Opinion
24A-JC-446
09-06-2024
In the Matter of: B.M. (Minor Child), Child in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner and K.M., (Mother), Appellant-Respondent
Attorney for Appellant Ryan D. Bower Salem, Indiana Attorneys for Appellee Theodore E. Rokita Indiana Attorney General David E. Corey Supervising 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Washington Circuit Court The Honorable Larry W. Medlock, Judge Trial Court Cause No. 88C01-2306-JC-100
Attorney for Appellant Ryan D. Bower Salem, Indiana
Attorneys for Appellee Theodore E. Rokita Indiana Attorney General
David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] K.M. (Mother) appeals the trial court's order denying her motion for relief from judgment and the order adjudicating her minor daughter, B.M., a Child in Need of Services (CHINS). Mother argues that the trial court erred in denying her motion because Ind. Code § 31-34-21-5.6(b)(4) (the No Reasonable Efforts Statute) makes no accommodations for parents with disabilities in CHINS proceedings. Thus, Mother claims that the No Reasonable Efforts Statute violates her due process rights and her rights under the privileges and immunities provision of the Indiana Constitution. Mother further contends that DCS representatives are estopped from denying the alleged promises they made to her about the availability of services to facilitate reunification with B.M., and that the CHINS adjudication is clearly erroneous.
Generally, once a child has been adjudicated a CHINS, the Indiana Department of Child Services (DCS) must "make reasonable efforts to preserve and reunify families . . . to make it possible for the child to return safely to the child's home as soon as possible." I.C. § 31-34-21-5.5(b)(2). The No Reasonable Efforts Statute provides, however, that such efforts are not required if, among other things, "the parental rights of a parent with respect to a biological or adoptive sibling of the child have been involuntarily terminated by a court." I.C. § 31-34-21-5.6(b)(4).
Ind. Const art. 1, § 12 provides that "[a]ll courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay."
Ind. Const. art. 1, § 23 provides that "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."
[¶2] We affirm.
Facts and Procedural History
[¶3] B.M. was born on June 16, 2023. The following day, DCS received notice of B.M.'s birth, along with a report stating that Mother had a history of substance abuse and that there were other CHINS and termination of parental rights cases involving Mother's other children. B.M. was removed from Mother and placed in foster care.
B.M.'s father's identity and whereabouts are unknown.
[¶4] On June 19, 2023, DCS petitioned the trial court to adjudicate B.M. a CHINS, alleging that B.M.'s physical or mental condition was endangered because of Mother's inability, refusal, or neglect to supply B.M. with necessary food, clothing, shelter, medical care, and supervision. See Ind. Code § 31-34-1-1. DCS cited Mother's pending criminal charges along with her prior criminal offenses, and the CHINS and termination of parental rights cases involving Mother's other two children, in support of the petition.
[¶5] On July 10, 2023, Officer Izabella Foster of the Salem Police Department responded to a report that Mother had just been released from St. Vincent Hospital and was "in someone's yard [and] kind of talking out of her head." Transcript at 21. When Officer Foster arrived at the described location, she believed that Mother was under the influence of an illegal substance. Mother failed field sobriety tests, promised Officer Foster that she would not drive, and stated that she was going to walk to a nearby store to buy cigarettes. Shortly after Officer Foster left the area, she received a dispatch that Mother was harassing and threatening employees at a nearby Dollar General store. Officer Foster investigated and arrested Mother for intimidation.
[¶6] Mother pled guilty to that offense on August 10, 2023. Probation officer Carrie Nice conducted Mother's pre-trial risk assessment. But Nice was unable to complete that task because Mother refused to answer her questions. The next day, Mother filed a motion to dismiss the CHINS petition. The trial court denied the motion and conducted a factfinding hearing.
[¶7] At the hearing, Family Case Manager (FCM) Kristina Traughber testified that she became involved with Mother and B.M. after receiving the initial report from DCS. FCM Traughber explained that after B.M. was placed in foster care, Mother refused to submit to drug screens, declined to communicate with DCS representatives, and never visited B.M. Mother provided FCM Traughber with several addresses and told her that she was unemployed and lived in her car. FCM Traughber testified that she was concerned about Mother's continued drug use, mental health issues, and general instability. FCM Traughber also noted Mother's prior convictions for public intoxication, neglect of a dependent, and invasion of privacy. FCM Traughber did not believe that Mother could be a safe and sober caregiver for B.M.
[¶8] Deputy Devon Hopkins of the Washington County Sheriff's Department testified that he stopped Mother's vehicle in February 2023 for swerving and expired tags. Mother failed field sobriety tests and tested positive for methamphetamine and cannabinoids. As a result of that incident, Mother was charged with operating a vehicle with a schedule I or II controlled substance and operating a vehicle while intoxicated with a prior conviction within seven years.
[¶9] FCM Cameron Winkler testified that Mother's two other children, M.M. and K.D., were involved in CHINS cases because of Mother's ongoing issues with substance abuse, mental health issues, and general instability. The first case was initiated in 2019, and the second one commenced in 2021. FCM Winkler testified that Mother participated only sporadically in DCS-offered services and made no progress in addressing her substance abuse and mental health issues. FCM Winkler also acknowledged that Mother tested positive for various illegal substances throughout her involvement with DCS, remained unemployed, and never obtained suitable housing. FCM Winkler further testified that Mother's parental rights were subsequently involuntarily terminated as to K.D., that Mother had been incarcerated and convicted of battery, and that Mother had executed a consent for the adoption of M.M.
[¶10] Following the hearing, the trial court adjudicated B.M. a CHINS and issued extensive findings of fact and conclusions of law on September 1, 2023. Six days later, DCS filed a dispositional report and made recommendations for Mother's participation in services and counseling programs. DCS, however, also requested the trial court to find that no reasonable efforts for reunification were required because of Mother's previous involuntary termination of parental rights as to K.D.
[¶11] The trial court ordered Mother to undergo an assessment for mental health and substance abuse at Wellstone Mental Health Clinic (Wellstone). The assessment at Wellstone indicated that Mother has a major depressive disorder and recommended inpatient treatment.
[¶12] At a dispositional hearing on September 26, 2023, the evidence showed that Mother had not participated in any visitations with B.M. FCM Traughber testified that she prepared the dispositional report and identified some services in which Mother could potentially participate. FCM Traughber confirmed DCS's initial request, however, that the trial court relieve DCS of making further reunification efforts. FCM Traughber also testified that Mother suffered from PTSD, major depressive episodes, and stimulant use disorders. FCM Traughber explained that Mother's participation in DCS services was "very infrequent." Transcript at 90.
[¶13] On October 9, 2023, the trial court denied Mother's request for services and visitation and determined that DCS was not required to make reunification efforts. In arriving at that result, the trial court took judicial notice of Mother's "criminal history, prior CHINS, termination cases, the fact that she has no home for herself or her child, no employment, continues to abuse drugs, neglects her mental health and is currently incarcerated." Appellant's Appendix Vol. II at 7. The trial court then approved a plan of adoption for B.M.
[¶14] On December 28, 2023, Mother filed a combined motion for relief from judgment/modification of the permanency plan to include accommodations for her under the Americans with Disabilities Act (ADA). The motion alleged that
6. The petitioner's disabilities necessitate reasonable accommodations to enable her engagement with services and facilitate her meaningful participation in the reunification process, aligning with the spirit and letter of the law.
11. Further, Mother asks that in recognition of the petitioner's proactive engagement in her own rehabilitation, it is requested that DCS support and recognize the programs and treatments the petitioner is pursuing (and intends to pursue in the future) within the Indiana Department of Corrections. These services shall be instrumental in her rehabilitation journey and pivotal in ensuring that her mental health improves so that she can provide a stable and suitable environment for her child upon reunification.Id. at 93-94.
[¶15] Following a hearing, the trial court denied Mother's motion and entered the following order on January 26, 2024:
That the Court issued a fact-finding order on the 1st day of September 2023 and found that [DCS] had met their burden of proof. In part, the Court found that [Mother] is a significant danger to [B.M.], has concerns with continued illegal drug use, mental health issues, and her instability in housing and employment. [Mother] has a history of failing to participate in services for treatment, submit to drugs screens to show sobriety, or even speak to [DCS]. Wherefore, [B.M.] was found to be a [CHINS].
The Court issued a dispositional order on the 9th day of October 2023 which found the [DCS] is relieved of making reasonable efforts to reunite [B.M.] with [Mother] and that they may proceed to seek permanency for [B.M.].
The Court further finds that [Mother] is currently incarcerated at Rockville Correctional Facility. That [B.M.] is entitled to permanency and stability and the Court finds that further efforts to provide services to [Mother] for possible reunification is futile and a waste of resources.Id. at 12 (emphases added).
[¶16] Mother appeals the denial of her motion for relief from judgment/motion to modify the permanency plan and the CHINS adjudication.
Discussion and Decision
I. Relief From Judgment
A. Constitutional claims
[¶17] Mother maintains that the trial court abused its discretion in denying her motion for relief from judgment because her mental health limitations in pursuing family reunification were not considered and that ADA accommodations should have been made. For this reason, Mother argues that the No Reasonable Efforts Statute violates her right to due process and her rights under the Privileges and Immunities provision of the Indiana Constitution. Appellant's Brief at 10.
[¶18] Ind. Trial Rule 60(B) provides in pertinent part that
(B) On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for
(8) any reason justifying relief from the operation of the judgment ....
[¶19] While Mother does not set forth the precise basis for her motion for relief from judgment, we note that the moving party bears the burden to establish the ground for relief under T.R. 60(B). In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind. 2010). We review the trial court's ruling on a motion for relief from judgment under an abuse of discretion standard. Speedway SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008). This court will not find an abuse of discretion unless the trial court's decision is clearly against the logic and effect of the facts and circumstances before it or is contrary to law. In re Marriage of K.Z. & M.H., 961 N.E.2d 1023, 1025 (Ind.Ct.App. 2012).
[¶20] Here, Mother attacks the constitutionality of the No Reasonable Efforts Statute, which provides that reunification efforts are not required if "the parental rights of a parent with respect to a biological or adoptive sibling of the child have been involuntarily terminated by a court." I.C. § 31-34-21-5.6(b)(4). Mother, however, failed to raise those constitutional claims below. A party's failure to raise an issue on appeal is generally waived if it is not raised in the trial court, "even those of constitutional dimension." Stephens v. Hart, 198 N.E.3d 376, 383 (Ind.Ct.App. 2022), trans. denied. We also note that Mother failed to present a cogent argument on appeal to support her contention that the No Reasonable Efforts Statute violates the Privileges and Immunities provision under art. 1, § 23. The failure to present a cogent argument waives the issue for appellate review. See Ind. Appellate Rule 46(A)(8); see also Matter of N.E., 228 N.E.3d 457, 473 (Ind.Ct.App. 2024). For these reasons, Mother's unpreserved constitutional claims are waived. See Stephens, 198 N.E.3d at 383.
Waiver notwithstanding, the No Reasonable Efforts Statute has been deemed constitutional under both the United States and Indiana Constitutions. See Matter of S.G. v. Ind. Dep't of Child Servs., 67 N.E.3d 1138, 114547 (Ind.Ct.App. 2017); G.B. v. Dearborn Cnty. Div. of Family and Children, 754 N.E.2d 1027, 1032-33 (Ind.Ct.App. 2001), trans. denied.
B. Estoppel Claim
[¶21] Mother also claims that her motion should have been granted because "equity and estoppel" require DCS representatives to "deliver services to her" in light of the assurances made to her regarding the programs that were available. Appellant's Brief at 18. As with the constitutional challenges that Mother advanced under the No Reasonable Efforts Statute, she failed to raise her estoppel claim at the trial court level. Thus, the issue is waived. See Stephens, 198 N.E.3d at 383.
[¶22] Waiver notwithstanding, the doctrine of equitable estoppel "is available if one party, through its representations or course of conduct, knowingly misleads or induces another party to believe and act upon his conduct in good faith and without knowledge of the facts." Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind.Ct.App. 1998), trans. denied. While governmental entities are generally immune from equitable estoppel claims, such challenges may proceed if "the party asserting estoppel has detrimentally relied on the governmental entity's affirmative assertion or on its silence where there was a duty to speak." Equicor Dev., Inc., v. Westfield-Washington Twp. Plan Comm'n, 758 N.E.2d 34, 39 (Ind. 2001).
[¶23] In support of her estoppel claim, Mother directs us to FCM Traughber's testimony on cross-examination at the dispositional hearing:
[MOTHER'S COUNSEL]: And you are saying, you don't want to give any services, you don't want the Judge to order any services despite the fact that you know with her history, she has mental illness, she has mental limitations?
MS. TRAUGHBER: Correct, I am not opposed to [Mother] receiving services, I genuinely hope she does, I hope she gets the help, I just don't want to put [Child] in a place where her safety is compromised while it's happening.Transcript at 103 (emphasis added).
[¶24] Contrary to Mother's contention, FCM Traughber made no representation through her testimony that DCS would provide Mother with services. In fact, FCM Traughber confirmed DCS's initial request that the trial court relieve DCS from "making efforts toward reunification" in light of the evidence that was presented at the factfinding hearing and the involuntary termination of Mother's parental rights as to K.D. Id. at 97-98, 102-03.
[¶25] Nothing about FCM Traughber's testimony suggests that DCS took a contrary position at the factfinding and dispositional hearings regarding a provision for future reunification efforts. Thus, Mother has failed to show how FCM Traughber's testimony induced her to detrimentally rely on any alleged statements that DCS representatives communicated to her.
II. CHINS Adjudication-Clearly Erroneous
[¶26] Mother argues that the CHINS adjudication is clearly erroneous and must be set aside. Specifically, Mother maintains that the trial court's findings do not support the conclusion that B.M.'s physical or mental condition was seriously impaired or endangered by Mother's behavior.
[¶27] In reviewing the trial court's CHINS determination, we neither reweigh the evidence nor judge witness credibility. In re S.D., 2 N.E.3d 1283, 1286 (Ind. 2014). Rather, we consider only the evidence that supports the trial court's decision and the reasonable inferences to be drawn from that evidence. Id. at 1287. In addition, where-as here-the trial court has entered findings of fact and conclusions of law, we exercise a two-tiered review. Matter of K.P.G., 99 N.E.3d 677, 681 (Ind.Ct.App. 2018), trans. denied. First, we consider whether the evidence supports the findings, and second, we determine whether the findings support the judgment. Id. We will reverse a CHINS adjudication only if it is clearly erroneous and a review of the record leaves us firmly convinced that a mistake was made. Matter of Eq.W., 124 N.E.3d 1201, 1208 (Ind. 2019).
[¶28] Here, the trial court adjudicated B.M. a CHINS under I.C. § 31-34-1-1, which "requires three basic elements: that the parent's actions or inactions have seriously endangered the child, that the child's needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion." In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). DCS must prove these allegations by a preponderance of the evidence. In re N.E., 919 N.E.2d 102, 105 (Ind. 2010) (citing I.C. § 31-34-12-3). Although not every endangered child is a CHINS that will permit the State's parens patriae intrusion into the ordinarily private sphere of the family, a court need not wait until a tragedy occurs to intervene. In re C.K., 70 N.E.3d 359, 364 (Ind.Ct.App. 2016), trans. denied. Rather, a child is a CHINS when she is endangered by parental action or inaction. Id. The trial court "should consider the family's condition not just when the case was filed, but also when it is heard." In re S.D., 2 N.E.3d at 1290.
[¶29] As Mother does not contend that any of the trial court's findings of facts are clearly erroneous or otherwise unsupported by the evidence, we accept the unchallenged findings of fact as correct. Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992). We thus proceed to determine whether the unchallenged findings are sufficient to support the judgment. See In re A.M., 121 N.E.3d 556, 562 (Ind.Ct.App. 2019), trans. denied.
[¶30] The evidence at the CHINS factfinding hearing demonstrated that DCS's involvement with Mother began in August 2017, when she admitted that K.D. was a CHINS because of Mother's mental health issues and ongoing substance abuse. And Mother's other child, M.M., was ultimately adjudicated a CHINS in August 2021 because Mother's substance abuse impaired her ability to care for him.
[¶31] FCM Winkler, who managed the CHINS cases for K.D. and M.M., testified that Mother only sporadically participated in DCS services. Mother consistently failed drug screens and tested positive for methamphetamine and THC. As Mother failed to resolve her substance abuse and mental health issues, FCM Winkler explained that Mother's parental rights as to K.D. were involuntarily terminated. Mother later voluntarily terminated her parental rights as to M.M. and executed a consent for adoption.
[¶32] The evidence further showed that prior to B.M.'s birth, Mother tested positive for methamphetamine and marijuana, following a traffic stop in February 2023. Mother gave birth to B.M. in June 2023, and DCS removed B.M. because of Mother's lengthy history with DCS, pending criminal charges, mental health issues, and ongoing drug abuse.
[¶33] Shortly after B.M. was born, Officer Foster observed Mother "in someone's front yard, sitting in the grass, kind of talking out of her head." Transcript at 21. Mother was living in her vehicle and was ultimately convicted of intimidation for threatening grocery store employees. Nice-Mother's probation officer- testified that she could not prevent Mother from abusing drugs and was not able to complete an initial assessment because Mother refused to answer her questions.
[¶34] Mother's history with DCS, her ongoing mental health and substance abuse issues, and her criminal history, established Mother's inability to be a sober caregiver for B.M. These factors, along with Mother's lack of cooperation with DCS, the fact that she remained unemployed, and her inability to obtain stable housing, endangered B.M.'s physical or mental well-being. And Mother failed to demonstrate that her actions or situation had changed after DCS became involved with B.M.
[¶35] Mother further claims that the CHINS order must be set aside because the trial court failed to make findings of "imminent danger of injury" and "actual harm" to B.M. Appellant's Brief at 24-25. The trial court, however, was not required to do so. See In re C.K., 70 N.E.3d at 364. It was only necessary for DCS to establish that B.M.'s physical or mental condition was seriously impaired or endangered because of Mother's "inability, refusal, or neglect" to supply B.M. "with necessary food, clothing, shelter, medical care, education, or supervision[.]" I.C. § 31-34-1-1. As discussed above, the evidence presented at the CHINS hearing satisfied these requirements.
[¶36] In sum, Mother's arguments that the trial court erred in adjudicating B.M. a CHINS amounts to an impermissible request for us to reweigh the evidence. See In re S.D., 2 N.E.3d at 1286. Thus, we conclude that the CHINS order was not clearly erroneous.
[¶37] Judgment affirmed.
Bailey, J. and Mathias, J., concur.