Opinion
24A-JT-322
09-04-2024
In the Termination of the Parent-Child Relationship of: M.M. (Minor Child) v. Indiana Department of Child Services, Appellee-Petitioner E.D. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Phyllis J. Garrison Noblesville, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Katherine A. Cornelius 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Hamilton Superior Court The Honorable Valorie S. Hahn, Magistrate Trial Court Cause No. 29D01-2307-JT-903
ATTORNEY FOR APPELLANT Phyllis J. Garrison Noblesville, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Weissmann, Judge.
[¶1] E.D. (Mother) appeals the termination of her parental rights as to her 14-year-old daughter, M.M. (Child), due to allegations of abuse and neglect. Mother claims a violation of her right to due process arising from the alleged failure of the Indiana Department of Child Services (DCS) to provide services to Mother to help her reunite with Child. Finding no due process violation and sufficient evidence to support the trial court's judgment, we affirm.
Facts
[¶2] In July 2021, Child, then 11 years old, was removed from Mother based on allegations of abuse and neglect. DCS petitioned to find Child to be a child in need of services (CHINS) based on Mother's homelessness and alleged mental health issues. After a detention hearing, the trial court approved Child's placement in foster care.
[¶3] Eight months later, after a fact-finding hearing, the trial court found that Mother and Child had been living in a U-Haul storage unit at the time of Child's removal. They would access the unit between 7:00 p.m. and 10:00 p.m. and leave before 6:30 a.m. the next day, when the facility supervisor arrived. The court also found that Mother had a history of homelessness and evictions, blamed Child for DCS involvement, and had been "unwilling to engage with DCS to see the Child for the past seven (7) months." Exhs., p. 27. Additionally, Mother refused to share her address with the guardian ad litem (GAL). The court described Mother as having an "explosive personality" and being "emotionally charged, accusatory, erratic, irrational, illogical, and impulsive." Id. The trial court determined that Child was a CHINS and ordered Mother to, among other things: (1) maintain contact with the DCS family case manager (FCM); (2) notify DCS of any changes in address or employment; (3) allow home visits; (4) maintain suitable housing; (5) secure stable income; (6) complete a parenting assessment and psychological evaluation; and (7) attend visits with Child.
[¶4] After the CHINS determination, Child was placed with her father on a trial basis. He ultimately requested Child's removal from his home, after which his parental rights were terminated voluntarily. Child returned to the foster home where she had originally been placed.
[¶5] Mother did not meaningfully participate in services or have consistent visitation with Child after Child's removal. Mother never completed the court-ordered psychological evaluation. Because DCS viewed the evaluation as a prerequisite to Mother exercising visitation with Child, Mother never exercised visitation with Child. Mother had only limited, unapproved telephone contact with Child during the 2% years after Child's removal.
[¶6] Mother also admitted that she did not contact the FCM regularly as ordered. She also never reached out to ask about services or visitation until late in the proceedings. Mother continued to blame Child for DCS's involvement and remained hostile towards DCS and the GAL.
[¶7] Given Mother's lack of progress, the trial court changed Child's permanency plan from reunification to adoption about 22 months after Child's removal. DCS petitioned for termination of Mother's parental rights two months later.
[¶8] At the time of the termination hearing in December 2023, Child was placed in a pre-adoptive home where she was thriving, happy, and well-bonded. Mother continued to be uncooperative with both the FCM and GAL. Mother still had not completed any of the services ordered by the trial court and had consistently refused to contact the FCM weekly as required or reveal her employment or address. Mother also still had not visited with Child since Child's removal 2% years earlier. Although Mother claimed at the termination hearing to have secured an apartment, this information was not provided to or verified by DCS or the GAL before the termination hearing. Child was thriving in foster care and anxious about being moved from that home. Both the FCM and GAL testified that termination of Mother's parental rights and adoption by her foster parents was in Child's best interests.
[¶9] After two days of hearings, the trial court terminated Mother's parental rights. The court concluded that there was a reasonable probability that: (1) the conditions resulting in Child's removal and continued placement outside Mother's care would not be remedied, and (2) continuation of the parent-child relationship posed a threat to Child's well-being. The court further found that termination was in Child's best interests and that DCS had a satisfactory plan for Child's permanency through adoption by her current pre-adoptive placement. Mother appeals.
Discussion and Decision
[¶10] Mother claims a denial of due process arising from DCS's alleged failure to provide reasonable services to her. She also argues that DCS did not prove by clear and convincing evidence two of the trial court's conclusions underpinning its termination decision. We find that Mother's due process claim is unfounded and that clear and convincing evidence supported the challenged conclusions.
I. Due Process
[¶11] When seeking termination of parental rights, the State "must do so in a manner that meets the requirements of due process." In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014). To comply with a parent's due process rights, DCS "must have made reasonable efforts to preserve and/or reunify the family unit." In re T.W., 135 N.E.3d 607, 613 (Ind.Ct.App. 2019). "What constitutes 'reasonable efforts' will vary by case" but may involve no provision of services to parents. Id. at 615.
[¶12] Determining whether a parent's due process rights have been violated requires a balancing of three factors. We consider: "(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 K.D., 962 N.E.2d 1249, 1257 (Ind. 2012) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Both a parent's interest in maintaining his or her parental rights and the State's countervailing interests in protecting the welfare of children are substantial. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)). Therefore, when reviewing a purported denial of due process in a CHINS or termination proceeding, we typically focus on the risk of error created by the State's actions. Id. at 918.
[¶13] To begin, we note that Mother has waived her due process argument by failing to support it with citations to the record or any authority. For instance, she does not reveal the basis for the due process right she claims was violated or provide the applicable standard of review. Most of the factual assertions she makes lack citations to the record. She also has failed to cite any authority supporting her analysis. See Ind. Appellate Rule 46(A)(8)(a) ("Each contention [in Appellant's argument] must contain the contentions of the appellant on the issues presented, supported by cogent reasoning" and "[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on appeal relied on."). Waiver also applies because Mother raised her due process claim for the first time on appeal and does not argue that any error was fundamental. 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).
[¶14] Waiver notwithstanding, the premise of Mother's due process claim-that DCS failed to provide reasonable services-is wrong. The record shows that Mother refused to participate in reasonable services, not that DCS failed to provide them. Mother was uncooperative from the start, refusing to reveal her address or contact the FCM as ordered. When the FCM attempted to contact Mother, the FCM often found that Mother would not respond or had a non-working phone. Mother had no contact with Child for the seven months between removal and the CHINS fact-finding hearing because Mother blamed Child for DCS's involvement.
[¶15] After the CHINS fact-finding hearing, Mother was referred to a psychological evaluation and parenting assessment and failed to complete both. Mother acknowledged meeting with the psychologist but ultimately did not participate in the evaluation because she felt "uncomfortable" with the evaluator. Tr. Vol. II, p. 70. When she expressed willingness to participate in services about the time the termination petition was filed, the FCM referred her again to various services. But the providers were unable to reach Mother, meaning those services could not be scheduled. Mother's failure to comply with the psychological evaluation requirement had a domino effect, as the evaluation was a prerequisite to her visitation with Child.
[¶16] Mother's reliance on her own self-serving testimony that she completed a parenting assessment is unavailing. The trial court found that Mother's testimony about the parenting assessment was not credible, and Mother does not challenge this finding. App. Vol. II, p. 14. We accept those unchallenged findings as true on appeal. In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007).
[¶17] In short, the record amply shows that Mother's failure to complete services was her own fault and not the result of DCS failing to provide reasonable services. Mother has failed to establish any risk of error in DCS's approach, given that any omissions in completed services were caused by Mother's recalcitrance. We find no due process violation.
II. Termination of Parental Rights
[¶18] When reviewing the sufficiency of the evidence in a termination of parental rights appeal, we begin by considering the governing statute. Under Indiana Code § 31-35-2-4(b)(2) (2022), a petition to terminate parental rights must allege, in relevant part:
Indiana Code § 31-35-2-4 was amended effective March 11, 2024. P.L. 70-2024, § 4.
(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.
If the trial court finds these allegations are true by clear and convincing evidence, it shall terminate the parent-child relationship. Ind. Code §§ 31-35-28, -37-14-2.
[¶19] When reviewing an appeal from the termination of parental rights, we do not reweigh evidence or judge witness credibility. In re C.S., 190 N.E.3d 434, 438 (Ind.Ct.App. 2022). The judgment will be set aside only if it is clearly erroneous. Id. We apply a two-tiered standard of review: first, we typically determine whether the evidence supports the findings and second, whether the findings support the judgment. Id.
[¶20] Mother claims that two of the trial court's conclusions under Indiana Code § 31-35-2-4(B) were incorrect: that "[t]here is a reasonable possibility that the conditions that resulted in the Child's removal from and continued placement outside the care and custody of Mother will not be remedied"; and that "[t]here is a reasonable probability that the continuation of the parent-child relationship between Mother and the Child poses a threat to the well-being of the Child." App. Vol. II, p. 15. Because Indiana Code § 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS need only have proven one of these factors by clear and convincing evidence. In re A.S., 17 N.E.3d 994, 1005 (Ind.Ct.App. 2014). We conclude that DCS adequately proved both.
Neither party has provided a copy of DCS's petition to terminate Mother's parental rights in an appendix or otherwise. Given that this is the document that sparked the order under appeal, it is an essential document that necessarily must be included in the Appellant's Appendix and, if omitted, in an Appellee's appendix. See Ind. Appellate Rule 50(A)(2)(f) (requiring inclusion in appendixes in civil appeals "pleadings and other documents from the Clerk's Record . . . that are necessary for resolution of the issues on appeal").
A. Remedying Conditions
[¶21] Determining the propriety of this remedying conditions conclusion requires a two-step analysis. C.S., 190 N.E.3d at 439. First, we identify the relevant conditions that needed to be remedied, including both the initial reasons for removal and the reasons for continued placement outside the home. Id. Second, we "determine whether there is a reasonable probability that those conditions will not be remedied." In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). "We trust the trial court to evaluate a parent's fitness at the time of termination, balancing recent improvements against habitual patterns of conduct." Id. "Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents' past behavior is the best predictor of their future behavior." Id.
[¶22] Child first was removed due to Mother's homelessness. Child's removal continued to the date of the termination hearing due to Mother's failure to reveal stable housing or participate in any of the ordered services. Mother provided a lease agreement to the CHINS court but afterward never revealed her address to DCS staff or the GAL until Mother provided an unverified address at the termination hearing. In fact, even when Mother offered to allow the GAL to come to her home, Mother refused to provide her address and simply told the GAL that she would have to follow Mother-a directive that the GAL understandably refused.
[¶23] Mother completed none of the services designed to help her gain stable housing, address her volatile behavior, and improve her parenting skills. Even when the FCM issued new referrals after Mother expressed renewed interest when termination was sought, the services were never scheduled because the providers could not reach Mother. Although the FCM spoke to Mother by telephone sometimes, Mother mostly did not respond to the FCM's calls or could not be reached due to a non-working phone.
[¶24] Mother not only failed to remedy the conditions that prompted Child's initial and continued removal, but Mother also showed little inclination to do so in the future. The trial court did not err in its conclusion that conditions prompting and sustaining Child's removal had not been remedied.
B. Threat to Child
[¶25] For many of the same reasons, clear and convincing evidence also supported the trial court's conclusion that continuation of the parent-child relationship poses a threat to Child's well-being. Mother did not establish that she had or could provide stable housing for Child. She had had virtually no contact with Child for 2% years. What little contact she had left Child anxious. Mother had never addressed what the CHINS court described as her "explosive personality" and being "emotionally charged, accusatory, erratic, irrational, illogical, and impulsive." Exhs., p. 27. In fact, she had done almost nothing that the trial court had required for her reunification with Child.
[¶26] When testifying about the impact of Child's removal, Mother largely focused on her own feelings and not the Child's. Yet Child had shown greater anxiety in the month before the termination hearing when facing the prospect of leaving the stable home environment in which she had been placed.
[¶27] This habitual pattern of non-compliance with the CHINS dispositional order and lack of effort to reunify with Child justifies the trial court's conclusion that continuation of the parent-child relationship threatened Child.
[¶28] We affirm the trial court's judgment.
Vaidik, J., and Foley, J., concur.