26A-JT-01173•Termination: S B v. Indiana Department of Child Services, et al.
Termination: S B v. Indiana Department of Child Services, et al.
26A-JT-01173Indctapp15 oct. 2026
Texte intégral
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 1 of 13 Pursuant to Indiana Appellate Rule 65(E), the trial court and parties shall not take any action in reliance upon this memorandum decision until it is certified. MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case. I N T H E Court of Appeals of Indiana In the Termination of the Parent-Child Relationship of: C.H. (Minor Child), and S.B. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner and Kids’ Voice of Indiana, Appellee-Guardian ad Litem October 15, 2026 Court of Appeals Case No. 26A-JT-1173 Appeal from the Marion Superior Court The Honorable Geoffrey A. Gaither, Judge The Honorable Rosanne Ang, Magistrate
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 2 of 13 Trial Court Cause No. 49D09-2507-JT-7232 Memorandum Decision by Judge Brown Judges Kenworthy and Scheele concur. Brown, Judge. [1] S.B. (“Father”) appeals the involuntary termination of his parental rights to his minor child, C.H. (“Child”). We affirm. Facts and Procedural History [2] Father and Ch.H. (“Mother,” and together with Father, “Parents”)1 have a long history with the Indiana Department of Child Services (“DCS”) dating back to August 2019 when DCS petitioned to adjudicate their three children, N.H., born in September 2006, V.H., born in February 2008, and B.B., born in November 2011 (collectively “Siblings”), as children in need of services (“CHINS”). The court adjudicated Siblings as CHINS, in part, due to Father’s admission that he was incarcerated in the Indiana Department of Correction (“DOC”) and was unable to parent Siblings. During the pendency of the CHINS cases involving Siblings, in March 2024, Mother gave birth to Child. 1 The court also terminated Mother’s parental rights to Child, but she does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 3 of 13 [3] On June 18, 2024, DCS filed a petition alleging that Child was a CHINS. The court held an initial hearing that same day. Father did not appear for the hearing, and Child was removed from both Parents’ care and placed in foster care. On June 21, 2024, DCS filed an amended CHINS petition based on concerns for Mother’s use of illicit substances and Father’s inability to provide for Child due to being incarcerated. The court held a pretrial conference on July 10, 2024, and Father appeared via video. The court conducted an initial hearing for Father, and Father indicated that, upon his scheduled release from incarceration in December 2024, he would be residing at “19 N Hendricks.” Exhibits Volume I at 25. The court ordered supervised parenting time with Child for Father. The court appointed counsel for Father, and counsel filed an appearance for Father that same date. [4] On October 2, 2024, the court held a CHINS fact-finding hearing. Father appeared with counsel. Mother admitted Child was a CHINS, Father waived factfinding, and both Parents requested the court proceed to disposition. The court entered a dispositional order requiring Father to “become engaged in a program of father’s engagement as referred by the Family Case Manager and follow all recommendations.” Id. at 33. [5] On January 15, 2025, the court held a review hearing. Father, who had been released from incarceration, failed to appear. Counsel appeared on his behalf and indicated that she had “had no contact with [Father] since his release from incarceration.” Id. at 36. DCS reported that Child was “thriving” in his current placement. Id. The permanency plan for Child remained reunification.
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 4 of 13 [6] The court held another review hearing on March 26, 2025. Father again failed to appear, but counsel appeared on his behalf. Reports indicated that Child was doing “very well in placement” and had “made huge advances – he went from nearly needing a g-tube to eating solids, and is hitting all his milestones.” Id. at 40. DCS reported that it had “had no contact with [P]arents, and [P]arents have not engaged in any services or visits since the last hearing.” Id. The court found that DCS had “made reasonable efforts to offer services” and “to provide services.” Id. [7] Father’s counsel filed a motion to withdraw appearance on April 8, 2025, and the court granted the motion on April 10, 2025. The court held a permanency hearing on June 11, 2025. Father failed to appear. As of that hearing date, the record revealed that “both [P]arents were not engaging in court order[ed] services and the current location of both [P]arents [was] unknown to DCS.” Transcript Volume II at 17. There was “also an open [CHINS] case for another child of [Parents] . . . [B.B.]” Id.2 The court found that Parents had “failed to engage in services throughout this case” and “failed to engage in services of previous cases involving their older children as well.” Exhibits Volume I at 42. The court found that Father had “not visited with [Child] since this case opened.” Id. The court found that “Father has not appeared in Court since October, and Mother has not attended since January 2025.” Id. The court 2 The record indicates that, during the pendency of Child’s CHINS case, Child and B.B. were placed together with B.B. being ultimately adopted by Child’s pre-adoptive placement.
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 5 of 13 ordered that Child’s permanency plan be changed from reunification to adoption, with a projected adoption date of December 11, 2025. [8] On July 21, 2025, DCS filed a petition for the involuntary termination of both Parents’ parental rights. On August 4, 2025, Father was personally served with the summons and termination petition. Father did not contact DCS. On August 19, 2025, the court issued an order appointing counsel for both Father and Mother. Father’s counsel filed an appearance on the same date. The court held a review hearing on September 24, 2025. Father failed to appear. DCS Family Case Manager Isiaka Costa (“FCM Costa”) testified that he had “been unable to get into contact with [P]arents,” that they had “been served for the TPR” which was set for “January 8,” that there had been “no visits in nearly a year,” and that Child “continues to do well in the foster home, which is the same home that his brother [B.B.] was adopted into.” Id. at 45. Child’s foster placement reported that Child “is growing by the day and progressing every day” but was “likely headed toward an Autism diagnosis.” Id. at 45. The court found that DCS had made “reasonable efforts to offer” and “to provide services” to Parents. Id. [9] On December 18, 2025, Father’s appointed counsel filed a Motion to Continue Bench Trial Setting. The motion stated that the case “is currently scheduled for bench trial on January 8, 2026,” that counsel “had not had any contact with [Father] prior to this week,” that counsel and Father “would like a chance to mediate prior to a trial,” that both “DCS and [Guardian ad Litem] oppose this motion to continue,” and that the motion “is not made for purpose of delay.”
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 6 of 13 Appellant’s Appendix Volume II at 47. On December 22, 2025, the court entered an order denying Father’s motion. On January 6, 2026, Mother filed a motion to continue stating that she wished to “execute adoption consents” and needed “more time” to sign the consents and avoid the necessity of a contested trial. Id. at 53. Father’s counsel joined in Mother’s motion. The motion provided that “DCS, by counsel, objects” and “Guardian [a]d Litem takes no position.” Id. The court denied the motion that same day. [10] On January 8, 2026, the court held a termination fact-finding hearing. Parents failed to appear, but each of their counsel appeared on their behalf. At the outset of the hearing, Mother’s counsel moved to continue the hearing, alleging that he did not have “good sufficient contact with [M]other to prepare for trial.” Transcript Volume II at 4. Father’s counsel stated, “Same. I also would renew my motion for a continuance.” Id. Counsel for both DCS and the Guardian ad Litem, Kids’ Voice of Indiana, objected. Counsel for the Guardian ad Litem argued, “the [P]arents have been in contact to some degree with their counsels . . . have been informed of today’s hearing,” and “[w]ould have had an opportunity to appear here today . . . so given that . . . I would be objecting.” Id. at 4-5. The court ruled, “[a]fter reviewing the record and the previous motions for continuance filed, I am going to show the oral motions denied.” Id. at 5. [11] DCS presented testimony from FCM Costa and Guardian ad Litem Brittany Lismon (“GAL Lismon”). FCM Costa testified that neither Parent had remedied the conditions that led to Child’s removal from their care. He noted
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 7 of 13 that “since DCS involvement, [P]arents have not been engaging in court ordered services and . . . they have not visited [Child].” Id. at 19. FCM Costa did not believe that Child would even “recognize” either Parent due to the length of time he had been removed from their care and because neither Parent had engaged in visitation. Id. at 21. FCM Costa stated that he had gone to great lengths to contact Parents and schedule team meetings with them, but he had been unable to reach them at numbers DCS had on file. He explained that in situations such as this when DCS is unable to locate a parent, because the parent knows he or she has “kids in the system,” the parents usually “reach out to – DCS.” Id. at 27. He stated that in the seven months he had been assigned to the case, neither Parent had ever attempted to contact DCS in any way. He stated that Child was very bonded with his placement and that it was “very important” that he be able to “maintain a relationship with his full blood biological sibling” who was already adopted by the same placement. Id. at 22. [12] GAL Lismon testified that Child “has what’s called Level 3 autism, so it’s a pretty severe case of autism.” Id. at 32. She testified that Child was placed in the same home with B.B., that he was “doing well in placement,” and that he is “very well-bonded” with placement. Id. at 33. GAL Lismon opined that termination of both Parents’ rights and adoption by his current foster family was in his best interests as “[P]arents don’t have a home” and they “have not completed or engaged in any court ordered services or any parenting time with [Child].” Id. at 34. GAL Lismon stated that she did not believe that either Parent “should be given additional time to complete services in order to reunify
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 8 of 13 with Child.” Id. at 35. At the conclusion of the hearing, Father’s counsel asked the court to deny the termination petition, arguing that “DCS failed in its burden to make reasonable efforts” to locate Parents “to help them be involved in services.” Id. at 38. The court took the matter under advisement. [13] On April 9, 2026, the court entered its findings of fact, conclusions thereon and order terminating Parents’ parental rights. Specifically, the court found that there was a reasonable probability that the conditions that resulted in Child’s removal or continued placement outside Parents’ care will not be remedied; continuation of the parent-child relationship poses a threat to Child’s well- being; termination of Parents’ parental rights is in Child’s best interests; and there is a satisfactory plan for the care and treatment of Child, that being adoption by his current foster care placement. The court found that “[n]either [P]arent has expressed any interest whatsoever in parenting [Child],” they “have been under order to engage in services under two [CHINS] cases,” the “earliest of these orders was issued over five years ago,” and neither Parent “has utilized this time to reunify with their older children or [Child].” Appellant’s Appendix Volume II at 60. Discussion [14] Father challenges the termination of his parental rights. We recognize that the Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of the fundamental liberty
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 9 of 13 interests recognized by this Court.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). Parental rights, however, are not absolute and must be subordinated to the child’s best interests when determining the proper disposition of a petition to terminate parental rights. Id.; see also In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) (“Parents have a fundamental right to raise their children—but this right is not absolute.”). “When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” Ma.H., 134 N.E.3d at 45-46. [15] As an initial matter, we note that Father does not challenge the trial court’s findings of fact and conclusions thereon as clearly erroneous. Accordingly, Father has waived any arguments relating to the unchallenged findings and, by his failure to challenge the trial court’s conclusions, Father “has conceded that DCS proved, by clear and convincing evidence, the allegations in the petition to terminate h[is] parental rights.” See Matter of C.C., 170 N.E.3d 669, 675 (Ind. Ct. App. 2021) (concluding that mother’s failure to challenge the trial court’s conclusions supporting termination of her parental rights pursuant to Ind. Code § 31-35-2-4 resulted in waiver of any argument that those conclusions were clearly erroneous and were a concession by mother that DCS met its burden of proof). I. Motion to Continue [16] We first address Father’s assertion that the trial court abused its discretion in denying his motion to continue the termination fact-finding hearing. Generally, “a trial court’s decision to grant or deny a motion to continue is subject to abuse
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 10 of 13 of discretion review.” In re K.W., 12 N.E.3d 241, 243-244 (Ind. 2014) (citing Rowlett v. Vanderburgh Cnty. Office of Fam. & Child., 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied). When a trial court denies a party’s motion for a continuance, there is a strong presumption that the trial court properly exercised its discretion. In re N.K., 249 N.E.3d 607, 615 (Ind. Ct. App. 2024). [17] Motions to continue are governed by Ind. Trial Rule 7(D) which provides: (1) A party must file a motion for continuance as soon after the cause for continuance or delay is discovered by the party seeking the same. (2) Any written motion to continue a matter must be filed pursuant to subdivision (B) and must include: (a) A statement that the opposing party has no objection; (b) A statement that the opposing party objects; or (c) A statement that the opposing party’s position is unknown, and the date, time, and method by which the moving party filing the motion attempted to obtain agreement and the result, or why such outreach was not possible. (3) If a party did not comply with subdivision (D)(2), a court may grant a motion for continuance only if the moving party certifies to the court, in writing, the efforts made to give notice and the reasons supporting the moving party’s claim that actual notice should not be required. (4) A party’s motion must include: (a) the approximate amount of time needed to elapse before the matter can be heard, and,
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 11 of 13 (b) a good faith estimate of the time needed for the rescheduled hearing or trial. Unlike its predecessor, former Ind. Trial Rule 53.5,3 Ind. Trial Rule 7(D) contains no reference to requiring the moving party to show “good cause,” but “it appears to leave continuances to the discretion of the trial court, so long as the procedural requirements of the rule are met.” Matter of C.J.B., 281 N.E.3d 615, 621 (Ind. Ct. App. 2026) (citing Ind. Trial Rule 7(D)(3) which provides that the trial court “may” grant a motion for continuance if the movant satisfies certain conditions). [18] Here, Father’s written motion to continue did not comply with Ind. Trial Rule 7(D) because it did not include the mandatory requirements of subsection (4): the approximate amount of time needed to elapse before the matter can be heard, and, a good faith estimate of the time needed for the rescheduled hearing. Indeed, as observed by DCS, when Father’s counsel orally renewed the motion to continue at the outset of the termination fact-finding hearing, counsel did not mention a specific date or necessary timeframe for the continuance. Under the circumstances, we cannot say that the trial court abused its discretion in denying the motion to continue pursuant to Ind. Trial Rule 7(D).4 See id. (concluding trial court did not abuse its discretion in 3 Ind. Trial Rule 53.5 “was repealed effective January 1, 2025,” and motions to continue “are now addressed in Trial Rule 7.” Matter of O.M., 266 N.E.3d 326, 330 (Ind. Ct. App. 2025). 4 Although Father’s counsel argued to the trial court that the denial of the motion to continue violated Father’s due process rights, Father does not make that argument on appeal.
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 12 of 13 denying father’s motion to continue termination of parental rights fact-finding hearing because the “last minute oral motion” “did not identify DCS’s position on the continuance, and did not indicate when [f]ather would be available” as required by Ind. Trial Rule 7(D)). II. Due Process [19] Father next asserts that he was denied due process “because DCS did not make reasonable efforts to preserve or reunify the family unit.” Appellant’s Brief at 16. Specifically, he asserts that he “was released from incarceration by January of 2025, and nothing in the record indicates what efforts DCS took to preserve or reunify the family.” Id. at 17.5 DCS urges that Father waived his due process argument because he raises it for the first time on appeal. This Court has previously concluded that “a parent may waive a due-process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal.” S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013) (citing McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194- 195 (Ind. Ct. App. 2003)). We agree with DCS that Father has waived his due process claim for failure to raise it below and we decline to address it.6 Cf., Te.R. v. Ind. Dep’t of Child Servs., 284 N.E.3d. 1083, 1092 (Ind. Ct. App. 2026) 5 Contrary to this assertion, the record indicates that FCM Costa attempted multiple times to contact Father following his release from incarceration but he was nonresponsive and his whereabouts were unknown. Moreover, the record reveals that Father failed to maintain contact with DCS and never attempted or requested to participate in reunification services, including visitation with Child. 6 Although Father’s counsel argued at the end of the termination hearing that “DCS failed in its burden to make reasonable efforts,” Transcript Volume II at 38, we cannot say that this was sufficient to preserve a due
Court of Appeals of Indiana | Memorandum Decision 26A-JT-1173 | October 15, 2026 Page 13 of 13 [20] (declining to find that the father waived his due process claim because his counsel specifically argued to the trial court that DCS’s failure to make reasonable reunification efforts violated “the due process clause of the federal and state constitutions” and the record indicated that the father successfully participated in ordered services with the only barrier to reunification being his inability to secure stable housing despite his relentless efforts and specific requests for DCS’s help). [21] For the foregoing reasons, we affirm the trial court’s termination order. [22] Affirmed. Kenworthy, J., and Scheele, J., concur. ATTORNEYS FOR APPELLANT Talisha Griffin Timothy Morgan Marion County Public Defender Agency Appellate Division Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana process claim. To the extent Father cites D.H. v. Ind. Dep’t of Child Servs., 119 N.E.3d 578, 586 (Ind. Ct. App. 2019), aff’d as modified on reh’g, 122 N.E.3d 832, trans. denied, for the proposition that this Court has “discretion to address such claims, especially when they involve constitutional rights, the violation of which would be fundamental error,” in light of the record before us, we decline to do so here.
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