IN RE: the Involuntary Termination of Parental Rights of R.C. (Minor Child) (2025)

MEMORANDUM DECISION

[1] M.E. (“Mother”) appeals the involuntary termination of her parental rights to R.C. (“Child”). Mother presents two issues for our review, which we restate as

1. Whether Mother received ineffective assistance of counsel; and

2. Whether the trial court violated Mother's right to due process when it did not sua sponte ensure her attendance at the termination fact-finding hearing.

We affirm.

Facts and Procedural History

[2] Mother is the biological mother of N.C. (“Sister”), born June 2004, and Child, born July 2011.¹ Prior to these proceedings, Sister and Child lived with Mother and their grandmother (“Grandmother”). On August 12, 2021, the Department of Child Services (“DCS”) received a report that Mother had moved to Chicago on August 8, 2021, and left Child and Sister with Grandmother, who had dementia, diabetes, and incontinence. Father was unable to care for Sister and Child because he was incarcerated for sexually molesting Child. After an investigation, DCS removed Sister and Child from the home and placed them with a family friend, where Child has remained ever since.

[3] On August 13, 2021, DCS filed a petition alleging Sister and Child were Children in Need of Services (“CHINS”). On September 14, 2021, Mother admitted Sister and Child were CHINS, and the trial court adjudicated them as such based on Mother's neglect. At a subsequent hearing, the trial court ordered Mother to participate in services to achieve reunification with Sister ² and Child. Mother did not complete the services, often claiming she did not have transportation to service providers in Indiana. Mother also told DCS that she would not be returning to Indiana. Near the end of the CHINS case, the trial court suspended Mother's supervised visitation with Child because Mother did not attend visits and Mother's frequent absences upset Child.

[4] On July 10, 2024, DCS filed a petition to involuntarily terminate Mother's rights to Child. The trial court scheduled a fact-finding hearing on the petition for October 21, 2024. Mother attended that hearing, but the hearing had to be rescheduled because the Family Case Manager (“FCM”) was unavailable to testify due to a family emergency. The trial court rescheduled the fact-finding hearing for December 12, 2024.

[5] Mother did not appear at the hearing on Thursday, December 12, 2024. Her attorney told the trial court that Mother “called [his] office on Tuesday ․ just to tell me that she wasn't coming.” (Tr. Vol. II at 7.) FCM Britney Franks also told the trial court that Mother told her that she “wasn't going to be attending the hearing because she didn't have a ride.” (Id. at 8.) FCM Franks indicated that Mother did not express that she wanted to attend the hearing.

[6] Mother's counsel stated he was “as ready as [he could] be” to represent Mother because he had never had “a fruitful conversation with her about the case.” (Id.) When asked if Mother had told him whether she intended to bring evidence to the hearing, Mother's counsel stated that Mother's “main position was that DCS was lying.” (Id. at 9.) Mother's attorney did not request a continuance, and the trial court said that it would proceed with the hearing because: “[Mother] was present at our last hearing on October 21st․ and at previous hearings, I had informed [Mother] that․ if she did not appear, the Court would proceed in her absence and so it was very important for her to appear.” (Id.)

[7] During the hearing, DCS presented evidence of Mother's noncompliance with services and Child's progress while in foster care. Child's foster father testified that he and his wife wanted to adopt Child. Mother's attorney was given the opportunity to cross-examine witnesses, make objections, and present evidence during the proceedings but did not do so. Neither party presented opening or closing arguments. On March 10, 2025, the trial court issued its order involuntarily terminating Mother's parental rights to Child.

Discussion and Decision

[8] Mother appeals the trial court's order terminating her parental rights to Child. She asks us to reverse the trial court's order because she received ineffective assistance of counsel and because the trial court violated her right to due process when it did not continue the fact-finding hearing or provide alternate means for her participation. “The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children.” In re A.L., 223 N.E.3d 1126, 1137 (Ind. Ct. App. 2023), trans. denied. However, a juvenile court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. The termination of parental rights is appropriate when “parents are unable or unwilling to meet their parental responsibilities[.]” Id. (quoting Bester v. Lake Cnty. Ofc. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005)) (internal quotations removed). The termination of the parent-child relationship is “an extreme measure and should only be utilized as a last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.” K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty. Ofc. of Fam. & Child., 841 N.E.2d 615, 623 (Ind. Ct. App. 2006), trans. denied) (internal quotations removed).

[9] A parent does not have a constitutional right to be physically present at a termination hearing as long as her counsel is “provided with the opportunity to cross-examine the State's witnesses and to introduce evidence in defense of the action.” In re B.J., 879 N.E.2d 7, 17 (Ind. Ct. App. 2008), trans. denied. Delays in the adjudication of a termination of parental rights matter “impose significant costs upon the functions of government as well as an intangible cost to the lives of the children involved.” A.S. v. Ind. Dep't of Child Servs., 175 N.E.3d 318, 323 (Ind. Ct. App. 2021) (quoting In re B.J., 879 N.E.2d at 17). We must balance the interest of a parent to be physically present at a termination hearing against our desire to not have children “languish, forgotten, in custodial limbo for long periods of time without permanency.” Baker v. Marion Cnty. OFC, 810 N.E.2d 1035, 1040 n.4 (Ind. 2004) (quoting In re Priser, No. 19861, 2004 WL 541124, at *6 (Ohio Ct. App. March 19, 2004)).

1. Ineffective Assistance of Counsel

[10] Mother contends her counsel was ineffective because he (1) did not request a continuance so Mother could attend the fact-finding hearing and (2) did not adequately represent her. When examining whether a parent whose parental rights were terminated received ineffective assistance of counsel, “the focus of the inquiry [is] whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination” rather than whether counsel might have raised particular objections. Baker, 810 N.E.2d at 1041. We will reverse a termination for ineffective assistance only if we “cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the child's best interest.” Id.

[11] Regarding counsel's failure to request a continuance, the trial court's statements indicated that it was not likely to have granted such a motion. At the December hearing, the trial court noted that Mother was present at the October hearing, had notice that the matter was continued to December, and was warned that the hearing would proceed in her absence if she did not attend. Because it was likely that a motion to continue would have been unsuccessful, we conclude Mother's counsel was not ineffective for failing to make a motion to continue the fact-finding hearing. See, e.g., Smith v. State, 822 N.E.2d 193, 205 (Ind. Ct. App. 2005) (counsel was not ineffective for failure to make a motion when the motion would have been unsuccessful), trans. denied.

[12] Regarding Mother's allegation that her counsel's performance during the hearing was deficient, we note counsel did not cross-examine any witnesses, did not present evidence or argument, and did not make any objections. However, such decisions ³ are matters “of strategy delegated to trial counsel.” Myers v. State, 33 N.E.3d 1077, 1101 (Ind. Ct. App. 2015) (quoting Waldon v. State, 684 N.E.2d 206, 208 (Ind. Ct. App. 1997), trans. denied), trans. denied. Further, Mother has not argued what evidence she would have presented in her defense and her counsel indicated her “main position was that DCS was lying.” (Tr. Vol. II at 9.) Without suggesting what evidence counsel should have presented or what objections he should have made, it is nearly impossible for us to find counsel's representation constitutionally inadequate.

[13] Moreover, the trial court's unchallenged findings overwhelmingly supported its decision to terminate Mother's parental rights to Child. Mother left Child, who was ten years old at the time, with Sister, who was also a minor, and Grandmother, who was disabled. Mother indicated her preference to remain in Illinois even though Child's custody was in Indiana, and Mother did not complete services. Mother's visitation with Child was ultimately suspended because she frequently missed visitation, which upset Child. Because Mother has not demonstrated that a different result could have been appropriate, she has not demonstrated her counsel was ineffective at the fact-finding hearing. See, e.g., In re A.P., 882 N.E.2d 799, 808 (Ind. Ct. App. 2008) (appointed counsel not ineffective when counsel cross-examined witnesses and termination supported by sufficient evidence).

2. Due Process

[14] Mother next argues that the trial court violated her due process rights when it did not sua sponte continue the fact-finding or, in the alternative, did not secure an alternate means for her participation, such as virtual or telephonic appearance. “When the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process.” In re C.G., 954 N.E.2d 910, 917 (Ind. 2011).

The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding. Parental rights constitute an important interest warranting deference and protection, and a termination of that interest is a unique kind of deprivation.

Id. at 916-17 (internal quotations and citations omitted). Thus, “parents retain a vital interest in preventing the irretrievable destruction of their family life” even when relationships are strained, Santosky v. Kramer, 455 U.S. 745, 753 (1982), and the State “must provide the parents with fundamentally fair procedures.” Id. at 754. Parents must receive “the opportunity to be heard at a meaningful time and in a meaningful manner.” In re C.G., 954 N.E.2d at 917 (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

[15] Here, there is no indication in the record that Mother was involuntarily unavailable, and it would instead seem she chose not to appear. Mother told her counsel only that she would not be at the hearing, and she told FCM Franks that she would not be attending the hearing because she did not have transportation. Mother did not ask her counsel to obtain a continuance of the final hearing or to arrange a method for her to attend virtually. She also did not express to FCM Franks that she wanted to attend the hearing.

[16] Mother had an “opportunity to be heard at a meaningful time and in a meaningful manner[,]” id., and she simply chose not to avail herself of the opportunity. Mother was entitled to waive her right to appear. Ind. Code § 31-32-5-7. With all evidence suggesting that Mother simply did not want to attend, there was no reason for the trial court to delay the hearing for Mother to attend, whether in person or virtually. See, e.g., Termination of Parent-Child Relationship of I.B. v. Ind. Dep't of Child Servs., 933 N.E.2d 1264, 1271 (Ind. 2010) (“a child's right to a stable home cannot be put on hold interminably because a parent is absent from the courtroom and has failed to contact his or her attorney”) (quoting In re Dependency of C.R.B., 814 P.2d 1197, 1202 (1991)). Thus, we cannot say the trial court denied Mother due process.

Conclusion

[17] Mother did not receive ineffective assistance of counsel. Additionally, the trial court did not violate Mother's due process rights when it did not sua sponte continue the fact-finding hearing or procure alternate means for her participation. Accordingly, we affirm.

[18] Affirmed.

FOOTNOTES

1.   Child's father is J.C., whose parental rights were also terminated. Father does not participate in this appeal.

2.   In 2022, Sister turned eighteen years old. She was still listed as a CHINS in the trial court's October 6, 2022, Order on Periodic Case Review, but was not listed on the trial court's Order on Periodic Case Review issued January 5, 2023. It is unclear from the record if Sister remained a CHINS after 2022.

3.   While we note counsel's failure to object or cross-examine witnesses could have been a strategic decision, we encourage counsel to participate to a greater extent if similar circumstances arise in the future.

May, Judge.

Judges Mathias and Bradford concur. Mathias, J., and Bradford, J., concur.