DCS criticized for lax notice, but mom’s termination affirmed

The Indiana Court of Appeals reprimanded the Indiana Department of Child Services on Wednesday for failing to comply with notice requirements, while also affirming a mother’s termination of parental-child relationship for her failure to communicate with DCS.

In December 2014, T.J. pleaded guilty to criminal charges stemming from one of her children’s brain injuries, and she remained in the Department of Correction until she was released November 1, 2017.

During that time, T.J.’s other child, B.J., was found to be a child in need of services and DCS filed a petition to terminate the parent-child relationship. Following several motions to continue the fact-finding hearing, T.J. was granted additional time to “improve her parent-child relationship” before the hearing set for January 30, 2018.

On Jan. 29, 2018, T.J.’s attorney filed a motion to continue the fact-finding hearing, arguing that DCS had not provided sufficient notice to T.J., who did not appear at the hearing the next day. The trial court denied her motion and granted the termination petition on the grounds that the notice had been sent to T.J. at her DOC facility address, which was her current address at the time the notice was filed.

On appeal, T.J. argued that DCS failed to give her statutorily required notice of the fact-finding hearing and that as a result, her due process rights were violated when the trial court denied her motion to continue.

The appellate court noted that although formal service of process is not required, DCS was required to send notice of a termination hearing to T.J.’s last known address at least ten days before her hearing, but failed to do so.

“We strongly encourage DCS to comply with the notice requirements of Indiana Code section 31-35-2-6.5 in the future, especially given its recent struggles with due process compliance,” Judge John Baker warned in In the Matter of the Termination of Parent Rights of: B.J. (Minor Child), and T.J. (Mother) v. The Indiana Department of Child Services,18A-JT-1266.

Regardless of the lack of notice from DCS, the appellate court ultimately found T.J. was not entitled to relief when it found there was no continuance requirement in regard to a child’s parent under the statute.

“We interpret that to mean that the legislature left it to the trial court to determine, in its discretion, whether a continuance is warranted if DCS failed to provide this statutorily required notice,” Baker wrote.

The appellate court further noted T.J. requested the termination hearing continuance, but failed to remain in consistent contact with DCS, as well as provide DCS, her attorney, or the trial court with her current address upon her release from the DOC facility.

“Under these circumstances, we find that the trial court did not err by denying Mother’s motion to continue the termination hearing,” Baker concluded. “We likewise find that the procedural irregularity did not violate Mother’s due process rights under the specific facts of this case because the original hearing date was continued at her own request and she failed to provide current contact information after being released from the DOC.”