In the Termination of the Parent-Child Relationship of: Ta.B., J.B., & Ty.B. (Minor Children) and C.B. (Mother) and J.B., Sr. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 31 2020, 10:04 am

court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Brooklyn, Indiana Attorney General of Indiana

Kimberly A. Jackson David E. Corey
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- July 31, 2020
Child Relationship of: Court of Appeals Case No.
19A-JT-678
Ta.B., J.B., & Ty.B. (Minor
Children) Appeal from the Vigo Circuit
Court
and
The Honorable Sarah K. Mullican,
C.B. (Mother) and J.B., Sr. Judge
(Father) Trial Court Cause Nos.
Appellants-Respondents, 84C01-1804-JT-371, 84C01-1804-
JT-372, 84C01-1804-JT-373
v.

Indiana Department of Child
Services,
Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020 Page 1 of 24
 Altice, Judge.

Case Summary

[1] C.B. (Mother) and J.B. (Father) (collectively, Parents) separately appeal from

the involuntary termination of their parental rights to their three minor

children. This appeal, as well as the underlying trial proceedings, has been

unnecessarily prolonged, and we are loath to cause additional delay. Parents,

however, are entitled to due process, which they did not receive below due to a

myriad of errors.

[2] We reverse and remand.

Facts & Procedural History

[3] Mother and Father are married and have three children together, Ta.B., J.B.,

and Ty.B. The children are now ages sixteen, thirteen, and eleven, respectively.

The Indiana Department of Child Services (DCS) became involved with the

family in October 2011, after the family moved to Indiana from Kentucky.

[4] After arrival in Indiana, it was discovered that Ta.B. had been the victim of

sexual abuse by two adult cousins while living in Kentucky. By the age of

eight, Ta.B. began acting out sexually toward her siblings and was aggressive

with other children and adults too. DCS worked with the family to develop a

safety plan, and Ta.B. began seeing a behavioral therapist. DCS eventually

determined that Parents were not adequately responding to the dire situation, so

DCS filed a CHINS petition in April 2012. Following a contested factfinding

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 hearing, the trial court adjudicated the children CHINS in September 2012.

The CHINS order provided in part:

[Mother and Father] acknowledge that the actions of their oldest
daughter, [Ta.B.], manifest serious psychological problems with
[Ta.B.] and endanger the safety and well-being of her younger
siblings, [J.B. and Ty.B.]. The real dispute by the parents is the
[S]tate’s allegation that the parents have in any way been
neglectful in performing their parental duties so as to justify the
coercive intervention of the court into their lives.

The court believes that judging the promptness of a parent’s
reaction to a child’s needs requires the court to consider the
urgency of the specific situation…. Where, as here, a young
child is repeatedly subjecting her younger siblings to serious
sexual abuse, no action by a parent can be too quick. In this
case, the delay in getting [Ta.B.] into intensive therapy …,
combined with the failure to prevent repeated occurrences of
abuse in the interim, do constitute a neglect of the children’s
parents to supply them with the necessary treatment and
rehabilitation that they needed and created a life and health-
endangering environment….

Fortunately, the parents have otherwise been reasonably
cooperative with DCS in getting services into the home. But
immediate, intensive therapy for [Ta.B.] and her separation from
the younger children in the meantime are imperative.

Exhibit Vol. IV at 77-78. J.B. and Ty.B. remained in the home with Parents, and

Ta.B. was placed at Gibault, a residential treatment facility.

[5] Mother and Father complied with the case plan by visiting Ta.B. at Gibault and

participating in homebased services, random drug screens, and family

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 counseling. By November 2013, the CHINS cases relating to J.B. and Ty.B.

were closed. Ta.B.’s remained open.

[6] At some point, Father began struggling with a drug addiction, which lead to

arrests and charges in March and May 2014. He was in jail from May 17, 2014

through June 13, 2014, when he was released on bond. In April 2015, Father

pled guilty to, among other things, Class D felony possession of

methamphetamine and received a two-year suspended sentence. After a brief

period of sobriety, Father relapsed and violated his probation several times in

late 2015 and 2016, resulting in several periods of incarceration. 1

[7] In the meantime, Ta.B. returned to Mother’s care on May 30, 2014, for a trial

home visit (THV) with intensive wraparound services. Mother fully complied

with services, but Ta.B. continued to run away and act out. The THV ended in

October 2014 when Ta.B. was placed in the Evansville Psychiatric Children’s

Center in order to receive more restrictive and intensive treatment. Ta.B. was

diagnosed with oppositional defiant disorder, ADHD, and anxiety and

prescribed several daily medications.

[8] In July 2015, Ta.B. graduated from the program at the Evansville Psychiatric

Children’s Center and returned to Parents’ home for another THV. Father had

1
Father was arrested on new drug charges in January 2017 and forgery and theft charges in April 2018, and
he had probation revoked in July 2018.

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 agreed to go into residential treatment for his drug abuse, but he did not

complete treatment.

[9] On August 25, 2015, due to Father’s continued use of methamphetamine and

other illegal drugs, DCS filed new CHINS petitions involving Ty.B. and J.B.

Shortly thereafter, Mother and Father admitted the allegations. To ensure the

safety of the children, Father was removed from the family home until he could

successfully complete an addictions program. All three children remained in

Mother’s care, and Father was not allowed to be with them unsupervised.

Thereafter, while Father continued to struggle with drug abuse and related

incarcerations, Mother engaged in services and improved her ability to parent.

[10] On March 14, 2016, after Father had been out of jail for about a month, DCS

filed an information for rule to show cause, alleging that Mother and Father

had not complied with the safety plan. Specifically, Mother had permitted

Father in the family home, Father had not completed an addictions program,

and Father had unsupervised contact with the children. Around this time,

service providers noted a decline in overall family function, including an

increase in Ta.B.’s negative behaviors and a decline in Mother’s parenting.

[11] While the contempt hearing was pending, the children were removed from

Mother’s home on an emergency basis on March 22, 2016. The court held a

detention hearing two days later and returned Ty.B. and J.B. to Mother’s care.

Ta.B. remained outside the home, placed in kinship care and, when that failed,

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 the Wellstone Hospital awaiting placement at Wernle Children’s Home. 2 The

contempt hearing was dismissed.

[12] Following another information for rule to show cause filed in June 2016, Father

was found in contempt for continuing to use methamphetamine and for

violating the safety plan on multiple occasions. The court did not find Mother

in contempt, noting that she had complied with the court’s orders. By this time,

Father was incarcerated again.

[13] After his release from incarceration in August 2016, Father asked the court to

allow him to live in the family home again with Mother and Ty.B. and J.B.

The trial court denied his request until Father could demonstrate a reasonable

period of sobriety and compliance with court-ordered services. The very next

day, Father was discovered alone in the home with Ty.B. and J.B., while under

the influence of methamphetamine.

[14] By January 2017, DCS began recommending removal of Ty.B. and J.B. from

Mother’s home, as her compliance with services had diminished, Ty.B. and J.B.

continued to have unsupervised contact with Father who lived down the road

(when not incarcerated), the children lacked appropriate supervision in general,

and Ta.B. was demonstrating a great deal of behavioral and emotional issues in

2
Ta.B. was placed at Wernle by October 2016, in a program that specializes in sexually maladaptive youth.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-678 | July 31, 2020 Page 6 of 24
 the home and at school. 3 Providers believed that Ty.B.’s issues stemmed from

past trauma but that the lack of structure and supervision in the home

contributed to the ongoing nature of the issues. Following a review hearing on

February 2, 2017, the court found that Mother and Father were not in

compliance with the case plan but denied DCS’s oral motion for placement of

Ty.B. and J.B. in therapeutic foster care because no formal written motion had

been filed.

[15] Shortly thereafter, on February 11, 2017, Mother was arrested following a

physical altercation with an adult relative. Father was also incarcerated at the

time. Ty.B. and J.B. were taken into emergency custody by DCS and were

placed together in foster care. They have never been returned to Mother’s care.

After Ty.B. ran away from the foster home in October 2017, she and J.B. were

moved to separate residential facilities, and J.B. was later placed in a

therapeutic foster home. Ty.B. has remained in treatment facilities, as she

suffers from many of the same behavioral and emotional issues as Ta.B.

[16] Following a review hearing on January 4, 2018, the court found that Mother

and Father had not complied with the case plan and, on DCS’s motion,

changed the permanency plan to termination of parental rights and adoption.

Accordingly, on April 19, 2018, DCS filed the instant petitions for the

involuntary termination of parental rights. In the CHINS proceedings, on May

3
In the progress report filed in January, DCS provided a detailed list of reasons why removal was
recommended. In addition to those mentioned above, DCS addressed financial and housing concerns.

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 9, 2018, DCS filed a motion to modify the dispositional decree to stop all

services to the parents, including visitation. Along with the motion, DCS filed

a detailed modification report that noted, in part, that Father was once again

incarcerated, Father continued to use methamphetamine, Parents were facing

eviction from their apartment, and they had not been compliant with services

“for the better part of the past 8 months and partially compliant throughout the

life of the (5.5 years) case.” Exhibits Vol. VI at 19.

[17] The trial court held a combined hearing in the termination of parental rights

(TPR) and CHINS cases on May 15, 2018. Regarding the initial hearing for the

TPR cases, the court asked the parents if they had received the TPR petitions

and if they would like to have attorneys represent them. The parents responded

affirmatively to both questions, and the court indicated that attorneys would be

appointed for them 4 and set the factfinding hearing for August 13, 2018. The

court then turned to the CHINS matter and heard evidence regarding the

motion to modify. Based on the evidence presented, the court granted the

motion and ended all services for parents, including visitation.

[18] On August 13, 2018, the TPR factfinding hearing commenced. 5 At the

beginning of the hearing, Father, who was in prison and had not been

4
Indigent counsel was appointed for Mother and Father on May 18, 2018, and their respective counsel
entered an appearance that day – Steven Cuvelier for Mother and Jeffrey Kohr for Father. These attorneys
had also represented them during the later portion of the CHINS proceedings.
5
While we have set out many facts leading up the filing of the TPR petitions, we will not go into detail
regarding the extensive evidence presented at the TPR hearing or the trial court’s findings of fact. Rather,
because our reversal is based on procedural grounds, the procedural facts remain our focus.

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 transported, indicated that he wished to be present in person, could not hear

well, and had not been able to speak with his attorney. After a lengthy

discussion with counsel, the trial court denied Father’s request for a

continuance and determined that Father’s rights could be protected by

“allowing him to participate by phone with his counsel being present and a

chance to confer” privately with counsel over the phone. Transcript Vol. I at 47.

During the testimony of the second witness, Father asked to speak with his

attorney and was permitted to do so. Thereafter, counsel renewed the request

for a continuance to “allow [Father] an opportunity to hand me notes and to

communicate immediately with me.” Id. at 73. The court denied the request.

In all, ten DCS witnesses testified that day. The court scheduled the hearing to

resume on October 29, 2018, noting “we will have [Father] definitely

transported here.” Id. at 160.

[19] Father was transported for the hearing on October 29, 2019. To the surprise of

her attorney and the court, Mother indicated at the beginning of the hearing,

after speaking with Father, that she wished to fire Attorney Cuvelier. The court

asked Mother if she wished to proceed with no counsel, and Mother responded,

“I wouldn’t have none but I need to have new counsel.” Id. at 165. The

following discussion ensued:

THE COURT: Alright. Well here’s the thing. By law we have
to proceed with the proceedings so if you wish to proceed on
your own Ma’am you certainly have that right to do that. If you
want to proceed with the assistance of Mr. Cuvelier you can do
that. Let the record show that [Parents] are consulting with one
another about the issue. So how do you wish to proceed?
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 [MOTHER]: Um I need a new representative, I need somebody
else to represent me because he hasn’t consulted with me very
much at all.

THE COURT: Well we got to get this concluded by law I’ve got
to get this moving. So if you want Mr. Cuvelier to be relieved I
can relieve him but that will effectively leave you without
representation unless you just want to rely on your husband’s
attorney but he really can’t technically represent you. Your
interest [sic] very possibly conflict.

[MOTHER]: Can [Father] explain my situation?

THE COURT: You want your husband to act as your counsel in
this matter at this time?

[FATHER]: Just to help her explain why she wants a different
attorney.

THE COURT: Is it why she wants a different attorney or why
you want her to have a different attorney?

[FATHER]: I don’t I mean he’s her attorney and is supposed to
be for her. Well he sits up here and makes a fool out of her,
telling her you ain’t got the money how are you going to pay for
housing? I mean this is all in documentation. The documents
are in the file.

THE COURT: Mr. Cuvelier we are going to show you
withdrawn.

Id. at 166-67. The hearing proceeded with Mother representing herself.

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[20] DCS called four additional witnesses and rested its case late that afternoon.

The court acknowledged that Mother and Father would likely need more time

to present their case. Additionally, Father and Mother both expressed a desire

to call Ta.B. as a witness, to which DCS objected. The court directed the

parties to make written filings on the issue of Ta.B. testifying. After Father

briefly testified, the trial court set the hearing to continue to December 3, 2018.

[21] On November 2, 2018, Father filed a motion for inclusion of witness, and DCS

responded with a written objection to request to have child available for

testimony. 6 The court scheduled a hearing on the issue of Ta.B. testifying for

November 27, 2018. Mother was not notified of this hearing and, thus, not

present, and Father was not transported for the hearing, though he was

represented by counsel. At the hearing, DCS presented brief testimony from

Ta.B.’s therapist and the family case manager. Both opined that testifying

would be traumatic for Ta.B. and could cause a regression in her progress and

not be in her best interests. CASA Rachel Cox also expressed opposition to

Ta.B. testifying in court. After initially ruling that Ta.B. would be excluded

from testifying, the trial court reversed course later that same day. The court

indicated that Parents have a right to call Ta.B. to testify and that if DCS

wished to use videotaped testimony instead of live testimony, DCS had the

6
In its objection, DCS argued, in part, that if the court were to overrule the objection and allow testimony
from Ta.B., “there are less harmful ways for that to be accomplished, including but not limited to testimony
via child hearsay, video taped testimony or closed circuit testimony where a medical professional could be
present, or in-camera.” Appendix Vol. 2 at 64.

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 burden of making the showing required by Ind. Cod § 31-35-4-3. 7 DCS then

noted that it would need a continuance in order to conduct a child hearsay

evaluation. 8 The trial court indicated that the TPR factfinding hearing would

continue as scheduled but acknowledged that DCS would not be required to

bring Ta.B. to that hearing because DCS still needed time for a child hearsay

evaluation.

[22] On November 28, 2018, DCS filed a written request for the trial court to

conduct an in camera interview of Ta.B. in lieu of testimony in court. That

same day, the trial court issued an order denying the request.

[23] On December 3, 2018, Mother appeared for the third day of the scheduled

factfinding hearing. Father was not transported from prison, despite the

issuance of a transport order, so the court reset the hearing for February 11,

2019. Prior to the rescheduled hearing date, Mother filed a request for

appointment of counsel. Attorney Cuvelier was reappointed as Mother’s

attorney at the end of January. Additionally, on January 30, 2019, DCS filed a

notice of witness unavailability, which indicated that Ta.B. “will not be

7
This statute sets out specific requirements for admission of a child’s videotaped testimony at a TPR
hearing.
8
This appears to be in reference to I.C. § 31-35-4-3(2)(C)(i) as a basis to submit reliable videotaped
testimony where the court finds that the child is unavailable because “a psychiatrist, physician, or
psychologist has certified that the child’s participation in the proceeding creates a substantial likelihood of
emotional or mental harm to the child.” Additionally, however, we note I.C. § 31-35-4-2(1)(B)’s further
limitation on the admissibility, under this chapter, of videotaped testimony of a child between the ages of
fourteen and eighteen years of age. With respect to such older children, the proponent of the videotape must
establish that the child “has a disability attributable to an impairment of general intellectual functioning or
adaptive behavior.” Id.

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 available for testimony on 2/11 for Fact Finding for the reason that her hearsay

evaluation is scheduled for 2/20 to determine if video testimony is

appropriate.” Appendix Vol. 2 at 76.

[24] At the factfinding hearing on February 11, 2019, Father testified, followed by

Mother. Father’s counsel then indicated that Ta.B.’s testimony was still needed

after the upcoming hearsay evaluation. Attorney Cuvelier, on behalf of

Mother, asked for an additional hearing since he had just been put back on the

case and there were witnesses that he would still like to call. DCS objected to

additional testimony and noted that “anyone else besides the child [] could have

been subpoenaed … here today.” Transcript Vol. II at 95. The trial court took

“the request for an additional day of evidence under advisement.” Id. at 96.

[25] Three days later, on February 14, 2019, the trial court issued orders

involuntarily terminating the parental rights of Mother and Father to Ta.B.,

Ty.B., and J.B. In its orders, the trial court indicated that it had denied the

requested continuance of the factfinding hearing as not being made in good

faith, noting that Father had not subpoenaed Ta.B. or any other witness after

DCS concluded their presentation of evidence more than three months earlier.

[26] Mother and Father filed motions for a belated appeal, which were granted by

this court, respectively, on March 28 and April 2, 2019. After protracted

proceedings to obtain the transcript and exhibit volumes from the Vigo Circuit

and Superior Courts Clerk, a third amended notice of completion of transcript

was filed on August 26, 2019.

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[27] Resulting in further delay in this appeal, on September 24, 2019, Mother and

Father filed a joint emergency petition to stay the appellate deadlines and

remand to the trial court pursuant to Ind. Appellate Rules 31 and 32 to allow

for reconstruction and/or correction of the record. This court granted the

motion on October 2, 2019.

[28] Mother and Father then filed a joint statement of the evidence, consisting of

verified statements from Mother, her appellate counsel, and Attorney Cuvelier.

Mother averred that she represented herself from October 29, 2018 to January

28, 2019 and did not appear at the November 27, 2018 hearing (the November

Hearing) because she did not receive notice. Additionally, Mother indicated

that she had hoped to present evidence at the hearing on February 11, 2019 but

was never contacted by Attorney Cuvelier after his reappointment. Attorney

Cuvelier’s statement indicated that he did not receive notice of the November

Hearing and that he did not contact her after his reappointment and before the

February hearing. Mother’s appellate counsel, Kimberly Jackson, indicated in

her verified statement that she had recently contacted the Vigo County Clerks

office to investigate whether notice of the November Hearing had been sent to

Mother. Attorney Jackson was informed that “orders in [TPR] cases in Vigo

County are served by [DCS], rather than the Vigo County Clerk, due to the

frequent address changes of parents involved in such proceedings.” Appendix

Vol. 2 at 164. DCS filed an unverified response, which was later stricken by the

trial court.

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[29] Magistrate Daniel Kelly, who presided over the TPR proceedings, issued an

affidavit on December 2, 2019 (the Magistrate’s Affidavit). Some of the

statements in the Magistrate’s Affidavit were in direct conflict with the existing

undisputed record. Moreover, the Magistrate’s Affidavit did not resolve the

primary question on remand regarding whether notice of the November

Hearing was sent to Mother. As a result, on December 5, 2019, Parents filed

with the trial court a joint motion for clarification. Among other things, they

sought clarification on whether:

a) DCS, rather than the Vigo County Clerk, serves copies of the
Court’s orders on parents in termination of parental rights cases
in Vigo County;

b) Mother actually was served notice of the [November
Hearing], given the representations of the Vigo County Clerk’s
office that it does not serve such orders on parents, the lack of
any evidence in the docket or elsewhere that DCS or any other
entity served her by mail or in any other manner, and DCS’s
failure to deny that it is responsible for serving such orders in
Vigo County;

c) Mother received automatic email service as DCS seems to
hint (which appears impossible as Mother’s email is not listed in
Odyssey and the Odyssey notice does not reflect email service to
her).

Id. at 184.

[30] On December 27, 2019, this court ordered the trial court to rule on the pending

motion, and the trial court issued a clarification order on December 31, 2019.

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 In its order, the trial court corrected certain misstatements – but not others – in

the Magistrate’s Affidavit. Regarding the notice issue, the court stated that it

had “no evidence that Mother was served with notice of the [November

Hearing], which was solely on Father’s request to be allowed to subpoena Ta.B.

issue [sic] to testify[,]” and “no evidence that the order setting that hearing or

the ruling thereon was served upon Mother.” Id. at 188.

[31] On January 10, 2020, Parents filed yet another motion asking this court to

require a statement from the trial court and DCS as to the historical and present

service procedures in TPR cases. They acknowledged that the trial court’s

clarification order resolved the issue regarding whether Mother received notice

of the November Hearing – she did not – but they urged that the clarification

order did not resolve the question of how parents are being served with orders

in TPR cases in Vigo County. DCS filed an objection to the motion, arguing

that Parents were seeking information not related to this appeal. In response,

Parents then filed a motion for verified statement from the Vigo County Clerk.

[32] On January 31, 2020, this court issued an order holding in abeyance for the

writing panel the pending motions for verified statements from DCS, the trial

court, and the Vigo County clerk. 9 Parents were directed to file their appellate

briefs within ten days of the order.

9
In an order issued today, we deny the pending motions because the information sought is unnecessary for
our resolution of this case and further delay is not warranted.

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[33] On February 3, 2020, Parents filed a motion to reconsider our order, which was

denied. They also contemporaneously filed with the trial court another lengthy

joint motion for correction of the clerk’s record and transcript, arguing, in part,

that the court “never established in the App. R. 31 proceedings the service

procedures in effect at all relevant times in this and other [TPR] cases including

whether DCS or the Vigo County Clerk’s Office was responsible for serving

orders on parents in [TPR] cases.” Id. at 192. On March 25, 2020, the trial

court denied the motion.

[34] Mother and Father each filed their respective appellant’s brief on February 27,

2020, more than a year after their parental rights were terminated by the trial

court. DCS filed a consolidated appellee’s brief on April 15, 2020, which was

timely filed pursuant to extensions related to the COVID-19 crisis. Mother and

Father filed reply briefs on April 30, 2020.

Discussion & Decision

[35] It is well recognized that a parent’s interest in the care, custody, and control of

his or her children is perhaps the oldest of the fundamental liberty interests. In

re R.S., 56 N.E.3d 625, 628 (Ind. 2016); see also In re Adoption of O.R., 16 N.E.3d

965, 972 (Ind. 2014) (noting that the Fourteenth Amendment to the United

States Constitution protects the rights of parents to establish a home and raise

their children, that parents have a fundamental liberty interest in the care,

custody, and control of their children, and that the parent-child relationship is

one of the most valued relationships in our culture). Thus, when the State seeks

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 the involuntary termination of a parent-child relationship, it must do so in a

manner that meets the requirements of due process. In re C.G., 954 N.E.2d 910,

917 (Ind. 2011).

[36] Due process embodies the idea of fundamental fairness and requires the

“opportunity to be heard at a meaningful time and in a meaningful manner.”

Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Due process in

parental rights cases involves the 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 government interest supporting

the use of the challenged procedure. Id. Because a parent’s private interest and

the State’s interest are both substantial in termination proceedings, our focus

generally falls on the risk of error created by DCS’s actions and the trial court’s

actions. See id. at 917-18; S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,

1120 (Ind. Ct. App. 2013).

[37] Further, we recognize “the general principle that ‘if the State imparts a due

process right, then it must give that right.’” In re C.G., 954 N.E.2d at 917

(quoting A.P. v. Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112

(Ind. Ct. App. 2000), trans. denied). A parent in a TPR proceeding is statutorily

entitled to (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence

by compulsory process, and (3) introduce evidence on behalf of the parent. Ind.

Code § 31-32-2-3(b). A parent is also entitled to representation by counsel in

proceedings to terminate the parent-child relationship. I.C. § 31-32-2-5; see also

I.C. § 31-32-4-1(2). Further, I.C. § 31-32-4-3(a) requires the appointment of

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 counsel in such proceedings if the parent “does not have an attorney who may

represent the parent without a conflict of interest” and “has not lawfully waived

the parent’s right to counsel.”

[38] On appeal, Parents individually and collectively raise a number of alleged due

process violations. We need only address a select few in order to determine

that they are entitled to reversal.

[39] First, we address Mother’s claim that she was denied her right to counsel. DCS

does not dispute that Mother had a right to appointed counsel, but it claims that

she “knowingly and voluntarily waived her right to counsel and chose to

represent herself when she fired her attorney in the middle of the termination

proceedings.” Appellee’s Brief at 28. We cannot agree.

[40] The right to counsel in a termination proceeding may only be waived “if the

parent does so knowingly and voluntarily.” I.C. § 31-32-5-5. Here, although the

trial court appointed counsel at the initial hearing, the record reveals that the

court did not advise Mother of her right to counsel10 (or any of her other rights).

Then when Mother expressed a desire for new counsel on the second day of the

factfinding hearing, the trial court did not clearly explain to Mother that she

had to choose between being represented by Attorney Cuvelier or proceeding

pro se. More importantly, the trial court failed to make any attempt to impress

10
Parents whose rights are being involuntarily terminated have the right to be represented by counsel, the
right to have counsel provided if they cannot afford private representation, and 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).

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 upon her the serious consequences she faced if she represented herself. 11 Under

the circumstances, we conclude that Mother was denied her right to counsel

when the trial court failed to obtain a knowing and voluntary waiver from her

before allowing Attorney Cuvelier to withdraw. See Matter of Adoption of C.J., 71

N.E.3d 436, 444 (Ind. Ct. App. 2017) (reversing where mother established a

prima facie case that she was deprived of an essential right – the right to counsel

– in violation of due process); In re Adoption of G.W.B., 776 N.E.2d at 954

(reversing where trial court did not advise father of his rights and did not

impress upon him the serious consequences of self-representation); Taylor v.

Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991) (reversing where father was

not informed of his right to counsel, not warned that he might have to proceed

without counsel if his attorney withdrew, and, “most importantly, nothing on

the record demonstrate[d] that the trial court did anything to impress upon

[him] the serious consequences he faced if he represented himself”), trans.

denied.

[41] In this case, deadlines, advisements, and notice were also apparent issues. The

initial hearing in the TPR proceedings was almost nonexistent. The order

issued following the initial hearing curiously indicates that the court “advise[d]

[Parents] of the material allegations of the petitions, the rights of the parent(s)

and children, and the right to be represented by counsel.” Appendix Vol. 2 at 58.

11
In the Magistrate’s Affidavit, the trial court averred that it cautioned Mother about the dangers of
proceeding without counsel. The transcript of the hearing plainly indicates otherwise.

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The transcript, however, reveals that Parents were not so advised. The sum

total of the initial hearing follows:

THE COURT: Alright. Thank you. Did the have the parents
received a copy of the [TPR petitions]. Did you guys get that
paperwork.

[MOTHER]: Yeah I don’t have it with me but…

THE COURT: But you’ve seen what they are asking for?

[MOTHER]: Yes.

THE COURT: Alright. Would you guys like to have attorneys
represent you in that?

[FATHER]: Yes.

THE COURT: Alright. We will go ahead and show attorneys
appointed for the termination cause and set a Fact Finding
Hearing for that. And then after we get that set we can hear
testimony on the pending motions in the CHINS cases.

[DCS]: And also will you appoint a CASA on the TPR case?

THE COURT: I’m sorry.

[DCS]: A CASA would also be appointed in the TPR cause
number?

THE COURT: Yes and yes. And we already have a CASA on
the CHINS case as well.

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 CT. REPORTER: August 13th at 9:00 o’clock.

THE COURT: Okay we will write that down[.]

Transcript at Vol. I at 4-5.

[42] In addition to not advising Parents of their rights, the court set the date for the

factfinding hearing with no apparent concern for the statutory requirement that

the hearing commence “not more than ninety (90) days after a petition is filed.”

Ind. Code § 31-35-2-6(a)(1). The court scheduled the hearing to begin 116 days

after the TPR petitions were filed. Additionally, after the first day of evidence,

the court set the continued factfinding hearing beyond the 180-day deadline for

completing the hearing, as set out in I.C. § 31-35-2-6(a)(2). We acknowledge

that Parents did not object to these dates and did not file motions to dismiss

when the hearing was not held within the statutory timeframes, as would be

their right under subsection (b) of the statute. While they are therefore not

entitled to reversal on this ground, we certainly find the trial court’s disregard of

the statutory deadlines concerning. See Matter of J.S., 133 N.E.3d 707, 713 (Ind.

Ct. App. 2019) (“A party must preserve the right of expediency by filing a

written motion to dismiss before the merits of a petition are litigated.”).

[43] Next, we address Parents’ claim that they were precluded from presenting

evidence on their own behalf, particularly the testimony of Ta.B. As set forth

above, parents in a TPR proceeding are statutorily entitled to, among other

things, obtain witnesses by compulsory process and introduce evidence. I.C. §

31-32-2-3(b).

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[44] Here, Parents made clear their desire to call Ta.B., who was in the custody of

DCS. They both made this request orally at the factfinding hearing in October,

and a few days later, at the direction of the court, Father filed a written motion

to have Ta.B. testify. At the November Hearing on this contested issue, the

court ultimately ruled that Parents had the right to call Ta.B. as a witness and

that if DCS desired an alternate means of obtaining her testimony (i.e.,

videotaped testimony), it was DCS’s responsibility to establish the statutory

requirements. DCS indicated it would take time to conduct the child hearsay

evaluation and, therefore, Ta.B. would not be available for the next scheduled

factfinding hearing. The trial court agreed that Ta.B.’s testimony could wait

until after the child hearsay evaluation was conducted. Prior to the February 11

factfinding hearing, DCS filed a written notice that Ta.B. would not be

available for the hearing because her evaluation was scheduled for February 20

“to determine if video testimony is appropriate.” Appendix Vol. 2 at 76.

Accordingly, Parents presented evidence on February 11, 2019, with the

reasonable belief that Ta.B.’s testimony would be obtained after her evaluation.

[45] Three days later, and six days before the child hearsay evaluation, the trial court

suddenly issued orders terminating Mother’s and Father’s parental rights. The

trial court ruled that it would not allow Parents to present additional evidence,

including the testimony of Ta.B., because they did not subpoena any witnesses.

This strikes us as fundamentally unfair. Ta.B. was in the custody of DCS at all

times, DCS was fully aware of Parents’ desire to call her as a witness, and DCS

informed Parents and the court that she would not yet be available due to the

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 upcoming child hearsay evaluation. The trial court violated due process when

it cut Parents’ evidence short in this regard.

[46] Finally, we share Parents’ concerns with regard to the failure to transport

Father 12 on several occasions and the lack of notice provided to Mother for the

November Hearing and resulting order, among potentially other notice issues

raised by Parents in their several motions filed with this court and the trial court

throughout this appeal. 13 We need not determine whether these issues amount

to a violation of due process, however, because other violations discussed above

clearly entitle Parents to reversal.

[47] Judgment reversed and remanded.

Bailey, J. and Crone, J., concur.

12
This was not a situation where Father could not be transported while in custody; he simply was not
transported. See In re C.G., 954 N.E.2d at 922-23 (adopting a list of factors for a trial court to consider when
determining whether to permit an incarcerated parent to attend a TPR hearing). The trial court did attempt
to provide due process to Father at the August factfinding hearing by allowing him to participate
telephonically and consult with counsel privately and did reset the December hearing when Father was not
transported. It is unclear, however, why Father was not transported for the November Hearing, at which
Mother also did not appear because she did not receive notice.
13
In its clarification order issued December 31, 2019, the trial court expressly acknowledged the need to
ensure that parties receive notice of all hearings and rulings on motions. We trust that the trial court has or
will promptly address any administrative failings in this regard so that notice is properly provided in the
future. DCS is also cautioned to comply with its notice requirements, as set out in I.C. § 31-35-2-6.5.

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