In re the Termination of the Parent-Child Relationship of D.J.S.L. (Minor Child) and J.L. (Father) and S.B. (Mother) J.L. (Father) and S.B. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 17, 2019
• Docket: 18A-JT-2630
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 17 2019, 8:41 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT J.L. ATTORNEYS FOR APPELLEE Michael B. Troemel Curtis T. Hill, Jr. Lafayette, Indiana Attorney General ATTORNEY FOR APPELLANT S.B. Katherine A. Cornelius Deputy Attorney General Steven Knecht Indianapolis, Indiana Vonderheide & Knecht, P.C. Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the May 17, 2019 Parent-Child Relationship of Court of Appeals Case No. D.J.S.L. (Minor Child) and J.L. 18A-JT-2630 (Father) and S.B. (Mother) Appeal from the J.L. (Father) and S.B. (Mother), Tippecanoe Superior Court The Honorable Appellants-Respondents, Faith A. Graham, Judge v. Trial Court Cause No. 79D03-1712-JT-132 Indiana Department of Child Services, Appellee-Plaintiff

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 1 of 12 Case Summary [1] J.L. (“Father”) and S.B. (“Mother”) (collectively, “Parents”) appeal the

termination of their parental rights to D.J.S.L. (“Child”). We affirm.

Facts and Procedural History [2] The undisputed facts are set forth in the trial court’s order. 1 Child was born in

July 2009 and suffers from autism, delayed speech, and a sensory-processing

disorder. In May 2016, Parents and Child were living together in West

Lafayette when the Indiana Department of Child Services (DCS) received a

report alleging that Parents were using or manufacturing methamphetamine in

their house and that Child’s special needs were not being met. DCS workers

went to the house to investigate and spoke with Mother. Mother claimed that

she was not involved in manufacturing methamphetamine, that “the DEA

showed up due to [Father] buying pseudoephedrine and manufacturing

methamphetamine,” and that she was “working with the DEA to help locate

[Father].” DCS Ex. 1. Mother told DCS workers that she believed Father was

“hiding from the police somewhere up north.” Id. Child remained in Mother’s

care, and Family Case Manager (FCM) Casey Langston requested that Mother

and Child submit to hair-follicle tests. Mother took Child for a hair-follicle test

but did not submit to one herself. The result of Child’s hair-follicle test showed

1 Because neither Mother nor Father challenges the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 2 of 12 that Child was positive for methamphetamine use or exposure. FCM Langston

informed Mother of the positive result and required that Mother submit to a

hair-follicle test in order for Child to remain in her care. Mother agreed to be

tested but never actually completed a hair-follicle test.

[3] For the next two weeks, FCM Langston was unable to find Mother or Child.

On June 8, DCS obtained a court order to take custody of Child when he was

located. Two days later, FCM Langston spoke with Mother’s doctor, who said

that Mother called his office to let him know “that she is in the witness

protection program living with a sheriff in Louisiana.” Id. On June 15, DCS

obtained Mother’s address in Louisiana and arranged to take Child into

custody. Louisiana’s Department of Child and Family Services located Child,

placed him in foster care, and learned that a criminal investigation had been

opened due to Child being molested by one of Mother’s neighbors in Louisiana.

The neighbor, a registered sex offender, was arrested. On June 17, FCM

Langston traveled to Louisiana and brought Child back to Indiana. The next

day, he was placed in foster care.

[4] On June 20, DCS filed a petition alleging that Child was a child in need of

services (CHINS). Father’s whereabouts were unknown. In July, the court

authorized DCS to serve Father by publication. In September, the court held a

fact-finding hearing on the CHINS petition. Mother appeared by phone, and

Father did not appear. Following the hearing, the court adjudicated Child a

CHINS and issued a dispositional order requiring Parents to participate in

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 3 of 12 reunification services. Child remained in foster care. Mother stayed in

Louisiana and intermittently participated in services there.

[5] In June 2017, Mother returned to Indiana and was referred to home-based case

management, individual therapy, and supervised visitation. When Mother

arrived in Indiana, she was homeless. Kaylynn Ranspach, a clinical therapist

with Wabash Valley, assessed Mother and diagnosed her with major depressive

disorder and generalized anxiety. Ranspach referred Mother to Jade Brack, a

therapist at Wabash Valley, for individual therapy. Brack saw Mother once on

July 17, 2017, and recommended that Mother attend biweekly counseling.

Mother failed to show for any additional appointments. Then, from October to

November, Mother was incarcerated for a previous charge, unrelated to the

CHINS case. After she was released, Mother did not secure her own housing

and stayed with friends in Lafayette and Attica.

[6] In December 2017, DCS filed a petition to terminate Parents’ parental rights to

Child. Father’s whereabouts were still unknown. However, DCS had received

information that Father was living in Natchitoches, Louisiana, and requested

permission to serve him by publication. The court granted DCS’s request, and

DCS published notice three times in the Natchitoches Times. The notice stated

that Father’s termination hearing was scheduled for March 1, 2018. See

Father’s App. Vol. II p. 22 (notice of Father’s termination hearing was

published on December 30, 2017; January 6, 2018; and January 13, 2018).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 4 of 12 [7] In January 2018, Mother began seeing Soledad Kardin-Smith, a therapist with

Lifeline, for individual therapy to help with anxiety and depression. Sometime

after Mother began attending therapy, she secured her own apartment in

Crawfordsville. The trial court held a fact-finding hearing on DCS’s

termination petition on March 1, the date indicated in the published notice. At

the hearing, the court emphasized that any evidence DCS wished to present

“regarding [Father] must be concluded today.” Tr. Vol. II p. 40. DCS called

FCM Shalonda Haskins, who testified that DCS attempted to find Father using

an investigator but that they were unable to locate him. FCM Haskins stated

that she contacted Father’s relatives, and none of his relatives had seen or

talked to him. FCM Haskins explained that because DCS did not have valid

contact information for Father, DCS served Father by publication in the

underlying CHINS case and in the termination proceeding. FCM Haskins said

that Father had not completed or engaged in any services and that he had not

visited Child since Child was removed from Parents’ care in June 2016. FCM

Haskins testified that she believed Father would be a threat to Child because

Father has “been accused of producing meth in a home where [Child] was

residing.” Id. at 69. FCM Haskins stated that termination of Father’s parental

rights is in Child’s best interests because Father “has not demonstrated the

ability to care for his son, to protect his son, to provide an environment that

would be safe for his son.” Id. at 70. FCM Haskins said that DCS’s plan is for

Child to be adopted. Due to time constraints, the fact-finding hearing was

continued to hear evidence regarding Mother.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 5 of 12 [8] The fact-finding hearing resumed on May 25, and Father appeared in the

custody of the Tippecanoe County Sheriff. Father had been arrested on May 15

and was in custody awaiting trial for criminal charges in Montgomery County.

See 54D01-1805-F6-1292. Father explained to the court that he had never

appeared at any hearing whatsoever. The court advised Father of his rights in a

termination proceeding, including the right to an attorney, and explained that

DCS had presented evidence against him on the first day of the fact-finding

hearing. Father then requested to be represented by an attorney. The court

explained:

[G]iven where we are in this stage the Court is considering appointing perhaps a standby counsel to give you at least a little bit of advice. . . . And the status of the circumstances related to having already been served notice and . . . having heard the testimony in your absence and default judgment potentially entered with regard to your absence here, because we haven’t heard from you at all in the CHINS case, so I don’t know what your intention is. . . . So what I am inclined to do is perhaps appoint[] counsel to at least give you a bit of advice about where you stand legally and then see if that counsel has any particular motions. . . . So, I’m happy to find an attorney to at least give you a little bit of advice before we resume back with further testimony. Is that [what] you’d like the Court to do?

Tr. Vol. II pp. 86-87. Father agreed, and the court appointed attorney Ladona

Sorenson as Father’s “standby counsel.” After conferring with Father for thirty

minutes, Attorney Sorenson told the court that Father’s understanding was that

his parental rights had been already terminated, which is why he had not

appeared before that day. Attorney Sorenson moved to continue the hearing so

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 6 of 12 that she could review the case. DCS and Child’s Court Appointed Special

Advocate (CASA) objected to a continuance. After some discussion, Attorney

Sorenson told the court, “Your honor, my client has indicated that he wants me

to withdraw that request for a continuance and to just proceed today as

scheduled.” Id. at 92. The court asked Father if he wished to proceed that day,

and Father said yes. See id. at 93.

[9] The court then proceeded to hear evidence, and DCS called Erica Eades, a

case-manager from Arisings, which provided supervised visitation for Mother

and Child. Eades testified that in the last month Mother had started to turn

things around but her biggest concern is “making sure that [Mother] can

maintain housing long-term.” Id. at 138. Desiree Brown, one of Mother’s

other visitation providers, also testified that Mother had lived at five different

places since she began working with her. Dottis Rausch, Child’s CASA,

testified that Mother “has recently started engaging in services and taking more

action to address her mental health needs.” Id. at 187-88. However, CASA

Rausch stated that she recommended termination of parental rights and

adoption because Mother had not demonstrated long-term stability and had not

fully addressed her mental-health issues. CASA Rausch said that she had not

had any contact with Father. FCM Haskins also testified that termination of

Mother’s parental rights is in Child’s best interests. See id. at 239. Father

testified that he was still married to Mother and did not want to testify against

her. Father acknowledged that when he was living in Natchitoches, Louisiana,

he had received a notification that DCS had sent him some certified mail but

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 7 of 12 said that he “never went and bothered to pick it up” from the post office. Id. at

199. Regarding his absence from the termination proceedings, Father said that

he did not appear because Mother told him that Child was in foster care and

that his parental rights had already been terminated. In September 2018, the

court issued its order terminating Parents’ parental rights.

[10] Father and Mother separately appeal.

Discussion and Decision [11] Parents make two separate arguments on appeal. Father argues that the trial

court erred by not appointing him counsel, and Mother argues that the

termination of her parental rights is not in Child’s best interests.

I. Appointment of Counsel [12] Father contends that the trial court erred by not appointing him counsel.

Specifically, he argues that “he should have been appointed a lawyer to

represent him, and not given a ‘standby lawyer’ to advise him ‘a little bit.’”

Father’s Br. p. 11.

[13] Indiana’s law governing juvenile-court procedures provides that “[a] parent is

entitled to representation by counsel in proceedings to terminate the parent-

child relationship.” Ind. Code § 31-32-2-5; see also Ind. Code § 31-32-4-1(2).

Because a parent has a fundamental liberty interest in the care and custody of

his or her child, we have held it is a due-process violation to remove a child

from an indigent parent “without affording that parent the right to assistance of

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 8 of 12 court-appointed counsel.” In re C.J., 71 N.E.3d 436, 442 (Ind. Ct. App. 2017).

Therefore, a juvenile court has an obligation to appoint counsel to an indigent

parent unless that parent knowingly and voluntarily waives the right to counsel.

Ind. Code § 31-32-4-3(2).

[14] Here, once Father requested an attorney, the trial court located Attorney

Sorenson, who conferred with Father for thirty minutes and then requested a

continuance because she knew very little about the case and was not prepared

to proceed with the hearing that day. See Tr. Vol. II p. 89. After some

discussion regarding Father’s request for a continuance, Attorney Sorenson told

the court, “Your Honor, my client has indicated that he wants me to withdraw

that request for a continuance and to just proceed today as scheduled.” Id. at

92. The trial court then confirmed with Father that he did in fact want to

proceed that day. Father said yes. See id. at 93.

[15] Father’s withdrawal of his request for a continuance was fatal to his request for

counsel. That is, no attorney could have adequately represented him on the

spot or done anything more than what his “standby counsel” did. A

continuance would have been necessary to fulfill Father’s request for counsel.

Therefore, when Father withdrew his request for a continuance and told the

court that he wished to proceed with the termination fact-finding hearing that

day, he necessarily withdrew his request for “counsel” as opposed to “standby

counsel.” Accordingly, Father cannot now be heard to argue that the trial court

erred by failing to appoint “counsel.”

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 9 of 12 II. Child’s Best Interests [16] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.

2013). Rather, we consider only the evidence and reasonable inferences that

are most favorable to the judgment of the trial court. Id. When a trial court has

entered findings of fact and conclusions, we will not set aside the trial court’s

findings or judgment unless clearly erroneous. Id. To determine whether a

judgment terminating parental rights is clearly erroneous, we review whether

the evidence supports the trial court’s findings and whether the findings support

the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[17] A petition to terminate parental rights must allege, 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.

(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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 10 of 12 (D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

finds that the allegations in a petition are true, the court shall terminate the

parent-child relationship. Ind. Code § 31-35-2-8(a).

[18] Mother only challenges the trial court’s conclusion that termination is in

Child’s best interests. To determine what is in child’s best interests, the trial

court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150,

1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

subordinate the interests of the parent to those of the child. Id. We have

previously held that recommendations by both the DCS case manager and the

CASA to terminate parental rights, in addition to evidence that the conditions

resulting in removal will not be remedied, is clear and convincing evidence that

termination is in the best interests of the child. Id. at 1158-59.

[19] Mother contends that by the time of the fact-finding hearing, she had

“presented evidence of a clean, suitable home; the ability to pay her living

expenses; and excellent engagement in services.” Mother’s Br. pp. 18-19.

Mother states that it is not in Child’s best interests “to remove his mother from

his life.” Id. at 19. Mother, however, does not dispute the court’s conclusion

that the conditions that resulted in removal of Child will not be remedied

because she has not “demonstrated the ability or willingness to make lasting

changes from past behaviors.” Mother’s App. Vol. II p. 16 (emphasis added). Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 11 of 12 While it is true that Mother recently started attending counseling and moved

into an apartment, the trial court found that “Mother’s recent engagement in

services does not overcome Mother’s historical pattern of failing to address

mental health and instability needs.” Mother’s App. Vol. II p. 15 (Finding 18).

Indeed, the trial court was well within its discretion to disregard the efforts

Mother made only shortly before termination and to weigh more heavily her

history of conduct before those efforts. See In re A.W., 62 N.E.3d 1267, 1273

(Ind. Ct. App. 2016) (“Trial courts have discretion to weigh a parent’s history

more heavily than efforts made shortly before termination, and the court may

find that a parent’s past behavior is the best predictor of future behavior.”).

Moreover, both FCM Haskins and CASA Rausch testified that termination of

Mother’s parental rights is in Child’s best interests. See Tr. Vol. II pp. 190, 239.

As such, the trial court did not err when it concluded that termination is in

Child’s best interests.

[20] Affirmed.

Kirsch, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2630 | May 17, 2019 Page 12 of 12