                                                                Jun 27 2013, 9:10 am

FOR PUBLICATION

ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

LISA M. TRAYLOR-WOLFF                              CHRISTINE M. REDELMAN
Public Defender                                    DCS Central Administration
Logansport, Indiana
                                                   ROBERT J. HENKE
MARK LEEMAN                                        DCS Central Administration
Public Defender                                    Indianapolis, Indiana
Logansport, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:   )

S.S.; J.S.; and C.S. (Minor Children) and,         )

 T.S. (Mother),                                    )
                                                   )
       Appellants-Respondents,                     )
                                                   )
               vs.                                 )     No. 09A02-1211-JT-936
                                                   )
THE INDIANA DEPARTMENT OF                          )
CHILD SERVICES,                                    )
                                                   )
       Appellee-Petitioner.                        )


                      APPEAL FROM THE CASS CIRCUIT COURT
                           The Honorable Leo T. Burns, Judge
            Cause Nos. 09C01-1207-JT-15, 09C01-1207-JT-16, 09C01-1207-JT-20



                                         June 27, 2013
                           OPINION—FOR PUBLICATION


BAKER, Judge

       In this case, appellant-respondent T.S. (Mother) argues that she was denied due

process when the juvenile court terminated her parental rights to three of her children

after denying her motion for a continuance. More particularly, Mother contends that she

should have been permitted additional time to be present at the termination hearing

because she resides in Florida.

       Child protective services from three different states have been involved with

Mother and her three children, C.S., S.S., and J.S. (collectively, “the Children”) at some

point over approximately the past three years; however, it was the appellee-petitioner

Indiana Department of Child Services (DCS) that filed a petition alleging the Children to

be Children in Need of Services (CHINS) and eventually filing a petition for the

termination of the parent-child relationship between Mother and the Children.

       After the Children had been removed from Mother’s care, but before the

termination hearing, Mother moved to Florida where she was expecting her fourth child.

The DCS and Mother’s attorney communicated with Mother, and she was aware of the

date of the termination hearing. Nevertheless, on that day, Mother’s attorney filed a

motion for a continuance based on Mother’s absence. The juvenile court denied the

motion.



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       Although Mother’s interest in the care and custody of her children is significant,

the State’s interest in protecting these children is also very significant in light of Mother’s

inability to protect herself from domestic abuse and to properly attend to the Children’s

medical and mental needs. When this is balanced against the low risk of error because

Mother was represented by counsel, voluntarily left Indiana, and was aware of the

termination hearing, we conclude that she was not denied due process when the juvenile

court denied her motion to continue. Accordingly, we affirm.

                                           FACTS

       Mother began dating S.S. (Father), when she was fifteen years old and became

pregnant with their first child when she was seventeen. The couple had three children

who are the subject of these proceedings: C.S. was born on February 7, 2007; S.S. was

born on November 26, 2009; and, J.S. was born on October 22, 2010.

       In 2010, Florida Child Protective Services (CPS) intervened after Father

physically assaulted Mother while she was pregnant with J.S. Father was arrested for

aggravated battery on Mother and was sentenced to thirteen months imprisonment. A No

Contact Order was issued, but Mother brought J.S. to visit Father twice after his birth.

Upon Father’s release in 2011, he was deported to Mexico and is not a party to these

proceedings.

       At some point in 2011, the family moved to Kentucky. Apparently, Mother and

the Children experienced difficulties while residing there because Kentucky CPS

intervened. Specifically, an investigation had been ongoing since May 2011. The family

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had been evicted, was homeless, and Mother was “low functioning.” Appellee’s App. p.

63.

         On July 8, 2011, Kentucky CPS requested that the DCS conduct a courtesy

interview because Mother was residing in Cass County. On July 15 and 18, 2011, the

DCS received a report that J.S. had been diagnosed with failure to thrive, was scheduled

to have a G-tube installed, and there were concerns regarding Mother’s ability to care for

J.S.

         During the DCS interview, Mother and R.H. (Boyfriend), who was also Mother’s

first cousin, exhibited problems. Additionally, C.S. became aggressive and would bite

S.S. on the face, causing significant bruising. S.S. also had untreated ringworm. The

assessment further revealed that:

       Mother believed that C.S. had only a few days left of her seizure
        medication; however, Mother had been overmedicating C.S., and there was
        no prescription for a refill when the medication ran out.

       C.S. was nonverbal, and Mother failed to follow up on concerns that the
        child had autism.

       C.S. received stitches after hitting her head on a table at the hospital.

       Mother left C.S. restrained in a stroller for long periods of time because she
        was active and would get into things.

       Mother arrived at the hospital with C.S. and S.S. but did not bring any
        clothing for them.

       Mother refused to discipline the children because as a child, Mother had
        been removed from her mother’s care because of physical abuse.

       Boyfriend did not feel that the children were safe with Mother.
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    Mother left eight-month-old J.S. alone at Riley Children’s Hospital (Riley)
     for several days before she arrived.

    Mother was unable to pass G-tube training, unable to feed J.S., and J.S.
     failed to gain weight under her care.

    Mother was not sure where she would live in the near future and was not
     even certain she would stay in Indiana, which was a concern for Riley
     because medical personnel had to mail J.S.’s medication.

    Mother was pregnant with Boyfriend’s child and was not receiving prenatal
     care.

Appellee’s App. p. 63-64.

      The DCS removed the children, and on July 21, 2011, the DCS requested and

received permission to file a petition alleging that C.S., S.S., and J.S. were CHINS. On

October 19, 2011, a fact-finding hearing was held on the CHINS petition, and the

juvenile court determined that the Children were CHINS after Mother admitted that her

housing was unstable, J.S. was diagnosed with failure to thrive, C.S. was diagnosed with

autism, Mother needed assistance obtaining medical care for the Children, and

intervention was necessary for the Children to receive the needed services. Appellee’s

App. p. 41-43.

      On December 1, 2011, the juvenile court entered its dispositional order ordering

Mother, among other things, to:

    Contact the DCS weekly;

    Notify the DCS of any change in address, household composition,
     telephone number, employment, arrest, or criminal charges;

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    Enroll and participate in any recommended services without delay or
     missed appointments;

    Maintain safe, stable housing;

    Secure and maintain legal income;

    Assist in the formulation of a protection plan;

    See that the children are properly clothed, fed, and supervised;

    Participate in home-based services to address issues of housing, budgeting,
     parenting, and sobriety;

    Complete a parenting assessment and follow all recommendations;

    Meet all medical, mental health, and dental needs of the children, including
     attending all appointments, following directions, and giving medications;

    Refrain from domestic violence and report it if it occurs;

    Comply with the terms of the no-contact order or protective order;

    Attend all visits, meet the children’s needs during that time, and implement
     parenting techniques learned in home-based services.

Appellee’s App. p. 76-78.

      Instead of following the orders in the dispositional decree, Mother left Indiana in

December 2011. She claimed that she was going to Alabama to visit family and would

return. Christina Scherer, a home-based service provider, remained in contact with

Mother through February 2012 and attempted to determine when Mother would return.

However, Mother changed her phone number and refused to provide her address to

Scherer or the DCS.


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      Although Mother informed Scherer that she would attend the May 16, 2012

permanency hearing, she failed to appear. Furthermore, Mother did not inform the DCS

that she was traveling to Florida. The DCS discovered that Mother was in Florida when

Florida CPS contacted the DCS about Mother.

      On July 5, 2012, the DCS filed a petition to involuntarily terminate the parent-

child relationship between Mother and the Children. On July 31, 2012, the DCS mailed a

copy of the summons to Mother’s Florida address to notify her of the termination

hearing. On August 23, 2012, the summons was returned showing that Mother was

personally served on August 8, 2012.

      Mother failed to appear at the August 29, 2012 initial hearing. Mother also failed

to appear at the September 26, 2012 evidentiary hearing but was represented by counsel.

At the beginning of the hearing, Mother’s counsel requested a continuance “until a time

when my client can be here” because she lives in Florida. Tr. p. 6.

      The DCS responded that Mother had contacted the DCS the week before and had

discussed the court date with the case manager. The DCS further pointed out that Mother

had signed the summons, proving that she had adequate notice of the hearing. As for

practical considerations, the DCS highlighted the fact that Mother had been living in

Florida since the previous December and had not visited the Children in ten months.

Finally, the DCS stressed that continuing the case would only “further delay permanency

for the children.” Tr. p. 7. The juvenile court denied Mother’s motion to continue.



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       The evidentiary hearing proceeded on the termination petition. Laura Knutson, a

family case manager with the DCS who was assigned to Mother’s case until a few

months before the termination hearing, testified that she had called Mother because she

was concerned after Mother missed a visit. Mother informed Knutson that Boyfriend had

assaulted her and that she was staying at a neighbor’s house. Mother’s injuries included a

sore lip, a black eye, and one-half of her face was very swollen. Perhaps the most

distressing aspect of the situation was that Mother was pregnant with Boyfriend’s child at

the time.

       Knutson contacted law enforcement, and a service provider transported Mother to

a domestic violence shelter. During intake, Mother disclosed that domestic violence had

occurred between her and Boyfriend “too many [times] to count.” Tr. p. 85.

       Although Mother was encouraged to stay at the domestic violence shelter longer,

she only stayed there for forty-five days because “she was only ordered to stay there

forty-five days by the judge.” Id. at 69-70, 84. Mother filed a police report but declined

a protective order. Charges were filed against Boyfriend, and a no contact order was

issued. Boyfriend was arrested at his father’s house where he was living with Mother.

       Because of this incident, Mother qualified for her own housing, but Mother missed

her initial appointment. Additionally, Mother left the shelter to move back in with

Boyfriend and his father, who was also her uncle, and she became “very secretive.” Id. at

92. Mother continued to live with Boyfriend and his father despite the charges against



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him, which were later dropped because she would not cooperate with the prosecutor’s

office.

          In light of the fact that Mother declined a protective order, lost her housing

eligibility because she left the shelter and moved back in with Boyfriend, and dropped the

charges against Boyfriend, Scherer did not think that Mother could keep the Children safe

because “[Mother] has a difficult time keeping herself safe.” Tr. p. 71.

          The Children suffered from medical conditions that required treatment and

preventative measures.       The Children have very bad teeth that require caps.

Nevertheless, Mother brought candy and sugary drinks to visits to bribe the children into

behaving.

          Similarly, despite repeated instruction from medical personnel at Riley that

Mother had to feed J.S. slowly through his G-tube to prevent aspiration, Mother would

speed up his feeding. Mother failed parent care instructions and could not feed J.S.

without assistance.

          At first, Mother showed some motivation to work with home-based services about

looking for employment and housing, independent living, good decision making, and role

modeling. However, after a few months, Mother was not willing to participate in any

services that did not benefit her personally, such as getting an identification card. Mother

was denied SSI and did not have any income or transportation.

          Mother did not progress beyond fully supervised visits because she did not

understand safety for the Children and failed to make sufficient progress.            More

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specifically, Mother left the Children unattended during visits and was not able to focus

on more than one child at a time. J.S. could not sit up by himself and during one visit,

Mother left him sitting alone on the couch while she took C.S. to the bathroom. Mother

did not redirect C.S.’s aggressive behavior and was often resistant to parenting prompts

from the visit supervisor.

       In short, Mother did not make “lasting changes or acknowledge[] the need for

improved parenting” by the time of the termination hearing. Tr. p. 102, 106. The DCS

never considered placing the Children back with Mother because “[s]he did not have the

ability to process the information she was provided and in turn use it effectively when she

was with the children. . . . They were not safe.” Id. at 92-93.

       Since the children’s removal, C.S. was diagnosed with Rett’s syndrome and is

taking medication. Autism is the main symptom of Rett’s syndrome. According to the

Children’s foster mother, C.S. is “like a completely different child.” Id. at 53.

       S.S. continues to have some speech and communication delays and is learning

how to play. She has a developmental therapist and will have a psychological evaluation,

but is otherwise doing well. Tr. p. 54.

       J.S. suffers from ear infections and can only receive nutrition through his G-tube.

But, he now weighs twenty-four pounds and is “pretty healthy.” Id. at 55. Unfortunately,

doctors believe that J.S. will always aspirate his food because his body does not respond

normally when he aspirates to allow him to cough up food. The medical professionals in

the neurology department at Riley believe that J.S. has cerebral palsy but have yet to

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formally diagnose him. The medical personnel also believe that the type of cerebral

palsy that J.S. has is likely caused by “trauma that was experienced in the first half of in

utero pregnancy.” Id. at 60.

       Both the foster mother and the Court Appointed Special Advocate (CASA),

Jessica Risher, testified that although Mother loved her children, she could not

appropriately care for them and keep them safe. Risher recommended the termination of

Mother’s parental rights.

       Similarly, accordingly to Jeff Stanton, the guardian ad litem (GAL), Mother “does

not have the ability to provide the care necessary.” Tr. p. 15. Mother “has a very, very

low functioning capacity.” Id. at 16. Stanton opined that this is “probably one of the

most extreme cases that [he has] ever reviewed where a parent has been absent from the

children.” Id. Stanton further testified that he “would be hard-pressed to imagine that

there’s a bond between the children and their mother based on this absence.” Id. at 17.

Based on this fact and the Children’s inability to thrive, Stanton also recommended

termination of Mother’s parental rights.

       Knutson believed that termination was in the Children’s best interests because

they need permanency and stability that Mother cannot provide. Additionally, Mother

cannot remedy the situation because of her learning disabilities and her presence in their

lives poses a physical threat to their wellbeing. The plan for the Children was adoption.

       On October 22, 2012, the juvenile court issued its order terminating the parent-

child relationship between Mother and the Children. Mother now appeals.

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                             DISCUSSION AND DECISION

       Mother’s sole argument on appeal is that she was denied procedural due process

when the juvenile court terminated her parental rights after denying her motion for a

continuance. We review a juvenile court’s ruling on a motion for continuance in a

termination of parental rights proceeding for an abuse of discretion. In re E.D., 902

N.E.2d 316, 321 (Ind. Ct. App. 2009). It is axiomatic that an abuse of discretion occurs if

a parent is denied due process in termination proceedings. Indeed, we have said:

       The Due Process Clause of the United States Constitution prohibits state
       action that deprives a person of life, liberty, or property without a fair
       proceeding.      When the State seeks to terminate the parent-child
       relationship, it must do so in a manner that meets the requirements of due
       process. The nature of the process due in a termination of parental rights
       proceeding turns on 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 governmental interest
       supporting use of the challenged procedure.

In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003) (internal citations omitted).

       In this case, the private interests of Mother are substantial. To be sure, we have

repeatedly recognized that parents’ interest in the care, custody, and control of their

children is one of the most valued relationships in our society. In re B.J., 879 N.E.2d 7,

16 (Ind. Ct. App. 2008); In re C.C., 788 N.E.2d at 852. Specifically, “the right to raise

one’s child is an ‘essential, basic right that is more precious than property rights.’” In re

B.J., 879 N.E.2d at 16 (quoting In re C.C., 788 N.E.2d at 852)).

       The second factor requires us to assess the risk of error created by the challenged

procedure. Here, the challenged procedure is Mother’s absence from the termination

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evidentiary hearing. At the outset, we observe that although Indiana Code section 31-35-

2-6.5(e) states that a court must provide a party the opportunity to be heard, it does not

confer a constitutional right to be present at the hearing. In re B.J., 879 N.E.2d at 16.

       In this case, Mother was represented by counsel throughout the termination

hearing. Indeed, her counsel requested the continuance that is the subject of this appeal,

questioned witnesses, and gave a closing argument. Tr. p. 5, 101-102.

       Moreover, Mother has failed to show prejudice. Specifically, Mother’s counsel

stated that Mother had her telephone number and knew how to contact her. Id. at 6-7.

Additionally, Mother was aware of the date of the termination hearing because she signed

the summons and spoke with Tamela Samuels, the current case manager, about the

hearing. Id. at 99-100. Under these facts and circumstances, the risk of error created by

the juvenile court denying Mother’s motion for a continuance is minimal.

       The third factor, the countervailing government interest, considers the State’s

significant parens patriae interest in protecting the welfare of children by intervening

when parental neglect, abuse, or abandonment are at issue. In re E.D., 902 N.E.2d at 321.

In assessing this factor, we have recognized that delays in adjudication impose significant

costs on the children involved. In re B.J., 879 N.E.2d at 17.

       Here, Mother has experienced significant exposure to domestic violence.

Specifically, Florida CPS became involved after Mother was physically assaulted by

Father while she was pregnant with J.S.           Appellee’s App. p. 64.       And medical



                                             13
professionals at Riley believe that J.S. has cerebral palsy that is likely from “trauma that

was experienced in the first half of in utero pregnancy.” Tr. p. 60.

       Similarly, while Mother was pregnant with Boyfriend’s child, Boyfriend assaulted

her. Id. at 81-82. Mother had a sore lip, a black eye, and one-half of her face was

swollen. Id. at 82. Mother was transported to a domestic violence shelter, but stayed for

only the minimum time ordered by the judge. Id. at 69-70. Mother moved back in with

Boyfriend and his father even though she was encouraged by her family case worker and

family consultant to stay in the shelter. Id. at 84. In short, Mother has difficulty

“keeping herself safe.” Id. at 71.

       Mother also has problems meeting the Children’s medical needs. Although the

Children have very bad teeth, Mother would bring sugary snacks and drinks to visits to

bribe them into behaving. Tr. p. 64-65. Mother overmedicated C.S. with her seizure

medication, and Mother disobeyed repeated instructions to feed J.S. slowly through his

G-tube. Id. at 68-69.

       Moreover, after removing the Children, the DCS never considered placing them

back with Mother because she lacked the ability to process information and use it

effectively when parenting the children. Tr. p. 92-93. Likewise, Mother failed to make

any lasting changes; instead, she left the state shortly after the dispositional order was

entered. Appellee’s App. p. 76-78; Tr. p. 72.

       Perhaps most compelling, since the Children’s removal, C.S. has been properly

diagnosed and medicated and is “like a completely different child.” Tr. p. 53. S.S. has

                                            14
some developmental delays, but is working with a therapist and doing well. Id. at 54.

And J.S. now weighs twenty-four pounds and is “pretty healthy.” Id. at 55. Further,

Mother voluntarily left her children and did not see them for ten months. Indeed, the

GAL testified that he “would be floored if there was . . . any bond whatsoever based upon

the absence of the parent.” Id. at 18. To be sure, the State’s interest in protecting these

children from harm is great.

       Upon balancing the Mother’s interest, the risk of error by not having Mother

present, and the State’s interest in protecting the welfare of these children, we conclude

that under the facts and circumstances of this case, the juvenile court did not deny Mother

due process of law when it denied her motion for a continuance.

       The judgment of the juvenile court is affirmed.

MAY, J., and MATHIAS, J., concur.




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