In Re CG

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Shari L. Vanderploeg
Indianapolis, Indiana Indianapolis, Indiana

Robert J. Henke
Indianapolis, Indiana
______________________________________________________________________________

In the
Indiana Supreme Court FILED
Oct 11 2011, 12:15 pm
_________________________________
CLERK
No. 49S04-1101-JT-46 of the supreme court,
court of appeals and
tax court

IN THE MATTER OF THE INVOLUNTARY
TERMINATION OF PARENT-CHILD
RELATIONSHIP OF C.G., MINOR CHILD AND
HER MOTHER, Z.G.,

Z.G. (MOTHER)
Appellant (Respondent below),

v.

MARION COUNTY DEPARTMENT OF
CHILD SERVICES,
Appellee (Petitioner below),
AND

CHILD ADVOCATES, INC.,
Co-Appellee (Guardian Ad Litem).

_________________________________

Appeal from the Marion County Superior Court, 49D09-0903-JT-013906
The Honorable Marilyn A. Moores, Judge
The Honorable Larry E. Bradley, Magistrate
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1002-JT-75
_________________________________

October 11, 2011
David, Justice.

We have granted transfer from the Court of Appeals on this case involving the
termination of parental rights between the child, C.G., and the child‘s mother, Z.G. We write to
discuss important issues of due process that have not previously been before this Court. In all
other aspects, we summarily affirm the Court of Appeals.

Facts and Procedural History

C.G. (Child) was born on December 22, 2000, to Z.M. (Mother). In 2004, Mother and
Child moved to Indianapolis. In January 2008, Mother requested permission from Child‘s
school to take Child to Utah, but the school indicated Child could not miss any more school
days. Thereafter, Mother left Child with a male friend, F.L., and traveled to Utah to visit family.
In February 2008, F.L. brought Child to stay with C.O. (Neighbor). Neighbor knew Child and
had watched Child after school the previous year. During the three months that Child was at
Neighbor‘s house, Neighbor purchased clothes and a bed for Child and included Child in family
events. However, Neighbor did not speak to Mother at all during this time period. F.L. then
took Child on spring break and brought Child back in April 2008, leaving Child at another
individual‘s house in the neighborhood. A few hours later, Neighbor discovered Child was back
in the neighborhood. Shortly thereafter, Child began complaining that she ―hurt in her privates.‖
After consulting with the Healthy Families Program, Neighbor took Child to the hospital on that
same day. Child was diagnosed with genital herpes and had scarring around the anus and
perineum. Child‘s examining physician concluded Child had likely been sexually abused. Child
was hospitalized for two days, during which time Neighbor stayed with Child. On April 17,
2008, upon release from the hospital, the Department of Child Services (DCS) took custody of
Child and placed Child in a foster home, where Child still resides.

As is its practice, the first family case manager (FCM 1) for DCS was assigned to assess
the case. FCM 1 spoke to Child and Neighbor in the hospital and transported Child to foster
care. During this initial assessment, FCM 1 learned that Mother had been arrested in Utah.
FCM 1 called the Salt Lake County Jail as well as the state and federal prisons in Utah. On April
18, 2008, DCS filed a Child in Need of Services (CHINS) petition alleging Mother had

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―abandoned the child in the care of various individuals who are unable and or unwilling to
provide the child with appropriate care.‖

Shortly after working on Child‘s case, FCM 1 left DCS. In May 2008, a second family
case manager (FCM 2) was assigned to the case. After taking over the case, FCM 2 did not
speak to Neighbor. FCM 2 swore in an Affidavit of Diligent Inquiry (ADI) that he had spoken to
family acquaintances regarding the whereabouts of Mother, but no such contacts were made.
Based upon the ADI, Mother was served by publication in the CHINS case. On August 6, 2008,
the child was adjudicated a CHINS.

During the time Mother was incarcerated, she made attempts to inquire about Child.
Once Mother learned of Child‘s involvement with DCS, she wrote DCS on October 14, 2008.
The letter was written in Spanish and informed DCS she was incarcerated and asked that an
investigation be brought against F.L. The letter also inquired if Child was in DCS custody and if
she could have a family member pick up Child. In November 2008, DCS learned that Mother
was incarcerated in Henderson, Kentucky, after receiving her letter.

On December 15, 2008, FCM 2 responded in writing, informing Mother that Child was
currently in a foster home; asking Mother when her release date from jail would be; and stating
that there were ―legal procedures that go along with this case which can lead to termination of
parental rights.‖

On December 23, 2008, Mother sent a second letter to DCS:

Thank you for responding back and letting me know how my daughter is. I have
been writing and trying to get in contact since the moment I found out [Child] was
in the custody of the state, which was not to [sic] long ago.

I have a court date in April, and am not sure yet what the outcome will be, so I
would like a family member to pick my child up. I love her so much and do not
want to lose her. The person which had her when I came to jail did not inform me
that my daughter had been taken. Instead he was writing me letters leading me to
believe she was in good care and was fine, but since I was writing a member of
our church we attended I was able to find out the truth. Hopefully everything will
get cleared on my end and I will be out soon but until then I would like my
mother or a family member to care for my daughter.

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 Mother received no response to that letter, and she asked a friend to call DCS on her
behalf. DCS refused to give Mother‘s friend any information because she was not a parent. On
February 12, 2009, Mother wrote a third letter to DCS, again asking for information about Child.
The letter also asked for information about the alleged sexual abuse and inquired whether Child
could go live with Child‘s sister.

Mother never provided DCS with the name of Child‘s father or the family members with
which she wanted Child placed. Candy Duran lived with Mother‘s brother, Rosalio Cruz, for
eleven years, had two children with him, and lived in Salt Lake City. Duran called DCS in an
attempt to gain custody of Child but DCS did not consider Duran for possible placement of Child
because Mother‘s brother was incarcerated and Duran is not a blood relative.

DCS filed the petition to terminate Mother‘s parental rights on March 25, 2009, and
served Mother by mail at the Henderson County Jail where she was incarcerated on federal
charges. Mother filed motions to be transported to the trial or to allow her to participate by
teleconference, but those motions were denied. Mother, however, was allowed to participate
telephonically in the proceedings. On January 11, 2010, the juvenile court entered an order
terminating the parent-child relationship between Mother and Child. Child has since been
adopted by foster parents.1

Due Process Analysis

Mother contends that numerous due process violations occurred which culminated in the
termination of her parental rights. Mother also alleges that there was a lack of evidence to
support the trial court‘s determination. We will address each issue separately.

It is well established that the involuntary termination of parental rights is an extreme
measure that is designed to be used as a last resort when all other reasonable efforts have failed.
In re B.D.J., 728 N.E.2d 195, 199 (Ind. Ct. App. 2000). Choices about marriage, family life, and
the upbringing of children are among associational rights the United States Supreme Court has

1
At this time, we do not address the effects of reversing a termination order when a child has already been adopted.
It might be advisable for prospective adoptive parents and the courts to wait until the expiration of any appeal before
going forward with an adoption. Alternatively, if a court proceeds with an adoption while TPR proceedings are still
on appeal, the court should advise all parties, especially the prospective adoptive parents, of the possibility of
reversal.

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ranked as of basic importance in our society and are rights sheltered by the Fourteenth
Amendment against the State‘s unwarranted usurpation, disregard, or disrespect. M.L.B. v.
S.L.J., 519 U.S. 102, 116 (1996). ―If any freedom not specifically mentioned in the Bill of
Rights enjoys a ‗preferred position‘ in the law it is most certainly the family.‖ Moore v. City of
East Cleveland, 431 U.S. 494, 511 (1977) (Brennan, J., concurring).

―The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of
the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property
without a fair proceeding.‖ In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App.
2001), trans. denied. Parental rights constitute an important interest warranting deference and
protection, and a termination of that interest is a ―unique kind of deprivation.‖ Lassiter v. Dept.
of Soc. Servs., 452 U.S. 18, 27 (1981). However, children have an interest in terminating
parental rights that prevent adoption and inhibit establishing secure, stable, long–term,
continuous relationships. Lehman v. Lycoming County Children‘s Servs. Agency, 458 U.S. 502,
513 (1982). When the State seeks to terminate the parent-child relationship, it must do so in a
manner that meets the requirements of due process. J.T. v. Marion County Office of Family &
Children, 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied. The U.S. Supreme Court
has written on the importance of heightened due process protections whenever the State wishes
to sever the parental bonds of children:

The fundamental liberty interest of natural parents in the care, custody, and
management of their child does not evaporate simply because they have not been
model parents or have lost temporary custody of their child to the State. Even
when blood relationships are strained, parents retain a vital interest in preventing
the irretrievable destruction of their family life. If anything, persons faced with
forced dissolution of their parental rights have a more critical need for procedural
protections than do those resisting state intervention into ongoing family affairs.
When the State moves to destroy weakened familial bonds, it must provide the
parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753–754 (1982). Due Process has never been defined, but
the phrase embodies a requirement of ―fundamental fairness.‖ E.P. v. Marion County O.F.C.,
653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting Lassiter, 452 U.S. at 26). The U.S.
Supreme Court has written that ―the fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner.‖ Mathews v. Eldridge, 424 U.S.

5
319, 333 (1976). The process due in a termination of parental rights proceeding turns on 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 governmental interest
supporting use of the challenged procedure. A.P. v. Porter County Office of Family & Children,
734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000,) trans. denied (citing Mathews, 424 U.S. at 335).
The balancing of these factors recognizes that although due process is not dependent on the
underlying facts of the particular case, it is nevertheless ―flexible and calls for such procedural
protections as the particular situation demands.‖ Mathews, 424 U.S. at 334. Finally, we must
keep in mind the general principle that ―if the State imparts a due process right, then it must give
that right.‖ A.P. v. Porter County, 734 N.E.2d at 1112. A parent in a proceeding to terminate the
parent–child relationship 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) (2008).

In balancing the three–prong Mathews test, we first note that the private interest affected
by the proceeding is substantial—a parent‘s interest in the care, custody, and control of her child.
In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003). We also note the countervailing Mathews
factor, that the State‘s parens patriae interest in protecting the welfare of a child is also
substantial. Id. Both the State and the parent have substantial interests affected by the
proceeding. So, we turn to the third Mathews factor, the risk of error created by DCS‘s actions
and the trial court‘s actions. We address each of Mother‘s allegations in order.

A. Service on Mother

Mother first contends numerous due process violations including a lack of service from
DCS and lack of effort by DCS in locating Mother, culminating with Mother not attending the
termination hearing. It is of paramount importance in any DCS case for parents of children
involved with DCS to receive notice of such involvement. When matters are at the termination
stage of a case, and a child is already adopted, it is in nobody‘s interest that the case be remanded
and the adoption potentially be undone due to improper service.

The record reflects FCM 1 discovered Mother had been arrested in Utah and contacted
two county jails in Utah in search for Mother. The record further reflects that FCM 1 looked for

6
Mother through the Marion County Jail and Indiana Department of Corrections. Further, FCM 1
searched various DCS databases and looked in the local telephone directory. FCM 1 was unable
to locate Mother in her efforts. FCM 2 then took over the case and initiated his own
investigation into Mother‘s whereabouts. He made the same search attempts as FCM 1 and was
also unable to locate Mother. During these search attempts, Mother was incarcerated on federal
charges in Henderson, Kentucky. Although the technology and ability to locate people has
advanced, there is no centralized technology whereby DCS can type in a person‘s name and learn
her whereabouts if incarcerated. DCS had no reason to suspect Mother would be in federal
custody and no reason to suspect Mother would be in Kentucky. DCS cannot be expected to find
a needle in a haystack, which is what Mother is asking DCS to have done. We agree with the
Court of Appeals and conclude that if any error existed in DCS locating Mother at this stage of
the case, it did not substantially increase the risk of error in her termination proceeding.

Mother next contends that DCS misrepresentations on the ADI, which led to Mother
being served by publication, substantially increased the risk of error leading to her termination.
Specifically, FCM 2 stated in the ADI, which led to the service by publication, that he asked
―family acquaintances regarding the parent‘s whereabouts.‖ However, FCM 2 did not speak to
any family acquaintances. FCM 2 did, however, check with the Marion County Jail, Indiana
Department of Corrections, ICES and ICWIS internal databases, telephone directory, Utah State
Prison, Utah Federal Prison, and Salt Lake County Jail. The Affidavit of Diligent Inquiry was
signed and affirmed ―under the penalties for perjury, that the foregoing representations are true
and accurate to the best of my knowledge and belief.‖ We find it extremely troubling that a
representative from DCS would make a misrepresentation on such an important document. FCM
2 offered the excuse that the Affidavit ―populated‖ automatically and could not be deleted. If
this is accurate, DCS should correct its internal system to ensure that these ―populations‖ cease
immediately so that only accurate information exists on its forms. Yet, in the present scenario,
we observe that there were no known family acquaintances for FCM 2 to contact about mother‘s
whereabouts. The error would be significantly more egregious if there were family
acquaintances with whom FCM 2 knew to inquire about mother‘s whereabouts. We also note
that Mother was able to cross-examine FCM 2 on this issue during the termination proceeding,
which allowed the court to assess FCM 2‘s credibility in determining what impact this had on
Mother‘s due process rights as well as on FCM 2‘s credibility as a witness. We hold that the
7
misrepresentation on the affidavit, in this limited instance, did not violate Mother‘s due process
rights.

B. DCS Contact with Mother

We now turn to Mother‘s due process argument that DCS failed to inform Mother of the
CHINS proceedings after she initiated contact with DCS. We note the timeline of Mother‘s
contact with DCS and the DCS response. Once Mother learned of C.G.‘s involvement with
DCS, she wrote DCS on October 14, 2008. The letter was written in Spanish and informed DCS
she was incarcerated, inquired if Child was in DCS custody and if a family member could pick
up Child. Once FCM 2 received the letter, sometime in November 2008, he learned that Mother
was incarcerated in Henderson, Kentucky. FCM 2 responded on December 15 but did not
explicitly state that Child was currently a CHINS. Rather, FCM 2 inquired into Mother‘s release
date and asked what her plans were to parent. FCM 2 did explain that ―there are legal
procedures that go along with this case which can lead to termination of parental rights.‖
Furthermore, he informed Mother that Child was in a pre-adoptive home. Mother immediately
responded to FCM 2 with a letter on December 23. Mother wrote that she had a court date in
April 2009 which she hoped would work everything out, and in the meantime requested a family
member come take Child. After not hearing from DCS, Mother sent another letter on February
12, 2009. This letter again inquired into how Child was doing, requested family come and take
Child, and also included a card for Child. It was not until after receiving this February letter that
DCS sent Mother an advisement of rights form and a copy of the CHINS petition. Mother then
requested counsel in the CHINS. Within the month, DCS filed its termination petition, and
Mother did not receive her counsel in the CHINS action until after DCS filed its termination
petition.

The delay in advising mother of her rights and informing her of the CHINS action is
disturbing and inappropriate. There was no reason for this delay. Upon obtaining Mother‘s
letter dated October 14, 2008, DCS should have contacted Mother immediately. The initial
response should have included the advisement of rights form and the CHINS petition form.
Doing so would have allowed Mother representation in the CHINS proceedings at an earlier
stage. However, in this case, we cannot conclude that the dilatory action resulted in fundamental

8
error or deprived Mother of due process. Mother was incarcerated at that time and awaiting a
possible ten-year sentence. Although it may have been advisable for DCS to have put the brakes
on the termination petition upon locating Mother, or at least temporarily slowed down the
proceedings, she was nevertheless in federal custody for transporting drugs. Furthermore, the
termination proceeding did not conclude until January 2009. We find the error would have been
much more egregious if the court had conducted an expedited termination hearing, sometime
shortly after the termination petition being filed. However, the delays in the termination
proceeding and the continuances granted provided further opportunity for Mother and her
counsel to attempt to prove Mother‘s fitness to parent and also to prepare for trial. Finally, we
note that Mother was fully and diligently represented in the termination proceeding. Counsel
was able to question FCM 2 about the lack of communication with Mother, and Mother was able
to present her argument to the trial court judge about any due process violations from the lack of
contact. The delay from DCS in advising Mother of her rights and serving her with the CHINS
petition upon locating Mother is a very poor practice model in the field of child protection. But a
reversal is not warranted in this case.

C. Personal Attendance at Termination Hearing

Finally, Mother argues that her due process rights were violated by denying her the
opportunity to be present at trial due to the standing order existing in Marion County, which
prohibited the transportation of incarcerated parents to the Marion County Juvenile court
proceedings. On October 1, 2006, the Marion Superior Court issued an ―Order Prohibiting
Transportation of Incarcerated Adults to the Marion County Juvenile Center.‖ In that order, the
executive committee of the Marion Superior Court determined it would no longer transport
incarcerated adults to participate in juvenile court proceedings. The order stated,

WHEREAS, incarcerated adults have routinely been transported to the Marion
County Juvenile Center for participation in juvenile court proceedings; and

WHEREAS, the Executive Committee of the Marion Superior Court has
determined that this practice should be discontinued.

IT IS THEREFORE ORDERED, that incarcerated adults be prohibited from
transport to the Marion County Juvenile Center, effective immediately. This
Order does not apply to transportation of incarcerated adults to court facilities
other than the Marion County Juvenile Center.
9
 IT IS FURTHER ORDERED, that the Marion County Sheriff‘s Department seek
clarification for any pending transportation order from the court issuing that order,
if it would require the transportation of an incarcerated adult to the Marion
County Juvenile Center.

The record reflects that some adults had been transported to the Marion County Juvenile
Center until March 2009, when it became a safety concern due to the ―no sight, no hearing‖
policy of holding adults and juveniles in the same facility.2

The Court of Appeals first addressed this issue in Tillotson v. Clay County Dep‘t of
Family and Children, 777 N.E.2d 741 (Ind. Ct. App. 2002). The Court of Appeals found that
parents were not denied due process when they were not transported to their termination hearing.
Id. at 746. The Court of Appeals, however, cautioned that alternative procedures should be used
to allow a parent who could not be present in the courtroom to fully participate. It wrote such
alternative procedures could include, ―using a speaker phone at the hearing or continuing the
hearing after the State has presented its case and allowing the parent time to review a transcript
or audio tape of the hearing and then respond to allegations raised by the State‘s witnesses.‖ Id.
at 746 n.7. We note that Mother participated in both days of the termination hearing
telephonically, with interpreters in the courtroom translating the proceeding into Spanish.
However, there are risks when a party in such a delicate proceeding is not transported to the
hearing.

We first recognize that trial judges are in the best place to assess witness credibility, and
by not having a parent present at a termination hearing, a trial judge is not as easily able to
ascertain the credibility of a witness over the phone. Credibility of a witness must be ascertained
from ―circumstantial evidence, including the demeanor of the witness, the plausibility of the
testimony, and the relative strengths of the evidence supporting and opposing the testimony.‖
Simpson v. State, 165 Ind. App. 619, 622, 333 N.E.2d 303, 304 (1975). ―From consideration of
this evidence, the trier of fact can form an opinion of the ‗probability‘ that a particular witness is
relating an accurate account of the incident.‖ Id. Our trial rules shed light on the deference we
give the trial court judge when she is the trier of fact:

2
This is from testimony of the Chief Baliff of the Marion Superior Court Juvenile Division. It appears in conflict
with the order dated October 2006. Nevertheless, at one time, adults were transported to the Marion County
Juvenile Center.

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 On appeal of claims tried by the court without a jury or with an advisory jury, at
law or in equity, the court on appeal shall not set aside the findings or judgment
unless clearly erroneous, and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witness.

Ind. Trial Rule 52(A) (emphasis added). We recognize the unique position of the trial court to
assess the evidence and judge the credibility of the witnesses, and only set aside a judgment
terminating a parent-child relationship if it is clearly erroneous. Egly v. Blackford County Dept.
of Pub. Works, 592 N.E.2d 1232, 1234–1235 (Ind. 1992).

In the present case there were several procedural safeguards undertaken by the trial court.
The courtroom was cleared out to provide Mother an opportunity to privately speak to her
counsel. The trial was bifurcated, giving Mother an opportunity to review the testimony
presented by DCS with her counsel. Counsel had ample opportunity to confer with Mother,
having been on the case for over six months. Finally, we note the potential significant cost of
transporting Mother from Henderson, Kentucky, to Indianapolis, Indiana, for this hearing. It is
possible that our analysis may have been different had Mother been across town in the Marion
County Jail.

After examining a number of other jurisdictions, we observe that the commonly held
viewpoint is that there is no absolute right to be present at a termination hearing.

Of the states we have surveyed that have found no absolute right of a parent to be present
at a termination hearing, they take different paths to arrive at their conclusions. The first
jurisdiction to address this issue was North Dakota. Many courts have taken the lead from North
Dakota, which found that

a convict does not have a constitutional right to personally appear in a civil suit
where he has been permitted to appear through counsel and by deposition, if
appropriate. Any right to appear personally would have to rest upon convincing
reasons and would ultimately be left to the sound discretion of the trial court.

In re F.H., 283 N.W.2d 202, 209 (N.D. 1979). Many courts have followed the North Dakota
model, and provided discretion to the trial court judge, while finding that representation by
counsel and the opportunity to appear via deposition are the two key components required in a
due process analysis of a parent who is not in attendance at a proceeding in which her parental

11
rights are terminated. Pignolet v. State Dept. of Pensions and Security, 489 So.2d 588, 590–591
(Ala. Civ. App. 1986); In re Appeal in Pima County Juvenile Action No. S-949, 638 P.2d 1346,
1347 (Ariz. Ct. App. 1981); In re C.G., 885 P.2d 355, 357 (Colo. App. 1994); In re Juvenile
Appeal, 446 A.2d 808, 813 (Conn. 1982); In re F.L.S., 502 S.E.2d 256, 257 (Ga. Ct. App. 1998);
In re Baby Doe, 936 P.2d 690, 694–695 (Idaho Ct. App. 1997); In re M.R., C.R., D.R., M.R. and
M.R., 736 N.E.2d 167, 169–170 (Ill. App. Ct. 2000); In re J.S., 470 N.W.2d 48, 52, (Iowa Ct.
App. 1991); In Interest of S.A.D., 481 So.2d 191, 193–194 (La. Ct. App. 1985); In re
Adoption/Guardianship No. 6Z980001, 748 A.2d 1020, 1022–1024 (Md. Ct. Spec. App. 2000);
In re Welfare of H.G.B., 306 N.W.2d 821, 826 (Minn. 1981); H.W.S. v. C.T., 827 S.W.2d 237,
242 (Mo. Ct. App. 1992); In re Raymond Dean L., 109 A.D.2d 87, 90 (N.Y. App. Div. 1985)3;
In re John Henry Rich, IV, 604 P.2d 1248, 1252–1253 (Okla. 1979); In re A.P., 692 A.2d 240,
243–244 (Pa. Super. Ct. 1997); Najar v. Oman, 624 S.W.2d 385, 387 (Tex. App. 1981); State ex
rel. M.A.V. v. Vargas, 736 P.2d 1031, 1033–1034 (Utah Ct. App. 1987); Darrow v. State, 649
P.2d 858, 861 (Wash. Ct. App. 1982).

Other courts have found that parents are afforded an even higher due process right than
merely being represented and the opportunity for testimony via deposition. Nebraska followed
the North Dakota model and established criteria to aid its trial courts in determining whether to
allow a parent‘s attendance at a termination of parental rights hearing. Nebraska wrote that
courts should consider trial delay, expense on the State in transporting the parents, potential
danger or security risk which may occur, the reasonable availability of the parent‘s testimony by
other means, and the best interest of the child. In re L.V., 482 N.W.2d 250, 258 (Neb. 1992).
Other courts have followed Nebraska‘s lead and found extra protections, such as the right to
review transcripts, right to appear via telephone, and even bifurcating of the trial to allow
counsel and parent additional time. E.J.S. v. State, Dept. of Health and Social Servs., 754 P.2d
749, 752 (Alaska 1988); In re Heller, 669 A.2d 25, 32 (Del. 1995); In re Randy Scott B., 511
A.2d 450, 453–454 (Me. 1986); Adoption of Edmund, 739 N.E.2d 274, 277 (Mass. App. Ct.
2000); In re Vasquez, 501 N.W.2d 231, 234–235 (Mich. Ct. App. 1993); In re Baby K., 722 A.2d
470, 472–474 (N.H. 1998); State, ex rel. Children, Youth and Families Dept. v. Ruth Anne E.,

3
We note that in this matter, the father was unable to attend the termination hearing due to a physical disability.
However, the New York Supreme Court Appellate Division analogized this case with several of the incarcerated
parents cases that are cited herein.

12
974 P.2d 164, 168–171 (N.M. Ct. App. 1999); State ex rel. Juvenile Dept. v. Stevens, 786 P.2d
1296, 1299 (Or. Ct. App. 1990); State ex rel. Jaenette H. v. Pancake, 529 S.E.2d 865, (W. Va.
2000); In re Christopher D., 530 N.W.2d 34, 42 (Wis. Ct. App. 1995). We also note that a recent
Kansas opinion overturned an adoption which resulted in the termination of a father‘s right
because he was not transported even though he was incarcerated in-state. In re Adoption of
B.J.M. 209 P.3d 200 (Kan. Ct. App. 2009).

We believe West Virginia has outlined a very practical test, which we now adopt.
Whether or not an incarcerated parent is permitted to attend a termination of parental rights
hearing is within the sound discretion of the trial court judge. In exercising that discretion,

the trial court judge should balance the following factors: (1) The delay resulting
from parental attendance; (2) the need for an early determination of the matter; (3)
the elapsed time during which the proceeding has been pending; (4) the best
interests of the child(ren) in reference to the parent‘s physical attendance at the
termination hearing; (5) the reasonable availability of the parent‘s testimony
through a means other than his or her attendance at the hearing4; (6) the interests
of the incarcerated parent in presenting his or her testimony in person rather than
by alternate means; (7) the affect of the parent‘s presence and personal
participation in the proceedings upon the probability of his or her ultimate success
on the merits; (8) the cost and inconvenience of transporting a parent from his or
her place of incarceration to the courtroom; (9) any potential danger or security
risk which may accompany the incarcerated parent‘s transportation to or presence
at the proceedings; (10) the inconvenience or detriment to parties or witnesses;
and (11) any other relevant factors.

State of West Virginia ex rel. Jaenette H., 529 S.E.2d at 877 (W.Va. 2000).

A blanket order prohibiting transporting a prisoner to a termination hearing is frought
with danger. If the trial courts were allowed to hide behind such a blanket order, on review our
appellate courts would be left with little to no information, forcing them to surmise why the trial
court issued the order. This is not good policy. However, in the case at bar, the trial court would
have arrived at the conclusion to not transport the mother, as we have previously discussed.

4
We note in the record that the Marion County Juvenile Center has video equipment allowing for videoconferencing
of incarcerated parents if the parents are in a facility that also has videoconferencing equipment. Although the IT
Manager for the Juvenile Center testified the Indiana Supreme Court did not approve of the Center using this
equipment, (―I know that video court is not an approved method‖), the use of videoconferencing equipment can be
used in termination proceedings, subject to the provisions of Indiana Administrative Rule 14.

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D. Sufficiency of the Evidence

When reviewing the termination of parental rights, we do not reweigh the evidence or
judge witness credibility. Bester v. Lake County Office of Family & Children, 839 N.E.2d 143,
147 (Ind. 2005). We consider only the evidence and reasonable inferences that are most
favorable to the judgment. Id. We apply a two-tiered standard of review when reviewing
findings of fact and conclusions of law in a termination case. We first determine whether the
evidence supports the findings, and second we determine if the findings support the judgment.
Page v. Greene County Dep‘t of Welfare, 564 N.E.2d 956, 959 (Ind. Ct. App. 1991). We set
aside the trial court‘s judgment only if it is clearly erroneous. In re B.C., 441 N.E.2d 208, 211
(Ind. 1982). A judgment is ―clearly erroneous if the findings do not support the trial court‘s
conclusions or the conclusions do not support the judgment.‖ In re R.J., 829 N.E.2d 1032, 1035
(Ind. Ct. App. 2005). If the evidence and inferences support the trial court‘s decision, we must
affirm. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999).

The Fourteenth Amendment of the United States Constitution protects the traditional
right of parents to establish a home and raise their children. In re M.B., 666 N.E.2d 73, 76 (Ind.
Ct. App. 1996), trans. denied. A parent‘s interest in the care, custody, and control of their
children is ―perhaps the oldest of the fundamental liberty interests.‖ Troxel v. Granville, 530
U.S. 57, 65 (2000). The parent-child relationship is ―one of the most valued relationships in our
culture.‖ Tillotson v. Clay County Dep‘t of Family & Children, 777 N.E.2d 741, 745 (Ind. Ct.
App. 1002), trans. denied. However, parental rights are not absolute, and may be terminated
―when the parents are unable or unwilling to meet their parental responsibilities.‖ In re D.D.,
804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied.

In seeking an involuntary termination of parental rights, the State must prove in relevant
part the following:

(B) There is a reasonable probability that:

i. The conditions that resulted in the child‘s removal or the
reasons for placement outside the home of the parents will not
be remedied; or

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 ii. The continuation of the parent-child relationship poses a threat
to the well-being of the child;

(C) Termination is in the best interests of the child; and

(D) There is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b) (2008). The State must prove the allegations by ―clear and convincing
evidence.‖ Ind. Code § 31-37-14-2 (2008).

Mother challenges the evidence that supports several of the trial court‘s findings of fact.
Mother first argues that the evidence does not support the finding that ―[a] diligent inquiry to
find and serve Mother was made to no avail, and service of the CHINS action was made upon
her by publication.‖ We disagree. As previously discussed, upon learning Mother had been
arrested in Utah, FCM 1 contacted jails in Utah and did not find her. By this time, Mother had
been transported to Henderson, Kentucky. FCM 1 had no way of knowing Mother would be
located there. FCM 1 further checked with the Marion County Jail, Indiana Department of
Corrections, two DCS databases, and the local phone directory. When FCM 2 took over the
case, he made similar searches as FCM 1 did. At this time, FCM 2 still had no reason to know
Mother was located in Henderson, Kentucky. This evidence is sufficient to support the trial
court‘s finding.

Mother challenges the evidence does not support the finding that ―Mother sent two more
letters to [DCS] with names of possible placement for [Child]. By this time, [Child] was in an
appropriate foster home and relatives who were contacted were not interested in going through
the process for placement.‖ We agree with the Court of Appeals analysis. The finding is
misleading because Child‘s aunt contacted FCM 2. FCM 2 did not initiate the contact.
However, we find that misstatement harmless because the crux of the finding is that the aunt was
not interested in going through the process for placement. FCM 2 informed the aunt that she
would need to come to Indianapolis and undergo a background check, and she was unwilling to
do so. We find the trial court‘s error to be harmless, and find sufficient evidence to support the
finding.

Mother challenges the evidence does not support the finding that ―Mother thinks she will
be sentenced to ten (10) years of incarceration.‖ Again, we agree with the Court of Appeals

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analysis. Mother acknowledged twice that she was told she had a ten–year sentence. Mother
first stated, ―[t]hey told me it was ten years for conspiracy.‖ Later, she again said, ―I was told
that I could be there for ten years for conspiracy.‖ To the best of Mother‘s knowledge, she
would be serving ten years. We find sufficient evidence to support the finding.

Mother challenges the trial court‘s findings regarding Child‘s therapy. Those findings
are

12. [Child] is currently in therapy, working on four issues: 1) processing her sexual
abuse, 2) abandonment by her mother, 3) insecurity and 4) adjustment in her current placement.

13. [Child] has made much progress on issues with the exception of the sexual abuse, an
issue that she is not ready to address but needs to be in the future.

14. [Child] has been placed with foster parents since April 2008, and the foster parents
are willing to adopt her. [Child‘s] needs are being met, including most importantly, her need for
continued therapy.

Mother claims Child‘s therapeutic needs are not being met based on the therapist‘s
qualifications. We disagree. The therapist testified to having limited experience working with
child sex abuse victims but felt she could address Child‘s current therapeutic needs. The
therapist also stated if Child needed therapy beyond her ability, she would refer Child to
someone else. Therapist testified she planned on continuing to work with Child. We find the
evidence supports the trial court‘s findings that Child‘s therapeutic needs are being met.

Finally, Mother challenges finding 18, which states:

Termination of the parent-child relationship is in [Child‘s] best interests.
Reunification is not possible. Termination, providing the opportunity for a
subsequent adoption, would accomplish the goal for [Child] to be granted a
permanent home in a loving and stable environment, where she has integrated and
bonded, and will have her physical and therapeutic needs met. It would be
harmful to [Child] if she were removed from her current placement, and could set
her back in her therapy. It is not disputed that Mother loves her daughter.
However, Mother is unavailable to parent and [Child‘s] interests in moving
forward toward permanency are tantamount to Mother‘s parental rights being left
in tact [sic].

The record reflects FCM 2 stated that giving Mother more time to work toward
reunification would not give Child a sense of permanency and would not be in her best interest.

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FCM 2 further stated Child has bonded with her foster family, and it would be in her best interest
for the termination to be granted.

Child‘s Guardian ad litem (GAL) testified that Child needed permanency and granting
termination would provide permanency for child. GAL further testified that Child was very
bonded with her foster mother. We find the evidence in this case supported the trial court‘s
findings that termination of the parent-child relationship is in Child‘s best interests.

Conclusion

In this case, several errors were made by DCS which should not have been made.
However, none of the errors rose to the level of violating Mother‘s due process rights or
warranting reversal. Therefore, we affirm the order of the trial court terminating Mother‘s
parental rights. We also set forth the above mentioned factors for our trial courts to determine
whether an incarcerated parent is permitted to attend a hearing on the termination of his or her
parental rights.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

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