In the Termination of the Parent-Child Relationship of: Sh.J. (Minor Child), and S.J. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

[1] S.J. (“Mother”) appeals the involuntary termination of her parental rights to her minor child, Sh.J. (“Child”). We affirm.

Facts and Procedural History

[2] Mother and J.R. (“Father,” and together with Mother, “Parents”) are the parents of Child who was born in August 2022. On August 25, 2022, the Department of Child Services (“DCS”) filed a petition in the Randolph Circuit Court alleging Child was born exposed to illicit substances and was a child in need of services (“CHINS”).

[3] On November 10, 2022, the court entered an order finding that a hearing was held on November 2, 2022, at which Mother appeared in person and admitted that: Father was the Child's alleged father but paternity had not been established; she did not seek prenatal care during her pregnancy; she used methamphetamine and THC throughout her pregnancy; she tested positive for THC and amphetamine on the day of Child's birth; she and Father use methamphetamine and THC and had a long history of substance abuse; she and Father could not provide adequate food, clothing, shelter, education, medical care, or supervision; and there was a history of domestic violence between Father and her. The court observed that Child was placed in relative care with an aunt.

[4] On December 30, 2022, the court entered a dispositional order which observed that a hearing was held on December 21, 2022, at which Mother appeared via telephone and with counsel. The court ordered Mother to contact the family case manager every week; notify the family case manager of any changes in her address, household composition, employment, or telephone number within five days; notify the family case manager of any arrest or criminal charges for any household member within five days; allow the family case manager or other service providers to make unannounced visits to the home; participate in programs recommended by the family case manager or other service provider; keep all appointments with any service provider; maintain suitable, safe, and stable housing; secure and maintain a legal and stable source of income; not use any illegal controlled substances; obey the law; complete a parenting assessment and all recommendations; complete a substance abuse assessment and follow all treatment recommendations; submit to random drug screens; meet all personal medical and mental health needs in a timely and complete manner; attend all scheduled visitations with Child; and participate in case management and individual counseling. On October 30, 2023, the court entered an order approving a permanency plan of adoption.

[5] On December 8, 2023, DCS filed a verified petition for the involuntary termination of the parent-child relationship between Parents and Child. That same day, a “TPR Summons and Notice of Hearing and Notice of Possible Default Judgment” was filed and addressed to Mother at an address in Lynn, Indiana, ordering Mother to appear for a hearing on January 11, 2024.¹ Appellant's Appendix Volume II at 21 (capitalization omitted). On January 17, 2024, a “TPR Summons and Notice of Hearing and Notice of Possible Default Judgment” was filed that listed an address for Mother in Richmond, Indiana, and which ordered Mother to appear for a termination hearing on April 25, 2024. Id. at 43 (capitalization omitted).

[6] On January 29, 2024, DCS filed a Praecipe for Summons by Publication on Mother and an Affidavit of Diligent Inquiry alleging that Family Case Manager Tammy Cline (“FCM Cline”) had made a diligent search for Mother but Mother “cannot be found, has concealed whereabouts, or has left the state.” Id. at 48. FCM Cline also alleged that she had attempted service at Mother's last known address in Richmond, Indiana. On January 30, 2024, the court entered an Order for Summons by Publication which authorized DCS to make service by publication upon Mother.

[7] On April 10, 2024, DCS filed a Proof of Publication indicating that a “summons for service by publication & notice of termination of parental rights hearing” was published on February 2, 9, and 16, 2024, in the Palladium Item, a newspaper printed and published in Richmond, Wayne County, Indiana. Id. at 56.

[8] On April 25, 2024, the court held a hearing at which the court observed that Mother did not appear but appeared by counsel. The court ordered a separation of witnesses and asked counsel if there was “[a]nything else,” and Mother's counsel answered, “No, your Honor.” Transcript Volume II at 4. DCS presented the testimony of Father, FCM Cline, and Father's sister who had cared for Child since her birth. The court took judicial notice of the “Publisher's Claim that was filed on April 10.” Id. at 41.

[9] On July 2, 2024, the court entered an order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Parents’ care would not be remedied; termination of Parents’ parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion

[10] Mother acknowledges that Ind. Trial Rule 4.9 allows service of summons to be made by publication pursuant to Trial Rule 4.13. She asserts that DCS published notice of the termination hearing in the newspaper published in Richmond in Wayne County, Indiana, the termination petition was filed in Randolph County, Indiana, and she appeared at hearings in front of the Randolph County Circuit Court during the CHINS proceedings. She contends that “[i]t is reasonable to expect that a notice would be published in a newspaper circulated in Randolph County, Indiana.” Appellant's Brief at 14. She argues that service upon her was inadequate to safeguard her due process rights. She also argues there was no evidence that termination of her parental rights was in Child's best interests.

[11] To the extent Mother asserts her due process rights were violated, it has been established that parents facing termination proceedings are afforded due process protections. In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019), trans. denied. “Due process requires ‘the opportunity to be heard at a meaningful time and in a meaningful manner.’ ” In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976)). The Indiana Supreme Court has held that “the process due in a termination of parental rights action turns on balancing three Mathews 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.” Id. (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). “In balancing the three-prong Mathews test, we first note that the private interest affected by the proceeding is substantial – a parent's interest in the care, custody, and control of her child.” In re C.G., 954 N.E.2d at 917. “We also note the countervailing Mathews factor, that the State's parens patriae interest in protecting the welfare of a child is also substantial.” Id. Thus, we turn to the risk of error created by the actions of DCS and the trial court. See id.

[12] “Trial Rule 4.9—governing in rem proceedings—allows service of a summons to be made by publication.” Matter of A.B., 226 N.E.3d 791, 796 (Ind. Ct. App. 2023). Ind. Trial Rule 4.13(C) provides in part:

The summons shall be published three [3] times by the clerk or person making it, the first publication promptly and each two [2] succeeding publications at least seven [7] and not more than fourteen [14] days after the prior publication, in a newspaper authorized by law to publish notices, and published in the county where the complaint or action is filed, where the res is located, or where the defendant resides or where he was known last to reside.

[13] “Because this rule is written in the disjunctive, service at any of the above locations is permissible under the plain language of the rule.” Grabowski v. Waters, 901 N.E.2d 560, 565 (Ind. Ct. App. 2009), trans. denied. In the Affidavit of Diligent Inquiry, FCM Cline asserted that she had “attempted service at [Mother's] last known address” in Richmond, Indiana. Appellant's Appendix Volume II at 48. Richmond, Indiana, is located in Wayne County where the summons was published. Accordingly, we cannot say that Mother's argument regarding publication in Wayne County warrants reversal.

[14] We also note that the record reveals that Mother appeared in person at the November 2, 2022 hearing in the CHINS case and appeared via telephone and with counsel at the December 21, 2022 dispositional hearing. Mother appeared by counsel at the April 25, 2024 termination hearing. Mother's counsel did not argue a lack of notice, offered no explanation for Mother's failure to appear for the hearing, and did not request a continuance. Mother offers no explanation on appeal for her failure to appear at the hearing. FCM Cline testified regarding the difficulty in maintaining contact with Mother.² Under these circumstances, we cannot say that Mother's due process rights were violated.

[15] With respect to Mother's argument challenging the termination of her parental rights, at the time of the petition, Ind. Code § 31-35-2-4(b)(2) required DCS to allege and prove, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)).³ If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[16] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. “Because a case that seems close on a ‘dry record’ may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence.” Id. at 640. To the extent Mother does not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.

[17] In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). The court must subordinate the interests of the parent to those of the children. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the children's best interests. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied. “A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied. We have previously recognized that “[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.” Id. (citation omitted).

[18] The trial court found:

10. [O]n August 25, 2022, the Child was removed from the care of her [Parents] by court order following a report alleging that the Child was born exposed to illicit substances. The DCS investigated the allegations and confirmed that Mother tested positive for THC and amphetamine at the time of birth. ․

* * * * *

12. Additionally, DCS spoke with [Father] and [Mother] regarding appropriate housing and supplies for [Child]. While still in the hospital, the DCS learned that [Parents] did not have a bed for themselves at that time, and they did not have any supplies for [Child]. [Parents] left the hospital prior to the Child's discharge and did not return to visit with her or make arrangements for her.

* * * * *

15. [Mother] has never participated in visitation with [Child] since removal and did not meaningfully engage with [DCS] or utilize referrals available to her to effectuate reunification. The DCS made many attempts throughout the course of the underlying CHINS case and this termination case to locate [Mother] to no avail.

* * * * *

19. During the pendency of this case, [Parents] failed to provide the DCS with evidence that they could provide a safe and stable home environment for [Child]. At this time, Mother's whereabouts are still unknown to the DCS and Father is incarcerated.

20. Throughout the underlying CHINS case, [Parents] have failed to consistently engage in the services requisite for reunification under the Court's Dispositional Decree. Father continued to abuse and test positive for illicit substances and has been charged with new criminal offenses. Mother has been largely absen[t] from all proceedings regarding the Child.

Appellant's Appendix Volume II at 74-76.

[19] FCM Cline indicated that she offered Mother “substance abuse, case management,” and individual counseling and Mother “never responded to them.” Transcript Volume II at 24. According to FCM Cline, Mother never participated in supervised visitation and the last time Mother had seen Child was when “she had her in the hospital.” Id. at 14. Parents were not engaged with DCS when the case “came under a Dispositional Order for the CHINS.” Id. at 11. When asked about the barriers to reunifying Child and Mother, FCM Cline answered, “As far as I know, mental health, substance abuse, um, I don't even know if she has a home – if she's homeless or not.” Id. at 13. When asked if Mother, “in no way, engaged with any services,” FCM Cline answered affirmatively. Id. at 15. When asked what she thought was in Child's best interest “as far as the permanency plan,” she answered, “Adoption.” Id. at 17. Based on the totality of the evidence, we conclude the trial court's determination that termination is in Child's best interests is supported by clear and convincing evidence.⁴

[20] For the foregoing reasons, we affirm the trial court's termination order.

[21] Affirmed.

FOOTNOTES

1.   The chronological case summary for the termination case listed Mother's address as the same residence in Lynn, Indiana, that was listed in the TPR Summons and Notice of Hearing and Notice of Possible Default Judgment.

2.   When asked what it had been like trying to “get in contact with” Mother and what methods she used to reach her, FCM Cline answered: “We've tried PPS referrals, um, we've – I – e-mail, the only cell phone number I had on – in the beginning was working, then I couldn't get her after that.” Transcript Volume II at 12-13. She explained that a PPS referral was “an investigative referral that we put in ․ the last known address that we did know her at, the phone number, ․ any relative's names and we have ․ an extensive search done to see if we can locate any whereabouts.” Id. at 13. She indicated that the PPS referral resulted in “a couple addresses,” which were checked. Id. She indicated that Mother was supposed to have supervised visitation, but DCS “never found her to do it.” Id. at 14. During questioning by Mother's counsel, FCM Cline indicated that she had contact with Mother “[t]hrough e-mail and we had one phone call.” Id. at 23. When asked if there were no “face-to-face meetings,” FCM Cline answered, “I tried my best to get a location from her to meet with her and she would never give it to me.” Id. She also indicated that she was able to text Mother's cell phone in the “very beginning, and then it started, uh, like it just went dead, there was nothing there.” Id.

3.   Although the trial court's termination order was entered on July 2, 2024, after the effective date of the amended statute, DCS filed the termination petition prior to the effective date. Further, we note that Ind. Code § 31-35-2-4 was amended March 11, 2024, to provide in part:(c) A petition filed under subsection (a) must allege:(1) the existence of one (1) or more of the circumstances described in subsection (d);(2) that there is a satisfactory plan for care and treatment of the child; and(3) that termination of the parent-child relationship is in the child's best interests.(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:* * * * *(3) That there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

4.   Mother does not challenge the trial court's conclusions that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Parents’ care would not be remedied or that there is a satisfactory plan for the care and treatment of Child. Accordingly, we do not address those conclusions. To the extent Mother asserts that DCS failed to establish that the continuation of the parent-child relationship posed a threat to Child's well-being, we note that the trial court did not make such a finding and Ind. Code § 31-35-2-4(b)(2)(B) is written in the disjunctive.

Memorandum Decision by Judge Brown

Judges Mathias and Kenworthy concur. Mathias, J., and Kenworthy, J., concur.