MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Mar 03 2017, 9:17 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven J. Halbert                                        Curtis T. Hill, Jr.
Carmel, Indiana                                          Attorney General of Indiana

                                                         Robert J. Henke
                                                         Marjorie Newell
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         March 3, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of D.S., Ri.S., Jr., & R.S.                              49A04-1605-JT-1125
(Children) and K.M. (Mother);                            Appeal from the Marion Superior
                                                         Court
K.M. (Mother),                                           The Honorable Marilyn A.
Appellant-Respondent,                                    Moores, Judge
                                                         The Honorable Larry Bradley,
        v.                                               Magistrate
                                                         Trial Court Cause Nos.
The Indiana Department of                                49D09-1509-JT-564
Child Services,                                          49D09-1509-JT-565
                                                         49D09-1509-JT-566
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017          Page 1 of 21
      May, Judge.


[1]   K.M. (“Mother”) appeals the involuntary termination of her parental rights to

      her three children, Ri.S., Jr., R.S., and D.S. (collectively “Children”). She

      raises two issues, which we restate as:


                  (1) whether the evidence was sufficient to sustain termination of
                      Mother’s parental rights; and


                  (2) whether Mother’s due process rights were violated.


      We affirm.



                                 Facts and Procedural History
[2]   Ri.S., Jr. was born to Mother and Ri.S., Sr. (“Father”)1 on March 10, 2000.

      R.S. was born to Mother and Father (collectively “Parents”) on September 4,

      2001. D.S. was born to Parents on December 14, 2003. On November 1, 2013,

      police came to Parents’ home to serve a warrant for Mother’s arrest for theft of

      a neighbor’s electricity. In attempting to serve the warrant, police found

      Children home alone sleeping on the floor in the front room of a house that was

      littered with trash and did not have electricity. The police notified the

      Department of Child Services (“DCS”).




      1
          Father does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 2 of 21
[3]   DCS Family Case Manager Patrick McCoskey (“FCM McCoskey”) went to the

      home and found it was unsafe for Children. Specifically, FCM McCoskey

      observed trash in every room, dirty dishes, rotten lettuce, yogurt, and eggs

      covering the kitchen counters, and trash covering the kitchen floor. There was

      no refrigerator. FCM McCoskey observed feces in the bathroom toilet and “a

      brown dirt-like substance covering the bathroom tub.” (Ex. at 5.)2 There was

      trash in every bedroom and old food scattered throughout the house. There

      were no beds in any of the bedrooms. Glass crack pipes, a lighter, and

      cigarettes were on a bedroom floor “in easy reach of the children.” (Id. at 3.)

      There was no electricity or heat in the home, and the bathrooms were not

      functioning.


[4]   DCS removed Children from the home that same day. FCM McCoskey

      interviewed Father and Children regarding their living conditions. DCS

      attempted to contact Mother that same day but was unsuccessful. Father told

      FCM McCoskey that Children took sink baths at home and would take regular

      baths and do laundry at their grandmother’s home. When asked about the

      electricity, Father stated the family had been using a generator for electricity for

      the past month, but that it had broken two weeks prior and the family had been

      without power since then. When asked about the crack pipes, Father stated he




      2
       The trial court clerk’s failure to number the pages of the Exhibit volume greatly hindered our review of the
      record. We cite the page numbers as they appear consecutively in the PDF format of the Electronic Record.
      See Ind. Appellate Rule 29(A) (requiring the Exhibits be filed in accordance with Appendix A(2)(a), which
      provides: “Each volume of the Transcript shall be independently and consecutively numbered at the bottom.
      Each volume shall begin with numeral one on its front page.”).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017             Page 3 of 21
      did not know to whom they belonged. When asked about Mother’s

      whereabouts, Father stated she was gone when he woke up that morning, he

      did not know where she was, and he did not know her telephone number.


[5]   Ri.S., Jr. told FCM McCoskey that, when he had to use the restroom, he would

      “go outside to pee or go to his friend’s house down the street” but “wasn’t sure

      what the girls do.” (Id. at 4.) D.S. stated the bathrooms in the home were

      broken but they used a portable toilet that was a “bucket and chemicals.” (Id. at

      5.) Children all indicated they took “sink baths,” (id.), at their home and did

      laundry at their grandmother’s house. Children were taken into emergency

      protective custody and placed with their paternal grandmother

      (“Grandmother”). DCS tried to contact Mother again on November 3, 2013,

      but was unsuccessful.


[6]   On November 4, 2013, the court held an initial detention hearing. Father

      appeared but Mother did not appear. DCS filed a petition alleging Children

      were Children in Need of Services (“CHINS”) based on the lack of a safe,

      sanitary, and appropriate living environment for Children, the open warrant for

      Mother’s arrest, and the drug paraphernalia left within the reach of Children.

      Children were to remain in Grandmother’s care.


[7]   On November 15, 2013, the court held a continued hearing. Neither Mother

      nor Father appeared. DCS indicated service was sent to Mother at her last

      known address, there was still an open warrant for Mother’s arrest, and

      Mother’s whereabouts were still unknown.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 4 of 21
[8]    On November 22, 2013, the court held a fact finding hearing. Father appeared,

       but Mother did not appear. At the hearing, DCS reported they were able to

       contact Mother by telephone, but Mother would not advise DCS of her location

       due to the active arrest warrant. Father admitted Children were CHINS. The

       court adjudicated Children CHINS and scheduled a dispositional hearing as to

       Father. As a result of Mother’s absence, the court scheduled a default hearing

       as to Mother. Children remained in relative care with their Grandmother.


[9]    On December 20, 2013, the court held a dispositional hearing for Father. The

       court found it was in the best interests of Children that they be removed from

       their home environment and continue in relative care placement. The court

       ordered Children be formally removed from the home and continue living with

       Grandmother. Furthermore, the court ordered Father maintain suitable, safe,

       and stable housing with adequate bedding, functional utilities, adequate

       supplies of food and food preparation facilities. The court ordered Father

       undergo home-based counseling, random drug screens, and substance abuse

       counseling subject to the results of his drug screens. The permanency plan at

       that time was reunification.


[10]   On February 28, 2014, the court held a periodic placement review hearing.

       Parents did not appear. Grandmother appeared. The court found Father had

       been unsuccessfully discharged from home-based services and was currently

       incarcerated for illegal substance use. DCS recounted that its only contact with

       Mother was the “one time in December [2013] and [Mother] advised that she

       would not come to Court because she has an open warrant.” (Id. at 42.)

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 5 of 21
       Grandmother stated Children were doing well in her care and she was willing

       to keep Children long-term. The court found DCS was making reasonable

       efforts to offer and provide services, and Children would remain in their current

       placement. The court ordered the permanency plan remain reunification.


[11]   Mother was incarcerated in May 2014. On May 30, 2014, the court held a

       periodic placement review hearing. Parents did not appear. The court found

       Mother had been properly served by publication on April 25, 2014, and entered

       a default disposition order against Mother, formally removing Children from

       her care. The court also ordered DCS to not provide any services to Mother

       until Mother “appear[ed] in court or in the Department of Child Services Office

       to demonstrate a desire and ability to care for [Children.]” (Id. at 53.) The

       court ordered the plan remain reunification.


[12]   On September 5, 2014, the court held a periodic placement review hearing.

       Parents did not appear. DCS reported Mother was in the Madison County

       Department of Correction (“DOC”) and Mother had requested Children be

       allowed to visit her at the DOC. As DCS had no objection, the court

       authorized Mother to have visitation with Children at the DOC. DCS

       requested the court set a permanency hearing as the case had been open roughly

       ten months. The court set a permanency hearing for December 5, 2014.


[13]   Mother appeared before the court for the first time in the CHINS case at a

       permanency hearing held December 5, 2014. Mother had been released from

       incarceration earlier that week, was “eager to participate in services,” and


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 6 of 21
       requested the court modify its dispositional order to allow Mother to do so. (Id.

       at 62.) Grandmother was present at the hearing and stated Children were

       “doing well and thriving” in her care. (Id.) The court modified its previous

       disposition order to allow Mother supervised parenting time, homebased

       therapy, homebased case management, random drug screens, substance abuse

       assessments, and all other services recommended by DCS. The permanency

       plan remained reunification for both parents.


[14]   On February 27, 2015, the court held a periodic placement review hearing.

       Mother appeared, but Father did not appear. DCS reported Mother was

       making progress in therapy, was addressing substance abuse issues, and was

       currently employed. Grandmother and Children’s Guardian ad Litem

       (“GAL”) reported Children were all on honor roll at their schools, but

       recommended therapy for R.S. and D.S. The court ordered Children remain in

       their current placement with Grandmother and ordered individual therapy for

       R.S. and D.S. The court also authorized unsupervised parenting time for both

       Parents due to the positive recommendations from DCS, Children’s GAL, and

       service providers.


[15]   Sometime in 2015, Mother became pregnant. On May 22, 2015, the court held

       a periodic review hearing. Parents did not appear. Mother was not engaging in

       services and was inconsistently participating in drug screenings. Mother’s

       counsel indicated he had not recently had any contact with Mother. Children

       were doing well in their placement with Grandmother; however Children’s



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 7 of 21
       GAL noted the oldest child, Ri.S., Jr., had been upset about Parents’

       inconsistent participation.


[16]   Beginning in June 2015, Mother’s participation in parenting time sessions

       began to decline “significantly.” (Tr. at 38.) On June 26, 2015, the court held a

       permanency hearing. Mother appeared. Mother had been inconsistent in

       participating in services and recently had tested positive for cocaine. DCS

       however, noted Mother had “reengaged fully in services” and was participating

       in therapeutic visitation sessions with Children on the weekends. (Id. at 82.)

       DCS requested the court set a permanency hearing in ninety days “so that the

       children may work through with [sic] what a change of plan of permanency

       may mean.” Id. Ri.S., Jr. requested “another planned permanent living

       arrangement” (“APPLA”), but the court denied his request and ordered DCS

       and Children’s GAL to speak with Children regarding guardianship and

       adoption.


[17]   On August 21, 2015, the court held a permanency hearing. DCS recommended

       the plan be changed to adoption, as Father was discharged unsuccessfully from

       home-based therapy, both Parents were inconsistent with parenting time,

       Mother tested positive for cocaine in May and June, and Mother was

       unsuccessfully discharged from services due to non-compliance, lack of

       attendance, and lack of communication. Furthermore, R.S. and D.S.’s home-

       based therapist stated Children were working through abandonment issues.

       The court made the following findings:



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 8 of 21
               1. This matter has been open for nearly two years.


               2. The DCS has made numerous referrals for both parents to
                  engage in home based therapy, home based case management
                  and drug treatment.


               3. Neither parent has engaged in home based services to
                  improve their residence from the deplorable condition which
                  existed when the case was filed.


               4. Neither parent has engaged in drug treatment to address their
                  issues of substance abuse. [Mother] has repeatedly tested
                  positive for cocaine.


               5. Parents have not maintained consistent parenting time with
                  the children and their time has been reduced to one time per
                  week due to their continued failures to attend parenting time
                  sessions.


                   Based on these findings, the Court finds that it is in the
                   children’s best interests for the plan to change from
                   reunification to adoption.


       (Ex. at 89-90.) The court thus changed the permanency plan from reunification

       to adoption.


[18]   On September 18, 2015, DCS filed its Verified Petition for Termination of

       Parental Rights of both Parents. The court held an initial hearing on DCS’s

       petition on September 25, 2016, but both Parents failed to appear. On

       November 6, 2015, the court attempted to hold another pre-trial hearing, but



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 9 of 21
       Parents again failed to appear. Mother’s counsel advised the court Mother was

       on bedrest and her baby was due in January 2016.


[19]   On January 15 and 29, 2016, the court held pre-trial hearings. Parents failed to

       appear at both hearings. Mother’s counsel advised the court on January 15 that

       Mother had given birth in January and was on bedrest.


[20]   On February 19, 2016, the court held a periodic review hearing. Mother did

       not appear, but Father appeared. DCS reported Parents were not participating

       in services and had been unsuccessfully discharged. DCS also reported the last

       time Parents had parenting time with Children was January 19, 2016. Mother’s

       counsel advised the court that Mother was in the process of moving to Georgia

       and that Mother wanted to pursue proceedings for Children to relocate to

       Georgia and for her cousins in Georgia to have guardianship over Children

       through an Interstate Compact on the Placement of Children process. The

       court denied Mother’s request because Children were doing well in their

       placement with Grandmother and had been in that placement for over two

       years.


[21]   On March 31, 2016, the court held a termination hearing on DCS’s petition to

       terminate Parents’ parental rights. Parents failed to appear, but both Parents’

       counsel appeared and requested a continuance because they were able to

       contact Parents for “the first time” that day. (App. at 74.) The trial court

       granted the continuance but “admonish[ed] both Mother and Father” for their




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 10 of 21
       failure to maintain contact with counsel and ordered “no further continuances

       would be granted on their failure to appear.” (Id. at 75.)


[22]   On April 27, 2016, the court held a termination hearing. Parents failed to

       appear but their respective counsel were present. The court heard testimony

       from DCS Family Case Manager James McClenning (“FCM McClenning”),

       DCS Family Case Manager Egypt Pope (“FCM Pope”), and Children’s GAL

       Sandra Donaldson (“GAL Donaldson”). On April 28, 2016, the trial court

       terminated the parental rights of Parents. The court concluded there was no

       reasonable probability the conditions resulting in Children’s removal or reasons

       for continued placement outside the home would be remedied as Parents failed

       to adequately address the conditions of the home throughout the two-and-a-

       half-year period of the CHINS case, Parents had not recently engaged in

       services, and Parents had both left Indiana. The court concluded continuation

       of the parent-child relationship posed a threat to Children’s well-being as it

       would pose a barrier in obtaining permanency for them through Grandmother’s

       adoption. Finally, in light of Children having been placed with Grandmother

       for the past two and a half years, the stability Grandmother provided them,

       Children’s wishes to remain with Grandmother, and Parents’ lack of contact

       with Children, the court concluded termination was in Children’s best interests.



                                  Discussion and Decision
                                          Sufficiency of the Evidence



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 11 of 21
[23]   “The Fourteenth Amendment to the United States Constitution protects the

       traditional right of parents to establish a home and raise their children.” In re

       G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. Indeed, the parent-child

       relationship is “one of the most valued relationships of our culture.” Bester v.

       Lake Cty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). However,

       these protected interests are not absolute and must be subordinated to the

       children’s interests in determining whether to terminate parental rights. In re

       T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied.


[24]   “The purpose of terminating parental rights is not to punish parents but to

       protect their children.” Id. Therefore, “although parental rights are of a

       constitutional dimension, the law allows for the termination of those rights

       when parties are unable or unwilling to meet their responsibility as parents.”

       Id. “Termination of parental rights is proper where the children’s emotional

       and physical development is threatened.” Id. The trial court need not wait

       until the children are irreversibly harmed such that their physical, mental, and

       social development is permanently impaired before terminating the parent-child

       relationship. Id.


[25]   To terminate a parent’s rights, the State must file a petition in accordance with

       Indiana Code section 31-35-2-4 and then prove the allegations therein by clear

       and convincing evidence. In re G.Y., 904 N.E.2d at 1260-61. If the court finds

       the allegations in the petition are true, it must terminate the parent-child

       relationship. I.C. § 31-35-2-8. We review termination of parental rights with



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 12 of 21
       great deference to the trial court.3 In re K.S., 750 N.E.2d 832, 836 (Ind. Ct.

       App. 2001). We will not reweigh evidence or judge credibility of witnesses. In

       re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016). Instead, we consider only the

       evidence and reasonable inferences most favorable to the judgment. In re D.D.,

       804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. We apply a two-tiered

       standard of review: we determine first whether the evidence clearly and

       convincingly supports the findings, and second whether the findings clearly and

       convincingly support the conclusions. In re Involuntary Termination of Parent-

       Child Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016). We will set aside a

       judgment terminating a parent’s rights only if it is clearly erroneous. In re V.A.,

       51 N.E.3d at 1143.


[26]   Mother’s argument essentially amounts to an assertion that the evidence was

       insufficient to support the trial court’s termination of her rights. In support of

       her argument, Mother claims the trial court’s finding that she was “unsuccessful

       in all services,” (App. at 35), is not supported by the record. She also points to



       3
        To the extent Mother argues we should apply a different, less deferential standard of review in termination
       cases, we are unpersuaded. (See Appellant’s Br. at 8-9) (“the ‘deferential’ standard of review does not have
       any legitimate foundation under Indiana Law”). Mother cites In re Involuntary Termination of Parent-Child
       Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016), to support her proposition that “[a]ny ‘deference’ to a
       juvenile court termination violates the high bar of scrutiny required by the Court.” (Appellant’s Br. at 9.)
       However, Mother misconstrues our Indiana Supreme Court’s statement of the law. In R.S., the Court
       emphasized “the Indiana statute governing termination of parental rights sets a high bar for severing [the]
       constitutionally protected relationship [between parent and child].” 56 N.E.3d at 628. But the Court also
       noted in meeting this high bar, “the State must prove each element [of the statute] by clear and convincing
       evidence” when it files a petition seeking to terminate parental rights. Id. at 629. The Court was referring to
       the high bar that must be met at the trial court level, and not the level of deference on appellate review.
       Mother’s attempt to characterize the Court’s statement of the law as applying to appellate review lacks merit.
       She likewise cannot use In re V.A., 51 N.E.3d 1140 (Ind. 2016), to support her position, as that Court also
       applied the “clearly erroneous” standard of review. Id. at 1143.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017              Page 13 of 21
       DCS testimony from the termination hearing that Children would benefit from

       continued contact with Parents, and she claims her incarceration and pregnancy

       complications allowed her insufficient time to adequately address her housing

       and substance abuse issues.


[27]   Mother claims the court’s finding that she was “unsuccessful in all services,”

       (App. at 35), is not supported by the record because although Mother was

       “inconsistent” with services, she was “fully engaged” at times throughout the

       case. (Appellant’s Br. at 9.) However, as the trial court noted, Mother did not

       complete therapy or case management, and she failed to complete a

       recommended intensive substance abuse program. Furthermore, Mother

       completely stopped engaging in services when she moved out of Indiana.

       While Mother initially made progress in services in early 2015, by May 2015,

       DCS was reporting Mother’s inconsistent participation in services and in drug

       screenings. By June 2015, Mother’s participation in parenting time began to

       decline “significantly,” (Tr. at 38), and by July 2015, Mother was

       unsuccessfully discharged from services. Regarding Mother’s unsuccessful

       discharge from services, FCM McClenning testified:

               She had numerous appointments in which she was not available
               for. She either wasn’t, either wouldn’t be at the place we had
               arranged to meet or that we simply weren’t able to contact her at
               all. The, there was a compliance agreement put in place, but it
               was broken and then the final point was an absence on a
               supervised visitation as well.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 14 of 21
       (Id. at 37) (errors in original). While Mother cites FCM McClenning’s

       testimony from the termination hearing that she established safe housing “at

       times,” (id. at 35), and made “significant progress” during her substance abuse

       therapy sessions, she omits his conclusion that “overall” she did not adequately

       address her substance abuse issues. (Id. at 35-36.) Thus, there is ample

       evidence in the record to support the court’s finding that Mother was

       unsuccessful in all services.


[28]   We are likewise unpersuaded by Mother’s argument that she had inadequate

       time to address her housing and substance abuse issues because of incarceration

       and pregnancy complications. Mother reasons she “had only a few months to

       address the serious issues of stable housing and substance abuse,” and that she

       had made “some progress but was not yet ready to be reunified with her

       family.” (Appellant’s Br. at 10.) Mother concludes, “this does not mean

       termination was required.” (Id.) We disagree.


[29]   Mother was released from incarceration in December 2014, and her parental

       rights were terminated in April 2016. Mother had roughly sixteen months to

       engage in therapy, home-based case management, drug screens, and parenting

       time with Children. She failed to do so. We note Mother gave birth in early

       January 2016, which means Mother became pregnant in the spring of 2015.

       Mother thereafter continued to use cocaine, as evidenced by her positive drug

       screening results in May, June, and August 2015. At the August 2015 review

       hearing DCS requested the permanency plan be changed from reunification to

       adoption due to Mother’s failed drug screenings and failure to engage in

       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 15 of 21
       services, but the CHINS case continued for another seven months. Mother

       failed to appear for any review hearings throughout the remainder of the case

       and subsequently moved out of Indiana.


[30]   In light of Mother’s pattern of inconsistent participation throughout

       proceedings, recorded drug use, and decision to move out of Indiana, we

       cannot say “time” or Mother’s bedrest were at issue. Rather, the record clearly

       indicates Mother’s lack of participation was a result of her own decisions.

       Mother’s assertion that she “was only able to participate in services for about

       six months before the DCS decided to change the plan to adoption,”

       (Appellant’s Br. at 7), is simply not true.


[31]   The trial court concluded termination was in Children’s best interests, finding

       termination “would allow them to be adopted into a stable and permanent

       home where their needs will be safely met.” (App. at 35.) Mother argues this

       finding is not supported by the record, claiming DCS testified “the relationship

       between [Mother] and her children was beneficial to them” but also that

       “[Mother’s] parental rights should be terminated, and that the court’s finding

       “does not explain the explicit contradiction” in DCS’s testimony. (Appellant’s

       Br. at 11.) In fact, DCS’s testimony was not contradictory, and Mother

       mischaracterizes DCS’s testimony.


[32]   When asked whether continuation of the parent-child relationship posed a

       threat to the well-being of Children, FCM Pope replied: “I think that the kids

       are bonded with their parents and they have some sort of a relationship with


       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 16 of 21
       their parents, so if they were not able to have any sort of contact with them I

       think that that would affect them in some sort of way.” (Tr. at 62) (errors in

       original). From this testimony, Mother extracts that the relationship was

       “beneficial,” a word DCS never used. We find this characterization

       unconvincing. We cannot say the trial court’s finding is unsupported just

       because FCM Pope acknowledged lack of contact with Mother may have a

       negative effect on Children.


[33]   Furthermore, GAL Donaldson testified at the termination hearing that all three

       children were doing well living with Grandmother and all three were on honor

       roll at their schools. GAL Donaldson noted Children had been living with

       Grandmother since November 2013 when the CHINS case began, that

       Grandmother provided stability, and that Children “loved being there.” (Id. at

       81.) Donaldson noted she had the opportunity to address adoption with

       Children and Children were in agreement they wanted Grandmother to adopt

       them. Id. She testified she believed Grandmother’s permanent adoption of

       Children was in Children’s best interests.


[34]   The court’s conclusion that termination was in the Children’s best interest is

       thus supported by its findings. And because the court’s findings are supported

       by the record, there is sufficient evidence to support the termination of Mother’s

       parental rights. See In re T.F., 743 N.E.2d at 776 (finding record contained

       sufficient evidence termination of parental rights was in children’s best

       interests).



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 17 of 21
                                         Mother’s Due Process Rights


[35]   Mother also claims her Due Process rights were violated in the CHINS

       proceeding because the trial court allegedly erred by: (1) adjudicating Children

       CHINS without notice to her, and (2) entering a separate, default dispositional

       decree against her. Thus, she argues, the termination based on this “invalid”

       dispositional decree was improper. (Appellant’s Br. at 13.) Mother failed to

       raise this issue at any time during the two-and-a-half year course of the CHINS

       proceeding or the termination hearing, but now claims on appeal the trial

       court’s entering two separate dispositional decrees was such fundamental error

       that it is grounds for reversal. DCS claims Mother invited any error by

       avoiding contact with the court. We agree with DCS, and further find no error.


[36]   “A party may not take advantage of an error which he commits, invites, or

       which is the natural consequence of his own neglect or misconduct. In re A.D.,

       737 N.E.2d 1214, 1217 (Ind. Ct. App. 2000). “[W]illful, knowing, and

       voluntary misconduct aimed at manipulating the court system for one’s own

       benefit will not be looked upon with anything resembling favor.” Hawkins v.

       State, 982 N.E.2d 997, 1000-1 (Ind. 2013).


[37]   Mother argues she was not afforded notice of the November 22, 2013, fact-

       finding hearing or opportunity to contest DCS’s allegation that Children were

       CHINS. Mother claims “there was no evidence that [she] was served with

       notice of this pre-trial hearing or that she was aware that her children could be




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 18 of 21
       adjudicated as CHINS at this hearing.” (Appellant’s Br. at 12.) The record

       suggests otherwise.


[38]   DCS attempted to contact Mother numerous times and was unsuccessful. The

       first attempt was made on November 1, 2013, the day DCS removed Children

       from their home, and then again two days later on November 3. Mother did

       not appear at the initial detention hearing on November 4, 2013, at which time

       DCS filed its petition alleging Children were CHINS. Throughout this time,

       Mother was avoiding any contact with law enforcement because there was an

       active warrant for her arrest. She subsequently failed to appear for hearings on

       November 15 and 22, 2013. At the November 22 hearing, DCS informed the

       court it finally was able to contact Mother, but that she would not tell DCS her

       location due to the active warrant. Thus, while formal service process had not

       yet occurred, Mother was aware of the CHINS proceedings and was purposely

       avoiding the court. We therefore see no error in the court adjudicating the

       Children CHINS on December 20, 2013, and entering a dispositional decree as

       to Father.


[39]   Mother again failed to appear at the February 28, 2014, review hearing, and

       was incarcerated in May 2014. On May 30, 2014, the trial court entered a

       default disposition as to Mother after finding that Mother had been properly

       served by publication in April 2014 and was incarcerated. In light of Mother’s

       conduct throughout the first six months of this case, we agree with DCS that, to

       the extent Mother argues any error occurred, she invited this error by evading



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 19 of 21
       contact with DCS and the court.4 See In re A.D., 737 N.E.2d at 1217 (holding

       party waived error where party invited error).


[40]   In sum, we find Mother’s due process claim to lack merit. Finding merit in

       Mother’s argument that she failed to receive notice of the CHINS proceedings

       would be rewarding her misconduct, which we will not do. Moreover, because

       Mother was properly served by publication, and later appeared in this case, the

       trial court’s initial default dispositional decree in no way prejudiced Mother’s

       rights. We thus find no error, much less error rising to the level of

       egregiousness needed to show fundamental error.



                                                  Conclusion
[41]   Having concluded the evidence is sufficient to support termination Mother’s

       parental rights to Children and Mother’s due process rights were not violated,

       we affirm the judgment of the trial court.




       4
        Mother cites In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012), to support the proposition that due process
       required her to have the opportunity to be heard before the Children were adjudicated CHINS. (See
       Appellant’s Br. at 12) (“Where one parent admits that a child is a CHINS the other parent may contest the
       allegations that the coercive intervention of the court is necessary.”). Mother’s reliance on K.D. is misplaced.
       In K.D., our Indiana Supreme Court noted a CHINS adjudication “focuses on the condition of the child” and
       “does not establish culpability on the part of a particular parent.” Id. at 1256. The court recognized,
       however, that “situations exist” where the admissions of one parent may not be sufficient to enter a CHINS
       adjudication, because the other parent may have wished to “challenge that the coercive intervention of the
       court was necessary,” and in those situations, a parent should not be “forced to forgo his or her due process
       based upon the other parent’s admission.” Id. at 1257. However, the Court acknowledged, alternatively, in
       situations of absent or unknown parents, it is “critical that DCS properly serve all parties, by publication if
       necessary, and if the absent parent is not present, a default judgment could be entered.” Id. Mother’s
       avoidance of the court is precisely the latter situation the Court discussed. K.D. does not help mother.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017              Page 20 of 21
[42]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1605-JT-1125 | March 3, 2017   Page 21 of 21
