IN RE: the Involuntary Termination of the Parent-Child Relationship of A.A. and A.G. (Minor Children) (2025)

MEMORANDUM DECISION

Case Summary

[1] C.W. (“Mother”) appeals the trial court's order involuntarily terminating her parental rights over A.A. and A.G. (collectively, “the Children”). R.G. (“Father”) appeals the involuntary termination of his parental rights over A.G. We affirm.

Facts and Procedural History

[2] Mother gave birth to A.A. in July 2016 and to A.G. in April 2020. Father is A.G.’s father.¹ In August 2021, the Indiana Department of Child Services (“DCS”) petitioned to adjudicate the Children as Children in Need of Services (“CHINS”). In September 2021, the trial court adjudicated the Children as CHINS based on Mother's admissions that she had informed DCS that she used marijuana; that she had been diagnosed with anxiety, depression, bipolar disorder, insomnia, and PTSD; that she had been evicted from her residence; and that the Children were in need of care, treatment, and rehabilitation that they were unlikely to receive without coercive court intervention. The court ordered Mother to maintain appropriate housing, cooperate with caseworkers, maintain contact with DCS, submit to a diagnostic assessment and a drug and alcohol assessment and follow all recommendations, enroll in and successfully complete an individual counseling program, enroll in and successfully complete a home-based services program, submit to random drug screens and refrain from using alcohol and illegal drugs, and cooperate with family preservation services, among other things.

[3] The court also ordered the Children to be placed with Mother. But over the next few weeks, Mother periodically left the Children with another woman, who informed DCS that the Children had been “abandoned.” Tr. Vol. 2 at 31. When DCS retrieved the Children, A.G. had a “soaking wet diaper[.]” Id. A.A. “was emaciated and had ․ a bad bruise on his bottom from like a belt buckle.” Id. His teeth were “just little nubs like rotten[.]” Id. at 32. The trial court held a detention hearing and ordered the Children to be placed in foster care and for Mother's visitation to be supervised.

[4] In November 2021, DCS filed a second amended CHINS petition alleging that the Children were CHINS based on these and other facts and circumstances that had arisen since the last CHINS adjudication. In December 2021, the trial court again adjudicated the Children as CHINS and ordered Mother to participate in basically the same services. After a review hearing in January 2022, the court found that Mother had failed to participate in therapy and drug screens and had tested positive for illegal substances.

[5] In June 2022, Father's paternity was established for A.G., and he was granted supervised visitation. In August 2022, Father admitted that A.G. was a CHINS, and he was ordered to refrain from criminal activity, maintain contact with DCS, submit to random drug screens, submit to a substance abuse assessment and follow all recommendations, participate in and successfully complete an individual therapy program, and participate in visitation, among other things.

[6] In a separate order, the trial court found that Mother had not regularly visited the Children, had failed to follow recommendations of her diagnostic and drug and alcohol assessments, and had tested positive for illegal substances. The court approved a permanency plan for termination of parental rights for A.A. and reunification of A.G. with Father.

[7] Following a December 2022 review hearing, the trial court found that Mother had not complied with random drug screens, had not consistently participated in visitation or substance abuse counseling, and had “submitted to psychological testing that [had] revealed significant mental health issues and risk to her children.” Ex. Vol. 1 at 236. The court also found that Father had tested positive for unprescribed hydrocodone.

[8] Both Mother and Father failed to appear for a July 2023 permanency hearing. The trial court found that Mother had failed to maintain communication with DCS and cooperate with home-based services; had not regularly visited the Children, whom she had last seen in April 2023; had not complied with recommendations; and had “been diagnosed with significant mental health issues.” Ex. Vol. 2 at 17. The court also found that Father was “not submitting to regular drug screens and [had] screened positive for opiates” and that his visitations had been “on hold” since May 2023. Id. The court approved termination and adoption as a permanency plan and authorized the filing of termination petitions, which DCS did in September 2023. A November 2023 mediation session, which Father failed to attend, proved unsuccessful.

[9] Both Mother and Father failed to appear for a December 2023 review hearing. The trial court found that Mother had not complied with recommendations of her assessment, had not completed a drug screen since May 2023, and had not visited consistently with the Children, with her last visit being in May 2023; the court noted that her visits had been “on hold as of August 14, 2023.” Id. at 26.² The court also found that Father had “not been submitting to regular drug screens and his visits [were] on hold due to not appearing.” Id. The court ordered Mother's and Father's visitation to remain on hold.

[10] The trial court held the termination factfinding hearing on February 22 and 29 and March 7 and 28, 2024. Both Mother and Father failed to appear on any of these dates, but they were represented by counsel. DCS Family Case Manager (“FCM”) Meghan Bair and the Court Appointed Special Advocate (“CASA”) opined that termination of parental rights was in the Children's best interests.

[11] In June 2024, the trial court issued an order terminating Mother's and Father's parental rights. The court summarized the foregoing procedural history and made additional findings regarding Mother's and Father's repeated failures to complete or comply with services and submit to drug screens, their continued use of illegal drugs, their inability to maintain suitable housing, and their inconsistent visitation with the Children. The court found that Mother had “essentially abandoned” the Children and that Father had “essentially abandoned” A.G. Appealed Order at 32, 36. The court further found that there is a reasonable probability that the conditions that led to the Children's placement outside the home will not be remedied, that termination is in the Children's best interests, and that DCS's plan for adoption is satisfactory for the Children's care and treatment. Both Mother and Father now appeal.

Discussion and Decision

Mother's Appeal

Standard of Review

[12] Mother purports to challenge the sufficiency of the evidence supporting the trial court's termination order. Initially, we acknowledge that “[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe Cnty. Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Schultz v. Porter Cnty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is proper where a child's emotional and physical development is threatened. Id. Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.

[13] Before an involuntary termination of parental rights can occur, DCS is required 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․

(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.

Ind. Code § 31-35-2-4(b)(2) (2023).³ DCS's “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’ ” R.Y. v. Ind. Dep't of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260 (Ind. 2009) (quoting I.C. § 31-37-14-2).

[14] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Off. of Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. In deference to the trial court's unique position to assess the evidence, we will set aside the court's judgment terminating a parent-child relationship only if it is clearly erroneous. Judy S. v. Noble Cnty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

[15] In the argument section of her brief, Mother does not specifically challenge any of the trial court's factual findings.⁴ When findings of fact are unchallenged, this Court accepts them as true. L.M. v. Ind. Dep't of Child Servs. (In re S.S.), 120 N.E.3d 605, 608 n.2 (Ind. Ct. App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind. Ct. App. 2015), trans. denied.

[16] The gist of Mother's one-paragraph argument is that, after her visitation with the Children was suspended in August 2023, “she could not demonstrate her aptitude as a mother, her bond with her children or the children's bond to her, her parenting skills or the like.” Mother's Br. at 12. But Mother does not specifically argue that the suspension, which was due to her inconsistent attendance, was unwarranted. She contends that “[v]isitation with children is both an incentive for parents to comply with court orders as well as an opportunity to demonstrate the improved relationship between parent and child, the benefit of services rendered to the parent, the bond between parent and child and vice versa.” Id. at 13. As indicated above, however, Mother repeatedly failed to comply with court orders before visitation was suspended, and she does not challenge the trial court's finding that she “essentially abandoned” the Children thereafter. Appealed Order at 32. Moreover, Mother did not bother to attend the factfinding hearing to plead her case. In sum, Mother has failed to establish that the trial court's termination order is clearly erroneous, so we affirm the order as to her.

Father's Appeal

[17] Likewise, Father does not challenge any of the trial court's factual findings, so we accept them as true. In re S.S., 120 N.E.3d at 608 n.2. Instead, he claims that he did not receive proper notice of the factfinding hearing pursuant to Indiana Code Section 31-35-2-6.5 and Indiana Trial Rule 5(B).⁵

[18] The State points out that failure to comply with statutory notice is a defense that must be asserted and that, once placed in issue, DCS bears the burden of proving compliance with the statute. C.W. v. Ind. Dep't of Child Servs. (In re C.C.), 170 N.E.3d 669, 675 (Ind. Ct. App. 2021). Failure to challenge notice results in waiver of the issue. Id. at 676. Here, the trial court raised the notice issue at the beginning of the factfinding hearing, at which Father failed to appear. The parties’ counsel discussed the matter, and testimony was taken from FCM Michelle Garigen regarding where Father's notice was sent and why.⁶ The court then asked if there was “any dispute about notice to the parents[,]” and Father's counsel replied, “No Your Honor.” Tr. Vol. 2 at 15. Far from placing statutory notice at issue, Father's counsel affirmatively stated that notice was not at issue. Accordingly, we find the issue waived.

[19] In an attempt to avoid waiver, Father asserts that “a fundamental error has occurred and this Court should reverse.” Father's Br. at 15. Our Supreme Court has explained that, “[o]n rare occasions, appellate courts may analyze an issue under the fundamental error doctrine to examine an otherwise procedurally defaulted claim.” In re E.q.W., 124 N.E.3d 1201, 1214 (Ind. 2019). But this review is “extremely narrow” and is “ ‘available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.’ ” Id. at 1214-15 (quoting Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008)). “We must review the alleged misconduct in the context of all that happened in the proceeding and all the relevant information presented to the court.” Id. at 1215. “Simply asserting that error occurred and was harmful is insufficient to establish fundamental error.” Hollingsworth v. State, 987 N.E.2d 1096, 1099 (Ind. Ct. App. 2013), trans. denied.

[20] Father complains that DCS failed to provide him with “the date, time, and location of the first two days of the termination hearing.” Father's Br. at 14. Even assuming this to be true, Father – who had a habit of failing to appear for court hearings – also failed to appear for the last two days of the hearing. Moreover, Father was represented by counsel on all four days of the hearing, and he has failed to establish that his absence made a fair trial impossible. Therefore, we affirm the trial court's termination order as to Father.

[21] Affirmed.

FOOTNOTES

1.   A.A.’s father is also subject to the instant termination order but does not participate in this appeal.

2.   The Children's therapist had “recommended that visitation be suspended due to the negative impact on [them]” from Mother's failure to attend. Ex. Vol. 2 at 21.

3.   Our legislature amended this statute effective March 11, 2024. We cite to the version of the statute in effect at the time of the filing of the termination petitions.

4.   In the one-sentence conclusion section of her brief, Mother alludes to Indiana Code Section 31-34-2-4(b)(2)(B)(i), but she offers no cogent argument thereon.

5.   Indiana Code Section 31-35-2-6.5 provides in pertinent part that DCS shall send notice of a hearing on a termination petition to the child's parent at least ten days before the hearing. Trial Rule 5(B) provides in pertinent part that service upon a party “shall be made by delivering or mailing a copy of the papers to the last known address[.]” Section 31-35-2-6.5 “does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component.” Karma W. v. Marion Cnty. Dep't of Child Servs. (In re B.J.), 879 N.E.2d 7, 14-15 (Ind. Ct. App. 2008), trans. denied.

6.   FCM Garigen testified that Father was “also served in person at the [DCS] office[,]” that she explained to him that the factfinding hearing would be held on the four aforementioned dates, and that Father “seem[ed] to express understanding of that[.]” Tr. Vol. 2 at 12.

Bailey, Judge.

Bradford, J., and Foley, J., concur.