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In re Termination of Parent Rights of B.J.

Court of Appeals of Indiana

October 17, 2018

In the Matter of the Termination of Parent Rights of: B.J. (Minor Child),
v.
The Indiana Department of Child Services, Appellee-Petitioner and T.J. (Mother), Appellant-Respondent,

          Appeal from the Madison Circuit Court The Honorable G. George Pancol, Judge Trial Court Cause No. 48C02-1702-JT-18

          Attorney for Appellant John T. Wilson Anderson, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

          BAKER, JUDGE.

         [¶1] T.J. (Mother) appeals the trial court's order terminating her parent-child relationship with B.J. (Child). Mother argues that the trial court erred by denying her motion to continue the termination hearing based on DCS's failure to provide her with statutorily required notice of the hearing. We find that DCS failed to comply with the statute but that the trial court acted within its discretion in denying the motion to continue. Therefore, we affirm.

         Facts

         [¶2] In December 2014, Child was found to be a Child In Need of Services (CHINS) after Child's sibling, G.K., sustained "extensive contusions and bleeding in the brain" that were allegedly caused by Mother. Tr. DCS Ex. 2 p. 2. Mother eventually pleaded guilty to criminal charges stemming from G.K.'s injuries and was sentenced to the Department of Correction (DOC).[1]

         [¶3] On February 20, 2017, DCS filed a petition to terminate the parent-child relationship between Child and Mother. The trial court set a factfinding date of June 6, 2017. DCS filed a motion to continue, which the trial court granted, resetting the hearing for November 7, 2017. On October 30, 2017, Mother's attorney filed a motion to continue the factfinding hearing because Mother was scheduled to be released from the DOC on November 1, 2017, and wished to have more time to improve her parent-child relationship before the factfinding. On October 31, 2017, the trial court granted the motion and continued the hearing to January 30, 2018. On November 1, 2017, the trial court sent notice of the new hearing date to Mother's last known address, which was the DOC facility where she had been incarcerated.

         [¶4] After being released from the DOC on November 1, 2017, Mother failed to maintain consistent contact with DCS. She had some brief contacts with her Family Case Manager (FCM) shortly after she was released, but at the time of the termination hearing, the last contact of any sort was a text message to the FCM on December 5, 2017. She did not provide DCS with her new address and the FCM was under the impression that she was aware of the progress of the case and of the hearing scheduled for January 30, 2018.

         [¶5] On January 29, 2018, Mother's attorney filed a motion to continue the factfinding hearing, arguing that DCS had not provided sufficient notice to Mother of the hearing. On January 30, 2018, Mother failed to appear at the hearing. The trial court heard argument on the motion to continue, denied it, and proceeded with the factfinding hearing. On April 26, 2018, the trial court entered an order granting the termination petition. In relevant part, it found as follows:

On 10/30/17, Mother, by her appointed counsel, filed a motion to continue the termination proceedings, asserting that Mother's incarceration was ended and that she deserved further opportunity to preserve her parent-child relationship with the Child. The Court granted this Motion made by Mother on 10/31/17 and reset the matter for trial on 1/30/18, with notice provided to all parties of the new hearing date obtained at Mother's request. During the termination hearing, the Court's staff verified that the Court's own file noted that notice of the new trial date of 1/30/2018 had been sent to Mother at her Department of Corrections facility address after the Court had granted her own motion to continue the previous trial setting.

         Appealed Order p. 4. Mother now appeals.

         Discussion and Decision

         [¶6] Mother's sole argument on appeal is that DCS failed to give her statutorily required notice of the factfinding hearing and that as a result, her due process rights were ...


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