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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe mother of a child with special needs failed to persuade the Indiana Court of Appeals that the termination of her parental rights to her son was improper.
Mother C.W. and child C.C. first became involved with the child welfare system in 2015, when the Department of Child Services alleged C.C. was a child in need of services due to violence, drugs, alcohol and unsafe conditions in the home. The two were reunified in 2016, but months later a second CHINS petition was filed alleging C.W. was not keeping up with C.C.’s medical care. C.C., who is now 9 years old, has spastic cerebral palsy and an intellectual disability, among other medical conditions.
The mother and son were reunified a second time in 2017, and C.W. agreed to participate in services to address medical neglect, substance abuse and an inadequate living environment. However, within months C.W. had tested positive for drugs and had failed to undergo substance abuse treatment and take C.C. to medical appointments.
The child was eventually hospitalized for malnutrition, and a third CHINS petition was filed. C.W. attended some substance abuse treatment programs but consistently tested positive for drugs, including methamphetamine, throughout 2019 and into 2020. She was also convicted of multiple criminal charges during that time and failed to visit with C.C. after September 2019.
Thus, DCS in May 2020 petitioned to terminate C.W.’s parental rights, and a fact-finding hearing was set for Sept. 21. C.W. appeared at a pretrial hearing that August but failed to appear at the fact-finding hearing. Her counsel did not have an explanation for her absence, so the Fayette Circuit Court denied a continuance and proceeded in absentia.
C.W.’s parental rights were ultimately terminated in October 2020. She appealed, but the Court of Appeals affirmed in a Wednesday opinion.
C.W. argued on appeal that she was denied due process because she had insufficient notice of the fact-finding hearing. But Judge Elizabeth Tavitas, writing for the appellate panel, found that issue was waived because C.W.’s counsel did not raise a lack-of-notice argument at the trial court.
“Waiver notwithstanding, we find that DCS satisfied Indiana Trial Rule 5(B) by mailing the ten-day notice to the mailing address that Mother tendered at her initial hearing,” Tavitas wrote. “… Moreover, in addition to the presumed-delivery statutory notice, Mother received actual notice of the fact-finding hearing from the trial court at the telephonic initial hearing and the pretrial conference on August 12, 2020.”
C.W. also challenged the denial of her motion to continue, claiming the trial court had abused its discretion. But Tavitas noted C.W. was represented by counsel, and C.C. had been removed from her care for more than 20 months at the time of the hearing. Thus, the denial of her motion was not an abuse of discretion.
Finally, C.W. had filed a motion for remand under Indiana Trial Rule 60(B), claiming the toxicology lab that completed her drug screens had committed fraud. DCS publicly acknowledged an issue with the lab, but a motions panel denied C.W.’s request, and Wednesday’s panel declined to reconsider that decision.
“Nothing in the record undermines the validity of Mother’s unchallenged drug tests and requires remand,” Tavitas wrote. “Accordingly, even if we were to reconsider the motions panel’s order, we would deny Mother’s motion to remand.”
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