IN RE: the Termination of the Parent-Child Relationship of: J.S. (Minor Child) (2025)

MEMORANDUM DECISION

Statement of the Case

[1] J.S. (“Child”) is the biological child of M.W. (“Mother”). Mother admitted Child was a child in need of services (“CHINS”) after Mother left Child in a running car while she went into a mall. Mother thereafter did not consistently engage in services and refused to participate in inpatient drug addiction treatment. The trial court terminated Mother's parental rights to Child. Mother now challenges that termination and presents two issues for our review, which we restate as follows:

1. Whether Mother's due process rights were violated due to insufficient notice of the second factfinding hearing; and

2. Whether the trial court's decision to terminate Mother's parental rights to Child was clearly erroneous.

[2] We affirm.

Facts and Procedural History

[3] Child was born to Mother in September 2020. In November 2022, law enforcement officers were dispatched to Mother's home after Mother's roommates reported that Mother left Child in their care, and the roommates were “unwilling to be care providers for [Child] at that time.” Tr. Vol. II at 34. Family Case Manager (“FCM”) Caleb Biser went to the residence as well. When FCM Biser arrived, Mother was not present at the home, but he and law enforcement were able to “make contact” with her, and she returned. Id. Mother made “threats of self-harm” and was taken for a mental health evaluation, and Child was placed with his maternal grandparents. Id. at 35.

[4] As a result of this incident, on November 15, 2022, the Indiana Department of Child Services (“DCS”) filed a petition alleging that Child was a CHINS. During the CHINS proceedings, Mother attended therapy and was “cooperating with service providers.” Tr. Vol. II at 39. The trial court approved a program of informal adjustment, DCS dismissed the CHINS petition, and Child was returned to Mother.

[5] Unfortunately, a few months later, DCS received a report that Mother left Child alone in the car on a hot day. Mother was arrested and charged with neglect of a dependent. On June 8, 2023, DCS filed a second CHINS petition, and Child was again removed from Mother. Mother ultimately admitted that Child was a CHINS. The trial court adjudicated Child as a CHINS and, following a dispositional hearing, ordered Mother to refrain from illegal substance use, complete a substance abuse assessment, and participate in services.

[6] Tytiana Kennedy was Mother's recovery coach and care coordinator from August 2023 to June 2024. Kennedy referred Mother to individual therapy and group outpatient services, but Mother did not consistently attend group sessions and was removed from the group three times. As for Mother's individual therapy, Mother appeared to be “intoxicated” on several occasions, Tr. Vol. II at 50, and she did not complete the therapeutic Seeking Safety program, which aimed to “address[ ] both trauma symptoms and substance use,” id. at 49. Mother was also “actively using substances.” Id. Between July 2023 and February 2025, Mother repeatedly tested positive for illicit drugs. Mother's therapist determined that Mother's sobriety was the “biggest obstacle” to Mother's recovery. Id. at 48.

[7] In December 2023, Mother's care team determined that, due to Mother's inconsistent participation in services and continued drug use, “progress wasn't being made in an outpatient setting.” Tr. Vol. II at 57. The team recommended that Mother “complete inpatient treatment”; however, Mother never did. Id. Mother went to an inpatient treatment facility several times but “didn't stay.” Id. at 49. Mother eventually stopped responding to her care team, and in June 2024, her referrals were closed.

[8] On November 25, 2024, DCS petitioned for termination of Mother's parental rights to Child. Mother's initial hearing was held on February 2, 2025. During the hearing, the trial court advised Mother that two factfinding hearings would take place and that the first would occur on February 21. The trial court also instructed Mother to contact her court-appointed counsel and advised Mother that, if she did not “show up for [the] fact-finding hearing and/or hearings,” the trial court would “still have the hearing with or without [her]” and could “terminate [her] parent-child relationship in [her] absence.” Tr. Vol. II at 14. Mother indicated that she understood the trial court's advisements.

[9] Mother, however, did not contact her counsel and failed to appear at the February 21 factfinding hearing. The trial court held a brief hearing in Mother's absence and scheduled a second factfinding hearing for April 7. DCS sent Mother a letter providing notice of this second factfinding hearing on March 23.

[10] Mother also failed to appear at the April 7 factfinding hearing. Mother's counsel explained that he attempted to call Mother, but her phone number “did not appear to be a working number.” Tr. Vol. II at 22. Counsel was also unable to reach Mother via email. The trial court thereafter held the hearing in Mother's absence.

[11] Several members of DCS and Mother's service providers testified regarding Mother's substance abuse and limited engagement in services. The Court Appointed Special Advocate testified that Mother had “very severe mental health concerns, as well as a continuous drug addiction that she [had not] yet taken advantage of help for” and that it would be “dangerous for any child to be placed in her care.” Tr. Vol. II at 103.

[12] The trial court took the matter under advisement. The day after the hearing, Mother filed a motion, alleging, not verifying nor attaching any form of proof, that she had been living at an inpatient drug treatment facility since March 27, 2025, and had contacted her counsel “[d]uring” the April 7 factfinding hearing but was unable to reach him. Appellant's App. Vol. II at 15 (emphasis omitted). Mother moved for a “new fact-finding hearing.” Id. at 16. The trial court denied the motion. On May 23, the trial court issued an order terminating Mother's parental rights to Child. This appeal ensued.

Discussion and Decision

1. Mother's Due Process Rights Were Not Violated Due to Insufficient Notice of the Second Factfinding Hearing

[13] We first address Mother's argument that she was denied due process because DCS failed to give her proper notice of “day two of the fact-finding hearing[s] at least ten days prior to such hearing.”¹ Appellant's Br. at 12. “[W]hen the State seeks to terminate the parent-child relationship, it must do so in a manner that meets due process requirements.” In re I.P., 5 N.E.3d 750, 751 (Ind. 2014) (citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). Appellate courts balance three factors to determine the process due in a termination case: “(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.” Id. at 751–52 (citing C.G., 954 N.E.2d at 917).

[14] Notice of hearings regarding a termination of parental rights proceeding is governed by Indiana Code section 31-35-2-6.5. The statute requires DCS to send parents whose parental rights are sought to be terminated notice of any hearing on a termination of parental rights petition “[a]t least ten (10) days before” the hearing is held. Ind. Code § 31-35-2-6.5(b). Service of such notice is governed by Indiana Trial Rule 5, which “authorizes service by U.S. mail and provides that ‘[s]ervice upon the attorney or party shall be made by delivering or mailing a copy of the papers to [the attorney or party] at his last known address.’ ” In re C.C., 170 N.E.3d 669, 675–76 (Ind. Ct. App. 2021) (quoting In re B.J., 879 N.E.2d 7, 15 (Ind. Ct. App. 2008), trans. denied) (alterations in original); see also T.R. 5.

[15] As an initial matter, Mother's challenge to the alleged insufficient notice is waived. “[F]ailure to comply with statutory notice is [ ] a defense that must be asserted”; only then does the “burden of proving compliance with the statute” shift to DCS. C.C., 170 N.E.3d at 675 (quoting In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012)) (second alteration in original). Here, Mother did not challenge DCS’ notice of the second factfinding hearing before the trial court, so that challenge is waived on appeal. The same is true for Mother's due process claim. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (citing McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194 (Ind. Ct. App. 2003)) (“[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.”).

[16] Waiver notwithstanding, the record reflects that DCS did send notice of the second factfinding hearing to Mother more than ten days before that hearing. Mother does not acknowledge this notice in her appellant's brief or present any argument that this notice was insufficient. We thus conclude that Mother was not given insufficient notice of the second factfinding hearing and that her due process rights were not violated.

2. The Trial Court's Decision to Terminate Mother's Parental Rights to Child Was Not Clearly Erroneous

[17] We next address Mother's challenge to the trial court's termination of her parental rights to Child. “Parents have a fundamental right to raise their children—but this right is not absolute. When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” In re Ma.H., 134 N.E.3d 41, 45–46 (Ind. 2019) (internal citations omitted) (citing In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013)), cert. denied. As relevant here, to terminate Mother's parental rights under Indiana Code section 31-35-2-4(d)(3), DCS had to prove that “there is a reasonable probability that the conditions that resulted in [Child's] removal or the reasons for placement outside the home of [Mother] will not be remedied.” DCS must prove this by “clear and convincing evidence.” Ind. Code § 31-35-3.5-7(a)(1).

[18] We will affirm a trial court's termination of parental rights unless that decision is clearly erroneous. Ma.H., 134 N.E.3d at 45 (citing In re E.M., 4 N.E.3d 636, 642 (Ind. 2014)). A trial court's termination decision is clearly erroneous if the court's findings of fact do not support its legal conclusions or if the legal conclusions do not support its ultimate decision. Id. (citing E.M., 4 N.E.3d at 642). We will not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the court's decision. Id. (citing In re K.E., 39 N.E.3d 641, 646 (Ind. 2015)). We also note that Mother challenges none of the trial court's factual findings here, so we take them all as true. See R.M. v. Ind. Dep't of Child Servs., 203 N.E.3d 559, 564 (Ind. Ct. App. 2023) (citing Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)), trans. not sought.

[19] Mother only challenges the trial court's legal conclusion that the “conditions” that resulted in Child's removal or the reasons for Child's placement outside Mother's home will not be remedied. Appellant's Br. at 13. When reviewing the trial court's findings regarding whether Mother has or will remedy the conditions resulting in Child's removal from Mother or the reasons Child was placed outside Mother's home, we first “identify the conditions that led to removal” and then “determine whether there is a reasonable probability that those conditions will not be remedied.” In re J.S., 133 N.E.3d 707, 715 (Ind. Ct. App. 2019) (citing In re E.M., 4 N.E.3d at 643).

In the second step, the trial court must judge parental fitness as of the time of the termination hearing, taking into consideration the evidence of changed conditions. The trial court is entrusted with balancing a parent's recent improvements against habitual patterns of conduct. The trial court has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.

J.S., 133 N.E.3d at 715 (internal quotation marks and citations omitted) (quoting and citing E.M., 4 N.E.3d at 643).

[20] In finding that DCS proved the conditions that resulted in Child's removal or the reasons for placement outside Mother's home will not be remedied, the trial court found in relevant part as follows:

Mother hasn't had the ability to remain sober to address her mental health needs that resulted in Child being removed. Mother was recommended to attend and complete inpatient treatment by service providers. This was to address her sobriety and mental health. Service providers discontinued services because Mother did not attend and complete inpatient treatment. Mother attempted inpatient treatment multiple times. The longest duration was nine (9) days. Mother just as recently as March of 2025 was transported to an inpatient facility but was picked up by someone and did not even go into the facility.

Appellant's App. Vol. II at 13.

[21] Mother argues that DCS failed to “make reasonable efforts to preserve and reunify” the family by making it “possible for the child to return safely to the child's home as soon as possible,” as required by Indiana Code section 31-34-21-5.5(b)(2). According to Mother, she has a “trauma-induced aversion to inpatient treatment,” and her service providers should have found “an alternative to inpatient treatment.” Appellant's Br. at 14.

[22] Mother's argument is merely an invitation for us to reweigh the evidence, which we cannot do. See Ma.H., 134 N.E.3d at 45 (citing E.M., 4 N.E.3d at 642). Child could not be placed with Mother due to her mental health concerns and substance abuse. Mother's service providers initially recommended that Mother engage in individual therapy and group outpatient services. Mother's therapy was specifically focused, in part, on addressing “trauma symptoms.” Tr. Vol. II at 49. Mother, however, did not consistently attend group meetings, continued to use illegal substances, and appeared to be intoxicated during several therapy sessions. Only after DCS determined that “progress wasn't being made” in these “outpatient” settings, id. at 57, did DCS determine that inpatient treatment was necessary.

[23] In sum, it is clear from the record that Mother struggled with her addiction and alternative strategies short of inpatient therapy would not be successful. DCS's recommendation of inpatient treatment was the last resort to help Mother achieve sobriety and reunify the family. Mother, however, was unwilling to commit to inpatient treatment. Considering only the evidence and reasonable inferences that support the trial court's decision, we cannot say that the trial court clearly erred in concluding that the conditions that resulted in Child's removal or the reasons for placement outside Mother's home will not be remedied.

Conclusion

[24] Mother's due process rights were not violated due to insufficient notice of the second factfinding hearing, and the trial court's decision to terminate Mother's parental rights to Child was not clearly erroneous. Accordingly, we affirm.

[25] Affirmed.

FOOTNOTES

1.   DCS argues in its brief that DCS provided sufficient notice to Mother of both factfinding hearings, the first on February 21, 2025, and the second on April 7, 2025. We will only analyze notice regarding the second factfinding hearing because that is the only notice Mother challenges in her appellant's brief.

Felix, Judge.

Brown, J., and Scheele, J., concur.