MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 30 2018, 10:14 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Noah T. Williams                                         Curtis T. Hill, Jr.
Bloomington, Indiana                                     Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In re Termination of the Parent-                         November 30, 2018
Child Relationship of                                    Court of Appeals Case No.
                                                         18A-JT-1462
M.P. (Minor Child)
                                                         Appeal from the Monroe Circuit
and                                                      Court
K.P. (Mother),                                           The Honorable Stephen R. Galvin,
Appellant-Respondent,                                    Judge
                                                         Trial Court Cause No.
        v.                                               53C07-1707-JT-606

Indiana Department of Child
Services,
Appellee-Petitioner



Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018                Page 1 of 11
                                                   Case Summary


[1]   K.P. (Mother) appeals following the termination of her parental rights to M.P.

      (Child). Mother presents two issues for our review:


               1.     On remand from this court, did the trial court abuse its
               discretion in granting the Department of Child Services’s (DCS)
               motion to reopen the evidence over Mother’s objection?


               2.      Did DCS present sufficient evidence to establish that it
               complied with the statutorily-mandated ten-day notice of the fact-
               finding hearing on the petition to terminate Mother’s parental
               rights?


[2]   We affirm.


                                          Facts & Procedural History


[3]   Mother and R.P. (Father)1 are the parents of Child, born August 25, 2010. On

      October 30, 2015, the Monroe County Sheriff’s Department received an

      anonymous report concerning drug use at Mother’s home. The following day,

      October 31, 2015, a Family Case Manager (FCM) with DCS made an

      unannounced visit to the home and observed that Mother was impaired while

      caring for Child and had track marks on her arms. The FCM also observed a

      six-inch knife within reach of Child, that the home was in disarray, and that




      1
       Father’s parental rights to Child were also terminated, but he does not participate in this appeal. Herein,
      we will set forth the facts only as they relate to termination of Mother’s parental rights.

      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018                  Page 2 of 11
      there was a bottle of Narcan, a glass pipe, and a needle in a dresser in Mother’s

      bedroom. Mother admitted that she used marijuana, oxycodone, and heroin.

      Child was removed from Mother’s care that day.


[4]   On November 4, 2015, DCS filed a petition alleging that Child was a child in

      need of services (CHINS). The trial court adjudicated Child a CHINS on

      January 14, 2016. On February 8, 2016, at the conclusion of a dispositional

      hearing, the trial court entered a dispositional order requiring Mother to

      complete a substance abuse assessment and follow all recommendations,

      participate in individual and group counseling and homebased case

      management, submit to random drug screens, and participate in supervised

      visits with Child. Mother was also required to permit access to her home,

      maintain suitable and stable housing and a legal and stable source of income,

      and keep in contact with DCS at lease once per week.


[5]   Mother completed the substance abuse evaluation and was diagnosed with

      major depressive disorder, posttraumatic stress disorder, severe opioid and

      marijuana use disorder, and moderate alcohol use disorder. It was

      recommended that Mother complete a thirty-day inpatient treatment program

      to be followed by individual counseling to address her mental health diagnosis

      and group counseling for treatment of her substance abuse issues.


[6]   In its May 2, 2016 case review order, the court found that Mother was not

      complying with services, had not enhanced her ability to fulfill her parental




      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 3 of 11
obligations, and had not fully cooperated with DCS. Specifically, the court

found:


        [Mother] has not been regularly participating in substance abuse
        outpatient treatment and individual counseling at Centerstone.
        Inpatient treatment has been recommended by her therapist.
        [Mother] was admitted to Stepping Stones treatment facility on
        March 21, 2016. She was unsuccessfully discharged the next day
        for breaking facility rules. She then entered the Women’s Bureau
        Transitions program on March 29, 2016. She left the program
        against staff advice on April 12, 2016. She tested positive for
        heroin and morphine on March 2, 2016. She has failed to screen
        when requested on multiple occasions.


Exhibits Vol. III at 30. In the court’s order approving the permanency plan,

dated November 30, 2016, the court found:


        [M]other has not complied with the dispositional orders.
        [Mother] continues to use controlled substances. She tested
        positive for amphetamine, Xanax, and Soma on September 26,
        2016. She tested positive for THC on September 29 and October
        27, 2016. She missed drug screens on August 1, November 18
        and November 23, 2016. [Mother] has been participating in IOP.
        Until recently, her participation in individual therapy was
        sporadic. When she has appeared for therapy sessions, she
        minimized her conduct and blamed others. However, she
        recently has begun to make progress in therapy. [Mother] has a
        prescription for Suboxone. [Mother] has not demonstrated that
        she [can] maintain sobriety and care for [Child].


Id. at 36.




Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 4 of 11
[7]   In its permanency review order of March 23, 2017, the court found that Mother

      was generally complying with the dispositional orders, but that she had yet to

      complete the court-ordered services. The court noted that Mother was visiting

      with Child and generally cooperating with DCS. On April 26, 2017, Mother

      was granted unsupervised visits with Child. However, by June 14, 2017,

      Mother’s visitation was modified back to supervised visitation.


[8]   In a July 17, 2017 permanency review order, the trial court found that Mother

      was visiting Child, but that she had not otherwise complied with the court’s

      dispositional order. The court noted that Mother continued to test positive for

      prescribed Suboxone and that she had recently relapsed. Mother also continued

      to see Father and encouraged Child to lie about it. On June 18, 2017, Mother

      and Father were arrested for theft.


[9]   On July 28, 2017, DCS filed a petition to terminate Mother’s parental rights.

      On August 10, 2017, the court set an initial hearing on the termination petition

      and sent notice of the hearing to Mother at her home on “W. Marlene Dr.”

      Appendix Vol. II at 14. Mother appeared at the initial hearing by telephone. The

      court entered a denial on Mother’s behalf and appointed her a public defender.

      The court also set a pretrial conference for September 18, 2017 and a factfinding

      hearing for September 25, 2017. At the pretrial conference, the court granted

      the “parties[’]” request to reset the factfinding hearing to October 30, 2017.2 Id.




      2
          The chronological case summary indicates that Mother was not present for the pretrial conference.


      Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018                 Page 5 of 11
       at 3. The court held the factfinding hearing as scheduled. Mother did not

       appear personally, but her attorney was present. At the beginning of the

       hearing, Mother’s counsel requested a continuance given Mother’s absence and

       stated, “Um, doubt if DCS has given them notice. But, maybe.” Transcript Vol.

       II at 5. The rest of counsel’s statement was inaudible due to construction work

       outside the building. DCS objected to the continuance, arguing, “the notices

       were provided more than 10 days in advance. … It was set about a month ago,

       um, parents were aware of today’s hearing.” Id. at 6. The court denied

       Mother’s motion to continue and proceeded with the factfinding hearing

       concerning termination of Mother’s parental rights.


[10]   During the factfinding hearing, FCM Branan Neeley testified that Mother had

       not completed inpatient treatment, had not successfully completed the Stepping

       Stones program, and had continued to use drugs. He further testified that

       Mother attended 36 out of 87 individual therapy sessions and 70 out of 138

       group therapy sessions. Additionally, he noted that Mother was offered 116

       drug screens, of which she missed 22. FCM Neeley also noted that Mother

       attended visits with Child 139 out of 161 times, but recently her participation

       had declined. A court appointed special advocate (CASA) testified that Child

       had bonded and was very affectionate with her pre-adoptive parents and that

       she believed adoption was the “ideal” plan for Child. Id. at 20. On November

       2, 2017, the court entered its order terminating Mother’s parental rights.


[11]   On December 4, 2017, Mother filed a notice of appeal under Cause No. 53A05-

       1712-JT-2830. In her brief, Mother asserted that her due process rights had

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 6 of 11
       been violated because DCS had not given her adequate notice of the date and

       time of the termination hearing.3 Instead of filing a brief in response, DCS filed

       a motion for remand, agreeing that the record lacked proof of compliance with

       the ten-day notice requirement of Ind. Code § 31-35-2-6.5. This court granted

       the motion on April 6, 2018 and remanded for further proceedings.


[12]   On April 18, 2018, DCS filed with the juvenile court a motion to reopen the

       evidence. The court held a hearing on the motion on May 3, 2018. Over

       Mother’s objection, the court granted DCS’s motion, finding that this court’s

       order for remand was for the purpose of “giving [DCS] an opportunity to

       demonstrate that there was compliance with Indiana Code 31-35-2-6.5.”

       Transcript Vol. II at 28. The hearing continued, and DCS was permitted to

       introduce evidence only as to whether Mother was afforded notice. At the

       conclusion of the hearing, the court took the matter under advisement.


[13]   On May 16, 2018, the trial court entered an order terminating Mother’s parental

       rights to Child. With regard to notice, the court found:


                On October 17, 2017, [DCS] sent Notices to [Mother] at [her]
                last known address[] (Exhibit #1 from the hearing on May 3,
                2018). The Notices comply with the requirements of I.C. 31-35-
                2-6.5. [FCM] Neeley testified that he sent [Mother]’s Notice to
                her last known address at 2457 W. Marlene Dr. … [Mother]
                testified that Mr. Neeley was lying under oath and that she had
                provided Mr. Neeley with a different address prior to the Fact-



       3
         As with the instant appeal, Mother did not argue that the evidence was insufficient to terminate her parental
       rights.

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018                 Page 7 of 11
               Finding hearing. She further testified that she thought the Fact-
               Finding hearing was happening “a few days in the future.” The
               Court accepts Mr. Neeley’s testimony as truthful. [Mother] is
               not a credible witness. The Court does not accept her testimony
               as truthful.


       Appendix Vol. II at 8. Mother filed the instant appeal. Additional facts will be

       provided as needed.


                                           Discussion & Decision


                                     Motion to Reopen the Evidence


[14]   Mother argues that the court abused its discretion in granting DCS’s motion to

       reopen the evidence. She asserts that this court’s order remanding the case

       made no mention of reopening the evidence. She also claims that she was

       greatly prejudiced by the court’s decision to permit DCS to present additional

       evidence as to whether she was afforded notice of the termination hearing such

       that “her substantive due process rights under the Fourteenth Amendment to

       build and maintain a family have been compromised.” Appellant’s Brief at 11.

       We disagree.


[15]   “[W]hen the government seeks to terminate the parent-child relationship, it

       must do so in a manner that meets the requirements of due process.” Q.B. v.

       Marion Cnty. Dep’t of Child Servs., 873 N.E.2d 1063, 1067 (Ind. Ct. App. 2007).

       These include not only compliance with the various statutory requirements of

       the Indiana Code, but also the fundamental constitutional requirements

       prohibiting “‘state action that deprives a person of life, liberty, or property

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 8 of 11
       without a fair proceeding.’” In re A.B., 922 N.E.2d 740, 744 (Ind. Ct. App.

       2010) (quoting In re B.J., 879 N.E.2d 7, 16 (Ind. Ct. App. 2008), trans. denied).

       Among the protections written into our statutes, I.C.§ 31-35-2-6.5 provides, in

       relevant part, that “[a]t 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 … shall send notice of the review to …

       [t]he child’s parent.” This court has held “[c]ompliance with the statutory

       procedure of the juvenile code is mandatory to effect termination of parental

       rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005). Although

       statutory notice “is a procedural precedent that must be performed prior to

       commencing an action,” it is not “an element of plaintiff's claim.” In re H.K.,

       971 N.E.2d 100, 103 (Ind. Ct. App. 2012). Rather, failure to comply with

       statutory notice is a defense that must be asserted. Id.


[16]   In H.K., this court considered on the merits whether DCS complied with the

       statutory notice requirement of I.C. § 34-35-2-6.5. Finding no evidence in the

       record that indicated DCS had complied with the notice statute, the court

       concluded the “most appropriate remedy” was to remand to the trial court with

       instructions that the court conduct a hearing to determine if DCS properly

       provided the requisite notice to the mother of the date and time of the final

       hearing. H.K., 971 N.E.2d at 103.


[17]   Although at a different procedural junction, the same remedy was employed

       here. This court granted DCS’s motion to remand “for further proceedings” on

       the issue of whether Mother received the requisite notice of the termination

       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 9 of 11
       hearing. In this regard, we find the court on remand properly interpreted this

       court’s order as providing DCS with the opportunity to demonstrate

       compliance with I.C. § 31-35-2-6.5. Such an opportunity required that the court

       hold a hearing and that the evidence be reopened so DCS could present

       evidence as to whether Mother was afforded the requisite notice of the

       termination hearing. Indeed, given that DCS essentially conceded that the

       record was devoid of evidence that DCS provided the requisite notice, remand

       for further proceedings would have been pointless if the trial court could not

       reopen the evidence. We therefore conclude that the trial court did not err in

       granting DCS’s motion to reopen the evidence.


                                                   Sufficiency


[18]   Mother argues that, even if it was not error for the trial court to reopen the

       evidence, DCS did not present sufficient evidence that she was afforded the

       requisite notice of the termination hearing. Once the defense of lack of notice is

       placed in issue, DCS bears the burden of proving compliance with the notice

       statute. H.K., 971 N.E.2d at 103.


[19]   On remand, DCS presented testimony from FCM Neeley that notice was sent

       to Mother’s last known address more than ten days prior to the termination

       hearing. When challenged as to what he knew to be Mother’s last known

       address, FCM Neeley maintained that he knew Mother’s last address to be on

       West Marlene Drive. DCS also provided copies of the notice itself, which was

       addressed to Mother at the West Marlene Drive address and dated October 17,


       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 10 of 11
       2017. The termination hearing was held on October 30, 2017. To refute DCS’s

       evidence, Mother testified that FCM Neeley was lying under oath and claimed

       that she provided him with a different address prior to the termination hearing.


[20]   The conflicting evidence necessarily required the court to make a credibility

       determination, and the trial court expressly determined in its order terminating

       Mother’s parental rights that it found FCM Neely’s testimony truthful and that

       Mother was not credible. We will not second-guess the court in this regard.

       DCS presented evidence that notice of the termination hearing was sent to

       Mother at her last known address more than ten days prior to the termination

       hearing. This is sufficient for purposes of I.C. § 31-35-2-6.5. See H.K., 971

       N.E.2d at 103 (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); In re C.C., 788 N.E.2d 847

       (Ind. Ct. App. 2003) (holding notice of the final termination hearing was not

       defective under I.C. § 31-35-2-6.5 where DCS established it mailed such notice

       to father’s last known address, even though DCS knew father did not reside at

       that location).


[21]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JT-1462 | November 30, 2018   Page 11 of 11
