                                                                            FILED
                                                                       Oct 17 2018, 10:19 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
John T. Wilson                                              Curtis T. Hill, Jr.
Anderson, Indiana                                           Attorney General of Indiana
                                                            Robert J. Henke
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                            October 17, 2018
of Parent Rights of:                                        Court of Appeals Case No.
B.J. (Minor Child),                                         18A-JT-1266
and                                                         Appeal from the Madison Circuit
                                                            Court
T.J. (Mother),
                                                            The Honorable G. George Pancol,
Appellant-Respondent,                                       Judge

        v.                                                  Trial Court Cause No.
                                                            48C02-1702-JT-18

The Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.



Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018                            Page 1 of 8
[1]   T.J. (Mother) appeals the trial court’s order terminating her parent-child

      relationship with B.J. (Child). Mother argues that the trial court erred by

      denying her motion to continue the termination hearing based on DCS’s failure

      to provide her with statutorily required notice of the hearing. We find that

      DCS failed to comply with the statute but that the trial court acted within its

      discretion in denying the motion to continue. Therefore, we affirm.


                                                       Facts
[2]   In December 2014, Child was found to be a Child In Need of Services (CHINS)

      after Child’s sibling, G.K., sustained “extensive contusions and bleeding in the

      brain” that were allegedly caused by Mother. Tr. DCS Ex. 2 p. 2. Mother

      eventually pleaded guilty to criminal charges stemming from G.K.’s injuries

      and was sentenced to the Department of Correction (DOC). 1


[3]   On February 20, 2017, DCS filed a petition to terminate the parent-child

      relationship between Child and Mother. The trial court set a factfinding date of

      June 6, 2017. DCS filed a motion to continue, which the trial court granted,

      resetting the hearing for November 7, 2017. On October 30, 2017, Mother’s

      attorney filed a motion to continue the factfinding hearing because Mother was

      scheduled to be released from the DOC on November 1, 2017, and wished to

      have more time to improve her parent-child relationship before the factfinding.

      On October 31, 2017, the trial court granted the motion and continued the




      1
          G.K. is not a party to this case.


      Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018      Page 2 of 8
      hearing to January 30, 2018. On November 1, 2017, the trial court sent notice

      of the new hearing date to Mother’s last known address, which was the DOC

      facility where she had been incarcerated.


[4]   After being released from the DOC on November 1, 2017, Mother failed to

      maintain consistent contact with DCS. She had some brief contacts with her

      Family Case Manager (FCM) shortly after she was released, but at the time of

      the termination hearing, the last contact of any sort was a text message to the

      FCM on December 5, 2017. She did not provide DCS with her new address

      and the FCM was under the impression that she was aware of the progress of

      the case and of the hearing scheduled for January 30, 2018.


[5]   On January 29, 2018, Mother’s attorney filed a motion to continue the

      factfinding hearing, arguing that DCS had not provided sufficient notice to

      Mother of the hearing. On January 30, 2018, Mother failed to appear at the

      hearing. The trial court heard argument on the motion to continue, denied it,

      and proceeded with the factfinding hearing. On April 26, 2018, the trial court

      entered an order granting the termination petition. In relevant part, it found as

      follows:


              On 10/30/17, Mother, by her appointed counsel, filed a motion
              to continue the termination proceedings, asserting that Mother’s
              incarceration was ended and that she deserved further
              opportunity to preserve her parent-child relationship with the
              Child. The Court granted this Motion made by Mother on
              10/31/17 and reset the matter for trial on 1/30/18, with notice
              provided to all parties of the new hearing date obtained at
              Mother’s request. During the termination hearing, the Court’s

      Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018       Page 3 of 8
              staff verified that the Court’s own file noted that notice of the
              new trial date of 1/30/2018 had been sent to Mother at her
              Department of Corrections facility address after the Court had
              granted her own motion to continue the previous trial setting.


      Appealed Order p. 4. Mother now appeals.


                                     Discussion and Decision
[6]   Mother’s sole argument on appeal is that DCS failed to give her statutorily

      required notice of the factfinding hearing and that as a result, her due process

      rights were violated when the trial court denied her motion to continue.


[7]   The decision to grant or deny a motion to continue is within the trial court’s

      sound discretion, and we will reverse only where the trial court reaches a

      conclusion that is clearly against the logic and effect of the facts or the

      reasonable and probable deductions that may be drawn therefrom. J.P. v. G.M.,

      14 N.E.3d 786, 789 (Ind. Ct. App. 2014). To the extent that this appeal

      requires us to interpret a statute, we note that we apply a de novo standard of

      review to matters of statutory interpretation. In re Bi.B., 69 N.E.3d 464, 466

      (Ind. 2017).


[8]   Indiana Code section 31-35-2-6.5 provides, in relevant part, as follows:


              (a)      This section applies to hearings under [the termination of
                       parental rights] chapter relating to a child in need of
                       services.


              (b)      At least ten (10) days before a hearing on a petition or
                       motion under this chapter:
      Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018          Page 4 of 8
                        (1)      the person or entity who filed the petition to
                                 terminate the parent-child relationship under section
                                 4 of [the termination of parental rights] chapter; . . .


                        shall send notice of the review to the persons listed in
                        subsections (c) and (d).


               (c)      Except as provided in subsection (h), the following persons
                        shall receive notice of a hearing on a petition or motion
                        filed under this chapter:


                        (1)      The child’s parent, guardian, or custodian.


                                                          ***


               (e)      The court shall provide to a person described in subsection
                        (c) or (d) an opportunity to be heard and make
                        recommendations to the court at the hearing. . . .


[9]    There is no evidence in the record that DCS provided notice of the January

       2018 factfinding hearing to Mother. We must determine first, whether such

       notice was required; and second, whether, if required, the lack of notice entitles

       Mother to relief.


[10]   First, the plain language of the statute clearly requires that DCS provide notice

       of a termination hearing to a child’s parent at least ten days before the hearing.

       See In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (holding that while

       formal service of process is not required, DCS is required to send notice of a

       termination hearing to the parent’s last known address at least ten days before

       the hearing). Here, that did not occur. We strongly encourage DCS to comply
       Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018             Page 5 of 8
       with the notice requirements of Indiana Code section 31-35-2-6.5 in the future,

       especially given its recent struggles with due process compliance.2 See A.A. v.

       Ind. Dep’t of Child Servs., 100 N.E.3d 708, 708-09 (Ind. Ct. App. July 9, 2018)

       (order condemning the “repeated, significant violations of due process

       occurring in termination of parental rights cases throughout this state” and

       formally admonishing “DCS for its failure to afford litigants throughout this

       state the due process rights they are owed”).


[11]   That said, we must still determine whether the lack of such notice in this case

       entitles Mother to relief. Initially, we note that the statute does not contain a

       remedy for the failure to provide a parent with notice of a hearing. It does,

       however, state that the trial court “shall continue the hearing if, at the time of

       the hearing, the department has not provided the court with signed verification

       from the foster parent” that the foster parent received notice. I.C. § 31-35-2-

       6.5(f). The statute contains no such continuance requirement with respect to

       the child’s parent. We interpret that to mean that the legislature left it to the

       trial court to determine, in its discretion, whether a continuance is warranted if

       DCS failed to provide this statutorily required notice.




       2
        DCS argues that the statute “does not say that the 10-day notice cannot be provided [to] the parent by the
       court, in lieu of DCS.” Appellee’s Br. p. 27. We are not persuaded by this analysis, as the statute quite
       plainly and clearly requires that the party that filed the termination petition—which will nearly always be
       DCS—is required to provide this notice. The statute contains no provision permitting another person or
       entity to provide the notice in DCS’s stead.

       Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018                              Page 6 of 8
[12]   In this case, the termination hearing was continued, at Mother’s own request, from

       November 7, 2017, to January 30, 2018. The trial court sent Mother notice of

       the new hearing date at her last known address, which was the DOC facility

       where she had been incarcerated. She apparently did not receive the notice

       because she was released from the DOC on or about November 1, 2017, which

       is the same date on which the trial court sent her the order. But after leaving

       the DOC, Mother failed to maintain consistent, substantive communication

       with DCS, and she did not provide DCS, her attorney, or the trial court with a

       current address. Therefore, even if DCS had attempted to provide the required

       notice, it, too, would have had to send it to her last-known address—which was

       the DOC facility. In other words, Mother was not prejudiced as a result of

       DCS’s failure to provide her with the required notice—she would have been no

       better off had DCS done so.


[13]   Under these circumstances, we find that the trial court did not err by denying

       Mother’s motion to continue the termination hearing. We likewise find that the

       procedural irregularity did not violate Mother’s due process rights under the

       specific facts of this case because the original hearing date was continued at her

       own request and she failed to provide current contact information after being

       released from the DOC. See In re T.W., 831 N.E.2d 1242, 1247 (Ind. Ct. App.

       2005) (holding that a procedural irregularity is not automatically a violation of

       a parent’s due process rights).




       Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018      Page 7 of 8
[14]   The judgment of the trial court is affirmed.


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




       Court of Appeals of Indiana | Opinion 18A-JT-1266 | October 17, 2018   Page 8 of 8
