IN RE: the Termination of the Parent-Child Relationships of O.S. (Minor Child) (2026)

MEMORANDUM DECISION

Case Summary

[1] S.S. (Father) and A.K. (Mother) [collectively, Parents] failed to appear at the fact-finding hearing on the Department of Child Services’ (DCS) petition to terminate their parental rights as to their daughter. The trial court heard evidence in their absence and subsequently terminated their parental rights. Parents separately appeal and present distinct arguments. Mother argues: (1) the trial court abused its discretion and violated her due process rights by denying her motion to continue the fact-finding hearing; and (2) there was insufficient evidence to support the termination of her parental rights. Father asserts: (1) he was deprived of his right to counsel; and (2) DCS did not provide him with statutory notice of the fact-finding hearing. We affirm.

Facts & Procedural History

[2] Parents have one child together, O.S. (Child), who was born in November 2023. On February 26, 2024, officers from the Elwood Police Department conducted a traffic stop on Parents’ vehicle in which Parents, Child, and paternal grandfather were occupants. The officers found marijuana and methamphetamine in the vehicle. Parents were arrested and taken to Madison County Jail, and Child was removed from Parents’ care on an emergency basis. The next day, Parents were charged with neglect of a dependent and a no contact order was issued precluding them from contacting Child. DCS also filed a petition alleging Child was a child in need of services (CHINS) due to Parents’ inability “to provide [her with] necessary care and a home free of substance abuse.” Mother's Appendix Vol. 2 at 90.

[3] In April, Parents admitted the allegations and Child was adjudicated a CHINS. The next month, the trial court entered a dispositional order requiring Parents to complete parenting and substance abuse assessments and follow all recommendations, stay in contact with the DCS family case manager (FCM), notify the FCM of any changes in their address, and allow the FCM to visit their home. They were also ordered to submit to random drug screens and participate in individual therapy. Child remained with the foster care placement she'd been with since March.

[4] The court held a periodic review hearing in August, at which time Mother was incarcerated and not participating in services.¹ Father had completed a twenty-eight-day substance abuse program, was participating in supervised visits with Child, and had been referred to home-based casework. At the next review hearing in February 2025, Mother was no longer incarcerated and was “meaningfully engaged in services.” Id. at 70. She had completed her substance abuse assessment, scheduled her parenting assessment, and tested negative on drug screens. Father was partially compliant with services. He continued to test negative on drug screens but had missed therapy appointments and parenting time. Child was “progressing well” in placement. Id. The court amended the Child's permanency plan to reunification with a concurrent plan of adoption. Later that month, DCS filed a motion with the court to allow Mother to participate in supervised visitation with Child because the no contact order had been dismissed. In support of that motion, the FCM submitted an affidavit stating Mother had “been fully compliant with all services ․” Id. at 66. The court subsequently granted DCS's motion and Mother started participating in supervised visits with Child.

[5] Beginning in the spring, Parents’ relationship deteriorated and they stopped complying with services. During this period, Father admitted to the FCM that he had relapsed on methamphetamine, failed to stay in contact with her, and was discharged from therapy for noncompliance. Both Parents were missing visits with Child, had stopped submitting to drug screens, and neither completed the recommendations from their substance abuse assessments to participate in intensive outpatient treatment. Mother also had not completed the parenting assessment and had been discharged from individual therapy for noncompliance. In June, DCS filed a petition to involuntarily terminate Parents’ parental rights.

[6] At the initial hearing on the termination petition, Mother did not appear in person, but she was able to appear telephonically when the FCM called her. Father showed up late to the hearing. The court advised Parents of their rights, including their right to be represented by counsel. Mother requested that she be appointed counsel, and she was appointed the same attorney who had represented her in the CHINS proceedings. When the trial court asked Father if he wanted an attorney, Father said he intended to hire a private attorney, and he provided the name of the person he was going to retain. The court asked Father several questions about his plan to hire counsel, including whether he had already paid the retainer fee. Father explained that he hadn't yet paid the retainer, but he had the amount the attorney required and was going to pay it that same day. The court told Father,

[I]f for some reason you're unable to hire him ․, you go to his office and something happens, and you're not able to hire him and not able to afford another attorney, I want you to notify the court immediately.

Transcript at 16. Father confirmed that he understood and would notify the court. The court then informed Parents that the fact-finding hearing on the termination petition was scheduled for August 4 at 9:00 a.m., adding, “[I]f you don't show up ․, the [c]ourt could proceed to evidence even in your absence․ So, it's important that you show up ․” Id. at 24. Parents acknowledged the court's warning and said they would make arrangements to ensure they were present.

[7] At the fact-finding hearing, both Parents failed to appear. As far as Father was concerned, it came to light that he had not hired an attorney, and thus he had no representation at the hearing. When the FCM texted him to ask where he was, Father replied that he mistakenly believed the hearing was that afternoon. As for Mother, she texted the FCM earlier that morning that she could not attend the hearing because she'd lost her ride to court. However, Mother's attorney was present, and he moved to continue the hearing because he had been out of the country the week before, DCS had just filed its exhibits the previous business day, and he hadn't had contact with Mother for three weeks. In response, the State claimed that all but one of their exhibits were certified records of the underlying CHINS case that did not have to be filed in advance and requested the court proceed with the hearing in Parents’ absence. Because most of DCS's exhibits consisted of records Mother's attorney was familiar with from the underlying CHINS case, and the court had specifically advised Parents of the date, time, and importance of their attendance in open court at the initial hearing, the trial court denied the motion to continue and proceeded with the hearing in Parents’ absence.

[8] Parents’ FCM testified that Mother had failed to comply with the dispositional order in various respects: (1) Mother had not kept in contact with the FCM throughout the case or kept her apprised of changes in her circumstances (housing, employment, etc.); (2) the FCM had not been permitted to view Parents’ home to determine whether it was suitable for Child; (3) Mother was closed out of therapy for noncompliance; and (4) she had only submitted to one drug screen in the last several months. Parents never progressed beyond supervised visitation because they were “unstable during visitations” and were “not moving forward in the case.” Id. at 42. Mother never completed the parenting assessment and did not participate in intensive outpatient treatment as recommended by her substance abuse assessment. Father's progress, or lack thereof, was much the same. The FCM acknowledged that Parents “did really good for four or five months[,]” but “they both just ․ fell off and stopped doing what they needed to do” after they had a “falling out” and separated. Id. at 49, 53. Child was doing well in and was “very bonded” with her placement. Id. at 47. The FCM believed it was in Child's best interests for Parents’ parental rights to be terminated so Child could “obtain permanency and stability ․” Id. at 44.

[9] Child's court-appointed special advocate (CASA) testified that Child was well supported by her foster family and was doing “[v]ery well” there. Id. at 55. She did not believe Parents could safely care for Child at that time, and she believed that Mother specifically was stuck in a cycle of emotional abuse. The CASA did not think it was in Child's best interests to return to Parents’ care and believed Parents would not be able to serve as safe caregivers even with a few more months of services.

[10] Child's foster parent testified that the Child's biggest struggle was related to visitation—that Child seemed uncomfortable following visits or confused when visitation didn't occur because of Parents’ inconsistent attendance. She expressed that it was their family's intention to adopt Child if Parents’ parental rights were terminated.

[11] In a detailed order with findings of fact and conclusions of law, the trial court ordered that Parents’ parental rights to Child be terminated. The court concluded, in relevant part, that DCS had proved by clear and convincing evidence that: (1) Child had been removed from Parents’ care for at least fifteen of the last twenty-two months and Parents could not alleviate the circumstances that led to her removal; (2) there was a reasonable probability that the conditions that resulted in Child's removal would not be remedied; and (3) termination was in Child's best interests. Parents now appeal the court's termination order.²

Discussion and Decision

[12] Under the Fourteenth Amendment to the U.S. Constitution, parents have a fundamental right to establish a home and raise their children. In re D.C., 201 N.E.3d 660, 663 (Ind. Ct. App. 2022); In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, in termination proceedings, that right is subordinated to the interests of the child. D.C., 201 N.E.3d at 663. “The right to raise one's own children should not be terminated solely because there is a better home available for children, but parental rights may be terminated when a parent is unable or unwilling to meet parental responsibilities.” Id. (internal citation omitted). We show the trial court great deference when reviewing its decision to terminate parental rights. In re C.M.S.T., 111 N.E.3d 207, 211 (Ind. Ct. App. 2018). “However, when the challenge to the trial court's judgment is one related to the constitutionality of that decision, we review the trial court's judgment de novo.” D.C., 201 N.E.3d at 664.

[13] On appeal, Parents present distinct arguments. Mother argues the trial court abused its discretion by denying her motion to continue and violated her due process rights by proceeding with the fact-finding hearing in her absence. She also contends there was insufficient evidence to support the termination of her parental rights. Father contends he was denied his right to counsel and that he did not receive proper notice of the termination hearing. We address each of their arguments in turn, beginning with Mother's.

1. Mother's Arguments

1.1. Motion to Continue and Due Process

[14] Mother argues the trial court abused its discretion by denying her day-of-hearing motion to continue the fact-finding hearing. She claims that proceeding in her absence “denied [her] a meaningful opportunity to be heard ․” Mother's Brief at 15. “A court's ruling on a motion to continue is generally subject to review for an abuse of discretion.” In re A.R., 271 N.E.3d 1161, 1168 (Ind. Ct. App. 2025). A court can abuse its discretion if it denies a motion to continue despite the party showing good cause for granting the motion. In re K.W., 12 N.E.3d 241, 244 (Ind. 2014). However, we will not find an abuse of discretion unless the moving party shows she was prejudiced by the denial of her motion. Id.

[15] While parents do not have an unfettered right to be present at termination proceedings, “[t]hey must receive an ‘opportunity to be heard at a meaningful time and in a meaningful manner.’ ” A.R., 271 N.E.3d at 1168 (quoting In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). Additionally, parents have the statutory right to cross-examine witnesses, subpoena witnesses and evidence, and introduce evidence on their behalf. C.G., 954 N.E.2d at 917 (citing Ind. Code § 31-32-2-3(b)). Our determination of whether Mother was afforded due process in these termination hearings ultimately turns on a 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 governmental interest supporting use of the challenged procedure.” Id. at 917; see Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (establishing these factors for due process analysis). “However, it is well-settled that because ‘[b]oth the State and the parent have substantial interests affected by [TPR] proceeding[s][,]’ the determinative factor in whether a due process violation occurred is ‘the risk of error created by DCS's actions and the trial court's actions.’ ” In re A.W., 273 N.E.3d 1131, 1138 (Ind. Ct. App. 2025) (quoting C.G., 954 N.E.2d at 917-18).

[16] Focusing then on the second prong, we consider the risk of error created by the challenged procedure—here, proceeding with the fact-finding hearing in Mother's absence. In re B.J., 879 N.E.2d 7, 16 (Ind. Ct. App. 2008), trans. denied. Mother asserts that “[p]roceeding under these circumstances deprived [her] of the opportunity to testify, to assist counsel, and to respond to evidence[.]” Mother's Br. at 14. While true in part, Mother was represented by counsel at the fact-finding hearing. On her behalf, her attorney cross-examined every witness and lodged objections to evidence offered by the State. In fact, the trial court sustained her attorney's objections to two of the State's exhibits. The exhibits that were admitted into evidence came in by her attorney's recognition that they were admissible. See Tr. at 37 (Mother's attorney objecting to the admission of two exhibits but acknowledging “[t]he rest are all ․ orders of the CHINS matter” and they “come in”). Notably, Mother's attorney had represented her throughout the underlying CHINS proceedings and confirmed that he'd “seen [the admitted exhibits] at one time or another already.” Id. at 38. Thus, we find the risk of error posed by the court's decision to deny Mother's motion to continue and proceed in her absence was minimal. See Matter of C.C., 170 N.E.3d 669, 677 (Ind. Ct. App. 2021) (“We find that counsel's representation of [the mother's] interests at the fact-finding hearing vastly reduced the risk of error, which was minimal.”). In light of the low risk, we cannot say the trial court abused its discretion or violated Mothers's due process rights by denying her motion to continue and proceeding with the fact-finding hearing without her present. See C.C., 170 N.E.3d at 678 (“In balancing [the mother's] ․ absence, where [she] was represented by counsel, we conclude that the trial court did not violate [her] right to due process in denying her counsel's motion to continue the fact-finding hearing.”).

1.2. Sufficiency of the Evidence

[17] Mother also asserts DCS presented insufficient evidence to support the termination of her parental rights. In order to terminate a parent-child relationship, DCS must allege and prove that termination is in the child's best interests, that there is a satisfactory plan for care and treatment of the child, and of most relevance to this appeal, at least one of the following is true:

(2) That:

(A) the child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen ․ months of the most recent twenty-two ․ months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services ․ ; and

(B) despite the department's reasonable efforts to preserve and reunify the child's family under IC 31-34-21-5.5, the parent has been unable to remedy the circumstances that resulted in the child being placed in care outside parents’ home.

(3) That 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.

I.C. § 31-35-2-4(c), (d)(2), (3). DCS must prove these elements “upon clear and convincing evidence.” I.C. § 31-37-14-2. Because the termination statute is written in the disjunctive, DCS only had to prove one of the circumstances above—(2) or (3)—to support the termination of Parents’ parental rights. In re S.K., 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019) (“[T]he trial court need only find that one of the ․ requirements ․ has been established by clear and convincing evidence.”), trans. denied.

[18] If the trial court finds DCS's allegations to be true, it must terminate the parent-child relationship and enter findings of fact and conclusions of law supporting its decision. I.C. § 31-35-2-8(a), (c). On appeal, we owe the trial court significant deference given its “unique position to assess the evidence,” and we review its findings and conclusions only for clear error. In re K.T., 137 N.E.3d 317, 326 (Ind. Ct. App. 2019); Ind. Trial Rule 52(A). We determine “whether the evidence supports the findings, and whether the findings support the judgment.” In re Z.B., 108 N.E.3d 895, 900 (Ind. Ct. App. 2018) (quoting Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016)), trans. denied. In our review, we do not reweigh the evidence or judge witness credibility. Id. Lastly, we accept any unchallenged findings of fact as true. Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind. Ct. App. 2020), trans. denied.

[19] Mother challenges four of the trial court's factual findings as clearly erroneous: Findings 9, 13, 39, and 46. Starting with Finding 9, the court noted that in August 2024, “Mother was incarcerated and not engaging in services to address her ability to fulfill her parental obligations.” Mother's App. Vol. 2 at 7. Mother contends this “finding improperly conflicts ․ periods during which [she] was incarcerated and subject to a no-contact order with periods after those barriers were removed.” Mother's Br. at 18. But Finding 9 does no such thing, as it is specifically limited to the period in which Mother was in fact incarcerated and thus not participating in services, which was in August 2024. Thus, she has failed to show this finding is clearly erroneous.

[20] Finding 13 states:

Mother and Father were progressing in services from December 2024 to April of 2025 when the parents’ relationship devolved and the couple separated. Once the parents separated, Mother started missing appointments in the CHINS case and both parents became inconsistent in their supervised parenting time.

Mother's App. Vol. 2 at 7. Mother claims this is clearly erroneous because it “rests solely on the [FCM's] testimony and fails to reconcile that testimony with the trial court's own periodic review orders and DCS[’s] February [2025] affidavit.” Mother's Br. at 18. As before, Mother is ignoring the time frame delineated by the court in this finding—it found that she had progressed in services between December 2024 and April 2025, which necessarily includes positive behavior noted by the court in its periodic reviews during that time and DCS's February affidavit. The finding describes Mother's behavior after that time frame, specifically after her relationship with Father deteriorated. And the evidence presented at the fact-finding hearing indeed supports that, after their relationship soured, Parents’ compliance with services drastically declined. Therefore, this finding is not clearly erroneous.

[21] In Finding 39, the trial court found that Parents had “failed to engage in most of the services offered by DCS which could have aided them in meeting the CHINS court's expectations.” Mother's App. Vol. 2 at 9. Mother claims “[t]his finding cannot be reconciled with the record.” Mother's Br. at 18. She again cites DCS's affidavit from February which noted that she was “participating in home-based therapy, home based casework, supervised parenting time, and [had] been submitting to random drug screens.” Mother's App. Vol. 2 at 66. She was “fully compliant with services” at that time. Id. However, in the few months before DCS filed the termination petition, Mother had stopped engaging in most services—she was not drug screening, going to therapy, enrolled in drug treatment, or consistently attending visits with Child. In this context, the finding is not clearly erroneous. To the extent the court's finding means Mother didn't engage in most services throughout the entire pendency of the case, the finding is erroneous but not grounds for reversal in light of Mother's conduct at the time of the fact-finding hearing. See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (“Because there is evidence sufficient to support the trial court's ultimate findings on the elements necessary to sustain the judgment, we hold that the erroneous finding was merely harmless surplusage that did not prejudice Mother and, consequently, is not grounds for reversal.”), trans. denied.

[22] In Finding 46, the trial court found that “Mother and Father [were] so little invested in the outcome of this action that they each failed to appear for the final evidentiary hearing.” Mother's App. Vol 2 at 10. Mother claims this is error because she texted the FCM the morning of the hearing to say she would not be there, appeared telephonically at the initial hearing, and filed a motion for relief after the hearing but before the court entered its order. However, Mother's day-of-the-hearing text explaining her absence does not render the court's finding clearly erroneous. At the initial hearing, the court told Mother and Father how important their attendance was at the fact-finding hearing, and both had over a month to make arrangements to be present. As for her telephonic appearance at the initial hearing, Mother's participation was not of her own initiative, and it would not have occurred without the FCM calling Mother to have her participate. It was reasonable for the court to infer from Mother's failure to appear at both the initial and fact-finding hearings and her failure to continue engaging in services that she was minimally invested in the outcome of the case. Finding 46 is thus not clearly erroneous.³

[23] Next, Mother argues that there was insufficient evidence to support the court's conclusion that there was “a reasonable probability that the conditions that resulted in [Child's] removal or the reasons for placement outside the home ․ will not be remedied.” Id. at 22; see I.C. § 31-35-2-4(d)(3). However, the court also concluded that Child had been removed from Parents’ care for fifteen of the last twenty-two months and Parents were “unable to remedy the circumstances that resulted in [Child] being placed in care outside [Parents’] home[.]” Mother's App. Vol. 2 at 12; see I.C. § 31-35-2-4(d)(2). As noted above, because the termination statute is written in the disjunctive, DCS was only required to prove one of these elements to support its termination petition.

[24] Mother does not challenge the sufficiency of the evidence supporting the court's conclusion that Child had been removed for fifteen of the last twenty-two months and Parents were unable to remedy the conditions that led to Child's removal. And indeed, the evidence supports that conclusion. Child was removed on February 26, 2024, and was never returned to Parents’ care. DCS filed the termination petition on June 16, 2025, so Child had been removed for just over fifteen months when the petition was filed. By the spring of 2025 and up to the fact-finding hearing, Parents had almost wholly stopped complying with services. Critically, they both stopped submitting drug screens, and Mother never completed the drug treatment program recommended by her substance abuse assessment. Child was initially removed from Parents’ care because they could not serve as safe and sober caregivers, and the evidence shows that they were unable to remedy that condition by the time of the fact-finding hearing. Because this conclusion alone is sufficient to support the termination, we do not address Mother's argument that there was insufficient evidence to support the court's conclusion that there was a reasonable probability Parents would not remedy the conditions that led to Child's removal. See In re A.L., 223 N.E.3d 1126, 1140 n.3 (Ind. Ct. App. 2023) (declining to address the parent's argument as to one of the court's conclusions where there was sufficient evidence to support its conclusion under an alternative subpart), trans. denied.

[25] Lastly, Mother claims there was insufficient evidence to support the court's conclusion that termination of her parental rights was in Child's best interest. We determine whether termination was in the best interests of the Child by considering the totality of the evidence and in doing so, the parents’ interests are subordinated to the child's. Z.B., 108 N.E.3d at 903. “Moreover, the testimony of service providers may support a finding that termination is in the child's best interests.” Id. Mother acknowledges that the CASA and FCM testified that it was in Child's best interests for her parental rights to be terminated. However, she claims that her period of compliance with services should overcome that testimony and the other evidence of her noncompliance. This is simply a request for us to reweigh the evidence, which we will not do. K.T., 137 N.E.3d at 326 (noting we do not reweigh evidence but rather, “we consider only the evidence and reasonable inferences that are most favorable to the judgment”). Although Mother engaged in services for a few months in early 2025, her participation essentially stopped in the spring. She went months without submitting to a drug screen, was discharged from therapy for noncompliance, inconsistently attended visits with Child, did not progress beyond supervised visitation, and never completed the parenting assessment or the recommendations from her substance abuse assessment. Meanwhile, the CASA and FCM both testified that Child was doing very well in her foster placement (where she'd been for most of her life) and deserved stability and permanency Parents were unable to provide. In light of these facts, we conclude there was sufficient evidence to support the court's conclusion that termination was in Child's best interests.

2. Father's Arguments

2.1. Right to Counsel

[26] Father presents several arguments on appeal. First, he argues the trial court deprived him of his right to counsel when it proceeded with the fact-finding hearing in his absence despite knowing he had not obtained counsel. “[P]arents whose parental rights are being terminated against their will have three rights: (1) ‘the right to be represented by counsel’; (2) ‘the right to have counsel provided if [they] could not afford private representation’; and (3) ‘the right to be informed of the two preceding rights.’ ” In re Adoption of G.W.B., 776 N.E.2d 952, 954 (Ind. Ct. App. 2002) (quoting Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991), trans. denied).

[27] Here, at the initial hearing, the trial court informed Parents of their right to be represented by an attorney, that they could hire an attorney if they so wished but if they could not afford one, the court would appoint them one. See Tr. at 14. When the court asked Father if he wanted to be represented by an attorney, Father replied that he was going to hire someone specific. Id. The court then asked Father numerous questions about his plan, including whether he had the necessary funds to do so and when he intended to hire his lawyer. Father responded that he was going to hire the attorney that same day and that he already had the funds to do so. The court then told Father that if his plan fell through, he should “notify the Court immediately.” Id. at 16. Father promised to do so. Toward the end of the hearing, the court also explained to Father that, even though Parents had been represented by the same attorney in the CHINS proceedings, if the court were to appoint Father counsel for the termination proceeding, he and Mother would have different attorneys. Id. at 25. Ultimately, Father never hired counsel, did not contact the court or request the court appoint him counsel, and failed to appear at the fact-finding hearing despite being informed in open court at the initial hearing and by written order of the hearing's date, time, and location. Father was clearly advised of his right to representation at the initial hearing.

[28] Father is correct that “[t]he court did not explicitly inform [him] that, if he did not retain counsel ․, the court would make him present his case without the benefit of any counsel” or “impress upon [him] the serious consequences he faced if he represented himself ․” Father's Br. at 24; see Taylor, 570 N.E.2d at 1335 (reversing a termination of parental rights because no such advisements were given unlike in Keen v. Marion Cnty. Dept. of Pub. Welfare, 523 N.E.2d 452, 456 (Ind. Ct. App. 1988)). However, it was unnecessary for the court to address those issues because at the initial hearing Father adamantly asserted his right to be represented by private counsel. Further, the court had instructed him, and he agreed, to notify the court if his plan to hire an attorney fell through. Had he done so, the court would have then been alerted that such warnings were needed prior to the fact-finding hearing, or it could have asked Father if an attorney should be appointed to represent him.

[29] Furthermore, the court did impress upon Parents what was at stake in these proceedings, informing them that it could terminate their rights to Child and what that entails. It warned them that it was critical to make arrangements to be present for the fact-finding hearing or “decisions could be made even though” they weren't there. Tr. at 24. In light of these circumstances, we find Father has failed to show he was deprived of his right to counsel. The trial court did not err by not appointing him counsel and proceeding with the fact-finding in his absence. See In re X.S., 117 N.E.3d 601, 608 (Ind. Ct. App. 2018) (concluding that father failed to prove he was denied the right to counsel when he was informed of his right to counsel by DCS, never requested the appointment of counsel, and failed to appear at the termination fact-finding hearing); In re S.A.B., No. 22A-JT-1773, at *2 (Ind. Ct. App. Feb. 8, 2023) (mem.) (concluding trial court's failure to sua sponte appoint father counsel did not violate due process where he was informed of his right to counsel, never requested appointment of counsel, and failed to appear at the termination fact-finding hearing).

2.2. Statutory Notice

[30] Second, Father claims the termination should be reversed because DCS failed to provide him with statutory notice of the fact-finding hearing. Indiana Code section 31-35-2-6.5 requires that,

(b) At least ten ․ 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 ․

․

shall send notice of the review to [the child's parents].

I.C. § 31-35-2-6.5(b)(1), (c)(1). There is no evidence in the record showing DCS provided Father with this notice.

[31] Father claims DCS's failure to provide him with this statutory notice violated his right to due process. Father's Br. at 22. Returning to the three-prong Mathews test discussed supra in Part 1.1., we consider: (1) Father's interest; (2) the risk of error created by the chosen procedure; and (3) the State's interest. Mathews, 424 U.S. at 335. As we did above, we focus on the second prong—the risk of error. We find that any risk posed by Father's lack of statutory notice was low. At the initial hearing, the court undisputedly informed Father of the date, time, and location of the fact-finding hearing. See Tr. at 23. His text to the FCM at the beginning of the fact-finding hearing reveals he was indeed aware that the fact-finding hearing was scheduled for that very same day. See C.C., 170 N.E.3d at 676 (parent could not establish she lacked proper notice where she “received actual notice of the fact-finding hearing from the trial court”). Although Father claimed he possessed a document stating the hearing was at 2:30 p.m., he never produced that document. And in fact, all the documentation in the record and the court's verbal instruction clearly indicated the hearing was at 9:00 a.m. Thus, in balancing these interests and finding the risk of error to be low given Father's actual notice of the fact-finding hearing, we conclude that DCS's failure to provide statutory notice did not violate his due process rights.  ⁴

Conclusion

[32] Finding no violation of Parents’ due process rights and sufficient evidence to support the termination of their parental rights, we affirm.

[33] Affirmed.

FOOTNOTES

1.   It is not clear from the record what Mother was incarcerated for at the time.

2.   Parents’ Notice of Appeal was untimely, but this Court granted their motion to file a belated appeal. See Mother's App. Vol. 2 at 33.

3.   Mother also claims that “Indiana courts have cautioned that a parent's absence cannot be used as substantive evidence of unwillingness to parent where the record reflects attempts to participate.” Mother's Br. at 19. However, the authority she cites for this proposition does not exist, and she offers no other support for her claim.

4.   Father also appeals the denial of Mother's motion to continue. However, he did not join in that motion or separately move to continue the hearing, and he cites no authority suggesting he can appeal the denial of another party's motion. Thus, we do not address his arguments on that issue.

DeBoer, Judge.

Brown, J., and Altice, J., concur.