Opinion
24A-JT-920
09-13-2024
In re the Involuntary Termination of the Parent-Child Relationship of S.W. and R.W. (Minor Children) and M.W. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT Michael D. Ghilardi Law Office of Michael D. Ghilardi. ATTORNEYS FOR APPELLEE Theodore E. Rokita, David E. Corey.
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Lori K. Morgan, Judge Trial Court Cause Nos. 02D08-2306-JT-149, 02D08-2306-JT-150
ATTORNEY FOR APPELLANT Michael D. Ghilardi Law Office of Michael D. Ghilardi.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, David E. Corey.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] M.W. ("Father") and A.H. ("Mother") are the parents of two daughters (collectively, "Children"): S.W., born in July 2019, and R.W., born in March 2021. Father appeals the termination of his parental relationships with Children, raising two issues: (1) Were his due process rights violated during the Child in Need of Services ("CHINS") proceedings; and (2) Was the trial court's termination order clearly erroneous? We affirm.
The trial court also terminated Mother's parental relationships with Children and with an older child to whom Father is not a biological parent. Termination of Mother's parental rights to her three children was affirmed in a separate appeal. In re A.H., No. 24A-JT-877 (Ind.Ct.App. Aug. 23, 2024) (mem.). To the extent possible, we have omitted facts specific to Mother.
[¶2] In September 2021, the Indiana Department of Child Services ("DCS") filed a petition alleging Children were CHINS because (1) Mother and Father's (collectively, "Parents") home was in a substandard condition; (2) Father had ongoing substance abuse issues not being adequately addressed; (3) Father had drug-related convictions and charges; (4) Children were not receiving adequate medical care; (5) Father had untreated mental health diagnoses; and (6) Father had a history of DCS involvement. Children were not removed from Parents' care.
[¶3] The trial court adjudicated Children as CHINS in October. As part of the dispositional order, the trial court entered a Parent Participation Plan requiring Father to (1) refrain from criminal activity; (2) maintain suitable housing; (3) submit to a diagnostic assessment and complete all recommendations; and (4) participate in family preservation services at Bowen Center, among other things.
[¶4] Father completed the diagnostic assessment in October, and it was recommended he attend individual therapy two to four times each month and participate in two hours of substance use group therapy once a week. Father did individual therapy in person one time in December and then seven times by phone from February through June 2022. The initial goals of individual therapy were to identify his triggers for substance use and build coping skills. He "had a lot of motivation initially" and made "some progress" during this time. Tr. Vol. 2 at 16. He attended group therapy weekly for a month or two. He was "very open about really struggling with substance abuse issues, having a desire to stop using, but struggling to do that, and reporting continued use." Id. at 22. "[T]hen [his attendance] started to fall off, maybe twice a month and then he disappeared." Id.
[¶5] At some point after the CHINS adjudication, the family moved in with Father's parents. Following an altercation between Mother and grandfather in March 2022, Mother was arrested and DCS removed Children from Parents' care. The court placed Children with the grandparents. Father was ordered to vacate the home but was granted supervised visitation with Children. Father lived in a halfway house in spring 2022 but did not complete the program.
Children were eventually removed from the grandparents' care and at the time of the termination hearing were each in the care of a different maternal relative.
[¶6] In 2022, Father was on probation in a burglary case and was found to have violated his probation by testing positive for marijuana. Father was incarcerated from July 2022 until March 2023 when he returned to his parents' home. In June 2023, Father "made an attempt to re-engage in services in an attempt to fulfill his DCS requirements." Id. at 13. Following a reassessment, his initial goals were kept in place and similar recommendations regarding individual therapy and substance use group therapy were made. Father attended one individual therapy session in October and "a couple" of group therapy sessions in November. Id. at 22. At the time of the termination hearing in December, Father was not engaged in services and had not completed his treatment plan.
[¶7] Jeannie Stults became the family case manager at the end of July 2023. At the time, Father and Children resided in different counties. A referral for visitation between Father and Children was already open but distance and Father's lack of transportation made setting up visitation difficult. Stults met with Father and then made referrals for medication management and individual counseling in July, and updated referrals for visitation and home-based services in September. Father attended weekly visitation with Children regularly beginning in September.
[¶8] DCS petitioned for termination of Father's parental rights in June 2023 because "he hasn't been able to maintain housing on his own, outside of his parents' house, continued illegal substance use, . . . not being in compliance with court-ordered services." Id. at 105. The trial court held a hearing in December 2023. Service providers testified as outlined above. Father admitted he had continued to use marijuana regularly since his release and was convicted in September of possession of marijuana stemming from a July arrest. He also admitted he had continued to use methamphetamine, including three to four days before the hearing and about two weeks before that. He did not have a driver's license, his own housing, or employment and conceded he was not in a position to parent Children on a full-time basis.
Father was sentenced to 180 days, suspended, with no probation. See Ex. Vol. 1 at 78.
[¶9] Court-Appointed Special Advocate Nicole Fischer ("CASA") testified termination of Father's parental rights was in Children's best interests because:
[Father] was incarcerated for a period of time. He . . . has consistently struggled with substance use. We have recent positive screens. He also does not have stable, independent housing, he has been residing with his parents which is stable for him, but it's not independent housing. He has not consistently held employment and he has not successfully completed the
court orders, such as substance use treatment, mental health treatment, those sorts of things, in order to aid in reunification.Tr. Vol. 2 at 111-12. In addition, CASA testified Children were "doing exceptionally well in their current . . . placements" and she agreed with DCS' plan for Children to be adopted by their current placements. Id. at 112.
[¶10] In March 2024, the trial court entered a thorough order terminating Father's parental relationships with Children. The trial court summarized its extensive findings as follows:
46. At the time of the initiation of the underlying CHINS proceedings, [Father] struggled with addiction issues and was unable to provide a safe, stable home for [Children]. At the time of the hearing on the Petition for Termination (Involuntary), [Father] continued to struggle with his addiction to illegal drugs. In addition, he admitted that he suffered from anxiety and depression which interfered with his sobriety and his ability to function. The DCS offered and/or provided services to [Father] to assist him in . . . remedying the issues that led to the removal of [Children] from the home and that led to their continued placement outside of the home, however, he failed and/or refused to participate in the services offered and/or provided by the DCS. In addition, . . . period(s) of incarceration have interfered with his ability to engage in services and work towards reunification. [Father] does not currently have stable employment and relies on others for transportation. He has acknowledged that he is not able to provide for [Children] at this time. [Children] are in need of permanency now and should not be required to wait any longer to determine whether and when [Parents] will be in a position to care for them.Appellee's App. Vol. 2 at 39-40. Accordingly, the trial court granted the petition to terminate the parent-child relationship, concluding clear and convincing evidence proved: (1) Children had been placed outside Parents' care under a dispositional decree for more than six months before the termination petition was filed; (2) there is a reasonable probability the conditions that resulted in Children's removal or the reasons for their continued placement outside Parents' home will not be remedied; (3) termination is in Children's best interests; and (4) DCS' plan for the care and treatment of Children is satisfactory.
Standard of Review
[¶11] In a proceeding to terminate parental rights, the trial court must enter findings of fact supporting its conclusions. Ind. Code § 31-35-2-8(c) (2012). "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." In re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016) (quoting In re E.M., 4 N.E.3d 636, 642 (Ind. 2014)). We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence and reasonable inferences supporting the judgment. E.M., 4 N.E.3d at 642. We must accept as true trial court findings not challenged on appeal. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992); see also In re S.S., 120 N.E.3d 605, 610 (Ind.Ct.App. 2019). We will affirm the termination of parental rights unless the trial court's judgment is clearly erroneous. In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019), cert. denied.
Father's due process rights were not violated.
[¶12] Father contends the termination of his parental rights violated his substantive due process rights because DCS did not make reasonable efforts to reunify the family while he was incarcerated and after his release. But he acknowledges he did not make a due process argument in the trial court. 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 N.G., 51 N.E.3d at 1173 (declining to consider parent's claim of due process violation 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, we have discretion to address such claims. In re D.H., 119 N.E.3d 578, 586 (Ind.Ct.App. 2019), aff'd on reh'g, trans. denied. Because of the nature of the rights at issue here, we exercise our discretion to review Father's due process claim even though it was not raised below. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) ("[W]henever possible, we prefer to resolve cases on the merits instead of on procedural grounds like waiver.") (internal quotation marks omitted).
[¶13] 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) (quoting In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014)). For a parent's due process rights to be protected in termination proceedings, DCS must have made reasonable efforts to preserve and/or reunify the family in the CHINS case. In re T.W., 135 N.E.3d 607, 615 (Ind.Ct.App. 2019), trans. denied. What constitutes "reasonable efforts" varies by case, and it does not necessarily always mean services must be provided to the parents. Id.
There are statutory exceptions to the reasonable efforts requirement. See I.C. § 31-34-21-5.6(b) (2019). None of those exceptions apply here.
[¶14] In T.W., the father was incarcerated when CHINS proceedings began, but he attempted to establish paternity and participate in services and visitation. DCS "made only limited efforts at reunification" after the father was released from incarceration. Id. at 616. Essentially, DCS failed in multiple ways to provide the father with the support and services he requested and "so desperately needed." Id. at 618. A panel of this Court reversed the termination order, concluding DCS "wholly failed to make reasonable efforts" to preserve the family relationship, creating "a risk of the erroneous filing of a petition to terminate [f]ather's parental rights" and violating father's due process rights. Id.
[¶15] Unlike the circumstances presented in T.W., DCS here did not engage in a pattern of dereliction of duty but provided services and assistance to Father both before and after his incarceration. Children were adjudicated CHINS in October 2021; Father completed the initial intake assessments at the Bowen Center that same month, was referred to the appropriate services, and began individual therapy and substance use group therapy before the end of the year. In 2022, his participation "started to fall off" even before he was incarcerated in July. Tr. Vol. 2 at 22. During Father's nine-month incarceration, DCS did not provide any services, but Father participated in substance use programs available through the Department of Correction, such as Celebrate Recovery, Alcoholics Anonymous, and Narcotics Anonymous. After Father was released, DCS made referrals for visitation, medication management, individual counseling, and home-based casework. Father complains those referrals were not timely made, but because of Father's incarceration and corresponding time without participating in DCS services, a new intake assessment was required to re-evaluate Father's condition and make the appropriate recommendations. And Father admitted he was not immediately cooperative when released from prison because he was "discouraged." Id. at 77.
[¶16] DCS made reasonable efforts to reunify Father with Children and did not create a risk that a petition to terminate would be filed in error. Father has not established his due process rights were violated.
The trial court's termination decision is not clearly erroneous.
A. Statutory Requirements
[¶17] As Indiana courts have "repeatedly recognized, parental rights are precious and protected by our Federal and State constitutions." E.M., 4 N.E.3d at 641-42 (internal quotation marks omitted). A parent's interest in the upbringing of his child is perhaps the oldest fundamental liberty interest recognized by courts, but parental rights are not absolute. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). Parental rights may be terminated if parents are unable or unwilling to meet their parental responsibilities by "failing to provide for the child's immediate and long-term needs." Id.
[¶18] Parental rights are "an important interest warranting deference and protection, and a termination of that interest is a 'unique kind of deprivation.'" In re C.G., 954 N.E.2d 910, 916-17 (Ind. 2011) (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981)). Accordingly, Indiana law sets a high bar to sever the parent-child relationship, requiring DCS to allege and prove four elements by clear and convincing evidence:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court's finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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.I.C. § 31-35-2-4(b)(2) (2019); I.C. § 31-37-14-2 (1997). If the trial court finds the allegations in the petition are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8 (2012). On appeal, Father challenges the following conclusions: (1) there is a reasonable probability the conditions resulting in Children's removal or the reasons for their placement outside the home will not be remedied, and (2) termination is in Children's best interests.
The statute was amended on March 11, 2024, significantly altering the allegations DCS must make and prove to involuntarily terminate parental rights. See I.C. § 31-35-2-4 (2024). We use the version of the statute in effect at the time Father's parental rights were terminated.
Father also alleges there is insufficient evidence to support a finding there is a reasonable probability the continuation of the parent-child relationship poses a threat to Children's well-being. See Appellant's Br. at 16, 23. The trial court did not make this finding, and moreover, was not required to make this finding. Finding 51 notes the requirement of Indiana Code Section 31-35-2-4(b)(2)(B) for the court to find either a reasonable probability the reasons for removal or placement outside the home will not be remedied or continuation of the relationship poses a threat to the child's well-being. See Appellee's App. Vol. 2 at 42; see, e.g., In re A.K., 924 N.E.2d 212, 220 (Ind.Ct.App. 2010) (noting Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive and the trial court is required to find only one prong has been established by clear and convincing evidence). But Finding 51 then states: "By clear and convincing evidence, the Court determines that there is a reasonable probability that the reasons that brought about [Children's] placement outside of the home will not be remedied." Appellee's App. Vol. 2 at 42-43.
B. The trial court did not clearly err in finding DCS proved there is a reasonable probability the conditions resulting in Children's removal or the reasons for placement outside the home will not be remedied.
[¶19] The trial court found clear and convincing evidence showed there is a reasonable probability the conditions resulting in Children's removal or the reasons for placement outside Father's home will not be remedied. See Appellee's App. Vol. 2 at 42-43. In making this determination, trial courts engage in a two-step analysis. K.T.K., 989 N.E.2d at 1231. First, the trial court determines what conditions led to removal or placement outside the home, then it determines whether there is a reasonable probability those conditions will not be remedied. Id. When making these decisions, the trial court must judge a parent's fitness to care for his or her child at the time of the termination hearing, considering evidence of changed conditions. E.M., 4 N.E.3d at 643. However, the trial court must balance any recent improvements against a parent's 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. The trial court may also consider services offered to the parent 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. The evidence presented by DCS need not rule out all possibilities of change; DCS need only establish there is a reasonable probability the parent's behavior will not change. In re C.C., 153 N.E.3d 340, 348 (Ind.Ct.App. 2020), trans. denied.
[¶20] Father does not challenge any of the trial court's factual findings. Accepting the trial court's findings as true, see Madlem, 592 N.E.2d at 687, we conclude they clearly and convincingly support the judgment, see N.G., 51 N.E.3d at 1170. Children were removed from Father's care because of his substance use disorder and mental health diagnoses. He participated off-and-on in services designed to address those issues but ultimately did not complete any of the recommended services. As of the termination hearing, Father was still using methamphetamine occasionally, including three or four days before the hearing. He regularly self-medicated with marijuana when he was depressed. And he admitted he was not then able to parent Children full-time, as he had no stable housing, employment, or transportation. Father's argument on this point-heavily entwined with his due process argument which we have already discussed and decided against him-essentially asks us to reweigh the evidence, which we cannot do. See E.M., 4 N.E.3d at 642.
Father identified Finding 47 as the sole finding he was challenging; however, that is not a finding of fact but a conclusion. See Appellee's App. Vol. 2 at 40 ("Accordingly, the Court finds by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the children's removal and/or the reasons for their continued placement outside of the home of the parents will not be remedied.").
C. The trial court did not clearly err in finding DCS proved termination is in Children's best interests.
[¶21] Father next contends DCS failed to show termination is in Children's best interests. When deciding whether termination is in the child's best interests, trial courts "must look at the totality of the evidence and, in doing so, subordinate the parents' interests to those of the children." Ma.H., 134 N.E.3d at 49. The testimony of service providers may support a finding that termination is in the child's best interests. McBride v. Monroe Cnty. Off. of Fam. &Child., 798 N.E.2d 185, 203 (Ind.Ct.App. 2003). "[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification[.]" E.M., 4 N.E.3d at 648.
[¶22] During the CHINS proceeding, Father had many opportunities to avail himself of treatment and services to help him achieve sobriety and provide a suitable environment for Children. He "had a lot of motivation initially, and he seemed focused." Tr. Vol. 2 at 16. But his engagement in services trailed off, even before he was incarcerated. He did not immediately re-engage with DCS after he was released from incarceration. And ultimately, he did not complete his treatment plan. The CASA testified termination was in Children's best interests.
[¶23] Children have a paramount need for permanency, which is a central consideration in determining a child's best interests. E.M., 4 N.E.3d at 647-48. And a parent's historical and current inability to provide a suitable environment supports finding termination of parental rights is in a child's best interests. In re J.C., 994 N.E.2d 278, 290 (Ind.Ct.App. 2013). Again, the trial court's findings clearly and convincingly support its conclusion that termination of the parentchild relationship is in Children's best interests.
Conclusion
[¶24] Father's due process rights were not violated by DCS conduct here, and the trial court's judgment terminating Father's parental rights to Children is not clearly erroneous.
[¶25] Affirmed.
Felix, J., and Riley, Sr. J., concur.