B.E. (Mother) Appellant-Respondent v. Kids’ Voice of Indiana, Appellee-Guardian Ad Litem. (2026)

MEMORANDUM DECISION

Case Summary

[1] B.E. (Mother) appeals the involuntary termination of her parental rights to her minor children, twins Ly.E. and Ld.E. (Children).¹ Mother presents three issues for our review, which we consolidate and restate as:

1. Did the trial court violate Mother's due process rights by proceeding with portions of the termination hearing in Mother's absence?

2. Was Mother's counsel ineffective for failing to request a continuance when Mother did not return for the conclusion of the termination fact-finding hearing?

[2] We affirm.

Facts & Procedural History

[3] Mother gave birth to Children on January 5, 2024, in Indianapolis. Children were premature and their cord blood was positive for methamphetamine and amphetamine. Mother denied using methamphetamine but admitted to drinking alcohol during her pregnancy. Mother also disclosed that she was involved in domestic violence with Father. After Mother was released, Children remained hospitalized due to being premature. The Indiana Department of Child Services (DCS) filed separate petitions alleging Children were children in need of services (CHINS) on January 22, 2024, due to Mother's failure to provide a safe, stable, and appropriate living environment free from substance abuse, Mother's significant history of substance abuse, and Children being born drug positive.² See Ind. Code § 31-34-1-1, -10. The same day, the court ordered Children removed from Mother's care on an emergency basis and granted temporary wardship to DCS. The court ordered that Mother have supervised parenting time. Children were placed in foster care in March 2024, after their release from the hospital.³

[4] Mother denied the CHINS allegations. The court held a CHINS fact-finding hearing on August 12, 2024, at which Mother was present. On September 4, 2024, the court adjudicated Children as CHINS. The court then entered a dispositional order requiring Mother to participate in services geared toward reunification.

[5] Mother began visitation with Children in October 2024. Visitation facilitator Stacy Batts described Mother as “one of the most affectionate, loving mothers ․ I've had the privilege of parenting with. The concern and the warmth that she shows towards her children is unparalleled.” Transcript Vol. II at 25. Batts also noted that Mother was “very prepared” for visits, always bringing necessary supplies as well as matching outfits and even a bow she had made for Ly.E. Id. at 35.

[6] Throughout the CHINS case, Mother struggled with managing her mental health and maintaining her sobriety. Her issues manifested during her visits with Children as periodic erratic behavior, incoherent speaking, difficulty following recommendations, and outbursts when she disagreed with recommendations from visitation facilitators. The first two hours of visits generally went well, but then Mother would begin to “struggle” and her mental state would sharply deteriorate resulting in “bizarre” behavior that would require the visits to be ended early. Id. at 26. When this pattern continued, the court suspended Mother's visits in February 2025.

[7] Mother's home-based case manager also observed Mother's behavior to be erratic at times and recommended inpatient substance abuse treatment and a mental health assessment. Though Mother engaged in services with Valle Vista, DCS was unable to obtain verification that she participated in the recommended psychological and substance abuse services.

[8] On March 4, 2025, DCS filed petitions to terminate Mother's parental rights to Children. At a permanency hearing on April 17, 2025, the court changed the permanency plan for Children from reunification with Mother to adoption. Although Mother had not complied with the case plan, Mother did follow through with a DCS referral to Adult and Child for therapy from March 25 until the time of the fact-finding hearing on July 22, 2025. Mother had met with a therapist several times and was scheduled to attend a medication management appointment four days after the hearing.

[9] Mother appeared in person for the start of the fact-finding hearing. Visitation facilitator Stephanie Benge testified, praising Mother for her loving interaction with Children and for coming to visits with necessary items for Children. Mother became emotional during Benge's testimony, stating that the testimony affected her life “tremendously.” Id. at 49. The court instructed Mother to stop speaking and asked whether she needed a few moments to collect herself. At Mother's request to speak to the judge in chambers, the court directed Mother to step out of the courtroom, provided her tissues, and recessed the proceedings. After a short recess, Mother returned to the courtroom and Benge resumed testifying. Mother excused herself from the courtroom again as Benge's testimony continued.

[10] After Benge's testimony, DCS called Mother to the stand. Mother's attorney exited the courtroom and retrieved Mother. Mother testified about her employment, relationship with Children, mental health, and history with DCS. Mother's counsel then cross-examined Mother.

[11] When DCS called its next witness, Dr. Elizabeth Kirsch, Mother informed the court that she would be stepping outside again, and she then left the courtroom. The court asked Mother's counsel, “is it okay to go ahead and start without [Mother] or do you want her to come in?” Id. at 101. Mother's counsel responded, “I don't think she wants to come in, so I'm okay, sorry.” Id.

[12] Dr. Kirsch testified about psychological testing she administered to Mother over a year before the termination hearing and the conclusions she drew from that testing. She believed Mother suffered from bi-polar and stimulant use disorder as well as her previously diagnosed ADHD. She recommended that Mother consult with a physician, engage in individual mental health counseling, complete a substance abuse evaluation, participate in intensive outpatient services, and submit to random drug screens. Mother's counsel cross-examined Dr. Kirsch about her assessment of Mother. After Dr. Kirsch's testimony was complete, the court took a recess for lunch.

[13] When the proceedings resumed, the court stated:

We would note for the record that mother has not yet returned to court. Counsel has looked for her and she was in communication over the lunch hour, as I understand but has not yet returned to court and it's now 1:19. So counsel for mother, are we ready to proceed then without her?

Id. at 110-11. Mother's counsel responded, “Yes, Judge.” Id. at 111. The hearing continued in Mother's absence.

[14] DCS then presented testimony from family case manager (FCM) Lynn Thomas, who had been assigned to Mother's case in December 2024. FCM Thomas testified that Mother had made no progress and that Mother admitted using synthetic urine to pass her drug screens. She testified that it was “very unclear” whether Mother was participating in outside services or treatment because Mother had not signed releases of information. Id. at 120. She maintained that Mother's mental health was “all over the place” and that Mother had not remedied her substance abuse issues. Id. at 122. FCM Thomas opined that there was no reasonable probability that Mother would remedy the reasons for removal of Children from her care.

[15] DCS next presented the testimony of Rocky Harvey, the guardian ad litem assigned to advocate for Children. Harvey had maintained good contact with Mother throughout the CHINS proceedings and had expressed to her his concern about her substance abuse. Mother told Harvey that her substance abuse was because DCS took her kids and that she had no intention of stopping if DCS was not going to give Children back to her. Acknowledging that Mother could be capable of parenting with parameters in place, Harvey testified that he did not believe Mother could appropriately parent long term given that she has been plagued with substance abuse and mental health concerns for many years and had made no progress. Based on Mother's history, Harvey believed termination was in Children's best interests. After all witnesses were done testifying, DCS moved to admit twenty exhibits, with some redactions, from the CHINS action. Mother's counsel reviewed the exhibits and did not object.

[16] On September 2, 2025, the court issued its order, including findings of fact and conclusions of law, terminating Mother's parental rights to Children. Mother now appeals. Additional facts will be provided below as needed.

Discussion & Decision

1. Due Process

[17] Mother argues that the trial court abused its discretion and violated her due process rights by proceeding in her absence and undermining her participation in the termination hearing.

[18] The State must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent-child relationship. Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 375 (Ind. Ct. App. 2006) (citation omitted), trans. denied. Due process in parental-rights cases involves the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing government interest supporting the use of the challenged procedure. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011) (citing A.P. v. Porter Cnty. Off. of Fam. & Child., 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), trans. denied.). The private interest affected by the proceeding is substantial—a parent's interest in the care, custody, and control of his or her child. Id. (citation omitted). And the State's interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by the trial court's actions. Id.

[19] Mother maintains that the risk of error created by proceeding in her absence was great because her attorney was unable to confer with her about the case. A parent may waive a due-process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal. McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2003); see also In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (by raising issue for first time on appeal, mother waived due-process claim that trial court violated her rights in failing to follow statutory requirements governing permanency hearings, case plans, and dispositional orders). Because Mother did not raise this claim below, it is waived. See McBride, 798 N.E.2d at 194-95.

[20] Waiver notwithstanding,⁴ we cannot agree that Mother was denied due process. We have held that a parent does not have an absolute right to be present at a termination fact-finding hearing. In re E.E., 853 N.E.2d 1037, 1044 (Ind. Ct. App. 2006) (stating that parent does not have a constitutional right to be present at a termination hearing), trans. denied. Rather, procedural 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). In termination proceedings, parents are statutorily entitled to “(1) cross-examine witnesses, (2) obtain witnesses or tangible evidence by compulsory process, and (3) introduce evidence on behalf of the parent.” C.G., 954 N.E.2d at 917 (citing Ind. Code § 31-32-2-3(b)).

At the termination hearing, Mother was represented by the same attorney who represented her throughout the CHINS proceedings. Her attorney cross-examined DCS witnesses and objected to testimony about drug test results and visitation details. Mother clearly had notice of the hearing as she was present for those witnesses who testified before the lunch break. After the lunch break, the court inquired about Mother's absence and Mother's attorney, who indicated that she had been in touch with Mother over the break, agreed with proceeding in Mother's absence. Mother was afforded the opportunity to be heard at a meaningful time and in a meaningful manner. Mother voluntarily chose to absent herself from the conclusion of the fact-finding hearing. Mother was not denied due process when the court concluded the fact-finding hearing in her absence. See Matter of C.C., 170 N.E.3d 669, 677-78 (Ind. Ct. App. 2021) (holding that a parent's due process rights were not violated where the parent had notice of the proceedings, failed to attend, and was represented by counsel who had the ability to make argument and cross-examine witnesses).

2. Ineffective Assistance of Counsel

[21] Mother argues that her trial counsel was ineffective for failing to request a continuance so that Mother could be present for the full fact-finding hearing. Our Supreme Court has set forth the standard of review for such claims:

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 v. Marion Cnty. Off. of Fam. & Child., 810 N.E.2d 1035, 1041 (Ind. 2004). 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.

[22] Regarding Mother's specific argument that counsel was ineffective for failing to request a continuance, we first note that Mother makes no attempt to show that the trial court would have granted a continuance had counsel requested one. We further note that the record indicates that counsel had been in contact with Mother over the lunch recess. Although Mother's counsel did not elaborate about the nature of their interaction, counsel did not hesitate and affirmatively told the court to proceed with the hearing in Mother's absence. In light of the circumstances, we cannot say that counsel's failure to request a continuance rendered the proceedings fundamentally unfair. Mother has otherwise failed to show that counsel's overall performance was so deficient that this court cannot have confidence in the court's determination.

[23] Judgment affirmed.

FOOTNOTES

1.   The trial court also terminated the parental rights of S.M. (Father) to Children. Father does not participate in this appeal.

2.   Mother has five children. DCS first became involved with Mother in 2012, because of concerns related to Mother's substance abuse and mental health. Over the years, Mother was involved with multiple CHINS matters involving her other children, during which DCS offered services intended to address those concerns. For example, one of Mother's children, Sibling J who was born in 2012, was adjudicated a CHINS in early 2025, due to Mother's methamphetamine use. In addition, Mother's sister adopted Mother's 15-year-old child in 2017 following a “psyche event” that resulted in Mother's hospitalization. Appellant's Appendix Vol. II at 158. From 2017 until July 2024, Mother did not have any children in her care. As of the date of the fact-finding hearing, Sibling J was in Mother's care, but the CHINS proceedings were still ongoing.

3.   Children remained with the same foster placement except for a few days when they were placed in Father's home.

4.   Mother recognizes that she waived her due process claim and argues fundamental error. Fundamental error requires a showing of “a clearly blatant violation of basic and elementary principles” carrying a potential for harm that is “substantial.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). In other words, “fundamental error is error such that, if not rectified, would be a denial of due process.” Brabandt v. State, 797 N.E.2d 855, 861 (Ind. Ct. App. 2003) (internal citations omitted). As we conclude herein, Mother has not demonstrated a violation of her due process rights, nor has she identified any court action that constituted a blatant due process violation. Mother had notice of the hearing, was provided a meaningful opportunity to be heard and participate in the hearing, and her counsel actively represented her interests throughout the proceeding by objecting to testimony and cross-examining witnesses, even those witnesses who testified in Mother's absence. Mother has not established fundamental error.

Altice, Judge.

Brown, J. and DeBoer, J., concur.