In the Termination of the Parent-Child Relationship of: S.I.B., S.A.B, and S.O.B (Minor Children), and D.L.B. (Mother) and M.L. (Father), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner (2025)

MEMORANDUM DECISION

[1] D.L.B (“Mother”) appeals the trial court's involuntary termination of her parental rights to her minor children S.I.B., S.A.B., and S.O.B. (the “Children”). We affirm.

Facts and Procedural History

[2] Mother is the mother of S.I.B., born in January 2022 (“Oldest Child”),¹ and twins S.A.B. and S.O.B., born in January 2023 (“Twins”).² On October 21, 2022, the Department of Child Services (“DCS”) received an abuse or neglect report regarding Oldest Child after Mother appeared under the influence of an illicit substance at a “W.I.C.” appointment. Exhibits Volume I at 66.³ During that appointment, Mother “was having a hard time standing, was slumped in the lobby, walked wobbly, and was slurring her words.” Id. Mother revealed that she was twenty-two weeks pregnant with Twins and had not received any prenatal care. That same date, two DCS family case managers conducted an “announced visit” at Mother's home. Id. at 67. The family case managers observed Mother “to be acting erratically, unable to [write], and slurring her words.” Id. Mother consented to a drug screen and stated that she was taking Seroquel and Risperidone for diagnosed schizophrenia, bipolar disorder, and ADHD. Mother informed the family case managers that she “can get high when she is not with [Oldest Child],” and that upon their departure, she planned to “get high on [her] nicotine.” Id. Mother's drug screen subsequently came back positive for cocaine and its metabolite as well as benzoylecgonine.

[3] On October 27, 2022, family case managers conducted a second announced visit to Mother's home. Mother appeared “more coherent than the prior visit” but did not deny her illicit drug use and simply stated that “she did not use Cocaine in the presence of [Oldest Child] and that he was being taken care of.” Id.

[4] On October 31, 2022, DCS filed verified petitions alleging Oldest Child to be a child in need of services (“CHINS”). Mother entered a denial during the initial hearing, and the court ordered Oldest Child removed from her care and placed in relative care with her maternal aunt (“Aunt”). On November 28, 2022, Mother admitted Oldest Child was a CHINS due to her illicit drug use. Accordingly, the court adjudicated Oldest Child a CHINS and entered a dispositional order requiring Mother to: refrain from all criminal activity; maintain clean, safe, and appropriate sustainable housing; cooperate with all caseworkers; fully cooperate with all rules of Oldest Child's placement; submit to a diagnostic assessment; obtain a drug and alcohol assessment; enroll in drug and alcohol counseling and successfully complete the program; enroll in and successfully complete home based services; obtain a psychological evaluation; and attend all visits with Oldest Child.

[5] On January 6, 2023, DCS received a report that Twins were born drug exposed to cocaine, were born prematurely, and required treatment for respiratory distress. Mother tested positive for cocaine at the time of birth. Mother left the hospital on January 17, 2023, did not come back and visit Twins through January 23, 2023, and refused to submit to a random drug screen on January 24, 2023. Thereafter, DCS filed a CHINS petition, and, on January 27, 2023, the court held an initial hearing during which it found probable cause to believe that Twins were CHINS. The court ordered Twins removed from Mother's care and placed with Aunt. On February 23, 2023, Mother admitted Twins were CHINS and agreed to participate in the same services ordered regarding Oldest Child. Accordingly, the court adjudicated Twins as CHINS and entered the same dispositional order as entered regarding Oldest Child.

[6] The court held a telephonic review hearing on April 25, 2023. The court found that Mother had failed to enroll in or successfully complete the services required in the dispositional decrees. Mother had missed numerous drug screens and, of the ones completed, Mother tested positive for illegal drugs. The court ordered Mother to appear “at the DCS office every Monday, Wednesday, and Friday and participate in drug screens.” Id. at 105. The court advised that “any missed drug screen is considered a positive drug screen.” Id. The court further ordered that Mother would have no visitation with the Children until she submits to regular drug screens and those screens are negative for all substances.

[7] The court held another telephonic review hearing on July 17, 2023. The court found that Mother had not regularly visited with the Children, had continued to test positive for illegal substances, failed to drug screen regularly,⁴ and was currently residing with a friend.

[8] Following a review hearing on October 10, 2023, the court found that Mother was incarcerated, still noncompliant with the Children's case plan, and had been diagnosed with paranoid schizophrenia and cocaine use disorder. The court approved a permanency plan of termination and adoption.

[9] On January 16, 2024, DCS filed verified petitions to terminate both Mother's and Father's parental rights. The court held a review hearing on April 4, 2024. The court found that Mother was incarcerated following her convictions for possession of a narcotic drug as a level 6 felony and resisting law enforcement as a class A misdemeanor, with an expected release date of August 1, 2024. The court also found that Mother reported that she was currently pregnant.

[10] The court commenced a termination evidentiary hearing on June 18, 2024. Mother appeared from jail with counsel. Father failed to appear. Mother's counsel requested a continuance on grounds that Mother “is seeking private counsel and would like to have the opportunity to retain counsel of her choice” and “she is potentially within two weeks of [ ] being released” and “she should be given the opportunity to engage in services ․ to retain her parental rights.” Transcript Volume II at 7. The court granted Mother's request and reset the termination hearing for January 13, 2025, to give Mother the opportunity to remedy the reasons for the Children's removal after she was released from incarceration.

[11] The court held a review hearing on October 1, 2024. The court found that Mother was released from incarceration on September 10, 2024, and that Mother continued to have unaddressed substance use and mental health issues. On November 18, 2024, Mother was charged with possession of cocaine as a level 6 felony and possession of paraphernalia as a class C misdemeanor. Mother was arrested and incarcerated. A jury trial was scheduled for May 6, 2025.

[12] The court reconvened on January 9, 2025, to consider a motion to continue the termination proceedings filed by the Guardian Ad Litem (“GAL”) due to the GAL being called for jury duty in federal court. The court denied the GAL's motion but ordered that the hearing begin on January 13, 2025, in the morning because the GAL stated he would be available for at least half the day. The court also denied Father's counsel's request to continue the termination hearing based on allegations that she needed more time to review discovery. The court noted, “there's a duty to get yourself prepared for the case sooner than the Thursday before trial and so I'm going to deny the Motion to Continue.” Id. at 19.

[13] The court heard evidence on January 13, 2025. Mother failed to appear, but counsel appeared on her behalf. The court noted on the record that Mother “was arranged to be brought over in person ․ and the Court has received confirmation from the Allen County Jail that she has refused to participa[te,] she refused to come over ․ so she was left at the jail[.]” Id. at 23. DCS presented the testimony of several service providers, Aunt, Family Case Manager Lauren Ulrick (“FCM Ulrick”), and GAL Thomas Allen (“GAL Allen”). FCM Ulrick testified that she believed termination of Mother's parental rights was in the Children's best interest. She testified that Mother had not remedied the conditions that led to the Children's removal from her care, noting that Mother “still struggles” with the same mental health issues and criminal behavior that “she was struggling with at the very beginning of the case.” Id. at 73. GAL Allen testified about his concerns regarding Mother's “pattern of criminal behavior,” “mental health issues,” and “drug use” which made “her unavailable to parent her children.” Id. at 79. He testified that the Children's best interest would be served “by having them adopted by the current caregiver a[s] she is the only family” the Children have ever known. Id. at 80. Neither Mother nor Father presented any witnesses.

[14] On April 14, 2025, the court issued its findings of fact, conclusions thereon and detailed order terminating the parent-child relationship between Mother and Father and the Children. Specifically regarding Mother, the court concluded that there was a reasonable probability that the conditions that resulted in the Children's removal or continued placement outside Mother's care would not be remedied; termination of Mother's parental rights was in the Children's best interests; and there was a satisfactory plan for the care and treatment of the Children, that being adoption.

Discussion

[15] Mother challenges the termination of her parental rights. At the time of the termination 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)).⁵ 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] The record reveals that the Children were removed from Mother's care due to her illegal drug use and her inability to provide proper supervision. The court found that, even while not incarcerated, Mother did not successfully complete any of her referred services. The court also found that both the FCM and GAL opined that termination and adoption was in the Children's best interests based upon Mother's ongoing criminal behavior and mental health issues. Mother does not challenge the trial court's findings supporting its conclusions that there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside of her care will not be remedied, that termination of her parental rights is in the Children's best interests, or that there is a satisfactory plan for the care and treatment of the Children. Accordingly, we cannot say that the court's termination order is clearly erroneous.

[18] Mother's sole assertion on appeal is that her “due process rights were violated by three separate abuses of discretion by the trial court when she was not able to be heard at a meaningful time or in a meaningful manner[.]” Appellant's Brief at 7. Specifically, she asserts that her due process rights were violated when the court denied Father's “motion to continue thus resulting in an unfair trial.” Appellant's Brief at 5 (capitalization omitted). She further argues the court violated her due process rights in “failing to require evidence be presented that [she] refused to participate in the termination trial” and in “failing to exclude witness testimony after the witness was present for other testimony.” Id.

[19] “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 916-917 (citations and quotation marks omitted). The United States Supreme Court has observed the “importance of heightened due process protections whenever the State wishes to sever the parental bonds of children,” and thus the State “must provide the parents with fundamentally fair procedures.” Id. (citing Santosky v. Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388 (1982)). “[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893 (1976)).

[20] Regarding the denial of the motion for continuance made by Father's counsel, we agree with DCS that Mother has waived any error in the trial court's denial of the motion. We note that Mother's counsel neither joined in the motion to continue nor made any objection or suggestion that the denial of the same would result in a violation of her due process rights. It is well settled that an argument cannot be presented for the first time on appeal. A.S. v. Ind. Dep't of Child Servs., 175 N.E.3d 318, 322 (Ind. Ct. App. 2021). Because Mother did not present her due process argument to the trial court, this argument is waived for purposes of appeal. In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (“[A] party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal”).

[21] As for Mother's claim that the trial court violated her due process rights in “failing to require evidence be presented” regarding her refusal to participate in the factfinding hearing, Appellant's Brief at 17, we similarly find this argument waived for failure to present it to the trial court. Initially, we note that our Supreme Court has observed that there is “no absolute right to be present” at a termination of parental rights hearing. C.G., 954 N.E.2d at 921. At the outset of the January 13, 2025, hearing, the trial court stated on the record that it had received “confirmation from the Allen County Jail that [Mother] has refused to participa[te,] she refused to come over ․ so she was left at the jail[.]” Transcript Volume II at 23. Mother's counsel did not contest or object to this finding, request additional evidence as to Mother's absence, or ask that arrangements be made for Mother to participate in a different manner. Accordingly, her due process argument on these grounds is waived.

[22] Finally, we cannot say that the trial court abused its discretion or violated Mother's due process rights in allowing Aunt to testify after she was permitted to remain in the courtroom despite the court's prior grant of DCS's motion for separation of witnesses. The admission or exclusion of evidence is entrusted to the sound discretion of the trial court. K.L. v. E.H., 6 N.E.3d 1021, 1030 (Ind. Ct. App. 2014). Accordingly, evidentiary rulings of a trial court are afforded great deference on appeal and are overturned only for a showing of an abuse of discretion. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind. Ct. App. 2008). “We will find an abuse of discretion if the trial court's decision is against the logic and the effect of the facts and circumstances before the court.” Id. If a trial court abuses its discretion in making an evidentiary ruling, we will reverse only if the trial court's error is inconsistent with substantial justice or if a substantial right of the party is affected. K.L., 6 N.E.3d at 1030; see Ind. Evidence Rule 103(a) (error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected).

[23] At the outset of the hearing, after the court noted the order for separation of witnesses, when asked if anyone had any objection to Aunt “remaining in the court room throughout the trial,” DCS's counsel responded that it “didn't make any difference to [him],” and Mother's counsel responded, “No.” Transcript Volume II at 24. However, when DCS called Aunt to testify, Mother's counsel objected because Aunt had remained in the courtroom while “witnesses were supposed to be separated.” Id. at 40. The court noted that DCS had not clearly indicated that Aunt “was going to be a witness.” Id. Ultimately, the court overruled Mother's objection but limited Aunt's testimony to topics not covered or influenced by the testimony of other witnesses. Indeed, our review of the record reveals that Aunt's brief testimony concerned the length of the Children's placement with her, the bond she had formed with the Children, her plans to adopt them, and the Children's relationship with Mother. Under the circumstances, we cannot say that the trial court abused its discretion or affected Mother's substantial rights in permitting Aunt's limited testimony.

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

[25] Affirmed.

FOOTNOTES

1.   Oldest Child's father is deceased.

2.   Twins’ alleged father, M.L. (“Father”), was a party to the termination proceedings but is not a party to this appeal.

3.   As noted by DCS, W.I.C. is a food assistance program for “Women, Infants, and Children.” Appellee's Brief at 5.

4.   The record indicates that from January to May 2023, Mother failed to call to see if she was required to submit to a drug screen fifty-six times and she missed thirty-two scheduled screens.

5.   Although the trial court's termination order was entered on April 14, 2025, after the effective date of the amended statute, DCS filed the termination petitions on January 16, 2024, prior to the effective date. Mother does not cite to the statute, and she makes no suggestion that the amended version applies to this case.

Brown, Judge.

Felix, J., and Scheele, J., concur.