In the Matter of the Termination of the Parent-Child Relationship of J.C., Mother, and M.H. and M.H., Jr., Minor Children, J.C. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED

this Memorandum Decision shall not be

regarded as precedent or cited before any Jan 31 2020, 8:33 am

court except for the purpose of establishing CLERK

Indiana Supreme Court

the defense of res judicata, collateral Court of Appeals

and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Valerie K. Boots Curtis T. Hill, Jr.

Andrew R. Bernlohr Attorney General of Indiana

Marion County Public Defender Agency

Robert J. Henke

Appellate Division Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 31, 2020

of the Parent-Child Relationship Court of Appeals Case No.

of J.C., Mother, and M.H. and 18A-JT-3147

M.H., Jr., Minor Children, Appeal from the

J.C., Marion Superior Court

The Honorable

Appellant-Respondent,

Marilyn A. Moores, Judge

v. The Honorable

Scott Stowers, Magistrate

Trial Court Cause Nos.

Indiana Department of Child

49D09-1807-JT-854

Services, 49D09-1807-JT-855

Appellee-Petitioner.

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-3147 | January 31, 2020 Page 1 of 23

[1] J.C. (“Mother”) appeals the termination of her parental rights to her two minor

children. On appeal, Mother raises the following restated issue: whether the

default judgment to terminate Mother’s rights should be set aside because the

Indiana Department of Child Services (“DCS”) did not provide Mother with

notice ten days before the termination as required by statute.

[2] We affirm.

Facts and Procedural History

[3] The facts most favorable to the judgment are as follows. Mother is the

biological parent of M.H. and M.H., Jr. (“Children”), who were born on

September 27, 2010 and January 19, 2013, respectively.1 On September 6,

2016, DCS filed a verified petition alleging that each of the Children was a child

in need of services (“CHINS”). Specifically, the CHINS petition alleged that

Children were victims of abuse or neglect, based on, among other things,

Mother’s failure to provide Children with an “appropriate living environment

free from sexual abuse.” Appellant’s Ex. Vol. I at 15.2 Mother appeared for a

September 7, 2016 hearing, and notwithstanding Mother’s denial of the CHINS

1

On December 18, 2018, Children’s father executed a consent for Children to be adopted. Appellant’s App.

Vol. II at 91, 92. The CHINS court dismissed father from the termination action, and he is not part of the

instant appeal. Id. at 93-96. Therefore, we focus on the facts pertaining to the termination of Mother’s

parental rights.

2

The exhibit volume is sequentially paginated; therefore, we omit the exhibit numbers and cite only to the

page numbers.

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allegations, the CHINS court found sufficient evidence to order Children

removed from Mother’s care and custody.

[4] Mother appeared at an October 18, 2016 hearing, and Children were

adjudicated CHINS upon Mother’s admission. During that hearing, the

CHINS court heard evidence that Mother completed a parenting assessment,

Mother was engaged with Children during parenting time sessions, and her

visitation facilitator had no concerns during visits. That same day, the CHINS

court issued a dispositional order and a parent participation order, directing

Mother to participate in reunification services, including home-based case

management, home-based therapy, and a parenting assessment.

[5] Mother attended a periodic review hearing on January 24, 2017,3 during which

the DCS family case manager (“FCM”) reported that Mother was doing well in

all of her services, had completed her parenting assessment, had an

appointment for a clinical assessment, and was engaged in parenting time. The

FCM recommended that Mother complete a domestic violence and

psychological assessment. The guardian ad litem, Mary Goodwin (“GAL”),

reported that Children were doing well in their placement. The GAL, however,

was concerned that Children were hesitant about seeing Mother. The CHINS

3

To understand the proceedings that led to termination of Mother’s rights, we used Mother’s Quest number

to search within the CMS system, located within the Indiana Court Information Technology Extranet

(INcite).

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court ordered that Children remain in placement but kept reunification as the

permanency plan.

[6] Mother and Jackie Leigh Butler (“Butler”), Mother’s public defender, attended

a May 16, 2017 periodic review hearing. The FCM and GAL reported that

Children were engaged in therapy and doing well in their placement. Mother,

too, was engaged in therapy. The FCM reported that even though there had

been discussions with Mother about inconsistency with parenting time, Mother

had missed parenting time sessions subsequent to those conversations. Mother

tried to complete a clinical evaluation through her own provider but was

unsuccessful; DCS had to make a referral. Mother was participating in

domestic violence treatment through her home-based therapist, specifically,

Mother was working on accepting that M.H. had been sexually abused. The

CHINS court determined that Children should remain outside Mother’s care

but kept reunification as the permanency plan. DCS increased Mother’s

parenting time and allowed Children’s maternal grandmother to be present for

some of those visits.

[7] Mother and Butler were present at the August 29, 2017 permanency hearing, at

which DCS asked that reunification remain the permanency plan. The FCM

testified that Mother was engaged in services and had completed a clinical

interview but said further treatment was recommended. Mother was re-referred

to home-based case management. DCS was concerned that Mother was (1)

inconsistent with parenting time and (2) still denying that M.H. had been

sexually abused. The FCM reported that Children were doing well in

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placement yet noted that Children had some concerning behaviors that were

being addressed in therapy. The visitation facilitator expressed concern that

Mother had cancelled eighteen parenting time sessions. The plan remained

reunification, and the CHINS court set a hearing for December 12, 2017, which

was the projected reunification date.

[8] Mother and Butler were also present at the December 12, 2017 permanency

hearing, during which the FCM reported that Mother had completed domestic

violence treatment. DCS requested that Mother participate in home-based

therapy through a DCS provider because DCS had been unable to obtain

records from Mother’s private therapist. DCS also requested that Mother

complete treatment for non-offending parents of children who have been

sexually abused. The GAL reported that Children were doing well in

placement. The FCM and GAL agreed that the permanency plan should

remain reunification. Mother said that her parenting time was going well and

asked DCS to assist with a safety plan. Butler reported that Mother is engaged

in therapy and shared Mother’s concern that Children have not been in therapy

for more than three months. Butler asked that Children be placed with Mother.

DCS objected to such placement. The CHINS court: (1) denied Mother’s

request for placement; (2) kept reunification as the permanency plan; (3) denied

Mother’s request for increased parenting time; and (4) limited maternal

grandmother to attending just twenty-five percent of Mother’s parenting time

sessions, to better assess Mother’s relationship with Children. DCS was

ordered to hold a child and family team meeting before mid-January 2018.

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[9] Mother and Butler appeared at the March 20, 2018 CHINS periodic review

hearing. DCS requested continued wardship over Children and asked the court

to set a permanency hearing. The GAL noted concerns about Children’s

previous placement, concerns that she had communicated with DCS. Newly

appointed DCS family case manager Karon Donaldson (“FCM Donaldson”)

reported: (1) Children were predominantly doing well in placement; (2)

Mother’s providers, including her home-based therapist, noted Mother’s contact

had decreased and asked that Mother’s case be closed as unsuccessful; (3)

Mother’s home-based case management was closed as unsuccessful but Mother

had been re-referred; (4) DCS was investigating alternate placement in relative

or kinship care; and (5) DCS had been unable to schedule a child and family

team meeting due to Mother’s absence. A Unified Solutions therapist said she

had worked with Mother for eight months but was planning to discharge her as

unsuccessful. Butler asked that Children be placed with their godmother.4

Following the hearing, the CHINS court concluded that the reasons for

Children’s removal had not been remedied. The court (1) agreed that DCS

could refer Mother to all appropriate services; and (2) ordered DCS to make

necessary arrangements for Mother’s parenting. Children were moved to a new

placement in May 2018.

4

Children were later placed with their godmother in pre-adoptive placement. In December 2018 Children’s

father consented to the termination of his parental rights so that the godmother could adopt Children.

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[10] Butler appeared without Mother at the June 19, 2018 permanency hearing.

DCS reported that Mother had not engaged in services and had not visited the

Children since March 2018. Appellant’s Ex. Vol. I at 37. In fact, Mother had

specifically “refused to engage with DCS providers” and had “declined” to visit

Children. Id. at 37, 38. The CHINS court found that Mother had “therapeutic

goals to reach” before she would be “in a position to appropriately care for the

[C]hildren and meet their physical and emotional needs.” Id. at 38. Mother,

however, was not willing “to engage in the services to reach those therapeutic

goals.” Id. The GAL reported that Children were doing well in current

placement and asked that the plan change to adoption. Id. The CHINS court

changed the permanency plan “from reunification to adoption.” Id. at 39.

[11] FCM Donaldson sent Mother an email on June 20, 2018, saying:

Let me know when you would like to come and pick up your

court report and the court order, it is too many papers to scan.

The plan did change to adoption and your parenting time has been

suspended until you have participated in services for no less than

30 days and the recommendation of all providers, GAL and

DCS.

Motion to Proceed in Forma Pauperis, Ex. 1 (emphasis added). On June 21, 2018,

Mother replied on the same email chain, saying:

Since you are unable to scan, send documents to me via mail.

P.O. Box [“2”]

Indianapolis, Indiana

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Have a Good Day

Id. Post Office Box “2” was assigned to Mother through the Indiana Attorney

General Office’s Address Confidentiality Program (“ACP”).5 Motion to Proceed

in Forma Pauperis, Ex. 2. “The ACP is a free program that allows victims of

domestic violence, sexual assault, or stalking who have protective orders to

maintain a confidential address through the Attorney General’s Office.”

https://www.in.gov/attorneygeneral/3093.htm (last visited Jan. 13, 2020).

Mother had a protective order against Children’s father.

[12] On July 16, 2018, DCS filed a verified petition for involuntary termination of

parental rights (“TPR”) as to Mother. DCS alleged, in pertinent part, that (1)

there is a reasonable probability that the conditions that resulted in Children’s

removal or reason for placement outside the home would not be remedied or

(2) there was a reasonable probability that continuation of the parent-child

relationship poses a threat to the well-being of Children. The juvenile court

prepared a TPR Summons and Notice of Hearing and Notice of Possible

Default Judgment on July 18, 2018. That notice informed Mother:

YOU ARE HEREBY NOTIFIED that a Petition for the

Involuntary Termination of Parental Rights of the above name[d]

5

We do not use the actual box numbers. Mother was initially assigned P.O. Box “1,” which was the address

contained in the juvenile court’s records. However, during the time period when the TPR proceedings were

ongoing, the mail addressed to P.O. Box “1” was automatically forwarded to P.O Box “2.” Motion to Proceed

in Forma Pauperis, Ex. 2.

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children, a copy of which is attached hereto, has been filed in the

above-named Court.

YOU ARE HEREBY NOTIFIED AND COMMANDED TO

APPEAR before the Judge of the Marion Superior Court, 2451

N. Keystone Avenue, Indianapolis, IN 46218, 317-327-8392 for

a(n) Initial Hearing on 7/27/2018 at 1:30 PM in JUVENILE

COURT ROOM 02 4th Floor on the petition for termination of

parental rights.

YOU ARE FURTHER NOTIFIED that if the allegations of the

petition are found to be true and/or you fail to appear at the

hearings, the Court may terminate the parent-child relationship;

and if the Court terminates the parent-child relationship, you will

lose all parental rights, powers, privileges, immunities, duties,

obligations including any rights to custody, control, visitation, or

support of the child; and if the Court terminates your parent-child

relationship, it will be permanently terminated, and thereafter

you may not contest an adoption or other placement of said

children, and

YOU ARE ENTITLED TO REPRESENTATION BY AN

ATTORNEY, provided by the State if necessary, throughout

these proceedings to terminate the parent-child relationship.

If this SUMMONS is duly served upon you and you fail to

appear for the INITIAL and/or FACT-FINDING HEARING,

adjudication on said petition and termination of your parental

rights may be entered against you without further notice.

Id. at 41 (emphasis in original). A process server went to Mother’s last known

address to serve notice on July 21, July 24, July 25, and July 27, 2018. Id. at

47, 59. Three of those times, she left a card, and twice she called the complex

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office, trying to confirm Mother’s residency. Id. Unsuccessful, the process

server executed an Affidavit of Non-Service on July 27, 2018. The CHINS

court sent a copy of the notice to P.O. Box “1.” Id. at 38. Mail addressed to

P.O. Box “1” was automatically forwarded to P.O. Box “2,” the address

Mother, via email, told FCM Donaldson to use. Motion to Proceed in Forma

Pauperis, Exs. 1, 2.

[13] Mother did not appear at the July 27, 2018 TPR initial review hearing, and the

juvenile court set the matter for a continued initial hearing on August 17, 2018.

Appellant’s App. Vol. II at 52, 53. On or about July 30, 2018, FCM Donaldson

filed an “Affidavit of Diligent Inquiry,” affirming that Mother had reported no

change of address to the Management Gateway for Indiana Kids (“MaGIK”)

database. Appellant’s Ex. Vol. I at 12. The affidavit notified the juvenile court

that DCS’s efforts to notify Mother of the upcoming TPR hearings had been

unsuccessful. Id. FCM Donaldson stated that, under her instruction, DCS had:

(1) attempted to serve notice on Mother at her last known addresses; (2) sent

Mother emails; (3) called Mother at various numbers; and (4) searched for

Mother in the databases of MaGIK, Indiana Bureau of Motor Vehicles, Indiana

Department of Correction and its offender database, Federal Bureau of Prisons

and its offender database, and the White Pages. Appellant’s Ex. Vol. I at 12.

FCM Donaldson also checked the county jail. Tr. Vol. I at 8.

[14] When Mother did not appear at the August 17, 2018 continuation of the initial

hearing, the juvenile court granted DCS’s request for a default date as to

Mother and set that hearing for November 21, 2018. In its August 17, 2018

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order, under the heading “Advisement of Rights,” the juvenile court noted,

“Mother not present, sets for Default.” Id. at 60. Under the title, “Next

Hearing,” the juvenile court stated, “The Court now sets a(n) Continued Initial

Hearing on 9/7/2018 at 1:30 PM in Court #2 and Default Hearing on

11/21/2018 at 9:00 AM in Court #2. The parties, their assigned or appointed

counsel, and the assigned DCS [FCM] are ordered to appear at the hearing

without further notice.” Id. at 61. As evidenced by the notation “Copied:” at

the bottom of the order, the juvenile court sent a copy of that order to Mother at

P.O. Box “1,” which at that time automatically forwarded mail to Mother’s

stated address of P.O. Box “2.” Id.

[15] Unable to reach Mother by other means, DCS sought the court’s permission to

publish notice, and on August 28, 2018, the juvenile court “enter[ed] an order

authorizing Summons by Publication on [Mother].” Id. at 21. Notice was

published in The Indianapolis Star three times, August 31, 2018, September 7,

2018, and September 14, 2018. Appellant’s Ex. Vol. I at 8. The notice included

the date, time, and location of the TPR hearing, as well as a phone number to

call. Id. at 6.

[16] Mother was not present at the November 21, 2018 default hearing where FCM

Donaldson was the sole witness. She testified that Children were removed from

Mother’s care in September 2016 under allegations that Children were CHINS

because Mother “failed to provide [C]hildren a safe, stable, and appropriate

living environment free from sexual abuse, and that [M.H.] had been touched

in an inappropriate and sexual manner by . . . mother’s paramour, without

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necessary action from [Mother], and that [Mother] has a history of mental

health issues.” Tr. Vol. II at 6. On October 18, 2016, Children were

adjudicated CHINS based on Mother’s admission. Id. That same date, the

CHINS court entered a dispositional order requiring Mother to participate in

and follow recommendations of home-based therapy, home-based case

management, a parenting assessment, and a clinical evaluation. Id.

[17] FCM Donaldson, who had been with the case for about a year, stated that

Mother initially participated, with some exceptions, in home-based case

management and home-based therapy. Id. at 6-7. Mother also participated in

supervised parenting time. Id. As time progressed, Mother stopped

participating and her supervised visits became “very inconsistent.” Id. at 7.

FCM Donaldson testified that, because Mother had made insufficient progress,

she could not recommend an increase in supervised parenting time. Id.

[18] FCM Donaldson confirmed that the permanency plan changed to adoption.

DCS filed a TPR petition on July 16, 2018; by then Children had been removed

from Mother’s care for more than six months. Id. FCM Donaldson testified

that, if Mother’s parental rights were terminated, DCS’s plan for the care and

treatment of Children was adoption. Id. at 8. FCM Donaldson testified that

she had visited Children who were “doing very well” in pre-adoptive

placement; they were doing very well at home and in school. Saying it was in

Children’s best interest to have Mother’s parental rights terminated, FCM

Donaldson testified that Children are bonded and “their daily medical, dental,

and eye, and things like that are maintained, um, and they are happy.” Id.

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DCS had no concerns about Children’s safety. FCM Donaldson informed the

juvenile court about the various attempts it had made to inform Mother of the

hearings to terminate her parental rights. No evidence was presented on

Mother’s behalf.

[19] On November 21, 2018, the juvenile court entered both a default judgment and

a separate order granting DCS’s petition as follows:

Upon evidence presented, the Court now finds by clear and

convincing evidence:

1. Efforts of diligent inquiry have been made to ascertain the

whereabouts of [Mother], to no avail, and service by publication

is the most reasonable form of service in this matter.

2. Notice was published, pursuant to Indiana Trial Rule 4.13, on

[Mother] three consecutive weeks and last being made on

September 14, 2018, more than thirty (30) days before this trial

date.

3. [Mother] is the mother of [M.H.] and [M.H., Jr.], both minor

children.

4. [M.H.] was born on September 27, 2010 and is presently eight

(8) years old. [M.H., Jr.] was born on January 19, 2013 and is

presently five (5) years o1d.

5. [M.H., Sr.] is the [C]hildren’s father.

6. A Child in Need of Services (“CHINS”) Petition was filed on

the [C]hildren on September 6, 2016, under Cause Numbers

49D09-1609-JC-003363-[003364], following allegations that

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[Mother] failed to provide the [C]hildren with a safe and

appropriate living environment free from sexual abuse.

7. The [C]hildren were detained and ordered removed from

[M]other’s care and custody at the September 7, 2016

“Initial/Detention Hearing.”

8. The [C]hildren were adjudicated to be CHINS as to [M]other

on October 18, 2016, when she admitted to an amended CHINS

allegation. Specifically, “[M.H.] has disclosed being touched in

an inappropriate and sexual manner. The family will benefit

from therapeutic services supplied by DCS. Therefore, Court

intervention is necessary.”

9. Also on October 18, 2016, the CHINS Court proceeded to

disposition as to [Mother]. She was ordered to participate in

Home Based Therapy; Home Based Case Management;

Parenting Assessment; and to complete a Clinical Evaluation.

The [C]hildren remained removed from [M]other’s care and

custody pursuant to the Dispositional Decree.

10. . . . . [Mother] . . . has only seen the [C]hildren one time

since March 2018.

11. The [C]hildren had been removed from [M]other’s care and

custody for at least six (6) months under a dispositional decree

prior to this Termination Action being filed on July 12, 2018.

12. There is a reasonable probability that the conditions that

resulted in the [C]hildren’s removal and continued placement

outside of the home will not be remedied by [Mother]. Mother’s

whereabouts remain unknown as does her ability and willingness

to parent. She has made no meaningful or sustainable progress

toward reunification.

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13. The continuation of the parent-child relationship poses a

threat to the [C]hildren’s well-being in that it would serve as a

barrier for them obtaining permanency through an adoption

when [Mother] is unavailable to offer permanency and parent.

14. Termination of the parent-child relationship is in the

[C]hildren’s best interests. Termination would allow them to be

adopted into a stable and permanent home where their needs will

be safely met.

15. There exists a satisfactory plan for the future care and

treatment of the children, that being adoption.

16. The [C]hildren ha[ve] been placed in “kinship” care since

May 2018. They are bonded and doing well. This is a pre-

adoptive placement.

17. The Guardian ad Litem agrees with the permanency plan of

adoption as being in the [C]hildren’s best interests.

Appellant’s App. Vol. II at 80-81. Mother now appeals.

Discussion and Decision

[20] “We initially observe that our court has long had a highly deferential standard

of review in cases concerning the termination of parental rights.” In re H.T.,

911 N.E.2d 577, 579 (Ind. Ct. App. 2008). “Accordingly, we will not set aside

the juvenile court’s judgment unless it is clearly erroneous.” Id. We do not

reweigh the evidence or judge the credibility of the witnesses. Id. Instead, we

consider only the evidence and reasonable inferences that are most favorable to

the judgment. Id.

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[21] The traditional right of a parent to establish a home and raise her children is

protected by the Fourteenth Amendment to the United States Constitution. In

re S.S., 120 N.E.3d 605, 609 (Ind. Ct. App. 2019). Although parental rights are

of a constitutional dimension, these rights are not absolute, and the law

provides for the termination of parental rights when a parent is unable or

unwilling to meet his or her parental responsibilities. Id. We subordinate the

interests of the parents to those of the child when evaluating the circumstances

surrounding a termination. Id.

[22] Mother argues that the juvenile court’s default judgment terminating her

parental rights to Children should be set aside because DCS failed to provide

her notice as required by Indiana Code section 31-35-2-6.5. “Section 31-35-2-

6.5 provides, in relevant part, that ‘at least ten (10) days before a hearing on a

petition or motion under this chapter ... the person or entity who filed the

petition to terminate the parent-child relationship [here, DCS] . . . shall send

notice of the review to . . . [t]he child’s parent . . .’” In re H.K., 971 N.E.2d 100,

102-03 (Ind. Ct. App. 2012). Mother argues that DCS took insufficient steps to

locate her prior to the termination hearing. Specifically, she argues:

DCS certainly did take some action to provide [Mother] with

notice. [DCS] endeavored to find her through the BMV, all

relevant detention facilities and attempted contact through her

last known phone number and address. [DCS] then published

notice in a newspaper of general circulation in the county of

jurisdiction. . . .

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What stands out from the record are the ways that DCS did not

attempt to find and provide notice to [Mother]. The [C]hildren

were placed in kinship care, meaning they were placed with

family of either [Mother] or [C]hildren’s father. In either event,

the most logical means of finding [Mother] would have been to

check with her family. . . .

The goal of DCS must be to actually find the person they are

seeking. The goal cannot be to establish they did just enough to

satisfy a court that notice was made in order to secure a default

judgment.

Appellant’s Br. at 7-8.

[23] It is well-settled that the State must satisfy the requirements of the Due Process

Clause of the Fourteenth Amendment to the United State Constitution when it

seeks to terminate a parent-child relationship.6 Castro v. State Office of Family &

Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006), trans. denied. Although due

process has never been precisely defined, it requires “an opportunity to be

heard, and an opportunity to confront witnesses.” In re M.L.K., 751 N.E.2d

293, 295-96 (Ind. Ct. App. 2001). “Thus, before an action affecting a party’s

interest can proceed, ‘the State, at a minimum, must provide notice reasonably

calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their

6

In her motion to show cause and request for appointed counsel, filed April 5, 2019, Mother, acting pro se,

contends that the juvenile court denied her due process.

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objections.’” In re H.T., 911 N.E.2d at 579 (quoting In re M.L.K., 751 N.E.2d at

296).

[24] Indiana Trial Rule 4.1(A) allows service to be made upon an individual by

leaving a copy of the summons at the dwelling house or usual place of abode;

however, such form of service must be followed-up by a summons, sent by first

class mail to the last known address of the person being served. Ind. Trial Rule

4.1(B).7 Here, DCS filed its TPR petition on July 16, 2018 and drafted the

summons and notice on July 18. The notice set out the time and place of the

initial hearing, the court’s phone number, and informed Mother that failure to

appear could result in termination of her parental rights without further notice.

Appellant’s App. Vol. II at 41. A process server went to Mother’s last known

address and tried to make service on July 21, 24, 25, and 27. Id. at 47, 59. The

process server left a card three times and twice called the complex office trying

to confirm Mother’s residency. Id. The process server executed an Affidavit of

Non-Service on July 27, 2018. A copy of the notice was also sent to the P.O.

7

Our court has previously held that notice of a hearing pursuant to Indiana Code section 31-35-2-6.5 does

not require compliance with Trial Rule 4, which governs service of process and incorporates a jurisdictional

component. In re C.C., 788 N.E.2d 847, 851 (Ind. Ct. App. 2003), trans. denied. Rather, in order to comply

with Indiana Code section 31-35-2-6.5, a party need only meet the requirements of Indiana Trial Rule 5,

which governs service of subsequent papers and pleadings in the action. Id. We note that Mother cites to

neither trial rule in her brief. However, because we understand Mother’s argument to be a complaint about

the propriety of the original service of summons, we, like the juvenile court, analyze Mother’s claim under a

Trial Rule 4 analysis. See In re J.H., 898 N.E.2d 1265, 1269 (Ind. Ct. App. 2009) (analysis under Trial Rule 4

when claim is direct challenge to the service of process), trans. denied.

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Box that Mother had given FCM Donaldson . Id. at 38. Mother did not appear

at the July 27 hearing.

[25] Meanwhile, having received no contact from Mother, FCM Donaldson filed an

affidavit of diligent inquiry affirming, under penalty of perjury, that Mother

could not be found and had not reported a change of address to the MaGIK

database. Appellant’s Ex. Vol. I at 12. FCM Donaldson affirmed that, at her

instruction, DCS had: (1) attempted to serve notice on Mother at her last

known address; (2) sent Mother emails; (3) called Mother; and (4) searched for

Mother in the databases of MaGIK, Indiana Bureau of Motor Vehicles, Indiana

Department of Correction and offender database, Federal Bureau of Prisons

and offender database, and the White Pages. Id. FCM Donaldson also

checked with the county jail. Tr. Vol. I at 8.

[26] When the person to be served cannot be found a “summons may be served in

the manner provided by Rule 4.9 (summons in in rem actions).” Ind. Trial

Rule 4.5; see In re J.H., 898 N.E.2d 1265, 1268 (Ind. Ct. App. 2009) (“A

proceeding to terminate parental rights is basically an in rem proceeding and is

governed by the Indiana Rules of Procedure.”), trans. denied. Trial Rule 4.9

allows service of summons to be made by publication pursuant to Indiana Trial

Rule 4.13. Indiana Trial Rule 4.13 provides that when notice by publication is

to be used, the person or entity seeking such service by publication “shall

submit [the] request therefor upon the praecipe for summons along with

supporting affidavits that diligent search has been made [and] that the [party]

cannot be found . . ., and shall prepare the contents of the summons to be

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published.” Service should be made, however, in the best possible manner

reasonably calculated to inform the respondent of the pending action. In re

A.C., 770 N.E.2d 947, 949 (Ind. Ct. App. 2002).

[27] Unable to reach Mother by other means, DCS sought permission to publish

notice, and on August 28, 2018, the juvenile court “enter[ed] an order

authorizing Summons by Publication on [Mother].” Appellant’s App. Vol. II at

21. Notice was published in The Indianapolis Star three times, August 31,

2018, September 7, 2018, and September 14, 2018. Appellant’s Ex. Vol. I at 8.

The published notice included the date, time, and location of the TPR hearing,

as well as a phone number to call. Id. at 6. Mother does not complain about

the content of the publication; instead, she argues that DCS did not do enough

to find her. We disagree. Here, DCS sent Mother notice at all the addresses it

had, including the last address provided by Mother. Through FCM

Donaldson’s email, Mother knew that the plan had changed to adoption and

yet took no action. DCS attempted to contact Mother by personal service,

leaving notes and attempting to confirm Mother’s residency with the complex.

FCM Donaldson called and emailed Mother without response. Under the facts

of this case, we find that DCS complied with the Indiana Trial Rules regarding

service and its attempted service comported with the Due Process Clause of the

Fourteenth Amendment.

[28] We note Mother’s frustration that appointed appellate counsel appealed only

the issue of notice and did not contest any of the juvenile court’s underlying

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findings of facts or conclusions.8 Had counsel done so, the result would be the

same. To terminate Mother’s parental rights, DCS had to prove by clear and

convincing evidence: (1) Children were removed from Mother’s care for at

least six months; (2) there is a reasonable probability that the conditions that

resulted in Children’s removal would not be changed; (3) the termination of

Mother’s parental rights is in the Children’s best interest; and (4) there exists a

satisfactory plan for the Children’s care and treatment. Ind. Code § 31-35-2-

4(b)(2). The parties agree that Children have been out of Mother’s care for

more than six months.

[29] The Children were removed from Mother’s care based on an allegation of

Mother’s failure to provide Children with an appropriate living environment

free from sexual abuse. At the time of the termination hearing, Mother had

stopped participating in services and her supervised visits became “very

inconsistent.” Tr. Vol. II at 7. FCM Donaldson testified that Mother “ha[d] not

demonstrated her desire, nor her ability as a parent, to provide a safe home and

environment for her children, and to keep them safe from any sexual abuse, . . .

[and] she has not made herself available, . . . she’s not willing to provide that

continued care.” Id. at 9. Based on the facts before the court, the juvenile

8

Mother expressed her concern in her request to Withdraw Appointed Counsel, which was received by our

court on September 17, 2019. While it is unclear whether this document was filed with the court, because the

termination of parental rights is such a serious matter, we briefly address Mother’s concerns.

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court’s conclusion that conditions that resulted in Children’s removal would not

be remedied was not clearly erroneous.

[30] To determine the best interests of children, our court is required to look beyond

the factors identified by the department of child services and look to the totality

of the evidence. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d

185, 203 (Ind. Ct. App. 2003). In so doing, the trial court must subordinate the

interests of the parents to those of the children. Id. The juvenile court “need

not wait until the child is irreversibly harmed such that the child’s physical,

mental and social development is permanently impaired before terminating the

parent-child relationship.” In re E.M., 4 N.E.3d 636, 648 (Ind. 2014). By the

time of the TPR fact-finding hearing, Mother had refused to participate in

services and had stopped going to parenting time sessions. The GAL, by

affidavit, and FCM Donaldson, during the TPR fact-finding hearing, testified

that it was in the best interest of Children for Mother’s parental rights to be

terminated. Appellant’s Ex. Vol. I at 4; Tr. Vol. II at 9. Our court “has previously

determined that the testimony of a child’s guardian ad litem regarding the

child’s need for permanency supports a finding that termination is in the child’s

best interests.” McBride, 798 N.E.2d at 203.

[31] Finally, DCS proposed a permanency plan that Children be adopted by their

godmother, a person liked by both Mother and Children’s father. The juvenile

court’s finding that DCS has a suitable plan for Children care and treatment is

not clearly erroneous. See In re D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004)

(permanency “plan need not be detailed, so long as it offers a general sense of

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the direction in which the child will be going after the parent-child relationship

is terminated”), trans. denied.

[32] Concluding that DCS adequately complied with the requirements to provide

proper notice to Mother and finding that the outcome would have been the

same even if Mother had been present, we affirm the termination of her

parental rights to Children.

[33] Affirmed.

Bailey, J., and Mathias, J., concur.

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