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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: RUTH JOHNSON Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEY FOR APPELLEE: ELIZABETH G. FILIPOW Marion Count Department of Child Services Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF THE INVOLUNTARY TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF Do.W., Ri.W., and Ro.W., Minor Children, and their mother, DORIAN WILSON, DORIAN WILSON, Appellant-Respondent, vs. MARION COUNTY OFFICE OF FAMILY AND CHILDREN, Appellee-Petitioner, CHILD ADVOCATES, Co-Appellee (Guardian ad Litem). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 49A02-0610-JV-931

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Victoria Ransberger, Judge Pro-Tem Cause No. 49D09-0602-JT-4069

May 1, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Dorian Wilson ("Dorian") appeals the trial court's order terminating her parental relationship with her children Do.W., Ri.W., and Ro.W. We affirm. ISSUES 1. Whether the trial court's refusal to grant a continuance for Dorian's counsel to secure Dorian's presence at the termination of parental rights hearing constituted an abuse of discretion. 2. Whether the trial court's order terminating the parent-child relationship between Dorian and the children was an improper summary default order. FACTS Separated parents, Dorian and her husband, Ricky, 1 are the biological parents of four children: De.W., Do.W., Ri.W., and Ro.W. In 2003, largely due to Dorian's

substance abuse problems, the children were adjudicated as Children in Need of Services ("CHINS") and removed from Dorian's care. Subsequently, the juvenile court awarded custody of the children to Ricky. In March 2005, Marion County Child Protection Services ("CPS") received an anonymous tip alleging that "these kids were living with their mother," and that Dorian was using cocaine and working as a prostitute. Tr. 48-49. CPS investigator, Dee Eyers ("Eyers") learned that Dorian was receiving temporary aid for needy families (TANF) and food stamps "based on all of the children

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Ricky is not a party to this appeal.

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living with her" at her sister's home. Id. at 50. Eyers visited the residence to inquire about the children. At first, Dorian claimed to be baby-sitting them while Ricky worked. Then, she claimed to have custody of the children pursuant to a court order; however, Dorian was unable to produce the court order. Dorian then admitted that "[the children] were living with her" at her sister's home. Id. at 51-52. Eyers inspected the residence and observed Dorian's five-year-old child "sleeping in [a second floor bedroom] on a twin bed [without sheets], about a foot away from an open window with no screen on it." Id. at 52. When Eyers voiced her concern "that he could roll out though the window," Dorian responded, "Oh he won't do it." Id. at 53. Eyers inspected the house further and observed that [t]he home was dirty. The kitchen had food incrusted [sic] throughout the kitchen on the sink, on the dirty dishes, food incrusted [sic] in the refrigerator. The bathroom was filthy, smelled strongly of urine. Toilet was not flushed. Id. Eyers notified her supervisor about the living conditions that she had observed and received authorization to remove the children. 2 Id. at 56. Eyers determined that the CHINS allegations had been substantiated, 3 basing her conclusion on the following: (1) "the fact that [Dorian] had the children back in her care, without any legal change of custody"; (2) Dorian had no job; (3) Dorian and her four children had no home and were living with her sister's family of five; (4) the "unstable

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Only two of the children were present at the time. After the CHINS dispositional hearing on May 26, 2005, the remaining two children were removed from Dorian's care. Eyers testified that for CPS's purposes, "[s]ubstantiated means that we have found sufficient evidence that our office feels the children are in need of services [CHINS]." (Tr. 58).

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and filthy" condition of Dorian's sister's home; and (5) the unsafe sleeping arrangements for Dorian's five-year-old son. Id. at 58-59. The Marion County Department of Child Services ("the MCDCS") filed a CHINS petition against Dorian on March 24, 2005, alleging child endangerment and violation of a previous custody order. On April 28, 2005, the trial court conducted a trial on the CHINS petition and adjudicated the children as CHINS. On May 26, 2005, the trial court conducted a dispositional hearing, after which it removed the children from Dorian's care and issued a parental participation decree, under which Dorian Wilson was ordered, among other requirements, to notify the case manager of any changes in address or telephone number within five days of said change, contact the Case manager on a weekly basis in order to allow her to monitor compliance with the Court's orders, complete a parenting assessment and successfully complete all resulting recommendations, complete a drug and alcohol assessment and successfully complete all resulting recommendations, secure and maintain a legal and stable source of income adequate to support her children, obtain and maintain suitable housing for the children, and visit the children on a regular consistent basis. State's Br. 3-4. The children were placed in foster homes, with Ri.W. and Ro.W. placed together, and De.W. and Do.W. placed separately. Parenting assessor Barbara Brands ("Brands") had performed Dorian's parenting assessment 4 in April of 2005. At the assessment, Dorian admitted to recent marijuana and cocaine use, claiming "[t]hat she had last used cocaine a week prior" to meeting with Brands. However, she "tested positive for cocaine," indicating that she had used cocaine

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The aim of the assessment was to review the various areas that "affect [Dorian's] ability to parent children," including her (1) previous history with CPS; (2) upbringing; (3) current relationships; (4) educational background; (5) employment history; (6) communication and problem solving skills; (7) criminal history; and (8) the reasons for CPS's prior involvement. Tr. 62.

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within the previous forty-eight hours. Tr. 65. Brands determined that Dorian had "relapse[d]" and she recommended that Dorian complete periodic drug screens, inpatient treatment and an intensive outpatient treatment, before she could be reunited with her children. Id. at 67. Brands concluded, in her report, that Dorian "loves her children, the children love her," but determined that the prognosis for reunification was "poor." Id. at 70. In support of her prognosis, Brands cited concerns that this was the second involvement with CPS in less than two years. The issues of marijuana and cocaine use. The concerns of not having stable housing or employment to provide for the children, and concerns about the on again, off again relationship with [Ricky], and that there had been incidents of violence in their relationship. Id. at 70-71. Dorian's case was transferred to a new case manager, 5 Aziza Bryant ("Bryant"). When Bryant received the case file, she unsuccessfully "tried to contact all parties in the case." Id. at 36. Despite the trial court's order that she contact the case manager on a weekly basis, Dorian did not contact the MCDCS after Bryant took over the case. 6 On February 1, 2006, the MCDCS filed a petition for involuntary termination of the parent-child relationship between De.W. 7 , Do.W., Ri.W., and Ro.W. and their parents, Dorian and Ricky Wilson. Dorian appeared for her initial hearing and public

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Bryant testified that "around the first week of July [2006]," she received the case from the prior case manager who had "relocated to Washington State." Id. at 33, 45. Bryant served as Dorian's case worker from early July until the termination trial (September 6, 2006).

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On September 6, 2006, at the involuntary termination hearing, the trial court granted the MCDCS' oral motion to dismiss as to De.W., "for multiple reasons, as she is 17 years of age. She does not wish to be adopted. The current plan for her permanent care is a sensible one and furthermore, to leave her without parents, would not be in her best interest, because there is not an alternate parent stepping forward . . . ." Tr. 14.

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defender, Janice Smith, was appointed to represent her. Dorian received and signed an Advisement for Parents Regarding Proceedings to Involuntarily Terminate the ParentChild Relationship. On May 15, 2006, Dorian and her attorney attended a facilitation, 8 at which time the September 6, 2006, trial date was set. On August 3, 2006, the Public Defender Agency filed notice of substitution of counsel, replacing Janice Smith with Barbara Clements ("Clements") after a reorganization of its juvenile division. On August 25, 2006, case manager Bryant mailed a letter to Dorian's last known address notifying her of the involuntary termination trial setting. Neither Dorian nor Ricky were present at the trial on September 6, 2006. Clements moved for a continuance, which the trial court denied. 9 The MCDCS called its witnesses, and Clements cross-examined them and objected to certain testimony. Brands testified that Dorian had completed an inpatient program, but never completed outpatient treatment. Nor had she submitted to any drug screens in 2006. 10 The MCDCS and the

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A facilitation or facilitated negotiation is "a method of non-binding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution" or conciliation. Black's Law Dictionary 1003 (8th ed. 2004).

Specifically, attorney Clements told the trial court, "Today is September the 6th. I received my cases from the Public Defender Officer on August 5th, which was a Saturday. I have not contacted Dorian Wilson, nor have I heard from Dorian Wilson. For that reason, I would move for continuance because she is the mother of these children. She's not present today. And I do not believe that I have effectively attempted to contact her to . . . secure her presence at this hearing, and I believe that she needs to be here to provide me with advice and information so that I can appropriately defend her." Id. at 11. The trial court denied Clements' motion finding that notice of the hearing was sent to Dorian's last known address, and further, that she was advised in open court of the trial date. At trial, case manager Aziza Bryant testified that "as far as drug screens though, the last Court ruling regarding that, was that parents must complete five consecutive, clean [drug] screens in order . . . have
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court-appointed guardian ad litem, Tiffany Warren ("GAL Warren") recommended adoption

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