B.], manifest serious psychological problems with
              [Ta.B.] and endanger the safety and well-being of her younger
              siblings, [J.B. and Ty.B.]. The real dispute by the parents is the
              [S]tate’s allegation that the parents have in any way been
              neglectful in performing their parental duties so as to justify the
              coercive intervention of the court into their lives.


              The court believes that judging the promptness of a parent’s
              reaction to a child’s needs requires the court to consider the
              urgency of the specific situation…. Where, as here, a young
              child is repeatedly subjecting her younger siblings to serious
              sexual abuse, no action by a parent can be too quick. In this
              case, the delay in getting [Ta.B.] into intensive therapy …,
              combined with the failure to prevent repeated occurrences of
              abuse in the interim, do constitute a neglect of the children’s
              parents to supply them with the necessary treatment and
              rehabilitation that they needed and created a life and health-
              endangering environment….


              Fortunately, the parents have otherwise been reasonably
              cooperative with DCS in getting services into the home. But
              immediate, intensive therapy for [Ta.B.] and her separation from
              the younger children in the meantime are imperative.


      Exhibit Vol. IV at 77-78. J.B. and Ty.B. remained in the home with Parents, and

      Ta.B. was placed at Gibault, a residential treatment facility.


[5]   Mother and Father complied with the case plan by visiting Ta.B. at Gibault and

      participating in homebased services, random drug screens, and family

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 3 of 24
      counseling. By November 2013, the CHINS cases relating to J.B. and Ty.B.

      were closed. Ta.B.’s remained open.


[6]   At some point, Father began struggling with a drug addiction, which lead to

      arrests and charges in March and May 2014. He was in jail from May 17, 2014

      through June 13, 2014, when he was released on bond. In April 2015, Father

      pled guilty to, among other things, Class D felony possession of

      methamphetamine and received a two-year suspended sentence. After a brief

      period of sobriety, Father relapsed and violated his probation several times in

      late 2015 and 2016, resulting in several periods of incarceration. 1


[7]   In the meantime, Ta.B. returned to Mother’s care on May 30, 2014, for a trial

      home visit (THV) with intensive wraparound services. Mother fully complied

      with services, but Ta.B. continued to run away and act out. The THV ended in

      October 2014 when Ta.B. was placed in the Evansville Psychiatric Children’s

      Center in order to receive more restrictive and intensive treatment. Ta.B. was

      diagnosed with oppositional defiant disorder, ADHD, and anxiety and

      prescribed several daily medications.


[8]   In July 2015, Ta.B. graduated from the program at the Evansville Psychiatric

      Children’s Center and returned to Parents’ home for another THV. Father had




      1
       Father was arrested on new drug charges in January 2017 and forgery and theft charges in April 2018, and
      he had probation revoked in July 2018.

      Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                  Page 4 of 24
       agreed to go into residential treatment for his drug abuse, but he did not

       complete treatment.


[9]    On August 25, 2015, due to Father’s continued use of methamphetamine and

       other illegal drugs, DCS filed new CHINS petitions involving Ty.B. and J.B.

       Shortly thereafter, Mother and Father admitted the allegations. To ensure the

       safety of the children, Father was removed from the family home until he could

       successfully complete an addictions program. All three children remained in

       Mother’s care, and Father was not allowed to be with them unsupervised.

       Thereafter, while Father continued to struggle with drug abuse and related

       incarcerations, Mother engaged in services and improved her ability to parent.


[10]   On March 14, 2016, after Father had been out of jail for about a month, DCS

       filed an information for rule to show cause, alleging that Mother and Father

       had not complied with the safety plan. Specifically, Mother had permitted

       Father in the family home, Father had not completed an addictions program,

       and Father had unsupervised contact with the children. Around this time,

       service providers noted a decline in overall family function, including an

       increase in Ta.B.’s negative behaviors and a decline in Mother’s parenting.


[11]   While the contempt hearing was pending, the children were removed from

       Mother’s home on an emergency basis on March 22, 2016. The court held a

       detention hearing two days later and returned Ty.B. and J.B. to Mother’s care.

       Ta.B. remained outside the home, placed in kinship care and, when that failed,




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 5 of 24
       the Wellstone Hospital awaiting placement at Wernle Children’s Home. 2 The

       contempt hearing was dismissed.


[12]   Following another information for rule to show cause filed in June 2016, Father

       was found in contempt for continuing to use methamphetamine and for

       violating the safety plan on multiple occasions. The court did not find Mother

       in contempt, noting that she had complied with the court’s orders. By this time,

       Father was incarcerated again.


[13]   After his release from incarceration in August 2016, Father asked the court to

       allow him to live in the family home again with Mother and Ty.B. and J.B.

       The trial court denied his request until Father could demonstrate a reasonable

       period of sobriety and compliance with court-ordered services. The very next

       day, Father was discovered alone in the home with Ty.B. and J.B., while under

       the influence of methamphetamine.


[14]   By January 2017, DCS began recommending removal of Ty.B. and J.B. from

       Mother’s home, as her compliance with services had diminished, Ty.B. and J.B.

       continued to have unsupervised contact with Father who lived down the road

       (when not incarcerated), the children lacked appropriate supervision in general,

       and Ta.B. was demonstrating a great deal of behavioral and emotional issues in




       2
           Ta.B. was placed at Wernle by October 2016, in a program that specializes in sexually maladaptive youth.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                     Page 6 of 24
       the home and at school. 3 Providers believed that Ty.B.’s issues stemmed from

       past trauma but that the lack of structure and supervision in the home

       contributed to the ongoing nature of the issues. Following a review hearing on

       February 2, 2017, the court found that Mother and Father were not in

       compliance with the case plan but denied DCS’s oral motion for placement of

       Ty.B. and J.B. in therapeutic foster care because no formal written motion had

       been filed.


[15]   Shortly thereafter, on February 11, 2017, Mother was arrested following a

       physical altercation with an adult relative. Father was also incarcerated at the

       time. Ty.B. and J.B. were taken into emergency custody by DCS and were

       placed together in foster care. They have never been returned to Mother’s care.

       After Ty.B. ran away from the foster home in October 2017, she and J.B. were

       moved to separate residential facilities, and J.B. was later placed in a

       therapeutic foster home. Ty.B. has remained in treatment facilities, as she

       suffers from many of the same behavioral and emotional issues as Ta.B.


[16]   Following a review hearing on January 4, 2018, the court found that Mother

       and Father had not complied with the case plan and, on DCS’s motion,

       changed the permanency plan to termination of parental rights and adoption.

       Accordingly, on April 19, 2018, DCS filed the instant petitions for the

       involuntary termination of parental rights. In the CHINS proceedings, on May




       3
         In the progress report filed in January, DCS provided a detailed list of reasons why removal was
       recommended. In addition to those mentioned above, DCS addressed financial and housing concerns.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                Page 7 of 24
       9, 2018, DCS filed a motion to modify the dispositional decree to stop all

       services to the parents, including visitation. Along with the motion, DCS filed

       a detailed modification report that noted, in part, that Father was once again

       incarcerated, Father continued to use methamphetamine, Parents were facing

       eviction from their apartment, and they had not been compliant with services

       “for the better part of the past 8 months and partially compliant throughout the

       life of the (5.5 years) case.” Exhibits Vol. VI at 19.


[17]   The trial court held a combined hearing in the termination of parental rights

       (TPR) and CHINS cases on May 15, 2018. Regarding the initial hearing for the

       TPR cases, the court asked the parents if they had received the TPR petitions

       and if they would like to have attorneys represent them. The parents responded

       affirmatively to both questions, and the court indicated that attorneys would be

       appointed for them 4 and set the factfinding hearing for August 13, 2018. The

       court then turned to the CHINS matter and heard evidence regarding the

       motion to modify. Based on the evidence presented, the court granted the

       motion and ended all services for parents, including visitation.


[18]   On August 13, 2018, the TPR factfinding hearing commenced. 5 At the

       beginning of the hearing, Father, who was in prison and had not been



       4
        Indigent counsel was appointed for Mother and Father on May 18, 2018, and their respective counsel
       entered an appearance that day – Steven Cuvelier for Mother and Jeffrey Kohr for Father. These attorneys
       had also represented them during the later portion of the CHINS proceedings.
       5
         While we have set out many facts leading up the filing of the TPR petitions, we will not go into detail
       regarding the extensive evidence presented at the TPR hearing or the trial court’s findings of fact. Rather,
       because our reversal is based on procedural grounds, the procedural facts remain our focus.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                       Page 8 of 24
       transported, indicated that he wished to be present in person, could not hear

       well, and had not been able to speak with his attorney. After a lengthy

       discussion with counsel, the trial court denied Father’s request for a

       continuance and determined that Father’s rights could be protected by

       “allowing him to participate by phone with his counsel being present and a

       chance to confer” privately with counsel over the phone. Transcript Vol. I at 47.

       During the testimony of the second witness, Father asked to speak with his

       attorney and was permitted to do so. Thereafter, counsel renewed the request

       for a continuance to “allow [Father] an opportunity to hand me notes and to

       communicate immediately with me.” Id. at 73. The court denied the request.

       In all, ten DCS witnesses testified that day. The court scheduled the hearing to

       resume on October 29, 2018, noting “we will have [Father] definitely

       transported here.” Id. at 160.


[19]   Father was transported for the hearing on October 29, 2019. To the surprise of

       her attorney and the court, Mother indicated at the beginning of the hearing,

       after speaking with Father, that she wished to fire Attorney Cuvelier. The court

       asked Mother if she wished to proceed with no counsel, and Mother responded,

       “I wouldn’t have none but I need to have new counsel.” Id. at 165. The

       following discussion ensued:


               THE COURT: Alright. Well here’s the thing. By law we have
               to proceed with the proceedings so if you wish to proceed on
               your own Ma’am you certainly have that right to do that. If you
               want to proceed with the assistance of Mr. Cuvelier you can do
               that. Let the record show that [Parents] are consulting with one
               another about the issue. So how do you wish to proceed?
       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 9 of 24
        [MOTHER]: Um I need a new representative, I need somebody
        else to represent me because he hasn’t consulted with me very
        much at all.


        THE COURT: Well we got to get this concluded by law I’ve got
        to get this moving. So if you want Mr. Cuvelier to be relieved I
        can relieve him but that will effectively leave you without
        representation unless you just want to rely on your husband’s
        attorney but he really can’t technically represent you. Your
        interest [sic] very possibly conflict.


        [MOTHER]: Can [Father] explain my situation?


        THE COURT: You want your husband to act as your counsel in
        this matter at this time?


        [FATHER]: Just to help her explain why she wants a different
        attorney.


        THE COURT: Is it why she wants a different attorney or why
        you want her to have a different attorney?


        [FATHER]: I don’t I mean he’s her attorney and is supposed to
        be for her. Well he sits up here and makes a fool out of her,
        telling her you ain’t got the money how are you going to pay for
        housing? I mean this is all in documentation. The documents
        are in the file.


        THE COURT: Mr. Cuvelier we are going to show you
        withdrawn.


Id. at 166-67. The hearing proceeded with Mother representing herself.



Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 10 of 24
[20]   DCS called four additional witnesses and rested its case late that afternoon.

       The court acknowledged that Mother and Father would likely need more time

       to present their case. Additionally, Father and Mother both expressed a desire

       to call Ta.B. as a witness, to which DCS objected. The court directed the

       parties to make written filings on the issue of Ta.B. testifying. After Father

       briefly testified, the trial court set the hearing to continue to December 3, 2018.


[21]   On November 2, 2018, Father filed a motion for inclusion of witness, and DCS

       responded with a written objection to request to have child available for

       testimony. 6 The court scheduled a hearing on the issue of Ta.B. testifying for

       November 27, 2018. Mother was not notified of this hearing and, thus, not

       present, and Father was not transported for the hearing, though he was

       represented by counsel. At the hearing, DCS presented brief testimony from

       Ta.B.’s therapist and the family case manager. Both opined that testifying

       would be traumatic for Ta.B. and could cause a regression in her progress and

       not be in her best interests. CASA Rachel Cox also expressed opposition to

       Ta.B. testifying in court. After initially ruling that Ta.B. would be excluded

       from testifying, the trial court reversed course later that same day. The court

       indicated that Parents have a right to call Ta.B. to testify and that if DCS

       wished to use videotaped testimony instead of live testimony, DCS had the




       6
          In its objection, DCS argued, in part, that if the court were to overrule the objection and allow testimony
       from Ta.B., “there are less harmful ways for that to be accomplished, including but not limited to testimony
       via child hearsay, video taped testimony or closed circuit testimony where a medical professional could be
       present, or in-camera.” Appendix Vol. 2 at 64.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                      Page 11 of 24
       burden of making the showing required by Ind. Cod § 31-35-4-3. 7 DCS then

       noted that it would need a continuance in order to conduct a child hearsay

       evaluation. 8 The trial court indicated that the TPR factfinding hearing would

       continue as scheduled but acknowledged that DCS would not be required to

       bring Ta.B. to that hearing because DCS still needed time for a child hearsay

       evaluation.


[22]   On November 28, 2018, DCS filed a written request for the trial court to

       conduct an in camera interview of Ta.B. in lieu of testimony in court. That

       same day, the trial court issued an order denying the request.


[23]   On December 3, 2018, Mother appeared for the third day of the scheduled

       factfinding hearing. Father was not transported from prison, despite the

       issuance of a transport order, so the court reset the hearing for February 11,

       2019. Prior to the rescheduled hearing date, Mother filed a request for

       appointment of counsel. Attorney Cuvelier was reappointed as Mother’s

       attorney at the end of January. Additionally, on January 30, 2019, DCS filed a

       notice of witness unavailability, which indicated that Ta.B. “will not be




       7
         This statute sets out specific requirements for admission of a child’s videotaped testimony at a TPR
       hearing.
       8
          This appears to be in reference to I.C. § 31-35-4-3(2)(C)(i) as a basis to submit reliable videotaped
       testimony where the court finds that the child is unavailable because “a psychiatrist, physician, or
       psychologist has certified that the child’s participation in the proceeding creates a substantial likelihood of
       emotional or mental harm to the child.” Additionally, however, we note I.C. § 31-35-4-2(1)(B)’s further
       limitation on the admissibility, under this chapter, of videotaped testimony of a child between the ages of
       fourteen and eighteen years of age. With respect to such older children, the proponent of the videotape must
       establish that the child “has a disability attributable to an impairment of general intellectual functioning or
       adaptive behavior.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                      Page 12 of 24
       available for testimony on 2/11 for Fact Finding for the reason that her hearsay

       evaluation is scheduled for 2/20 to determine if video testimony is

       appropriate.” Appendix Vol. 2 at 76.


[24]   At the factfinding hearing on February 11, 2019, Father testified, followed by

       Mother. Father’s counsel then indicated that Ta.B.’s testimony was still needed

       after the upcoming hearsay evaluation. Attorney Cuvelier, on behalf of

       Mother, asked for an additional hearing since he had just been put back on the

       case and there were witnesses that he would still like to call. DCS objected to

       additional testimony and noted that “anyone else besides the child [] could have

       been subpoenaed … here today.” Transcript Vol. II at 95. The trial court took

       “the request for an additional day of evidence under advisement.” Id. at 96.


[25]   Three days later, on February 14, 2019, the trial court issued orders

       involuntarily terminating the parental rights of Mother and Father to Ta.B.,

       Ty.B., and J.B. In its orders, the trial court indicated that it had denied the

       requested continuance of the factfinding hearing as not being made in good

       faith, noting that Father had not subpoenaed Ta.B. or any other witness after

       DCS concluded their presentation of evidence more than three months earlier.


[26]   Mother and Father filed motions for a belated appeal, which were granted by

       this court, respectively, on March 28 and April 2, 2019. After protracted

       proceedings to obtain the transcript and exhibit volumes from the Vigo Circuit

       and Superior Courts Clerk, a third amended notice of completion of transcript

       was filed on August 26, 2019.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 13 of 24
[27]   Resulting in further delay in this appeal, on September 24, 2019, Mother and

       Father filed a joint emergency petition to stay the appellate deadlines and

       remand to the trial court pursuant to Ind. Appellate Rules 31 and 32 to allow

       for reconstruction and/or correction of the record. This court granted the

       motion on October 2, 2019.


[28]   Mother and Father then filed a joint statement of the evidence, consisting of

       verified statements from Mother, her appellate counsel, and Attorney Cuvelier.

       Mother averred that she represented herself from October 29, 2018 to January

       28, 2019 and did not appear at the November 27, 2018 hearing (the November

       Hearing) because she did not receive notice. Additionally, Mother indicated

       that she had hoped to present evidence at the hearing on February 11, 2019 but

       was never contacted by Attorney Cuvelier after his reappointment. Attorney

       Cuvelier’s statement indicated that he did not receive notice of the November

       Hearing and that he did not contact her after his reappointment and before the

       February hearing. Mother’s appellate counsel, Kimberly Jackson, indicated in

       her verified statement that she had recently contacted the Vigo County Clerks

       office to investigate whether notice of the November Hearing had been sent to

       Mother. Attorney Jackson was informed that “orders in [TPR] cases in Vigo

       County are served by [DCS], rather than the Vigo County Clerk, due to the

       frequent address changes of parents involved in such proceedings.” Appendix

       Vol. 2 at 164. DCS filed an unverified response, which was later stricken by the

       trial court.




       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 14 of 24
[29]   Magistrate Daniel Kelly, who presided over the TPR proceedings, issued an

       affidavit on December 2, 2019 (the Magistrate’s Affidavit). Some of the

       statements in the Magistrate’s Affidavit were in direct conflict with the existing

       undisputed record. Moreover, the Magistrate’s Affidavit did not resolve the

       primary question on remand regarding whether notice of the November

       Hearing was sent to Mother. As a result, on December 5, 2019, Parents filed

       with the trial court a joint motion for clarification. Among other things, they

       sought clarification on whether:


               a) DCS, rather than the Vigo County Clerk, serves copies of the
               Court’s orders on parents in termination of parental rights cases
               in Vigo County;


               b) Mother actually was served notice of the [November
               Hearing], given the representations of the Vigo County Clerk’s
               office that it does not serve such orders on parents, the lack of
               any evidence in the docket or elsewhere that DCS or any other
               entity served her by mail or in any other manner, and DCS’s
               failure to deny that it is responsible for serving such orders in
               Vigo County;


               c) Mother received automatic email service as DCS seems to
               hint (which appears impossible as Mother’s email is not listed in
               Odyssey and the Odyssey notice does not reflect email service to
               her).


       Id. at 184.


[30]   On December 27, 2019, this court ordered the trial court to rule on the pending

       motion, and the trial court issued a clarification order on December 31, 2019.


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 15 of 24
       In its order, the trial court corrected certain misstatements – but not others – in

       the Magistrate’s Affidavit. Regarding the notice issue, the court stated that it

       had “no evidence that Mother was served with notice of the [November

       Hearing], which was solely on Father’s request to be allowed to subpoena Ta.B.

       issue [sic] to testify[,]” and “no evidence that the order setting that hearing or

       the ruling thereon was served upon Mother.” Id. at 188.


[31]   On January 10, 2020, Parents filed yet another motion asking this court to

       require a statement from the trial court and DCS as to the historical and present

       service procedures in TPR cases. They acknowledged that the trial court’s

       clarification order resolved the issue regarding whether Mother received notice

       of the November Hearing – she did not – but they urged that the clarification

       order did not resolve the question of how parents are being served with orders

       in TPR cases in Vigo County. DCS filed an objection to the motion, arguing

       that Parents were seeking information not related to this appeal. In response,

       Parents then filed a motion for verified statement from the Vigo County Clerk.


[32]   On January 31, 2020, this court issued an order holding in abeyance for the

       writing panel the pending motions for verified statements from DCS, the trial

       court, and the Vigo County clerk. 9 Parents were directed to file their appellate

       briefs within ten days of the order.




       9
         In an order issued today, we deny the pending motions because the information sought is unnecessary for
       our resolution of this case and further delay is not warranted.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                 Page 16 of 24
[33]   On February 3, 2020, Parents filed a motion to reconsider our order, which was

       denied. They also contemporaneously filed with the trial court another lengthy

       joint motion for correction of the clerk’s record and transcript, arguing, in part,

       that the court “never established in the App. R. 31 proceedings the service

       procedures in effect at all relevant times in this and other [TPR] cases including

       whether DCS or the Vigo County Clerk’s Office was responsible for serving

       orders on parents in [TPR] cases.” Id. at 192. On March 25, 2020, the trial

       court denied the motion.


[34]   Mother and Father each filed their respective appellant’s brief on February 27,

       2020, more than a year after their parental rights were terminated by the trial

       court. DCS filed a consolidated appellee’s brief on April 15, 2020, which was

       timely filed pursuant to extensions related to the COVID-19 crisis. Mother and

       Father filed reply briefs on April 30, 2020.


                                            Discussion & Decision


[35]   It is well recognized that a parent’s interest in the care, custody, and control of

       his or her children is perhaps the oldest of the fundamental liberty interests. In

       re R.S., 56 N.E.3d 625, 628 (Ind. 2016); see also 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). Thus, when the State seeks


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 17 of 24
       the involuntary termination of a parent-child relationship, it must do so in a

       manner that meets the requirements of due process. In re C.G., 954 N.E.2d 910,

       917 (Ind. 2011).


[36]   Due process embodies the idea of fundamental fairness and requires the

       “opportunity to be heard at a meaningful time and in a meaningful manner.”

       Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Due process in

       parental rights cases involves 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 government interest supporting

       the use of the challenged procedure. Id. Because a parent’s private interest and

       the State’s interest are both substantial in termination proceedings, our focus

       generally falls on the risk of error created by DCS’s actions and the trial court’s

       actions. See id. at 917-18; S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,

       1120 (Ind. Ct. App. 2013).


[37]   Further, we recognize “the general principle that ‘if the State imparts a due

       process right, then it must give that right.’” In re C.G., 954 N.E.2d at 917

       (quoting A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112

       (Ind. Ct. App. 2000), trans. denied). A parent in a TPR proceeding is statutorily

       entitled to (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence

       by compulsory process, and (3) introduce evidence on behalf of the parent. Ind.

       Code § 31-32-2-3(b). A parent is also entitled to representation by counsel in

       proceedings to terminate the parent-child relationship. I.C. § 31-32-2-5; see also

       I.C. § 31-32-4-1(2). Further, I.C. § 31-32-4-3(a) requires the appointment of

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 18 of 24
       counsel in such proceedings if the parent “does not have an attorney who may

       represent the parent without a conflict of interest” and “has not lawfully waived

       the parent’s right to counsel.”


[38]   On appeal, Parents individually and collectively raise a number of alleged due

       process violations. We need only address a select few in order to determine

       that they are entitled to reversal.


[39]   First, we address Mother’s claim that she was denied her right to counsel. DCS

       does not dispute that Mother had a right to appointed counsel, but it claims that

       she “knowingly and voluntarily waived her right to counsel and chose to

       represent herself when she fired her attorney in the middle of the termination

       proceedings.” Appellee’s Brief at 28. We cannot agree.


[40]   The right to counsel in a termination proceeding may only be waived “if the

       parent does so knowingly and voluntarily.” I.C. § 31-32-5-5. Here, although the

       trial court appointed counsel at the initial hearing, the record reveals that the

       court did not advise Mother of her right to counsel10 (or any of her other rights).

       Then when Mother expressed a desire for new counsel on the second day of the

       factfinding hearing, the trial court did not clearly explain to Mother that she

       had to choose between being represented by Attorney Cuvelier or proceeding

       pro se. More importantly, the trial court failed to make any attempt to impress




       10
          Parents whose rights are being involuntarily terminated have the right to be represented by counsel, the
       right to have counsel provided if they cannot afford private representation, and the right to be informed of the
       two preceding rights. In re Adoption of G.W.B., 776 N.E.2d 952, 954 (Ind. Ct. App. 2002).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                      Page 19 of 24
       upon her the serious consequences she faced if she represented herself. 11 Under

       the circumstances, we conclude that Mother was denied her right to counsel

       when the trial court failed to obtain a knowing and voluntary waiver from her

       before allowing Attorney Cuvelier to withdraw. See Matter of Adoption of C.J., 71

       N.E.3d 436, 444 (Ind. Ct. App. 2017) (reversing where mother established a

       prima facie case that she was deprived of an essential right – the right to counsel

       – in violation of due process); In re Adoption of G.W.B., 776 N.E.2d at 954

       (reversing where trial court did not advise father of his rights and did not

       impress upon him the serious consequences of self-representation); Taylor v.

       Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991) (reversing where father was

       not informed of his right to counsel, not warned that he might have to proceed

       without counsel if his attorney withdrew, and, “most importantly, nothing on

       the record demonstrate[d] that the trial court did anything to impress upon

       [him] the serious consequences he faced if he represented himself”), trans.

       denied.


[41]   In this case, deadlines, advisements, and notice were also apparent issues. The

       initial hearing in the TPR proceedings was almost nonexistent. The order

       issued following the initial hearing curiously indicates that the court “advise[d]

       [Parents] of the material allegations of the petitions, the rights of the parent(s)

       and children, and the right to be represented by counsel.” Appendix Vol. 2 at 58.




       11
         In the Magistrate’s Affidavit, the trial court averred that it cautioned Mother about the dangers of
       proceeding without counsel. The transcript of the hearing plainly indicates otherwise.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                      Page 20 of 24
The transcript, however, reveals that Parents were not so advised. The sum

total of the initial hearing follows:


        THE COURT: Alright. Thank you. Did the have the parents
        received a copy of the [TPR petitions]. Did you guys get that
        paperwork.


        [MOTHER]: Yeah I don’t have it with me but…


        THE COURT: But you’ve seen what they are asking for?


        [MOTHER]: Yes.


        THE COURT: Alright. Would you guys like to have attorneys
        represent you in that?


        [FATHER]: Yes.


        THE COURT: Alright. We will go ahead and show attorneys
        appointed for the termination cause and set a Fact Finding
        Hearing for that. And then after we get that set we can hear
        testimony on the pending motions in the CHINS cases.


        [DCS]: And also will you appoint a CASA on the TPR case?


        THE COURT: I’m sorry.


        [DCS]: A CASA would also be appointed in the TPR cause
        number?


        THE COURT: Yes and yes. And we already have a CASA on
        the CHINS case as well.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 21 of 24
               CT. REPORTER: August 13th at 9:00 o’clock.


               THE COURT: Okay we will write that down[.]


       Transcript at Vol. I at 4-5.


[42]   In addition to not advising Parents of their rights, the court set the date for the

       factfinding hearing with no apparent concern for the statutory requirement that

       the hearing commence “not more than ninety (90) days after a petition is filed.”

       Ind. Code § 31-35-2-6(a)(1). The court scheduled the hearing to begin 116 days

       after the TPR petitions were filed. Additionally, after the first day of evidence,

       the court set the continued factfinding hearing beyond the 180-day deadline for

       completing the hearing, as set out in I.C. § 31-35-2-6(a)(2). We acknowledge

       that Parents did not object to these dates and did not file motions to dismiss

       when the hearing was not held within the statutory timeframes, as would be

       their right under subsection (b) of the statute. While they are therefore not

       entitled to reversal on this ground, we certainly find the trial court’s disregard of

       the statutory deadlines concerning. See Matter of J.S., 133 N.E.3d 707, 713 (Ind.

       Ct. App. 2019) (“A party must preserve the right of expediency by filing a

       written motion to dismiss before the merits of a petition are litigated.”).


[43]   Next, we address Parents’ claim that they were precluded from presenting

       evidence on their own behalf, particularly the testimony of Ta.B. As set forth

       above, parents in a TPR proceeding are statutorily entitled to, among other

       things, obtain witnesses by compulsory process and introduce evidence. I.C. §

       31-32-2-3(b).

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 22 of 24
[44]   Here, Parents made clear their desire to call Ta.B., who was in the custody of

       DCS. They both made this request orally at the factfinding hearing in October,

       and a few days later, at the direction of the court, Father filed a written motion

       to have Ta.B. testify. At the November Hearing on this contested issue, the

       court ultimately ruled that Parents had the right to call Ta.B. as a witness and

       that if DCS desired an alternate means of obtaining her testimony (i.e.,

       videotaped testimony), it was DCS’s responsibility to establish the statutory

       requirements. DCS indicated it would take time to conduct the child hearsay

       evaluation and, therefore, Ta.B. would not be available for the next scheduled

       factfinding hearing. The trial court agreed that Ta.B.’s testimony could wait

       until after the child hearsay evaluation was conducted. Prior to the February 11

       factfinding hearing, DCS filed a written notice that Ta.B. would not be

       available for the hearing because her evaluation was scheduled for February 20

       “to determine if video testimony is appropriate.” Appendix Vol. 2 at 76.

       Accordingly, Parents presented evidence on February 11, 2019, with the

       reasonable belief that Ta.B.’s testimony would be obtained after her evaluation.


[45]   Three days later, and six days before the child hearsay evaluation, the trial court

       suddenly issued orders terminating Mother’s and Father’s parental rights. The

       trial court ruled that it would not allow Parents to present additional evidence,

       including the testimony of Ta.B., because they did not subpoena any witnesses.

       This strikes us as fundamentally unfair. Ta.B. was in the custody of DCS at all

       times, DCS was fully aware of Parents’ desire to call her as a witness, and DCS

       informed Parents and the court that she would not yet be available due to the


       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020   Page 23 of 24
       upcoming child hearsay evaluation. The trial court violated due process when

       it cut Parents’ evidence short in this regard.


[46]   Finally, we share Parents’ concerns with regard to the failure to transport

       Father 12 on several occasions and the lack of notice provided to Mother for the

       November Hearing and resulting order, among potentially other notice issues

       raised by Parents in their several motions filed with this court and the trial court

       throughout this appeal. 13 We need not determine whether these issues amount

       to a violation of due process, however, because other violations discussed above

       clearly entitle Parents to reversal.


[47]   Judgment reversed and remanded.


       Bailey, J. and Crone, J., concur.




       12
          This was not a situation where Father could not be transported while in custody; he simply was not
       transported. See In re C.G., 954 N.E.2d at 922-23 (adopting a list of factors for a trial court to consider when
       determining whether to permit an incarcerated parent to attend a TPR hearing). The trial court did attempt
       to provide due process to Father at the August factfinding hearing by allowing him to participate
       telephonically and consult with counsel privately and did reset the December hearing when Father was not
       transported. It is unclear, however, why Father was not transported for the November Hearing, at which
       Mother also did not appear because she did not receive notice.
       13
          In its clarification order issued December 31, 2019, the trial court expressly acknowledged the need to
       ensure that parties receive notice of all hearings and rulings on motions. We trust that the trial court has or
       will promptly address any administrative failings in this regard so that notice is properly provided in the
       future. DCS is also cautioned to comply with its notice requirements, as set out in I.C. § 31-35-2-6.5.

       Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020                        Page 24 of 24
