IN RE: The Termination of the Parent-Child Relationship of E.R. (Minor Child); (2025)

MEMORANDUM DECISION

Statement of the Case

[1] L.R. (“Mother”) appeals the termination of the parent-child relationship with her daughter, E.R. (“E.R.”). She argues that the trial court abused its discretion when it denied her motion to continue the termination hearing. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.¹

[2] We affirm.

Issue

Whether the trial court abused its discretion when it denied Mother's motion to continue the termination hearing.

Facts

[3] In September 2021, thirty-seven-year-old Mother gave birth to E.R. When E.R.’s urine tested positive for cocaine and benzodiazepine, hospital staff contacted DCS. A DCS caseworker visited Mother in the hospital and subsequently filed a petition alleging that E.R. was a child in need of services (“CHINS”).

[4] The petition alleged that the day after E.R.’s birth, Mother had tested positive for cocaine and amphetamine. The petition further alleged that Mother had an extensive history with DCS and had previously given birth to two drug-exposed children. In addition, the petition alleged that, following E.R.’s birth, a DCS caseworker had offered Mother the opportunity to enter a drug treatment program with E.R.; however, Mother had declined the offer. DCS subsequently removed E.R. from Mother's care and eventually placed E.R. in foster care.

[5] The trial court held a CHINS factfinding hearing in June 2022. Mother did not appear at the hearing, but she was represented by counsel. Following the hearing, the trial court adjudicated E.R. to be a CHINS. In July 2022, the trial court entered a dispositional order that required Mother to: (1) participate in homebased case management services and follow all recommendations; (2) complete a substance abuse assessment and follow all recommendations; (3) submit to random drug screens; and (4) attend supervised visits with E.R.

[6] During the nearly three-year pendency of the CHINS proceedings, Mother did not successfully complete homebased case management services. In addition, Mother did not complete a substance abuse assessment or submit to drug screens. Mother also failed to consistently attend supervised visits with E.R., and her last visit with E.R. was in June 2023. Mother also did not stay in contact with the DCS case manager, and, at times, the case manager did not know how to contact Mother. Also, during the pendency of the CHINS proceedings, Mother gave birth to a drug-exposed son. One month later, that child died unexpectedly while in foster care.

[7] In October 2023, DCS filed a petition to terminate Mother's parental relationship with E.R. The trial court scheduled the termination hearing for March 18, 2024. The day of the scheduled hearing, Mother's counsel made an oral motion to continue the hearing because Mother had suffered a medical emergency in the form of very high blood pressure and was going to the emergency room. The trial court granted the motion but ordered Mother to file documentation of her visit to the emergency room within fourteen days. Further, the trial court rescheduled the termination hearing for May 2, 2024.

[8] The morning of the rescheduled termination hearing, Mother's counsel told the trial court that Mother had told him that she was not coming to the hearing because she had been involved in a car accident and had gone to the emergency room. Mother's counsel made an oral motion for a continuance.

[9] The trial court noted that it had previously granted Mother's motion for a continuance and had requested documentation that she had gone to the emergency room. However, Mother had not filed the requested documentation. The trial court denied Mother's motion for a continuance and specifically explained that it could not “believe the veracity of [M]other's ․ messages to her counsel, absent some convincing evidence that both of these situations [were] in fact true.” (Tr. Vol. 2 at 32).

[10] At the hearing, the trial court heard the facts as set forth above. Mother's counsel represented Mother's interests at the hearing by making arguments, vigorously cross-examining DCS’ witnesses, and offering exhibits into evidence. Also, at the hearing, a DCS family case manager (“the case manager”) testified that DCS had removed E.R. from Mother because of Mother's drug use and that, during the pendency of the CHINS proceedings, Mother had not completed a substance abuse assessment or submitted to drug screens. The case manager further testified that termination was in E.R.’s best interests and that the plan for E.R. was adoption. The Guardian Ad Litem (“the GAL”) testified that E.R. was “thriving” in her current foster family and that termination was in E.R.’s best interests. (Tr. Vol. 2 at 123).

[11] Following the hearing, in June 2024, the trial court issued a detailed order terminating Mother's parental relationship with E.R. In its order, the trial court concluded that DCS had clearly and convincingly shown that: (1) there was a reasonable probability that the conditions that had resulted in E.R.’s removal or the reasons for placement outside the home would not be remedied; (2) termination of the parent-child relationship was in E.R.’s best interests; and (3) foster parent adoption was a satisfactory plan for the care and treatment of E.R.

[12] Mother now appeals.

Decision

[13] The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), 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. Id. Termination of the 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.

[14] At the outset, we note that Mother does not challenge the trial court's findings of fact and conclusions thereon as clearly erroneous. Mother has, therefore, waived any arguments relating to the unchallenged findings. See Matter of C.C., 170 N.E.3d 669, 675 (Ind. Ct. App. 2021) (explaining that this Court will accept unchallenged findings as true). Further, by failing to challenge the trial court's conclusions, Mother has conceded that DCS proved by clear and convincing evidence the allegations in the petition to terminate her parental relationship with E.R. See id.

[15] Mother argues that the trial court abused its discretion when it denied her motion to continue the termination hearing. She specifically contends that the trial “court abused its discretion when it denied Mother her due process rights by holding a termination hearing in her absence.” (Mother's Br. 9).

[16] We review a trial court's decision to grant or deny a motion to continue for an abuse of discretion. In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). “An abuse of discretion may be found in the denial of a motion for a continuance when the moving party has shown good cause for granting the motion, but no abuse of discretion will be found when the moving party has not demonstrated that he or she was prejudiced by the denial.” Id. at 244 (cleaned up).

[17] This Court has previously stated as follows regarding a parent's due process rights in a termination of parental rights proceeding:

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. The balancing of these factors recognizes that although due process is not dependent on the underlying facts of the particular case, it is nevertheless flexible and calls for such procedural protections as the particular situation demands. Finally, we must keep in mind the general principle that if the State imparts a due process right, then it must give that right. A parent in a proceeding to terminate the parent-child relationship is statutorily entitled to (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence by compulsory process, and (3) introduce evidence on behalf of the parent. Ind. Code § 31-32-2-3(b) (2008).

C.C., 170 N.E.3d at 677 (cleaned up).

[18] We begin with the first factor, identifying the private interest affected by the termination of parental rights proceeding. In C.C., this Court found that a mother's interest in the care, custody, and control of her child “is certainly a weighty concern of constitutional import.” Id. Indeed, a parent's interest in the upbringing of her child is perhaps the oldest of the fundamental liberty interests. Id. This factor weighs in Mother's favor. See id.

[19] The second factor requires an assessment of the risk of error created by the challenged procedure – namely, proceeding with the termination hearing in Mother's absence. See id. This Court has previously stated that a parent does not have a constitutional right to be present at a termination hearing. In re E.E., 853 N.E.2d 1037, 1044 (Ind. Ct. App. 2006), trans. denied. Nevertheless, pursuant to Indiana Code § 31-35-2-6.5(e), a trial court is required to provide a party an opportunity to be heard at the hearing. C.C., 116 N.E.3d at 677. We have explained that representation by counsel in the party's absence is appropriate if counsel is able to make arguments and cross-examine witnesses. Id. In C.C., we noted that although the mother had been absent from the termination hearing, she had been represented by counsel, who had made arguments and cross-examined witnesses. We concluded that counsel's representation of the mother's interests at the hearing “vastly reduced the risk of error, which was minimal[ ]” and that this factor weighed in the State's favor. Id. Here, as in C.C., Mother was represented by counsel, who made arguments, vigorously cross-examined witnesses, and offered exhibits into evidence. As we did in C.C., we conclude counsel's representation of Mother's interests at the hearing greatly reduced the risk of error, which was minimal. We further conclude that this factor weighs in the State's favor.

[20] Regarding the third factor, the countervailing governmental interest supporting use of the challenged procedure, “it is well-settled that parental interests are not absolute and must be subordinated to the child's best interests when determining the proper disposition of a petition to terminate parental rights.” C.C., 170 N.E.3d at 677. “Although the State does not gain when it separates children from the custody of fit parents, the State has a compelling interest in protecting the welfare of the child by intervening in the parent-child relationship when parental neglect, abuse, or abandonment are at issue.” Id. (cleaned up). In addition, this Court has previously recognized that delays in the adjudication of a case “impose significant costs upon the functions of government as well as an intangible cost to the lives of the children involved.” In re B.J., 879 N.E.2d 7, 17 (Ind. Ct. App. 2008) (cleaned up), trans. denied.

[21] In C.C., we noted that DCS had removed the mother's child and filed a CHINS petition in January 2019. The trial court had held the termination hearing in September 2020, by which time the child had been removed from the mother's care for over twenty months. Further, during the pendency of the CHINS proceedings, the mother had failed to comply with recommendations from service providers, had been discharged from services, and had abused drugs. In addition, at the time of the termination hearing, the mother had not visited her child in one year. In balancing the mother's fundamental interest against the State's compelling interest, and where the mother was represented by counsel, we concluded that the trial court had not violated the mother's right to due process in denying her motion to continue the termination hearing and holding the hearing in her absence. C.C., 170 N.E.3d at 678. Accordingly, we found no abuse of the trial court's discretion. Id.

[22] Here, our review of the record reveals that DCS removed E.R. from Mother's care in September 2021 and adjudicated E.R. to be a CHINS in June 2022. The trial court held the termination hearing nearly two years later in May 2024. During the pendency of the CHINS proceedings, Mother failed to participate in a substance abuse assessment, failed to submit to drug screens, and gave birth to a fourth drug-exposed child. In addition, at the time of the termination hearing, Mother had not visited E.R. in one year. In balancing Mother's fundamental interest against the State's compelling interest, and where Mother was represented by counsel, we conclude, as we did in C.C., that the trial court did not violate Mother's right to due process in denying her motion to continue the termination hearing and holding the hearing in her absence. See id. at 678. Accordingly, we find no abuse of the trial court's discretion. See id.

[23] Affirmed.

FOOTNOTES

1.   The trial court also terminated E.R.’s father's (“Father”) parental relationship with E.R. However, Father is not participating in this appeal.

Pyle, Judge.

Judges Weissmann and Felix concur. Weissmann, J., and Felix, J., concur.