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M.W. v. Ind. Dep't of Child Servs.

Court of Appeals of Indiana
Oct 2, 2024
No. 24A-JT-489 (Ind. App. Oct. 2, 2024)

Opinion

24A-JT-489

10-02-2024

In the Termination of the Parent-Child Relationship of: M.W., Jr., (Minor Child), and M.B. (Mother) and M.W. (Father), Appellants-Respondents v. Indiana Department of Child Services, Appellee-Petitioner

ATTORNEY FOR APPELLANT FATHER Cara Schaefer Wieneke Wieneke Law Office, LLC ATTORNEY FOR APPELLANT MOTHER Amanda O. Blackketter Blackketter Law, LLC ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana David E. Corey Supervising Deputy Attorney General


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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-2308-JT-23

ATTORNEY FOR APPELLANT FATHER Cara Schaefer Wieneke Wieneke Law Office, LLC

ATTORNEY FOR APPELLANT MOTHER Amanda O. Blackketter Blackketter Law, LLC

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana David E. Corey Supervising Deputy Attorney General

Judges Mathias and Kenworthy concur

MEMORANDUM DECISION

Brown, Judge.

[¶1] M.B. ("Mother") and M.W. ("Father") (together, "Parents") each appeal the involuntary termination of their parental rights to their minor child M.W., Jr. ("Child"). We affirm.

Facts and Procedural History

[¶2] Parents had been married for six years when Child was born in August 2021. Mother is an alcoholic and Father spent most of the marriage in prison. Father has an extensive criminal history, is registered in Indiana as a sexually violent predator, and approximately one month prior to Child's birth, he was arrested and charged with domestic battery. Mother, who was eight months pregnant at the time, was the victim. Shortly after he was charged, Father violated the nocontact order issued as part of the domestic battery case, was charged with invasion of privacy, and was incarcerated in the Shelby County Jail. Also, shortly before Child's birth, Mother was charged with possession of methamphetamine as a level 6 felony. Two days after Child's birth, the Department of Child Services ("DCS") filed a petition alleging Child was a child in need of services ("CHINS") due to being born positive for illegal drugs, Mother testing positive for methamphetamine when admitted to the hospital to give birth to Child, both Parents' criminal activities, and domestic violence in the home. Child was detained in the hospital and placed in the care and custody of DCS.

[¶3] On November 3, 2021, the trial court adjudicated Child a CHINS as to Mother based upon her stipulation, and the parties filed an agreed dispositional order. By this time, Mother had already completed an inpatient drug rehabilitation treatment program, and the court ordered that Child would be returned to her care. Pursuant to the dispositional order, Mother was required to: submit to random drug screens; not move from the family friend's home where she was residing without approval by DCS; continue with outpatient treatment; ensure that her medical and mental health needs were being addressed with DCS assistance; comply with homebased case management; communicate weekly with her family case manager; participate in a batterer's intervention program for victims; and comply with Child's visitation with Father while he was incarcerated.

[¶4] On November 10, 2021, the court held a hearing at which it adjudicated Child a CHINS as to Father based upon his stipulation, and the parties filed an agreed dispositional order which, for unknown reasons, was not entered until June 27, 2022. The agreed order provided that Father was incarcerated, that DCS would assist with visitation services during his incarceration, and that the court would order additional services upon his release.

[¶5] After Child had been placed with Mother for only two months, Child was removed from her care following a detention hearing held on January 13, 2022.

The court found that Mother and Child had moved into a motel with Father, who had recently been released from incarceration, in violation of the court's dispositional order and in violation of a protective order prohibiting contact between Father and Mother. The court ordered that Child be placed in kinship placement and that Mother was authorized to also live in the kinship home and continue to be the caregiver for Child.

[¶6] The court held review hearings on January 31 and April 25, 2022. The court found that Parents had "partially complied" with Child's case plan and that they were "back together." Exhibits Volume I at 173. However, the court concluded that the "cause of [Child's] out of home placement" had not been alleviated and that Parents had "not completed services to alleviate the high risk level or concerns at this time." Id. at 174. The court ordered Parents to participate in multiple services including supervised visitation, substance abuse assessments, and domestic violence education/assessment services.

[¶7] A month following the April review hearing, Child's kinship placement requested that Child be removed. Child was then placed in foster care. Parents reported that they were no longer together and needed separate supervised visitation. Father attended a few visits with Child, but the referral was canceled after Father made alarming comments to his visit supervisor about "killing people" and being the "Angel of Death." Id. at 180. Mother attended one supervised visit with Child and then informed DCS that she was unable to attend a second visit and also that she intended to go to an inpatient rehabilitation center. She later reported that she "had an altercation with her ride to rehab and was not able to go." Id. at 181.

[¶8] Thereafter, Mother failed to complete any services offered by DCS. In late June 2022, the State charged Mother with two counts of battery against a public safety official as level 6 felonies, resisting law enforcement as a class A misdemeanor, and public intoxication as a class B misdemeanor. Mother received an executed sentence on those charges, as well as on her prior charge of possession of methamphetamine, and she was incarcerated.

[¶9] The court held permanency hearings on January 23 and April 27, 2023. The court noted that Father had only "sporadically" participated in ordered services, his new home was infested with cockroaches preventing providers from meeting with him and visitation occurring there, and he had not been able to "maintain emotional regulation or stable employment." Id. at 222. Mother remained incarcerated at that time. The court changed Child's permanency plan to include a concurrent plan of reunification and adoption.

The record reveals that at some point after January 2023, Father moved in with and married B.H., with whom he had an "abus[ive]" relationship in terms of "physical, sexual, emotional, financial, and digital" issues. Transcript Volume I at 135. He lived in a cockroach "infested" home with B.H., her children, her mother, and "a dog, two cats, two kittens, four snakes, and several mice to feed the snakes." Appellants' Joint Appendix Volume II at 78.

[¶10] On August 1, 2023, DCS filed a petition for the involuntary termination of the parent-child relationship between Parents and Child, and an amended petition two weeks later. The court held another permanency hearing on October 16, 2023. The court noted that, upon Mother's release from incarceration in June 2023, she entered a sober-living residential program at Grace House but left the program well before completion without notifying DCS. The court further noted that Mother was not compliant with ordered services and, out of thirty-three scheduled visits with Child, Mother attended only five. DCS family case manager, Amanda Grossi ("FCM Grossi"), was unable to locate Mother for approximately thirty days after she left Grace House and several services were closed out due to Mother's cancellations and noncompliance. As for Father, he had attended only six out of twenty visits with Child and several of his services were placed on hold due to his lack of compliance and progress.

[¶11] The court held a termination fact-finding hearing on October 23 and December 28, 2023. Mother tested positive for THC and hydrocodone on October 31, 2023. Father, although requesting the continuance of the fact-finding hearing to December 28, failed to appear for this second part of the hearing because he was incarcerated in Hancock County after being arrested and charged with domestic battery on a person less than fourteen years of age as a level 6 felony, and being an habitual offender.

Father's stepson was the alleged victim of this crime. The trial court took judicial notice of the pending charges.

[¶12] DCS presented the testimony of multiple services providers including FCM Rossi and Court Appointed Special Advocate Brooke Huffman ("CASA Huffman"). On January 29, 2024, the court entered a detailed eighteen-page order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Parents' care would not be remedied; there was a reasonable probability that continuation of the parent-child relationship posed a threat to the well-being of Child; termination of Parents' parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.

Discussion

I.

[¶13] Mother challenges the sufficiency of the evidence to support the trial court's termination of her parental rights. Specifically, she argues that DCS "failed to present clear and convincing evidence of a reasonable probability that [she] would fail to remedy the conditions that led to removal" and that "termination is in Child's best interests." Appellant Mother's Brief at 16, 19.

[¶14] At the time of the petitions and the trial court's order, Ind. Code § 31-35-2-4(b)(2) required DCS to allege and prove, 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.
(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)). If the court finds that the allegations in a petition described in Ind. Code § 31-352-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[¶15] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id. "Because a case that seems close on a 'dry record' may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence." Id. at 640.

[¶16] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. at 642-643. First, we identify the conditions that led to removal, and second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. In the second step, the trial court must judge a parent's fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions, balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. Id. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of future behavior. Id. The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). A court may consider evidence of a parent's prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parent's response to those services. Id. 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. Id. To the extent Mother does not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.

[¶17] The record reveals that Child was removed from Mother's care in August 2021, shortly after he was born drug positive, and he was returned to her care in November 2021, after she completed inpatient drug rehabilitation treatment and filed an agreed dispositional order with the court. Pursuant to the order, Child's return to Mother's care was conditioned upon her remaining in the home where she resided at that time. The court ordered Child again removed from Mother's care in January 2022 after it was discovered that Mother had moved into a motel with Child and Father in violation of the court order. Thereafter, Mother was largely noncompliant with services and, in October 2022, she was sentenced to serve executed terms in the Department of Correction for level 6 felony battery against a public safety official, multiple misdemeanor convictions, and a prior conviction for possession of methamphetamine.

[¶18] Upon her release from incarceration in June 2023, Mother went to a sober-living program at Grace House. Rather than participate in the services offered, she left the program after approximately one month without notifying staff of her departure. Mother failed to consistently visit with Child after her release, and her referral for homebased casework was closed out due to her noncompliance. Mother tested positive for THC and hydrocodone shortly after the first day of the termination proceedings, and the record further revealed that Mother was unemployed and lacked adequate housing. Mother's suggestion that she "had made substantial progress in remedying the conditions that led to removal" at the time of the termination hearing is unsupported by the record. Appellant Mother's Brief at 18. Clear and convincing evidence supports the trial court's finding that a reasonable probability exists that the conditions resulting in Child's removal and the reasons for placement outside Mother's care will not be remedied.

Although Mother also challenges the trial court's finding that continuation of the parent-child relationship posed a threat to Child's well-being, we need not address that argument as the involuntary termination statute is written in the disjunctive and requires proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).

[¶19] In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. &Child., 798 N.E.2d 185, 203 (Ind.Ct.App. 2003). The court must subordinate the interests of the parent to those of the children. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a 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 children's best interests. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind.Ct.App. 2013), trans. denied. "A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests." Castro v. State Off. of Fam. &Child., 842 N.E.2d 367, 374 (Ind.Ct.App. 2006), trans. denied.

[¶20] CASA Huffman testified that, based upon her investigation, she believed "that termination of parental rights is in [Child's] best interest[.]" Transcript Volume II at 108. She stated that she did not believe that Mother's "ability to parent has increased from . . . the beginning. We've continued to have instability with housing, employment . . . a recent positive drug screen." Id. at 107. She further noted that since Mother's release "from jail, she's continued to have minimal visits and really does not have that bond with [Child]." Id. Similarly, FCM Grossi noted that the conditions that led to Child's removal from Mother's care had not "been resolved" by Mother, and that Mother had been noncompliant with reunification services and continued to have inadequate housing for Child as of the date of the termination hearing. Id. at 136. Based on the totality of the evidence, we conclude the trial court's determination that termination of Mother's parental rights is in Child's best interests is supported by clear and convincing evidence.

II.

[¶21] Both Parents allege that their substantive due process rights were violated. Specifically, for the first time on appeal Mother argues that her due process rights were violated because DCS failed "to make reasonable efforts to reunify the family unit" which "amounted to fundamental error." Appellant Mother's Brief at 10. Father concedes that he raises his due process argument for the first time on appeal but argues "fundamental error occurred when [his] substantive due process right to raise his child was violated" due to DCS's failure to "make reasonable efforts to reunify Father with Child." Appellant Father's Brief at 12. DCS responds that each parent has waived their due process challenge and further that the record does not indicate that fundamental error occurred.

[¶22] When a parent makes a due process claim based on irregularities in the CHINS proceeding for the first time on appeal of a termination order, we may consider the claim waived. See In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (declining to consider mother's claimed violation of due process rights and noting "a party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal"). However, both Mother and Father request appellate review pursuant to the fundamental error doctrine. See N.C. v. Ind. Dep't of Child Servs., 56 N.E.3d 65, 69 (Ind.Ct.App. 2015) (ruling that parent waived issue raised for the first time on appeal but addressing issue on the merits due to claim of fundamental error).

Fundamental error review is an extremely narrow exception to the waiver doctrine "and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible." Matter of Eq.W., 124 N.E.3d 1201, 1214-15 (Ind. 2019) (quotation omitted).

[¶23] When the State seeks to terminate parental rights, 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). "[F]or a parent's due process rights to be protected in the context of termination proceedings, DCS must have made reasonable efforts to preserve and/or reunify the family unit in the CHINS case[.]" In re T.W., 135 N.E.3d 607, 615 (Ind.Ct.App. 2019), trans. denied; see also Ind. Code § 31-34-21-5.5 (stating DCS is generally required to make reasonable efforts to preserve and reunify family during CHINS proceedings). But what constitutes "reasonable efforts" varies by case and the requirement that DCS make reasonable efforts to reunite a family "does not necessarily always mean that services must be provided to the parents." T.W., 135 N.E.3d at 615. Moreover, the general requirement to make reasonable efforts to reunify families during CHINS proceedings is not an element of the termination statute, "and a failure to provide services does not serve as a basis on which to directly attack a termination order as contrary to law." In re H.L., 915 N.E.2d 145, 148 n.3 (Ind.Ct.App. 2009). We recognize, however, that CHINS and termination proceedings are "deeply and obviously intertwined to the extent that an error in the former may flow into and infect the latter[.]" In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014).

[¶24] In T.W., we held that where the father consistently attempted to engage with DCS and participate in reunification services during the CHINS proceeding but DCS made no genuine effort to provide him with support and services, a risk of the erroneous filing of a termination petition was created by DCS's inaction and the father's due process rights were violated. T.W., 135 N.E.3d at 618. In short, in T.W., DCS "wholly failed to make reasonable efforts to preserve" the parent-child relationship despite father's diligent and consistent efforts. Id.

[¶25] The record here shows that DCS referred Mother to multiple services throughout the pendency of the CHINS case including substance abuse assessments, outpatient treatment, drug screens, home-based case work, therapy, visitation, and a domestic abuse program. Mother failed to successfully complete several offered services and she continued to engage in criminal activity resulting in her subsequent incarceration. Although Mother complains that she did not receive services or visitation with Child during her incarceration, the record shows that she was able to participate in some services and programming while incarcerated. After her release from incarceration, Mother failed to complete services that had been restarted, such as home-based case work, and she consistently failed to attend her scheduled supervised visits with Child. Unlike the parent in T.W., Mother has not shown that there was risk of the erroneous filing of a termination petition created by DCS's inaction.

[¶26] Similarly, regarding Father, the record shows that his failure to progress toward reunification was due to his own behavior and failure to participate in offered services, not due to DCS's failure to provide services. DCS provided services and assistance to Father both during and after his incarceration. Starting in November 2021, during Father's incarceration, DCS provided him with Fatherhood Engagement services, but he made no progress over the course of the CHINS case attending only seventy-two percent of the sessions. When Father was not incarcerated, DCS made referrals for supervised visitation, batterer's intervention and intensive outpatient programs, drug screens, therapy, and substance abuse and psychological assessments. Father simply made very little progress in those services. Although Father complains that "five family case managers were assigned to the case" and he "was never permitted to progress towards reunification as a result," Appellant Father's Brief at 15-16, he does not explain how the change in family case managers impeded his progress or resulted in a violation of his due process rights.

[¶27] The record demonstrates that DCS made reasonable efforts to reunify both Mother and Father with Child but that due to their own behavior, including their refusal to refrain from engaging in criminal conduct, they each still lacked "the ability to provide necessary care, housing, [and] supervision" for Child at the time of termination. Appellants' Joint Appendix Volume II at 79. Neither Mother nor Father has established that their due process rights were violated.

[¶28] For the foregoing reasons, we affirm the trial court's termination order.

[¶29] Affirmed.

Mathias, J., and Kenworthy, J., concur.


Summaries of

M.W. v. Ind. Dep't of Child Servs.

Court of Appeals of Indiana
Oct 2, 2024
No. 24A-JT-489 (Ind. App. Oct. 2, 2024)
Case details for

M.W. v. Ind. Dep't of Child Servs.

Case Details

Full title:In the Termination of the Parent-Child Relationship of: M.W., Jr., (Minor…

Court:Court of Appeals of Indiana

Date published: Oct 2, 2024

Citations

No. 24A-JT-489 (Ind. App. Oct. 2, 2024)