Opinion
23A-JT-2896
07-25-2024
In re the Involuntary Termination of the Parent-Child Relationship of B.J., and J.J., (Minor Children) and K.J. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner and Kids' Voice of Indiana, Appellee-Guardian Ad Litem
ATTORNEY FOR APPELLANT Don R. Hostetler Indianapolis, Indiana ATTORNEYS FOR INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Indiana Attorney General Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Danielle Gaughan, Judge Trial Court Cause Nos. 49D15-2206-JT-4305, 49D15-2206-JT-4308,
ATTORNEY FOR APPELLANT Don R. Hostetler Indianapolis, Indiana
ATTORNEYS FOR INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Indiana Attorney General Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] K.J. (Mother) appeals the involuntary termination of her parental rights to her minor children B.J. and J.J. (collectively the Children). Mother argues that the trial court's termination order is clearly erroneous, the trial court abused its discretion by excluding certain evidence, and the court violated her statutory and due process rights to counsel of her choice. We disagree on all counts and therefore affirm.
Facts and Procedural History
[¶2] In September 2018, before the Children were born, Mother completed a psychological evaluation and was diagnosed with schizophrenia and having indications of schizoaffective disorder. In July 2019, Mother gave birth to B.J., and in June 2020, Mother gave birth to J.J. J.B., the Children's putative father (Father), passed away during their underlying child in need of services (CHINS) proceedings. He does not participate in this appeal.
[¶3] In addition to the Children, Mother has one younger child and three older children (collectively the Other Children), one of whom is an adult. The Other Children are not parties to this appeal; however, they were all involved with the Department of Child Services (DCS) at one time or another and adjudicated CHINS. The facts for this case will generally be limited to those pertinent to Mother and the Children.
[¶4] On November 29, 2019, DCS received a report that Mother's boyfriend had physically harmed Mother and B.J. When DCS family case manager (FCM) Robyn Taylor arrived at the hospital to speak with Mother, Mother exhibited erratic behavior and told the FCM that she was schizophrenic and had not taken her prescribed medication. When the FCM attempted to remove B.J. from Mother, Mother became violent, punched FCM Taylor in the face, and had to be restrained by the hospital police. Mother was immediately detained for mental health issues and was arrested on the allegation of battery. B.J. was removed from Mother and placed in foster care. Father's whereabouts were unknown. Mother later pled guilty to battery and was sentenced to 180 days in the county jail, with 176 days suspended to probation.
[¶5] In December 2019, DCS filed a petition alleging that B.J. was a CHINS due to Mother's failure to provide B.J. with a safe, stable, and appropriate living environment that was free from violence. At the hearing held on that date, which Mother did not attend, the trial court granted wardship of B.J. to DCS, appointed a guardian ad litem (GAL), and provided that the permanency plan was reunification. B.J. was returned to Mother's care on a temporary trial visit basis, with services in place to ensure B.J.'s safety.
[¶6] On March 10, 2020, the trial court adjudicated B.J. a CHINS, after Mother entered admissions to the allegations at the factfinding hearing held that same day. The permanency plan remained reunification. The trial court entered a parental participation order requiring Mother to engage in home-based therapy and home-based case management, continue participating in mental health services, and follow all recommendations.
[¶7] In March 2021, Mother's housing became unstable. She was evicted from her apartment but refused DCS's assistance with alternative housing. Mother and the Children then moved to a homeless shelter. However, they were required to leave the shelter because Mother exhibited incoherent, disoriented, and belligerent behavior. Mother did not have an alternative housing option for herself and the Children.
[¶8] That same month, DCS filed a petition alleging that seven-month-old J.J. was a CHINS due to Mother's failure to provide him with appropriate housing and supervision. DCS alleged that Mother had been diagnosed with schizophrenia and had a history of not taking her prescribed medications. At the hearing held on March 30, the trial court granted wardship of J.J. to DCS and provided that the permanency plan was reunification.
The trial court appointed a GAL for J.J. on November 3, 2021.
[¶9] On March 30, J.J. was removed from Mother's care. Following a detention hearing for B.J., B.J. was also removed from Mother's care due to her failure to engage in mental health services, take her medications, and obtain stable housing. The Children were placed together in foster care and did not return to Mother's care. In July, Mother, after having again become involved with the criminal justice system, pled guilty to disorderly conduct and was sentenced to 180 days of jail time, with 178 days suspended to probation.
[¶10] In July 2021, the trial court adjudicated J.J. a CHINS, after Mother admitted that she "need[ed] to demonstrate stability in housing and with her mental health[.]" Appealed Order at 5. On August 31, the trial court entered a dispositional order requiring Mother to, in relevant part, participate in mental health treatment and follow all recommendations, provide releases of information to DCS for any mental health services, and participate in homebased therapy and home-based case management through a DCS referral and follow all recommendations. In a periodic review order issued that same day, the trial court found that Mother had engaged with home-based therapy and case management but that the court had concerns regarding Mother's mental health and her housing situation.
[¶11] Court appointed special advocate (CASA) Sandra Kessel worked with the Children between November 2019 and June 2021, performing home visits, attending child and family team meetings (CFTM), and attending meetings with service providers. CASA Kessel observed that Mother's behavior during the CFTMs was "quite volatile[,]" and the meetings, at times, were "not very productive[.]" Tr. Vol. 2 at 144. Mother would become "very ... upset" because she "blamed DCS for taking away" the Children. Id. CASA Kessel was concerned for the Children's safety. And the CASA was also concerned because there were "visitations that often didn't take place[,]" Mother had not secured employment and housing, and the CASA "wasn't really sure whether [Mother] was on medication on a daily basis." Id. at 146.
[¶12] In November 2021, Mother yet again became involved with the criminal justice system when she was charged with class B misdemeanor criminal mischief. She later pled guilty to the charge and was sentenced to 180 days suspended to probation.
[¶13] On February 24, 2022, Mother participated in supervised visitation with the Children at an agency that was managed by Tiffany Gould. Mother's visitation supervisor monitored the visit. At one point, Gould heard Mother "yelling" and "cursing" and observed Mother talking on her cell phone. Id. at 127. Mother calmed down for about twenty minutes but then began to yell and curse at her visitation supervisor. When Gould entered the room to try to deescalate the situation, Mother kicked furniture, picked up a chair and threw it, and dumped trash out of a bag and onto the floor, telling Gould that she would have to clean it up. One of the Children was crying, and they both appeared fearful and upset. The visitation supervisor called the police, and when they arrived, they escorted Mother from the agency.
[¶14] Following the incident, the trial court suspended Mother's visitation with the Children at DCS's request due to concerns for the Children's safety and wellbeing. After holding a permanency hearing in March, the trial court modified the Children's permanency plan to adoption based on the visitation incident, Mother's lack of stable housing, and her inconsistent participation in services. That same day, Mother was charged with level 6 felony possession of cocaine. In April, Mother pled guilty as charged and was sentenced to 545 days in the Indiana Department of Correction, with sixty days executed and 485 days suspended to probation.
[¶15] DCS FCM supervisor (FCMS) Ebony Arnold supervised Mother's case from late 2019 until March 2023. FCMS Arnold interacted with Mother on numerous occasions and attended the CFTMs. Little progress was made at the meetings because Mother yelled and behaved in a verbally aggressive manner. Mother also "refuse[d] to work with" her service providers and would fire them. Tr. Vol. 3 at 38. FCMS Arnold made at least ten referrals each for Mother's home-based case management and visitation services. Regarding Mother's mental health treatment, the FCMS observed that Mother wanted to work with mental health providers of her own choosing instead of with DCS referrals, and Mother resisted providing releases of information regarding any mental health treatment she received.
[¶16] In the summer of 2022, June French began supervising Mother's parenting time with the Children and providing therapeutically supervised visitation services. French observed that during visitations and CFTMs, Mother "ha[d] periods of time where she [was] an awesome mom, patient, kind, reading, [brought] academic work for the Children to have, . . . and then there [would] be a decline" where Mother became "easily triggered[,]" "verbally aggressive in front of the Children[,]" paranoid, and distrustful. Tr. Vol. 2 at 187, 188. Mother's inconsistent behavior and mood fluctuations made the Children nervous. And Mother had a low tolerance for the Children's age-appropriate behavior. Mother also frequently requested changes in her service providers, which impeded Mother's progress toward her goals and led to disruptions in her services. French expressed concerns for Mother's mental health and the safety of the Children if the Children were returned to Mother's care.
French first began working with Mother in 2018. She provided therapeutically supervised visitation services for Mother and two of Mother's Other Children while the CHINS proceedings for those children were pending.
[¶17] In June 2022, Mother went to the home where the Children had been placed in foster care (the Placement), uninvited, after FCMS Arnold and a case manager advised Mother not to do so. When Mother arrived, she banged on the Placement's front door, confronted the Placement, yelled, cursed, behaved in a threatening manner, tried to start a fight with the Placement, and broke a window in the Placement's home. The Placement, concerned for the Children's safety as well as the safety of her own children, moved the children into a back room where they could not hear Mother's loud and profane statements. The Placement called the police and DCS. When the police arrived, they escorted Mother from the property.
[¶18] On June 3, 2022, DCS filed petitions for the involuntary termination of Mother's relationships with the Children. At the initial hearing, the trial court appointed Mother counsel, who continued to represent her throughout the termination proceedings. Factfinding hearings on the termination petitions were held on March 14, May 1, June 8, July 13, and August 16, 2023. Evidence included testimony by Mother, one of Mother's Other Children, a clinical psychologist, FCMSs, service providers, the Placement, and CASAs.
Mother gave birth to her youngest child in May 2023.
Mother waived the termination of parental rights hearing being held outside the statutory timeframe. See Ind. Code § 31-35-2-6.
[¶19] During the termination hearings, the trial court learned that Mother frequently raised concerns that Placement was mistreating the Children. Mother sent pictures of the Children to Rebecca Isham, the FCMS assigned to work with Mother beginning in March 2023, that showed bruising and skin rashes on the Children. LaRessa McGregor, the CASA assigned to the Children beginning in July 2021, visited the Children at the Placement's home approximately twenty-four times. CASA McGregor testified that she had seen what she described as "irritation on the skin of the Children" and "some scrapes[,]" but told the trial court that she had no safety concerns regarding the Placement. Tr. Vol. 3 at 123. French testified that the injuries the Children exhibited were "normal kid stuff." Tr. Vol. 2 at 217.
[¶20] The court also learned that in August 2022, Mother went to Volunteers of America (VOA) for substance abuse treatment. Mother was discharged unsuccessfully from VOA after experiencing an episode involving her mental health, and she spent a week in a hospital psychiatric ward. Mother returned to VOA in September and left sometime in December, after completing the program. Then Mother lived in a sober-living home for approximately two and a half weeks. When the termination hearings began in March 2023, Mother was living with a friend. By June 8, Mother had moved into an apartment under a lease cosigned by a family member. But Mother's name was not on the lease, and the apartment complex did not allow subleasing. Regarding Mother's employment and source of income, the court learned that Mother worked as a hairstylist and had applied for Social Security Disability Income.
[¶21] The trial court also learned that Mother had two mental health therapists- Brenda Melton, a licensed clinical social worker with Eskenazi Hospital, whom Mother had sought out on her own, and Lauren Klotz, a home-based therapist referred by DCS. Melton began working with Mother in February 2023 and treated Mother for major depression and recurrent and adjustment disorder. By the July 13, 2023 hearing date, Mother had met with Melton between six and eight times, with the meetings occurring once or twice per month. Mother's treatment plan was based solely on self-reporting, and Melton had not reviewed any of Mother's previous mental health records.
[¶22] Also in February 2023, Mother began meeting weekly with Klotz. Klotz knew that Mother had been diagnosed with major depressive and adjustment disorders and had observed that Mother exhibited some traits of borderline personality disorder, including emotional dysregulation and abandonment. Klotz told the court that Mother had progressed toward meeting her goals, which included improving her emotional regulation, irrational thoughts, and conflict resolution.
[¶23] In May 2023, Sylvester Carr, Jr., began working with Mother, supervising her visits with the Children. Carr told the court that Mother "did really well with her parenting[.]" Tr. Vol. 3 at 154. Approximately two months later, Carr transitioned from supervising the visits to working as Mother's home-based case manager, after her previous home-based case manager left the case. In the beginning, Carr's working relationship with Mother was "rough." Id. at 156. She "fired" Carr twice, as she "perceived [him to be] in cahoots with DCS[.]" Id. at 156, 167. Eventually, Mother began to trust Carr and her "behavior became . . . a little bit more . . . manageable[,]" and Carr had not had "any more issues" with Mother. Id. at 156.
[¶24] Marcus Jackson was Mother's visitation supervisor from October 2022 until June 2023. Jackson observed that when Mother was not "thinking about [the P]lacement," the visits with the Children improved. Id. at 213. But when Mother was "overly concerned" with the Placement, Mother's visits "digress[ed]" and Mother would "snap" at the Children. Id. at 213, 214.
[¶25] CASA McGregor testified that she agreed with the permanency plan of adoption and that Mother's parental rights to the Children should be terminated, citing Mother's lack of stability regarding her housing, employment, and mental health issues. CASA McGregor further testified that, despite Mother having been compliant with "some" of her services, Mother had "unresolved issues" regarding her mental health. Id. at 116. She told the court that the Placement interacts with the Children appropriately, the Children have a "healthy, genuine relationship" with the Placement, and the Children should remain with the Placement. Id. at 113. FCMS Isham testified that termination of Mother's parental rights to the Children was in the Children's best interests, citing that the Children were "doing well" with the Placement, the Children needed permanency and stability, they had bonded with the Placement, and the Placement was meeting the Children's needs. Id. at 80.
[¶26] Mother attempted to introduce certain evidence during the termination hearings regarding the Placement and the Placement's care of the Children. DCS objected to that line of testimony on relevancy grounds, and the court sustained the objections. At the penultimate hearing held on July 13, 2023, Mother informed the court that she wanted to hire a new attorney. The court treated her request as a motion to continue the hearing and denied it. Mother's court-appointed counsel continued to represent her.
[¶27] On November 15, 2023, the trial court issued its order terminating the parentchild relationship between Mother and the Children. The trial court found that the Children had been removed from Mother for at least six months under a dispositional decree, there is a reasonable probability that the conditions that resulted in their removal or the reasons for placement outside Mother's home will not be remedied, continuation of the parent-child relationships poses a threat to the Children's well-being, termination of parental rights is in the Children's best interests, and there is a satisfactory plan for the Children's care and treatment, which is adoption. Mother now appeals. Additional facts will be provided as necessary.
Discussion and Decision
[¶28] We recognize that "a parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005)). "[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities." In re A.P., 882 N.E.2d 799, 805 (Ind.Ct.App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore "termination is intended as a last resort, available only when all other reasonable efforts have failed." Id.
[¶29] "We have long had a highly deferential standard of review in cases involving the termination of parental rights." In re C.A., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014).
In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)]. In evaluating whether the trial court's decision to terminate parental rights is clearly erroneous, we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted). In addition, we note that unchallenged findings of fact are accepted as true by this Court. In re S.S., 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind.Ct.App. 2015), trans. denied; T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind.Ct.App. 2012), trans. denied.
[¶30] A petition to terminate a parent-child relationship must allege, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the wellbeing of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services; (C) that termination is in the best interests of the child; and (D) that there is a satisfactory plan for the care and treatment of the child.Ind. Code § 31-35-2-4(b)(2). DCS must prove each element by "clear and convincing evidence." R.S., 56 N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the allegations in the petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
Our legislature made significant changes to Indiana Code Section 31-35-2-4 in 2024. DCS filed its petitions in 2022, under the prior version of the statute.
[¶31] On appeal, Mother challenges the sufficiency of the evidence DCS presented to satisfy Indiana Code Section 31-35-2-4(B)(i) and -(ii), -(C), and -(D). Mother also claims that the trial court abused its discretion by excluding certain evidence and violated her statutory and due process rights to counsel of her choice.
Section 1 - The trial court's conclusion that there is a reasonable probability of unchanged conditions is not clearly erroneous.
[¶32] Mother contends that DCS failed to prove that there is a reasonable probability that the conditions that resulted in the Children's removal and continued placement outside of her home will not be remedied. In determining whether such a probability is reasonable, we engage in a two-step analysis. K.T.K., 989 N.E.2d at 1231. First, "we must ascertain what conditions led to [the Children's] placement and retention in foster care." Id. Second, "we 'determine whether there is a reasonable probability that those conditions will not be remedied.'" Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)). In the second step, the trial court must judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions, and balancing a parent's recent improvements against "habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation." Id.
[¶33] "Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances, the problematic situation will not improve." In re A.H., 832 N.E.2d 563, 570 (Ind.Ct.App. 2005). In addition, a trial court may consider services offered by DCS and the parent's response to those services as evidence of whether conditions will be remedied. In re A.D.S., 987 N.E.2d 1150, 1157 (Ind.Ct.App. 2013), trans. denied. DCS "is not required to provide evidence ruling out all possibilities of change; rather, it need only establish 'that there is a reasonable probability that the parent's behavior will not change.'" Id. (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind.Ct.App. 2007)).
[¶34] Here, the trial court found that the conditions that led to the Children's removal from Mother's care were "housing instability and serious mental health concerns." Appealed Order at 12. The trial court found that Mother "has participated in mental health treatment off and on since before the Children were born [and] has repeatedly shown improvement, only to fall back into poor mental health and housing instability;" Mother continued to demonstrate "unstable mental health" and "symptoms of mental health disorder"; Mother "accosted FCMS Arnold [outside of the courtroom] after [the May 1, 2023] court hearing"; and Mother "frequently demonstrated an inability to follow directions during the [termination] hearings[.]" Id. The court also found that, although Mother worked with her service providers, her "engagement [was] based solely on self-reporting" and did not demonstrate that she was working to address the "root cause of her mental health issues"; and Mother "continue[d] to be overwhelmed by the Children during her parenting time and allow[ed] outside factors, such as her poor relationship with [the P]lacement, to affect her parenting." Id. The court further found that while Mother had obtained an apartment, she subleased it, contrary to the landlord's policy; thus, her "housing [could not] be called stable as she ha[d] no legal claim" to it. Id. Mother does not challenge these findings.
[¶35] While Mother is to be commended for the progress she has made in addressing her mental health issues and housing instability, the unchallenged findings amply support the trial court's conclusion that there is a reasonable probability that Mother's housing instability and mental health issues are unlikely to be remedied. Thus, the trial court's conclusion is not clearly erroneous.
Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Where, as here, DCS has met its burden as to remediation of conditions, pursuant to Indiana Code Section 31-35-2-4(b)(2)(B)(i), "we need not address whether the State has proven its allegations under section 31-35-2-4(b)(2)(B)(ii)." K.T.K., 989 N.E.2d at 1234 (citing In re W.B., 772 N.E.2d 522, 531 n.2 (Ind.Ct.App. 2002)). Accordingly, we do not address Mother's contention that she does not pose a threat to the Children's well-being.
Section 2 - The trial court's conclusion that termination is in the Children's best interests is not clearly erroneous.
[¶36] Mother also challenges the trial court's conclusion that termination of the parent-child relationship is in the Children's best interests. Mother specifically asserts that, in reaching its determination, the trial court relied solely on the testimony of the service providers and failed to "account for evidence of changed conditions" when the termination hearings were held. Appellant's Br. at 27.
[¶37] To determine whether termination is in a child's best interests, the trial court must look to the totality of the evidence. A.D.S., 987 N.E.2d at 1158. "[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification-and courts '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) (quoting K.T.K., 989 N.E.2d at 1235). Also, "[p]ermanency is a central consideration in determining the best interests of a child." In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). "[W]e have previously held that the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests." A.D.S., 987 N.E.2d at 1158-59.
[¶38] Here, CASA McGregor testified that she agreed that Mother's parental rights to the Children should be terminated, citing Mother's housing instability, inconsistent employment, and mental health issues. FCMS Isham testified that termination of Mother's parental rights to the Children was in the Children's best interests, citing that the Children were "doing well" with the Placement, the Children needed permanency and stability, they had bonded with the Placement, and the Placement was meeting the Children's needs. Tr. Vol. 3 at 80.
[¶39] The CASA's and FCMS's testimony in support of termination, combined with the clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children's removal from or reasons for placement outside Mother's home will not be remedied, is sufficient to support the trial court's conclusion that termination is in the Children's best interests. See A.D.S., 987 N.E.2d at 1158-59. Accordingly, the trial court did not clearly err in concluding that termination of Mother's parental rights is in the Children's best interests.
Section 3 - The trial court's conclusion that DCS has a satisfactory plan for the Children's care and treatment is not clearly erroneous.
[¶40] Mother challenges the trial court's conclusion that DCS has a satisfactory plan for the Children's care and treatment. FCMS Arnold testified that the permanency plan for the Children was adoption. Mother's challenge to the court's conclusion is based on her contention that the trial court precluded her from introducing evidence regarding the "unsuitability of the Children's pre-adoptive placement[.]" Appellant's Br. at 27. Mother argues that despite "repeatedly attempt[ing] to introduce evidence" that the Children were "experiencing unexplained injuries and untreated allergies" in the Placement's home, she was prevented from doing so because the trial court sustained DCS's objections to the evidence, based on relevancy. Id. at 28.
[¶41] On this issue, however, DCS is only required to establish that "there is a satisfactory plan for the care and treatment of the child" in termination proceedings. In re B.M., 913 N.E.2d 1283, 1287 (Ind.Ct.App. 2009) (citation omitted). And this Court has held that adoption is a "satisfactory plan" for the care and treatment of a child under the termination of parental rights statute. Id.
[¶42] In addition, it is within the authority of the adoption court, not the termination court, to determine whether an adoptive placement is appropriate. See In re D.J., 755 N.E.2d 679, 685 (Ind.Ct.App. 2001), trans. denied (2002). In D.J., we noted, in response to a mother's concerns about a foster family's adoption of her children following the termination of her rights, that "[i]f the foster family desires to adopt the children, the home will have to be approved as an appropriate and suitable environment for the children." Id.
[¶43] FCMS Arnold testified that even if the pre-adoptive home was found to be unsuitable, the permanency plan would remain adoption, and DCS would "just be tasked with finding another pre-adoptive home." Tr. Vol. 3 at 45. And we find that the trial court's rulings regarding the admission of evidence of the Children's care in Placement's home do not render DCS's plan for adoption unsatisfactory. Accordingly, Mother has not established any clear error in the trial court's conclusion that DCS had a satisfactory plan of care for the Children.
Section 4 - The trial court did not abuse its discretion when it sustained DCS's objections to Mother's evidence regarding the Placement's character, actions, and alleged antagonism toward Mother.
[¶44] Mother attempted to introduce evidence at the termination hearings, through testimony and exhibits, regarding the Placement's character, actions, and alleged antagonism toward Mother to explain Mother's actions toward the Placement. Mother contends that by sustaining DCS's objections to her evidence on relevancy grounds, the trial court "improperly stymied Mother when she attempted to tell her side of the story." Appellant's Br. at 29. Mother asks us to remand this matter so that she can "properly introduce relevant evidence." Id.
[¶45] The admission of evidence is entrusted to the sound discretion of the trial court. K.L. v. E.H., 6 N.E.3d 1021, 1030 (Ind.Ct.App. 2014). Accordingly, evidentiary rulings of a trial court are afforded great deference on appeal and are overturned only for a showing of an abuse of discretion. In re S.L.H.S., 885 N.E.2d 603, 614 (Ind.Ct.App. 2008). "We will find an abuse of discretion if the trial court's decision is against the logic and the effect of the facts and circumstances before the court." Id. If a trial court abuses its discretion in making an evidentiary ruling, we will reverse only if the trial court's error is inconsistent with substantial justice or if a substantial right of the party is affected. K.L., 6 N.E.3d at 1030; see Ind. Evidence Rule 103(a) (error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected).
[¶46] Relevant evidence is defined as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action." Ind. Evidence Rule 401. We agree with the trial court that the evidence that Mother was attempting to introduce regarding the Placement was irrelevant to the trial court's consideration of whether there was a reasonable probability that the conditions leading to the Children's removal from and continued placement outside Mother's care will not be remedied and whether termination of Mother's parental rights is in the Children's best interests. And Mother has not established that the trial court's decision to sustain DCS's objections to Mother's attempts to introduce the challenged evidence was against the logic and effect of the facts and circumstances before the court. Therefore, the trial court did not abuse its discretion when it sustained DCS's objections to Mother's evidence regarding the Placement's character, actions, and alleged antagonism toward Mother. Even assuming that the trial court improperly excluded any evidence, such error was harmless, as there is nothing in the record to suggest that Mother's substantial rights were adversely affected. There was ample evidence supporting the trial court's judgment terminating Mother's parental rights. Thus, Mother has not demonstrated grounds for reversal on this issue.
Section 5 - The trial court did not violate Mother's statutory or due process right to counsel of her choice.
[¶47] On the penultimate day of the termination hearings, Mother informed the court that she wanted to hire a new attorney. The court treated her request as a motion to continue the hearing and denied it. Mother contends that the trial court "violated [her] statutory and due process rights when it denied [her] ability to retain counsel of her choice" and effectively denied her the right to counsel during the proceedings. Appellant's Br. at 30. We disagree.
[¶48] In an action seeking to involuntarily terminate a parent's right to their children, the parent is entitled "(1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent[.]" Ind. Code § 31-32-2-3(b). Pursuant to Indiana Code Section 31-32-2-5, a "parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship." Here, the trial court appointed counsel to represent Mother. Counsel represented Mother throughout the termination proceedings, cross-examined witnesses, made objections, and introduced evidence on Mother's behalf. Mother's statutory right to counsel was not violated.
[¶49] Due process safeguards preclude "state action that deprives a person of life, liberty, or property without a fair proceeding." In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (internal quotation marks and citations omitted). "'It is unequivocal that the termination of a parent-child relationship by the State constitutes the deprivation of an important interest warranting deference and protection, and therefore when the State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process.'" In re J.K., 30 N.E.3d 695, 699 (Ind. 2015) (quoting In re G.P., 4 N.E.3d at 1165). Due process has never been defined, but the phrase embodies a requirement of fundamental fairness. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). The United States Supreme Court has written that "[t]he 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. 319, 333 (1976) (internal quotation marks and citation omitted).
[¶50] The process due in a termination of parental rights proceeding turns on the balancing of three factors from Mathews: (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. In re D.H., 119 N.E.3d 578, 588 (Ind.Ct.App. 2019), trans. denied. The private interest affected by the proceeding, a parent's interest in the care, custody, and control of his or her child, is substantial. Id. The State's interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions. Id. "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.'" C.G., 954 N.E.2d at 917 (quoting Mathews, 424 U.S. at 334).
[¶51] On the fourth day of the termination hearings, four months after the start of the hearings, Mother informed the court that she wanted to hire a new attorney. The trial court treated Mother's request as a motion to continue the hearing and denied it, stating, "[W]hat you're asking me for is a continuance so you can hire an attorney. I am denying that request. Request is denied." Tr. Vol. 3 at 104. However, the court did not preclude Mother from hiring a new attorney. The court told her that any new counsel she secured could enter an appearance in the case and file any motions he or she sought fit to file. The court emphasized, however, that "[w]e are in the middle of a trial. I am not granting your motion for a continuance." Id. at 107.
[¶52] Mother waited until after the court had heard a substantial portion of her case before expressing a desire to hire new counsel. Mother does not describe how the outcome of the proceedings might have been different had she been granted time to find new counsel. Indeed, she told the court that she was "in the process" of securing new counsel and was "looking into" hiring an attorney from Anderson or an attorney who had previously represented her. Id. at 103. This Court has recognized that delays in the adjudication of a case "impose significant costs upon the functions of government as well as an intangible cost to the lives of the children involved." In re B.J., 879 N.E.2d 7, 17 (Ind.Ct.App. 2008) (quotation marks and citation omitted), trans. denied. In balancing Mother's fundamental interest against the State's own compelling interest and given the minimal risk of error from the court's decision to proceed with Mother's case, the trial court did not violate Mother's due process right to counsel by denying her a continuance so that she could hire new counsel. See id. Based on the foregoing, we affirm the trial court's termination order.
[¶53] Affirmed.
Bradford, J., and Tavitas, J., concur.