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The Indiana Court of Appeals reversed a trial court ruling removing permanent guardianship from the mother of two minors because the proceedings did not satisfy due process, Court of Appeals Judge Dana Kenworthy wrote in an opinion Monday.
In reversing the order, the court stated that a guardianship petition and notice were not filed and the children’s mother did not receive notice as required under the probate code.
The mother, identified in court records as A.H., originally appealed the trial court’s order after the court adjudicated her kids’ children in need of services (CHINS) because of educational neglect.
According to court documents, the two children, ages nine and 10, were absent or tardy for several days of school during the 2021-22 school year.
The Shelby County Office of the Indiana Department of Child Services began investigating her for educational neglect.
The children were determined to be CHINS when their attendance problems persisted, despite an informal adjustment offering the mother home-based case work and parenting education services.
The children remained in the mother’s home through the 2022-23 school year, where issues persisted. Despite their concerns, DCS recommended the permanency plan be reunification.
Shortly into the 2023-24 school year, DCS’s attorney requested a permanency hearing be held in October.
DCS called for the hearing to determine if the children’s grandparents should be appointed their guardians “if these children aren’t in school every day[.]”
In the first few weeks of the 2023-24 school year, prior to the hearing, the children’s attendance improved.
In DCS’s progress report, the body stated the review hearing was to be held on Oct. 2 and the ultimate plan was to keep the children with their mother with an expected permanency date of Nov. 13.
At the end of the Oct. 2 hearing, however, DCS’s attorney argued for the children’s immediate placement with their grandparents, asking the trial court for a date for the guardianship hearing.
The hearing was held that afternoon, but guardianship petitions were not filed and the trial court hadn’t entered a written order on the permanency plan.
The next day, the trial court entered an order to move guardianship to the grandparents in “the best interest of each child.”
In approving the permanency plan, the trial court said it heard evidence “on the progress report for Permanency filed by DCS” and “notification of the Permanency Hearing was properly served on all required persons[.]”
In appealing the trial court’s decision, the mother did not challenge the permanency order, but instead argued the court violated her due process rights in how it appointed guardianship to the grandparents.
The Court of Appeals ruled the trial court opened a guardianship matter without a petition for guardianship and without notice of the petition being given under guardianship statutes.
During the CHINS review hearing on the morning of Oct. 2, the trial court told the mother a permanent guardianship hearing would be held just hours later, despite the unopened guardianship cases. The grandparents then only partially completed the guardianship registry information sheets.
Though the trial court orally informed the mother of the guardianship hearing, she didn’t receive formal notice required under the statute, and received no copies of the guardianship petitions, which hadn’t been filed.
The Court of Appeals stated the mother didn’t not have the opportunity to retain counsel and prepare for the later hearing.
In disagreeing with DCS’s claim the mother received due process, Kenworthy stated CHINS and guardianship proceedings are separate and distinct. CHINS proceedings fall under Indiana Code Article 31-34, while guardianship proceedings are under the probate code.
“Therefore, we cannot say as a general matter a trial court may dispense with the due process protections afforded by the probate code in a guardianship proceeding because a party received adequate due process in a CHINS review hearing,” Kenworthy said.
The appeals court stated that just because procedures were followed in the CHINS, that doesn’t mean the need for due process in the guardianship case is eliminated.
In this case, the mother did not know DCS planned to request immediate removal of the children from her home. DCS only orally requested guardianship be “finalized” at the October 2 hearing, despite earlier reporting an expected permanency date of Nov. 13.
The Court of Appeals said the mother entered the review hearing with mixed messages from DCS. The Oct. 2 hearing was docketed as a review hearing, not a permanency hearing.
The appellate court reversed the warship termination and CHINS dismissal order and remanded the case for further proceedings.
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