Mom not denied due process in TPR case involving unrecorded evidence statements

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A Madison County mother was not denied due process in her termination of parental rights case, the Indiana Court of Appeals has affirmed.

In 2019, the parents of minor child S.S. consented to her adoption after admitting that she was a child in need of services. The Indiana Department of Child Services had previously petitioned to terminate mother A.S.’s parental rights as to S.S.

But A.S. rescinded her consent to adoption a few months later, prompting DCS to again petition to terminate her parental rights. The Madison Circuit Court denied two of A.S.’s motions to continue at the termination fact-finding hearing before ultimately terminating her parental rights.

An equipment malfunction left most of the hearing unrecorded, so A.S. filed a motion to remand the case to the trial court for the purpose of reconstructing the unavailable part of the record. The COA remanded, but by the time the parties filed their statements of the evidence, the judge who had heard the case was succeeded by a successor judge, who certified the statements of the evidence.

The COA affirmed on appeal, finding it was not an abuse of discretion for the trial court to deny A.S.’s motion to continue and to conduct the termination hearing in her absence at the second hearing.

“We find that Mother has waived this issue because she failed to object on due process grounds before the trial court when her motion to continue was denied. It is axiomatic that an argument cannot be presented for the first time on appeal,” Judge Patricia Riley wrote for the appellate court.

Addressing her claim regardless, the COA found that the trial court did not abuse its discretion when it denied mother’s motion.

Turning to the unrecorded statement of evidence, the appellate court found that “the very problem of which Mother complains — that the successor judge who certified the statement of the evidence was different from the judge who heard the evidence — is attributable to Mother.”

“…(H)ad Mother abided by this court’s October 22, 2020, order to complete her statement of evidence within 15 days, the presiding judge who heard the case, would have been available,” Riley wrote. “In addition, Mother’s failure to object on grounds that successor judge could not certify the reconstructed record, raised a question of invited error. A party may not take advantage of an error that she invites.”

The case is A.S. v. Indiana Department of Child Services, 20A-JT-1525.

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