In the Involuntary Termination of the Parent-Child Relationship of M.G. (Minor Child), and A.S.-N. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2026)

MEMORANDUM DECISION

[1] A.S.-N. (“Mother”) appeals the involuntary termination of her parental rights to her minor child, M.G. (“Child”). We affirm.

Facts and Procedural History

[2] The Indiana Department of Child Services (“DCS”) first became involved with Mother and her children in 2010 due to her substance abuse. Mother has four children and has had “up to five involvements” with DCS including multiple Child in Need of Services (“CHINS”) adjudications as well as informal adjustments. Transcript Volume II at 13. Two of those CHINS adjudications involved Child. On April 12, 2024, DCS received a report alleging that seven-year-old Child was the victim of neglect because Mother was “abusing medications and substances” and had “admitted to relapsing on methamphetamine.” Appellant's Appendix Volume III at 7-8. Child was removed from Mother's care on May 2, 2024, and placed in foster care,¹ and on May 3, DCS filed a petition alleging Child was a CHINS. On July 10, 2024, following Mother's admission, the trial court adjudicated Child a CHINS. The court held a dispositional hearing and entered a decree ordering Mother, among other things, to: complete a parenting assessment and all recommendations; complete a substance abuse assessment and all recommendations; complete a psychological evaluation and all recommendations; not use, consume, manufacture, trade, distribute or sell any illegal controlled substances; submit to random drug screens; and participate in supervised visitation.

[3] During the pendency of the CHINS case, Mother failed to participate in services and continued using illegal substances. Specifically, Mother failed to participate in supervised visitation with Child, homebased services, or substance abuse treatment. On May 7, 2025, Mother “tested positive for a number of substances.” Transcript Volume II at 11.

[4] On May 14, 2025, DCS filed a petition to terminate Mother's parental rights to Child.² The court held an initial hearing on June 12, 2025. Mother failed to appear. The court found that “service on Mother was perfected by the Floyd County Sheriff. The Court holds Mother in default and schedules a Termination Hearing.” Appellant's Appendix Volume II at 100. On July 9, 2025, the court issued an Order on Initial Hearing setting the factfinding hearing for July 18, 2025. The order was mailed to Mother at her address on file.

[5] The court held a termination factfinding hearing on July 18, 2025. Mother failed to appear, but counsel appeared on her behalf. Upon review of the chronological case summary, the court determined that service of the termination petition on Mother “was perfected through mailing a copy and leaving a copy.” Transcript Volume II at 4. Regarding that issue, counsel for DCS called Family Case Manager Amanda Sutherland (“FCM Sutherland”) to the stand who indicated that she had spoken with Mother and that Mother had specifically told her that “she does not intend to open or pay attention to any mail from the court on this case.” Id. at 5. Court Appointed Special Advocate Christine Benitos (“CASA Benitos”) also testified that Mother had told her “that she does not intend to participate in this court case or receive the mail.” Id. at 6. Counsel for DCS informed the court, “We have attempted service multiple times through our normal mailing. And then when that didn't work, we attempted service through sheriff's service ․ We filed our proof of that service, as well, where they left that with her, where it was presumably not received.” Id. at 6-7. Mother's counsel did not challenge the adequacy of the service. Rather, Mother's counsel informed the court that Mother had not had any contact with him and that he would “leave it to the Court to draw this inference that through her conduct and statements that were just testified to ․ she has essentially through her conduct indicated that she does not want her rights defended[.]” Id. at 9. The court acknowledged counsel's observation and also took judicial notice of the underlying divorce, “not for [Child] but for the siblings,” Cause No. 22C01-2408-DC-641, noting that “the Court was required to serve [Mother] in open court when she was present for her CHINS case back in January ․ [s]o this is kind of a pattern of conduct, so I'll make ․ that finding as well, show that she [w]as served. And we are set today for the factfinding. ” Id. at 8. Accordingly, the court proceeded with factfinding in Mother's absence.

[6] Regarding termination, FCM Sutherland testified that DCS “got involved in April 2024[,] due to [Mother] admitting to relapsing on methamphetamine. She completed an instant screen that was positive for amphetamine, benzodiazepines, and suboxone at the time.” Id. at 11. She stated that Mother had “not participated in services for several months,” with her last interaction being on May 7, 2025, at which time Mother “tested positive for a number of substances.” Id. When asked if she believed there was “any likelihood” that the conditions resulting in Child's removal from Mother's care would be remedied, FCM Sutherland responded, “No.” Id. at 12-13. Specifically, FCM Sutherland referenced Mother's “lengthy history” with DCS that was “all related to substance abuse,” and while Mother had “engaged in treatment multiple times ․ she's not shown any lengthy period of sobriety.” Id. at 13. FCM Sutherland opined that it was “appropriate at this time to terminate” Mother's parental rights to Child. Id. at 15.

[7] Child's foster mother, C.R., testified that Child had been placed with her for more than half of her life, and that Child was doing “[g]reat.” Id. at 23. C.R. stated that it was her intention to adopt Child. At the conclusion of the hearing, the court asked CASA Benitos her opinion, and CASA Benitos stated that C.R. provided “a suitable, loving home” for Child and that termination of Mother's parental rights was in Child's best interests.³ On the same date, the court issued its findings of fact, conclusions of law, and order terminating Mother's parental rights.

Discussion

[8] Mother's sole assertion on appeal is that this Court “should restore the Mother-Child relationship because [DCS] failed to satisfy the notice requirement” of Ind. Code § 31-35-2-6.5(b). Appellant's Brief at 4. She argues that “[b]ecause [DCS] infringed [her] statutory due process right to notice, this Court should reverse the trial court[.]” Id. DCS responds that Mother has “waived her challenge to DCS's compliance with the 10-day notice and violation of her due process rights” because she failed to raise that claim below. Appellee's Brief at 10. We agree with DCS.

[9] Ind. Code § 31-35-2-6.5(b) provides in relevant part that, “[a]t least ten (10) days before a hearing on a petition or motion under this chapter: (1) the person or entity who filed the petition to terminate the parent-child relationship under section 4 of this chapter ․ shall send notice of the review to ․ [t]he child's parent, guardian, or custodian.”

Compliance with the statutory procedure of the juvenile code is mandatory to effect termination of parental rights. Although statutory notice is a procedural precedent that must be performed prior to commencing an action, it is not an element of plaintiff's claim. Failure to comply with statutory notice is thus a defense that must be asserted.

In re H.K., 971 N.E.2d 100, 103 (Ind. Ct. App. 2012) (quotations omitted). “Once the defense of lack of notice is placed in issue, DCS bears the burden of proving compliance with the notice statute.” In re M.P., 115 N.E.3d 498, 503 (Ind. Ct. App. 2018).

[10] To the extent Mother cites Ind. Code § 31-35-2-6.5 and asserts that DCS failed to provide her with proper notice of the termination hearing, we note that Mother's counsel failed to argue a lack of statutory notice before the trial court. Accordingly, this issue is waived. See In re A.R., 271 N.E.3d 1161, 1172 (Ind. Ct. App. 2025) (concluding that Parents’ attorneys’ failure to argue that their clients lacked statutory notice of termination factfinding hearing resulted in waiver of issue on appeal); Matter of C.C., 170 N.E.3d 669, 676 (Ind. Ct. App. 2021) (“Counsel for Mother failed to argue a lack of statutory notice in the trial court. Accordingly, this issue is waived.”); In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005) (discussing Ind. Code § 31-35-2-6.5 and holding that “[f]ailure to comply with a statutory notice is a defense that must be asserted”).⁴

[11] For the foregoing reasons, we affirm the termination of Mother's parental rights.

[12] Affirmed.

FOOTNOTES

1.   Child was placed in the same foster home as she had been placed during both of her prior CHINS adjudications.

2.   As noted by the State, Mother's three other children were also involved in the underlying CHINS case, but “DCS did not pursue termination of Mother's parental rights because it placed those children with their fathers. Child's biological father was still unknown to DCS at the time of termination.” Appellee's Brief at 5 n.1 (citing Transcript Volume II at 13-15).

3.   Mother's counsel cross-examined each of DCS's witnesses regarding their testimony.

4.   To avoid waiver, Mother “respectfully submits that service of process for the termination hearing was placed at issue by the trial court and by trial counsel.” Appellant's Brief at 12. We observe that the entirety of Mother's argument on appeal conflates the statutory notice issue with the issue of jurisdictional service of process. “This Court has held that Indiana Code § 31-35-2-6.5 does not require compliance with Indiana Trial Rule 4, which governs service of process and incorporates a jurisdictional component.” In re C.C., 788 N.E.2d 847, 851 (Ind. Ct. App. 2003), trans. denied. “Rather, in order to comply with the notice statute, one need only meet the requirements of Indiana Trial Rule 5, which governs service of subsequent papers and pleadings in the action.” Id. Indiana Trial Rule 5 authorizes service by U.S. mail, and service upon the party “must be made by delivering or mailing a copy of the papers to the last known address[.]” Ind. Trial Rule 5(B). “Service is deemed complete upon mailing.” Ind. Trial Rule 5(B)(2). Although the jurisdictional service of process issue was indeed discussed by counsel for the parties and the trial court, Mother's counsel made no challenge to the adequacy of that service much less any mention whatsoever of the entirely separate statutory notice requirement that Mother now attempts to raise on appeal.

Brown, Judge.

Altice, J., and DeBoer, J., concur.