IN RE: T.R. (Minor Child) (2025)

MEMORANDUM DECISION

[1] A.R. (“Mother”) appeals the trial court's adjudication of her son T.R. (“Child”) as a Child in Need of Services (“CHINS”). Mother presents three issues for our review:

1. Whether the trial court lacked personal jurisdiction over Mother.

2. Whether the trial court denied Mother her right to due process.

3. Whether Mother was denied the effective assistance of counsel.

[2] We affirm.

Facts and Procedural History

[3] Mother is mother of Child, who was born August 29, 2011.¹ On January 7, 2025, the Indiana Department of Child Services (“DCS”) filed a petition alleging that Child was a CHINS after receiving a report that Mother had physically abused Child. Mother was intoxicated and fought with Child, who ran outside and called 9-1-1. Law enforcement officers arrested Mother for domestic battery. Child was removed from Mother's home, where she lived with her boyfriend, and Child was placed in relative care.

[4] The trial court held an initial hearing the next day, but Mother, who was still in a detention facility, did not attend either in person or virtually. On January 14, while she was still in the detention facility, a process server served Mother with a copy of the CHINS petition, advisement of rights, summons, and request for the court to appoint her a public defender. Mother signed to indicate that she had been served with those documents, and she signed her initials indicating her desire that a public defender be appointed for her. On January 27, the trial court held an initial hearing for Mother, but she did not appear despite the court noting in the CCS that “arrangements were made” for her to appear. Appellant's App. Vol. 2, p. 6. The trial court appointed a public defender for Mother.

[5] On February 5, Mother moved for a change of judge. The trial court granted that motion. On February 26, Mother attended a pretrial hearing. And on April 2, Mother attended mediation with her attorney. At the conclusion of the mediation, Mother agreed to enter into a “Deny and Submit Agreement” (“the agreement”), whereby she denied the allegations in the CHINS petition but also did not object to that petition being relied upon by the trial court as evidence. Appellant's App. Vol. 2, p. 88. The agreement also provided that:

[Mother] is waiving [her] right to a fact-finding hearing (“trial”) as well as the right to present further evidence and to cross-examine witnesses. The assigned judge will determine whether the above-named child is a [CHINS] based on the information found in the Preliminary Inquiry and CHINS Petition in this matter.

Id. Mother did not sign the agreement, but she instructed her attorney to sign it on her behalf, which he did.

[6] On April 4, Mother pleaded guilty to battery and domestic battery in the criminal case stemming from the events that led to the CHINS petition. She was released from the detention facility on April 14. Mother did not appear at a pre-trial hearing on April 22, but her attorney was there and asked the trial court to accept the agreement. Mother's attorney also requested a dispositional hearing. The trial court accepted the agreement, adjudicated Child to be a CHINS, and scheduled the dispositional hearing for April 30.

[7] During the dispositional hearing, Mother told the trial court that she wanted to “withdraw” the agreement. Tr. p. 13. The trial court advised her that it did not think there were grounds to set aside the agreement, but the court continued the hearing until May 7 to “determine how best to move forward.” Id. at 14. On May 7, Mother filed a motion to withdraw the agreement alleging that she had informed her family case manager prior to the court's acceptance of the agreement that she wanted to withdraw the agreement “due to her release from incarceration.” Appellant's App. Vol. 2, p. 156. And during the May 7 hearing, Mother argued that her right to due process was “potentially implicated” because she did not have “adequate time to consult with counsel” after she was released from the detention facility on April 4 and before the trial court accepted the agreement on April 22. Tr. p. 20. The trial court denied Mother's motion to withdraw the agreement.

[8] The court proceeded with disposition and observed that it was the “second time [Mother had] come into [the] courtroom [bringing] a very strong odor of marijuana.” Id. at 21. DCS requested the following services for Mother: home-based casework, a parenting assessment, home-based therapy, random drug screens, substance abuse evaluation and treatment, and a mental health assessment. Mother objected to all but home-based casework, and she requested that she be admitted into a “batterers’ intervention program through DCS.” Id. at 23. Mother told the trial court that Child was not being “honest” about the incident on January 7. Id. at 27. But Mother conceded that she had pleaded guilty to the related criminal charges. At the conclusion of the hearing, the court ordered the following services for Mother: home-based case work, a parenting assessment, home-based therapy, random drug screens, substance abuse evaluation and treatment, and a mental health assessment. This appeal ensued.

Discussion and Decision

Issue One: Personal Jurisdiction

[9] Mother first contends that “DCS failed to properly serve Mother with the summons in compliance with the trial rules․” Appellant's Br. at 15. Thus, she argues that the trial court “never obtained personal jurisdiction over her.” Id. Mother is incorrect.

[10] Whether the trial court had personal jurisdiction over Mother is a question of law that we review de novo. See Sickle v. JTJ Indiana, LLC, 220 N.E.3d 1251, 1252 (Ind. Ct. App. 2023), trans. denied. A judgment entered where there has been insufficient service of process is void for want of personal jurisdiction. Id. at 1252-53. However, “ ‘[a] party can waive lack of personal jurisdiction and submit himself to the jurisdiction of the court if he responds or appears and does not contest the lack of jurisdiction.’ ” In re K.P.G., 99 N.E.3d 677, 680-81 (Ind. Ct. App. 2018) (quoting Heartland Res., Inc. v. Bedel, 903 N.E.2d 1004, 1007 (Ind. Ct. App. 2009)).

[11] Here, while Mother did not appear at the initial hearing, she asked for and was granted representation by a public defender, and she appeared in court without ever contesting the court's personal jurisdiction over her. Accordingly, we agree with the State that Mother has waived this issue for our review. See id.

[12] Waiver notwithstanding, we reject Mother's contention that DCS did not obtain proper service on her. In support of her contention, Mother argues that she was in the detention facility at the time of service and the service did not comply with Trial Rule 4.3, which provides:

Service of summons upon a person who is imprisoned or restrained in an institution shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution. It shall be the duty of said official to immediately deliver the summons and complaint to the person being served and allow him to make provisions for adequate representation by counsel. The official shall indicate upon the return whether the person has received the summons and been allowed an opportunity to retain counsel.

[13] Mother's sole contention on appeal is that the detention facility official did not “indicate upon the return” whether Mother had received the summons. See id.; Appellant's Br. at 15. But Mother signed a cover letter from DCS stating that a summons, advisement of rights, and petition were enclosed, and she signed the third page of the three-page “Summons and Notice of Rights” document. Appellant's App. Vol. 2, pp. 63-64, 70. And the detention facility official executed an affidavit stating that the official “has/will deliver” the notice to Mother. Id. at 69. The evidence shows that Mother was properly served. Thus, Mother has not shown that the trial court lacked personal jurisdiction over her.

Issue Two: Due Process

[14] Mother next contends that she was denied her right to due process on several grounds: the lack of an initial hearing where the court advised her of her rights; Mother did not sign the agreement and did not knowingly or intentionally waive her rights under the agreement; and the trial court held the April 22 adjudication hearing in Mother's absence. Because CHINS proceedings carry a significant potential to interfere with the rights of parents in the upbringing of their children, due process concerns at all stages of a CHINS proceeding are of paramount concern. In re Eq. W., 124 N.E.3d 1201, 1209 (Ind. 2019) (citations omitted).

[15] The Due Process Clause of the United States Constitution prohibits state action that “deprives a person of life, liberty or property without a fair proceeding.” In re E.T., 152 N.E.3d 634, 640 (Ind. Ct. App. 2020), 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 (1976)). 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.” E.T., 152 N.E.3d at 640.

[16] Initially, DCS argues that Mother has waived all but one argument on this issue for our review. Indeed, the transcript shows that Mother raised only one due process argument during the dispositional hearing, and she alleged only that she was unable to consult with her attorney between the time she was released from the detention facility and the time the trial court accepted the agreement. Specifically, Mother argued that the trial court should grant her motion to withdraw the agreement because she did not have “adequate time to consult with counsel after circumstances changed where she was released from incarceration.” Tr. p. 20.

[17] In response, the trial court noted that it had taken judicial notice of the April 15 mediation status report, wherein the mediator stated “that mediation resulted in a full agreement․” Id. The trial court also noted that “a copy of the signed agreement has been filed with [t]he Court and there is a signature on the Deny and Submit that says that an attorney was authorized to accept the agreement on ․ mother's behalf.” Id. at 20-21. Mother did not explain why her release from the detention facility was a change in circumstances that necessitated additional consultation with her attorney after she had attended the mediation with her attorney and instructed him to sign the agreement. And Mother does not attempt any such explanation on appeal. We cannot say that the trial court denied Mother her right to due process on this issue.

[18] We agree with DCS that Mother has not preserved for our review her remaining due process arguments. Still, she seeks relief under the fundamental error doctrine. As our Supreme Court has explained:

On rare occasions, appellate courts may analyze an issue under the fundamental error doctrine to examine an otherwise procedurally defaulted claim. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). However, this review is extremely narrow and “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. 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. See Ryan v. State,[2] 9 N.E.3d 663, 668 (Ind. 2014).

Eq. W., 124 N.E.3d at 1214-15.

[19] In support of her argument alleging fundamental error, Mother contends that “[t]he record shows a complete breakdown in the procedural safeguards meant to protect Mother's constitutional rights: no advisement, no hearing, no participation, no waiver, and no opportunity to meaningfully contest the CHINS allegations. The potential for harm here is substantial and undeniable.” Appellant's Br. at 23. But that argument turns on Mother's allegation that she did not enter into the agreement knowingly and voluntarily.

[20] On the contrary, the evidence shows that she participated in the mediation with her attorney; the mediation resulted in a full agreement by the parties; and Mother instructed her attorney to sign the agreement on her behalf. In her motion to withdraw the agreement, Mother conceded that her attorney signed the agreement on Mother's behalf and “at her direction.” Appellant's App. Vol. 2, p. 156. Despite having talked to her attorney after the April 22 adjudication hearing and prior to the April 30 disposition hearing, it was at the latter hearing that her attorney first learned of Mother's desire to withdraw the agreement. Mother alleged that she had contacted the family case manager and indicated her desire to withdraw the agreement “due to her release from incarceration.” Id. Mother made no contention in her motion to withdraw that she had not had adequate time to consult with her attorney before the trial court accepted the agreement.

[21] Mother has not persuaded us that she did not knowingly and voluntarily enter into the agreement. Thus, Mother has not established that she was denied the opportunity to be heard at a meaningful time and in a meaningful manner. Accordingly, we conclude that Mother was not denied the right to due process.

Issue Three: Ineffective Assistance of Counsel

[22] Finally, Mother contends that she was denied the effective assistance of counsel. As another panel of this Court recently observed:

[O]ur courts have not yet addressed the precise issue presented here in a published opinion: whether Mother is entitled to the effective assistance of counsel in CHINS proceedings. Our supreme court has held that parents whose parental rights to their children are terminated may raise a claim of ineffective assistance of trial counsel. See Baker v. Marion Cnty. Off. of Fam. & Child., 810 N.E.2d 1035, 1041 (Ind. 2004).

Parents have a right to counsel in CHINS proceedings. In re G.P., 4 N.E.3d 1158, 1162-63 (Ind. 2014)․ Our supreme court has stated that “the right to counsel is the right to the effective assistance of counsel.” See Bobadilla v. State, 117 N.E.3d 1272 (Ind. 2019). Moreover, “due process protections at all stages of CHINS proceedings are ‘vital’ because ‘[e]very CHINS proceeding has the potential to interfere with the rights of parents in the upbringing of their children.’ ” G.P., 4 N.E.3d at 1165 (quoting In re K.D. v. Ind. Dep't of Child Servs., 962 N.E.2d 1249, 1257 (Ind. 2012)). The G.P. court also observed that CHINS and termination of parental rights proceedings “are deeply and obviously intertwined to the extent that an error in the former may flow into and infect the latter․” Id. For these reasons, it would be illogical to conclude that the right to effective assistance of counsel, which has been recognized in termination proceedings, does not also apply to CHINS proceedings.

In termination of parental rights proceedings, our supreme court has established the following test to determine the effectiveness of counsel:

Where parents whose rights were terminated upon trial claim on appeal that their lawyer underperformed, we deem the focus of the inquiry to be whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination. The question is not whether the lawyer might have objected to this or that, but whether the lawyer's overall performance was so defective that the appellate court 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.

Baker, 810 N.E.2d at 1041.

Because DCS may allege that a child is a CHINS for any of the reasons enumerated in Indiana Code chapter 31-34-1, whether counsel was ineffective must be considered in light of the specific reasons that DCS alleged and that the trial court has found in determining that a child is a CHINS. Therefore, the question is whether counsel's overall performance was so defective that our court cannot say with confidence that [a child] is a CHINS for the reasons found in the court's order.

In re J.N., ___ N.E.3d ___, No. 25A-JC-657, 2025 WL 2383634, at *5-6 (Ind. Ct. App. Aug. 18, 2025) (emphasis added), trans. pending.

[23] Here, the trial court found that Child was a CHINS because Child “was a victim of child abuse by Mother, specifically she threw a hammer in his direction, and there was scratching on the child from Mother[,] who was arrested as a result. Mother has untreated substance abuse and a history of involvement with DCS.” Appellant's App. Vol. 2, p. 103. The trial court took judicial notice of the criminal case against Mother stemming from her abuse of Child on January 7, 2025, wherein Mother pleaded guilty to Level 5 felony battery and Level 6 felony domestic battery.

[24] Still, Mother contends that her counsel's performance was defective in two respects: his failure to argue that the trial court lacked personal jurisdiction over her, and his failure to properly advise Mother of the consequences of entering into the agreement. On the first issue, because the evidence shows proper service on Mother, her counsel had no reason to argue lack of personal jurisdiction. And on the second issue, the evidence shows that Mother attended the mediation with her attorney; at the conclusion of the mediation, the parties reached a full agreement; and Mother's attorney signed the agreement on her behalf “at her direction.” Id. at 156. Mother claims that there is “no evidence” that her attorney explained the consequences of the agreement to her, but, on the contrary, the evidence shows that she participated in the mediation and agreed with the result. See Appellant's Br. at 26. Further, as the trial court found, Mother's claim that her release from incarceration was a change in circumstances that supported her withdrawal from the agreement finds no support in the law.

[25] In any event, even assuming that Mother's counsel's performance was defective, that does not undermine our confidence in the court's finding that Child is a CHINS. See J.N., 2025 WL 2383634, at *6. Indeed, Mother does not challenge the evidence or the trial court's finding that Child is a CHINS. And, again, Mother pleaded guilty to battery and domestic battery against Child.

[26] For all of these reasons, we are not persuaded by Mother's claim that counsel's performance was so defective that it undermines our confidence in the outcome of the CHINS proceedings.

[27] Affirmed.

FOOTNOTES

1.   Child's father does not participate in this appeal.

2.   Ryan was recently abrogated on other grounds. See Konkle v. State, 253 N.E.3d 1068 (Ind. 2025).

Mathias, Judge.

Altice, C.J., and May, J., concur.