Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED Jul 27 2012, 9:27 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, court of appeals and collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. DEAN SWIHART ROBERT J. HENKE Fort Wayne, Indiana DCS Central Administration
DAVID E. COREY DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE ) PARENT-CHILD RELATIONSHIP OF S.S. ) ) D.S. ) ) Appellant-Respondent, ) ) vs. ) No. 02A03-1112-JT-592 ) DEPARMENT OF CHILD SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Thomas P. Boyer, Judge The Honorable Lori K. Morgan, Magistrate Cause No. 02D08-1102-JT-30
July 27, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge D.S. (Father) appeals the involuntary termination of his parental rights to his child, SS.
Father presents the following restated issues for review:
1. Did the trial court fail to provide Father with adequate notice of the rescheduled termination hearing, thereby denying him due process of law?
2. Was the evidence sufficient to support the trial court’s judgment?
3. Did the trial court commit reversible error in overruling Father’s objections to certain testimonial evidence?
We affirm.
Father is the biological father of S.S., born in March 2010.1 The facts most favorable
to the trial court’s judgment reveal that shortly after S.S.’s birth, the local Allen County
office of the Indiana Department of Child Services (DCS) was notified that the child had
been born testing positive for cocaine. During its assessment of the matter, DCS learned that
Mother had also tested positive for cocaine and was involved in a violent relationship with
her boyfriend, which resulted in the issuance of an order for protection prohibiting contact
between them. In addition, Father admitted to DCS personnel that he had used cocaine in the
past and that he had never paid any child support for S.S. As a result of its assessment, DCS
took S.S. into emergency protective custody and filed a petition with the trial court alleging
S.S. was a child in need of services (CHINS).
Following a hearing in July 2010, the trial court issued a dispositional order formally
removing S.S. from Father’s care and custody and directing him to participate in a variety of
1 S.S.’s biological mother, A.H. (Mother), signed a consent for adoption pertaining to S.S. and does not participate in this appeal. In addition, S.S.’s step-sibling, who was also removed from the family home with S.S., is not Father’s biological child and therefore is not a subject of this appeal. We therefore limit our
2 tasks and services designed to facilitate reunification. Among other things, Father was
ordered to: (1) refrain from all criminal activity; (2) maintain clean, safe, and appropriate
housing at all times; (3) obtain and maintain steady employment; (4) cooperate with all case
workers and service providers by attending all case conferences, maintaining contact with
case workers, and accepting all announced and unannounced home visits; (5) successfully
complete and benefit from a drug and alcohol assessment, as well as a family functioning
assessment, and follow any resulting recommendations; (6) submit to random drug screens;
and (7) attend and appropriately participate in all scheduled visits with S.S. as directed.
For the next several months, Father’s participation in court-ordered services was
inconsistent and ultimately unsuccessful. During the CHINS case, Father was arrested and
incarcerated for criminal conversion. He also failed to maintain steady housing and
employment, missed and/or acted inappropriately on several occasions during visits with
S.S., and tested positive for illegal drugs on multiple drug screens through November of
2010. Although Father did complete a drug and alcohol assessment and family
functioning/psychological evaluation as ordered by the court, he refused to participate in
and/or successfully complete the resulting treatment recommendations, including a
substance-abuse treatment program, individual counseling, and parenting classes.
In February 2011, ACDCS filed an amended petition seeking the involuntary
termination of Father’s parental rights to S.S. On June 22, 2011, Father signed the summons
and Notice of Hearing. During an initial hearing on the termination petition held in July
recitation of the facts to those pertinent solely to Father’s appeal of the trial court’s judgment terminating Father’s parental rights to S.S.
3 2011, Father, who was represented by counsel, appeared in person and denied the allegations
of the termination petition. At the conclusion of the initial hearing, the trial court set the
evidentiary hearing for August 2, 2011.
Despite his actual knowledge of the time, date, and location of the August 2, 2011,
termination hearing, Father failed to show and his attorney made an oral motion to continue
the hearing. The trial court found Father had defaulted, but nevertheless granted counsel’s
motion to continue the proceedings. The termination hearing was then ordered continued
until September 6, 2011. ACDCS sent notice of the new termination hearing date to Father’s
last known address. The notice was later returned as undeliverable. Father’s attorney also
attempted to notify Father of the new hearing date but was likewise unsuccessful in locating
Father.
On the morning of September 6, 2011, Father again failed to appear for court. The
termination hearing was continued for an additional two days on the court’s own motion,
however, due to “exigent circumstances.” Transcript at 14. At that time, Father’s attorney
agreed to try to notify Father of the new September 8, 2011 hearing date. Additionally,
MCDCS mailed notice of the rescheduled hearing date to Father’s last known address.
Father failed to show for the September 8, 2011 termination hearing. At the
commencement of the hearing, Father’s attorney advised the trial court that he had been
unable to contact Father via mail or telephone. Counsel therefore stated that he believed
Father never received actual notice of the September 8, 2011 termination hearing date. In
proceeding with the termination hearing in Father’s absence, the trial court determined that
Father had been provided with sufficient notice and opportunity to appear, but had chosen
4 not to do so. Specifically, the trial court found that the record clearly showed Father was
properly served with the summons and termination petition in the underlying case. The court
went on to find that Father had actual knowledge of the originally scheduled August 2011
termination hearing and had been called, but he defaulted.
During the termination hearing, DCS presented significant evidence establishing that
Father had failed to complete a majority of the court-ordered reunification services, including
a substance-abuse treatment program, random drug screens, individual counseling, regular
participation in AA/NA meetings, and parenting classes. The evidence presented by DCS
also established that Father had lost his visitation privileges with S.S. on several occasions
during the underlying CHINS case, that the police had to be called on at least two occasions
during visits due to Father’s aggressive conduct in front of the child, and that Father had not
visited with S.S. since July 2011. In addition, the evidence presented established that
approximately two months before the termination hearing, Father ceased all communications
with his DCS case worker, service providers, and attorney, and that Father’s whereabouts at
the time of the termination hearing remained unknown. Finally, DCS presented evidence
showing S.S. was happy and thriving in a pre-adoptive relative foster care home.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. On November 29, 2012, the trial court entered its judgment terminating Father’s
parental rights to S.S. Father now appeals.
Initially, we note that when reviewing the termination of parental rights, we will not
reweigh the evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258
(Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence and reasonable
5 inferences that are most favorable to the judgment. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside the court’s judgment terminating a
parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204 (Ind. Ct.
App. 1999), trans. denied. Thus, if the evidence and inferences support the trial court’s
decision, we must affirm. Id.
Here, the trial court made detailed findings in its order terminating Father’s parental
rights to S.S. Where the trial court enters specific findings of fact and conclusions thereon,
we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143 (Ind. 2005). First, we determine whether the evidence supports the findings,
and second we determine whether the findings support the judgment. Id. “Findings are
clearly erroneous only when the record contains no facts to support them either directly or by
inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly
erroneous only if the findings do not support the trial court’s conclusions or the conclusions
do not support the judgment thereon. Quillen v. Quillen, 671 N.E.2d 98.
1.
Father first claims that he is entitled to reversal because DCS failed to provide him
with proper notice of the September 8, 2011 termination hearing. Presumably due to the
significance of the interests at stake, our legislature has enacted an additional notice
requirement in involuntary termination proceedings. Specifically, Ind. Code Ann. § 31-35-2-
6.5 (West, Westlaw through legislation effective May 31, 2012) provides, in relevant part,
that “at least ten (10) days before a hearing on a petition or motion under this chapter . . . the
6 person or entity who filed the petition to terminate the parent-child relationship [here, DCS] .
. . shall send notice of the review to . . . [t]he child’s parent . . . .”
“Compliance with the statutory procedure of the juvenile code is mandatory to effect
termination of parental rights.” In re T.W., 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005).
Although statutory notice “is a procedural precedent that must be performed prior to
commencing an action,” it is not “an element of plantiff’s claim.” Id. Failure to comply with
statutory notice is thus “a defense that must be asserted.” Id. Once placed in issue, “the
plaintiff [here, DCS] bears the burden of proving compliance with the statute.” Id.
Because Father claimed that DCS failed to provide him with proper notice of the
September 8 termination hearing, the burden has shifted to DCS to prove compliance with
I.C. § 31-35-2-6.5. Here, it is undisputed that DCS provided Father with proper notice that a
termination proceeding regarding S.S. was pending. In fact, on June 22, 2011, Father
received and signed the Summons and Notice of Hearing, which explicitly stated, “[I]f you
fail to appear at the hearing, the Juvenile Court may terminate your parent-child relationship;
and if the court terminates your parent-child relationship[,] you will lose all parental rights,
powers, privileges, immunities, duties, and obligations including any rights to custody,
control, visitation, or child support . . . .” State’s Exhibit 1 at 1. Father thereafter appeared in
person and was represented by counsel at the initial hearing on the termination petition held
in July 2011. At the conclusion of the initial hearing, the trial court set the evidentiary
hearing for August 2, 2011. Father was therefore provided with actual notice of the August
2011 termination hearing at that time. Unfortunately, Father failed to appear.
DCS and counsel for Father thereafter attempted to notify Father of the continued
7 evidentiary hearing set for September 6, 2011, by sending letters to Father’s last known
address and by telephoning Father. When Father failed to show for the September 6, 2011
hearing, DCS and counsel for Father again attempted to contact Father and to notify him of
the continued evidentiary hearing scheduled for September 8 both by telephone phone and by
mail, but Father’s refusal to provide DCS and his own attorney with updated contact
information thwarted all such efforts.
In terminating Father’s parental rights, the trial court found that “[F]ather . . . who
failed to appear, has been served with notice of the proceedings in the most effective means
under the circumstances, and a good faith effort has been made to locate said party.
Nevertheless, [Father] has failed to appear, despite said proof of service. The evidence
submitted by DCS supports this finding. A review of the record makes clear that, through his
own actions, Father eluded DCS and his attorney for a majority of the termination case
proceedings. Moreover, at the time of the termination hearing, Father’s whereabouts were
completely unknown, notwithstanding the trial court’s dispositional order specifically
requiring Father to maintain contact with DCS and to provide the case manager with any
changes in address or phone number. By failing to maintain contact with DCS, Father also
knowingly failed to visit with S.S. and/or inquire about his child’s well-being for months
leading up to the termination hearing.
Although we agree with Father’s general statement that I.C. § 31-35-2-6.5 requires
DCS to send notice of the termination hearing to Father’s last known address at least ten days
before the hearing, we have previously explained that this statute does not require
compliance with Indiana Trial Rule 4, which governs service of process and incorporates a
8 jurisdictional component. See In re C.C., 788 N.E.2d 847 (Ind. Ct. App. 2003) (concluding
that I.C. § 31-35-2-6.5 does not require compliance with T.R. 4). Moreover, based on the
foregoing, we conclude that any failure to notify Father of the rescheduled September 8
termination hearing was the direct result of Father’s purposeful decision to ignore the trial
court’s dispositional orders and to refuse to maintain contact with DCS. Although we
acknowledge that by continuing the September 6 termination hearing to September 8, thereby
making it impossible for DCS to provide Father with the requisite ten-day notice described in
I.C. § 31-35-2-6.5, under the specific circumstances of this case, we cannot conclude that
DCS’s attempts at compliance with the statute were inadequate.
Father had actual notice of the originally scheduled August 2011 termination hearing.
He was defaulted by the trial court at the commencement of the hearing, however, when he
was called by the court and failed to appear. Both DCS and Father’s attorney thereafter
mailed notices of the two subsequently rescheduled evidentiary hearings to Father’s last
known address. They also attempted to contact Father via telephone. Under these
circumstances, we cannot conclude that DCS’s attempts at compliance with the statute were
inadequate. See, e.g., Q.B. v. Marion Cnty. Dep’t Child Servs., 873 N.E.2d 1063, 1067 (Ind.
Ct. App. 2007) (concluding that DCS’s attempts at compliance with I.C. § 31-35-2-6.5 were
adequate where parent disregarded court order to inform case manager of changes in address
and phone number and eluded DCS and own attorney); In re C.C., 788 N.E.2d 847 (Ind. Ct.
App. 2003) (concluding that notice sent to Father’s last known address at homeless shelter
was not defective under I.C. § 31-35-2-6.5 even though case manager knew father no longer
lived there because it was father’s last known address and statue does not require compliance
9 with T.R. 4).
2.
We now turn to Father’s allegation that there is insufficient evidence to support the
trial court’s judgment. The traditional right of parents to “establish a home and raise their
children is protected by the Fourteenth Amendment of the United States Constitution.” In re
M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of
a constitutional dimension, the law provides for the termination of these rights when parents
are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144
(Ind. Ct. App. 2008). In addition, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding the termination. In re K.S.,
750 N.E.2d 832 (Ind. Ct. App. 2001).
Before an involuntary termination of parental rights may occur in Indiana, the State is
required 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 well-being of the child. *** (C) that termination is in the best interests of the child . . . .
10 Ind. Code Ann. § 31-35-2-4(b)(2) (West, Westlaw through legislation effective May 31,
2012).2 The State’s burden of proof for establishing these allegations in termination cases “is
one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009)
(quoting Ind. Code Ann. § 31-37-14-2 (West, Westlaw through legislation effective May 31,
2012)). If the court finds that the allegations in a petition described in section 4 of this
chapter are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8
(West, Westlaw through end of 2011 1st Regular Sess.). Father challenges the sufficiency of
the evidence supporting the trial court’s findings as to subsection (b)(2)(B) of the termination
statute cited above.3 See I.C. § 31-35-2-4(b)(2).
At the outset, we note that DCS needed to establish only one of the requirements of
subsection (b)(2)(B) by clear and convincing evidence before the trial court could terminate
2 We observe that Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case. 3 Father does not challenge the sufficiency of the evidence supporting the trial court’s findings regarding the remaining elements of Indiana’s termination statute, including whether the child was removed from her care for the requisite amount of time, whether termination of parental rights is in S.S.’s best interests, and whether there is a satisfactory plan for the future care and treatment of the child. See I.C. §§ 31-35-2-4(b)(2)(A), (C), and (D). Father has therefore waived appellate review of these issues. See Davis v. State, 835 N.E.2d 1102 (Ind. Ct. App. 2005) (concluding that failure to present a cogent argument or citation to authority constitutes waiver of issue for appellate review), trans. denied.
11 parental rights. See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003). Here, the trial court
found DCS presented sufficient evidence to satisfy the first two subsections of (b)(2)(B) of
the termination statute. See I.C. § 31-35-2-4(b)(2)(B)(i) & (ii). Because we find it
dispositive under the facts of this particular case, we shall consider only whether clear and
convincing evidence supports the trial court’s findings regarding subsection (b)(2)(B)(i),
namely, whether there is a reasonable probability the conditions resulting in S.S.’s removal
or continued placement outside Father’s care will not be remedied.
In making such a determination, a trial court must judge a parent’s fitness to care for
his or her child at the time of the termination hearing, taking into consideration evidence of
changed conditions. In re J.T., 742 N.E.2d 509 (Ind. Ct. App. 2001), trans. denied. The
court must also evaluate the parent’s habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation of the child. In re M.M., 733
N.E.2d 6 (Ind. Ct. App. 2000). Similarly, courts may consider evidence of a parent’s prior
criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and
lack of adequate housing and employment. A.F. v. Marion Cnty. Office of Family &
Children, 762 N.E.2d 1244 (Ind. Ct. App. 2002), trans. denied. The trial court may also
consider the services offered to the parent by a county office of the Indiana Department of
Child Services and the parent’s response to those services, as evidence of whether conditions
will be remedied. Id. Finally, a trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his or her physical, mental, and social growth are
permanently impaired before terminating the parent-child relationship. In re E.S., 762
N.E.2d 1287 (Ind. Ct. App. 2002).
12 Here, in finding there is a reasonable probability that the conditions resulting in S.S.’s
removal and/or continued placement outside of Father’s care will not be remedied, the trial
court made numerous detailed findings regarding Father’s unresolved substance-abuse issues
and lack of progress in improving his ability to care for S.S. Specifically, the trial court
found that although Father had eventually completed the court-ordered drug and alcohol
assessment, he nevertheless “failed to comply with the recommendations of the assessment
and did not complete the substance-abuse counseling and did not regularly participate in
AA/NA meeting or submit to random urinalysis testing.” Appellant’s Appendix at 70. The
trial court also observed in its findings that although Father had completed the family
functioning assessment and psychological evaluation, he “failed to complete the individual
counseling . . . and parenting classes”, which would have “assisted [Father] in caring for the
child and in providing for the basic necessities of a suitable home for the raising of the
child.” Id.
Regarding visitation, the trial court noted that visitations were “sometimes chaotic,”
that Father’s behavior toward visit supervisors was “often inappropriate” and “sometimes
hostile,” and that the “police had to be contacted on at least two occasions.” Id. at 71. The
court went on to find that the “inappropriate behavior exhibited by [Father] during supervised
visits confirms the need for his participation in the individual counseling recommended by
his Family Functioning Assessment and the need for parenting classes to assist him in
learning the importance of behaving appropriately in the presence of [S.S.].” Id. The trial
court further found:
13 [F]ather absented himself from the CHINS proceedings by failing to maintain contact with the family case manager and failing to notify her of a change in addresses. His last visit with the child occurred in July of 2011.
During the CHINS proceedings . . . [Father] lived with friends, at a few different residences since the proceedings began, but never had independent housing or employment with which to support himself and his child.
At the time of the initiation of the CHINS proceedings in the underlying CHINS cause, [Father] was not providing for the basic necessities of a suitable home for the raising if the child. At the time of the initiation of the termination proceedings, [Father’s] whereabouts were unknown and he had not visited the child in approximately two months. Further, he continued to fail to provide for the basic necessities of a suitable home for the raising of the child and did not participate in services designed to assist him with providing care for the child.
Accordingly, the Court finds that [DCS] has proven by clear and convincing evidence that the allegations of the petition are true in that there is a reasonable probability that the conditions that resulted in [S.S.’s] removal and the reasons for the placement outside the parents’ home will not be remedied . . . .
Id. Our review of the record leaves us convinced us that these findings and conclusions are
supported by abundant evidence.
During the termination hearing, DCS case manager Heather Calera recommended
termination of Father’s parental rights. In so doing, Calera confirmed that Father admitted to
having using cocaine in his past, that he only “maintained sporadic contact” with DCS
throughout the CHINS case, and that he failed to successfully complete a majority of the
court-ordered reunification services. Transcript at 91.
As for Father’s participation in visits with S.S., several visitation supervisors
confirmed that Father’s visits with S.S. were marked by “ups and downs,” that Father would
sometimes appear to be “angry” and his tone of voice was sometimes “not friendly” during
visits. Id. at 29, 32. Family restoration supervisor Deb Meusing likewise confirmed that
14 Father had become “irate” a “few times” during visits with S.S. and that the police were
called at least “twice” when Father because “upset” with the visit supervisors. Id. at 44-45
This court has repeatedly recognized where a parent’s “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). Here, Father has demonstrated a persistent unwillingness or inability to take the
actions necessary to show he is capable of providing S.S. with the safe, stable, and drug-free
home environment the child needs. Moreover, Father’s arguments on appeal, including his
assertions that there was “no finding that he was using drugs at the time of the termination
hearing,” and that there was conflicting evidence as to whether his visit with S.S. were
“sometimes chaotic”, Appellant’s Brief at 14, 16, amount to an impermissible invitation to
reweigh the evidence, which is beyond our purview. See, e.g., D.D., 804 N.E.2d 258.
3.
Finally, we consider Father’s contention that the trial court abused its discretion in
admitting certain testimonial evidence over Father’s objection. The admission of evidence is
entrusted to the sound discretion of the trial court. In re A.J., 877 N.E.2d 805, 813 (Ind. Ct.
App. 2007), trans. denied. We will find an abuse of discretion only where the trial court’s
decision is against the logic and effect of the facts and circumstances before the court. Id. If
a trial court abuses its discretion by admitting the challenged evidence, we will reverse for
that error only if the error is inconsistent with substantial justice or if a substantial right of the
party is affected. In re S.W., 920 N.E.2d 783 (Ind. Ct. App. 2010). Moreover, any error
caused by the admission of evidence is harmless error, for which we will not reverse, if the
15 erroneously admitted evidence was cumulative of other evidence properly admitted. Id.
Although Father objected to the admission of certain testimony from DCS case
manager Calera concerning Father’s statements regarding his past drug use and Father’s
failure to complete several court-ordered services including substance-abuse treatment,
Father failed to object to the admission of this same evidence through the testimony from
several different witnesses. For example, court-appointed special advocate Julia McIntosh
confirmed during the termination hearing that Father’s “lack of follow through” and failure to
complete court-ordered services, including “counseling” and “anger mangement” prevented
her from recommending reunification. Transcript at 104-105. In addition, Father admitted in
his brief on appeal that he had used illegal substances in the past. Thus, even assuming
without deciding that the challenged testimony concerning Father’s past drug use and failure
to complete court-ordered services, including substance-abuse treatment, was improperly
admitted into evidence, such evidence was merely cumulative of other, properly admitted
testimony by several witnesses.
This Court will reverse a termination of parental rights “only upon a showing of ‘clear
error’– that which leaves us with a definite and firm conviction that a mistake has been
made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v. Blackford
Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error
here.
Judgment affirmed.
MAY, J., and BARNES, J., concur.