In the Matter of: K.H. (Child Alleged to be in Need of Services) and R.H. (Mother) R.H. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 13, 2019
• Docket: 19A-JC-913
• 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 Nov 13 2019, 10:46 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 ATTORNEYS FOR APPELLEE Jarvis E. Newman III Curtis T. Hill, Jr. Newman and Newman LLC Attorney General of Indiana Albion, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of: November 13, 2019 K.H. (Child Alleged to be in Court of Appeals Case No. Need of Services) and R.H. 19A-JC-913 (Mother); Appeal from the Noble Superior R.H. (Mother), Court The Honorable Steven C. Hagen, Appellant-Respondent, Judge v. Trial Court Cause No. 57D02-1705-JC-42 The Indiana Department of Child Services, Appellee-Petitioner

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 1 of 12 [1] R.H. (“Mother”) appeals the trial court’s order terminating the Department of

Child Service’s (“DCS”) wardship over her daughter, K.H. (“Child”). She

argues the trial court violated her right to due process when it did not rule on

two pending motions prior to terminating the wardship. We affirm.

Facts and Procedural History [2] Child was born to Mother on September 19, 2014. Mother did not notify J.C.

(“Father”) that he was the father of Child. Mother and Child lived with

maternal grandparents. On May 18, 2017, Child was in the car with Mother

when police initiated a traffic stop. Police found methamphetamine,

marijuana, and paraphernalia in the car. Officers arrested Mother. Following

her arrest, DCS requested that Mother complete a drug screen, which was

positive for amphetamine, methamphetamine, and THC. Mother could not

provide an appropriate caregiver for Child, so DCS removed Child from

Mother’s care at that time.

[3] On May 19, 2017, DCS filed a petition alleging Child was a Child in Need of

Services (“CHINS”) based on Mother’s drug use, arrest, and inability to

provide an appropriate caregiver for Child. On June 6, 2017, DCS filed a

predispositional report with the trial court, indicating DCS was trying to locate

Father, the man Mother reported as the Child’s father. DCS also made

recommendations regarding services for Mother should Child be adjudicated a

CHINS.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 2 of 12 [4] On June 15, 2017, Mother1 admitted Child was a CHINS and the trial court

immediately held a dispositional hearing. On July 2, 2017, the trial court

ordered Mother to refrain from using illegal substances; provide random drug

screens; complete psychiatric, parenting, and substance abuse assessments; and

follow all recommendations from the assessments based on DCS’s requested

services from the June 6 predispositional report. On August 7, 2017, the trial

court entered a separate parental participation order that listed the same service

requirements.

[5] On October 6, 2017, DCS filed a progress report with the trial court indicating

it had located Father and DNA testing completed in September confirmed

Child’s paternity. The report also indicated Mother had thus far been non-

compliant with services and had tested positive for illegal substances on

multiple occasions. On October 10, 2017, Father entered an appearance in the

CHINS matter and admitted Child was a CHINS. On November 14, 2017,

DCS filed a predispositional report as to Father. On December 7, 2017, the

trial court entered its dispositional order as to Father based on DCS’s

recommendations and ordered Father to complete services including meeting

with the Family Case Manager, keeping all appointments with the service

providers, and visiting Child. The trial court granted Father an extended

visitation with Child from December 7 through 10, 2017.

1 While the exact date is unclear, Mother was released from jail prior to the June 15, 2017, hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 3 of 12 [6] On December 13, 2017, Father filed a motion to modify Child’s placement and

requested Child be placed with him. He alleged he was the “non-offending”

parent and Child’s current placement with maternal grandmother was

inappropriate because Mother also resided with maternal grandmother and

continued to use drugs. (Appellee’s App. Vol. II at 62.) Father indicated he

had filed a Petition to Establish Paternity and Custody of Child in another court

and had not been accused of any wrongdoing in the current CHINS case.

[7] On December 19, 2017, Mother’s therapist filed a report with the trial court

indicating Mother had been diagnosed with PTSD; cannabis use disorder, mild;

amphetamine-type substance disorder, mild; and other circumstances related to

child neglect. Mother’s therapist reported Mother told her that Mother’s

substance abuse began at age nine, and Mother was actively working on

overcoming her addiction. Mother’s therapist had also observed Father’s

visitation with Child and expressed no concerns. On December 21, 2017, the

trial court held a hearing 2 on the matter and the same day entered an order

granting Father’s request to have Child placed with him, to commence on

December 30, 2017. The order provided Mother would be allowed supervised

visitation through DCS and maternal grandparents would be allowed

unsupervised visitation with Child “upon the express condition that [Mother]

not be present during any portion of said visitation.” (Id. at 64.)

2 The record does not include a transcript of this hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 4 of 12 [8] On January 12, 2018, the trial court issued a Nunc Pro Tunc Order amending

its December 21 order, allowing maternal grandparents “liberal reasonable

unsupervised visitation (as determined by DCS) with Child upon the express

condition that [Mother] not be present during any portion of said visitation.”

(Id. at 65.) On January 23, 2018, Father filed a motion to terminate or restrict

grandparent visitation. On February 1, 2018, maternal grandparents filed a

motion to intervene in the CHINS proceedings. The trial court set a hearing on

February 8, 2018, to discuss these matters.

[9] On February 2, 2018, Mother filed a motion to reunify or show cause why

reunification should not occur. Mother alleged she had been denied visitation

with Child on five dates because of weather conditions, scheduling errors, and

difficulty with transportation; Father has “not been conducive to fostering the

relationship between Mother and child and DCS has taken no action[,]” (id. at

67-8); Father “tried to prevent grandparent’s [sic] from having visitation[,]” (id.

at 68); Father “has been leaving the child with his mother for the three day

period and two day period in which he works[,]” (id.); paternal grandmother

will not allow Mother to speak with Child when Child is in paternal

grandmother’s care because paternal grandmother cannot allow video calls on

her phone and does not have cellular signal to allow regular calls; Child had

complained her “bottom hurt[,]” (id.); the parties disagreed regarding how to

potty train Child; and Child “pleads with Mom that she doesn’t want to go

back to Dad’s house saying she wants to go home and be with Mom.” (Id. at

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 5 of 12 69.) The trial court added Mother’s motion to the items to be discussed during

the February 8 hearing.

[10] On February 6, 2018, Mother filed a motion to correct error, asking the trial

court to either: (1) vacate and dismiss the CHINS proceeding, or (2) restore the

June 22, 2017, dispositional decree or have a new evidentiary hearing regarding

Child’s placement with maternal grandparents. Mother argued one of those

actions was required because:

1. The CHINS judgment was erroneous as no determination of serious endangerment or impairment was made.

2. The current placement judgment is not supported by the evidence contained in the record.

3. The current placement judgment is against the weight of the evidence presented to the Court.

4. The current placement judgment is a modification of the Mother’s dispositional order which order was made contrary to her procedural due process rights.

(Id. at 71-2.) Mother also filed a memorandum of law in support of her motion

to correct error.

[11] On February 8, 2018, the trial court held a hearing and denied maternal

grandparents’ motion to intervene. On February 28, 2018, the trial court

denied Mother’s motion to correct error. The trial court set a review hearing for

March 15, 2018, and an evidentiary hearing on all pending motions for April

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 6 of 12 12, 2018. On March 15, 2018, the trial court held the review hearing. During

the March 15 hearing, the trial court noted that the paternity court would likely

deal with Child’s custody during a hearing in May and “it’s just a question then

of cleaning up after the end of it all.” (Tr. Vol. II at 43.) The trial court then

vacated the April 12 hearing and set a hearing for August 30, 2018. On April

11, the trial court issued an order finding DCS, Child, and Father had complied

with Child’s case plan and that Child’s placement with Father was appropriate.

However, Mother had only partially complied with Child’s case plan, had

tested positive for illegal drugs during the reporting period, and had not

benefitted from services. Services were to continue and Child was to remain

with Father.

[12] On April 2, 2018, Mother filed a notice of appeal which was subsequently

dismissed with prejudice. 3 On April 12, Mother filed a motion to reconsider the

trial court’s order of April 11, which dealt with the issues presented at the

March 15 hearing. In her motion to reconsider, Mother alleged “numerous

factual errors and insufficient findings” including that one of Mother’s attorneys

was not named in the order; one of the DCS attorneys was improperly

included; Father’s name was misspelled; the number of times Mother tested

3 On June 25, 2018, Mother filed her appellant’s brief challenging her admission to the CHINS allegations and Child’s subsequent placement with Father. On August 13, 2018, DCS filed a motion to dismiss Mother’s appeal as untimely. On September 14, 2018, this court dismissed Mother’s appeal with prejudice. On October 22, 2018, Mother filed a petition for rehearing, which this court denied on November 27, 2018. Mother then filed a petition to transfer to the Indiana Supreme Court on December 27, 2018, which our Indiana Supreme Court denied on February 28, 2019.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 7 of 12 positive for drugs during the reporting period was incorrect; Mother’s

participation in certain services was not reported; and generally, Father’s

compliance with the case plan was overemphasized and Mother’s progress was

ignored.

[13] On May 29, 2018, the paternity court awarded Father physical and legal

custody of Child to be effective upon the CHINS court’s approval or the

dismissal of the CHINS proceedings. See In re Paternity of K.H., 116 N.E.3d

504, 509 (Ind. Ct. App. 2018), trans. denied. On June 7, 2018, DCS filed a

motion to terminate the CHINS wardship because Father had been granted

physical and legal custody of Child in the paternity case. On August 17, 2018,

DCS filed a motion for a permanency hearing. The trial court scheduled the

hearing for August 30, 2018. Mother filed a motion to stay hearing on August

27, 2018, and the court noted in the Chronological Case Summary that it would

consider that motion at its August 30 hearing.

[14] The trial court held a hearing on August 30, 2018, and denied DCS’s motion

for a permanency hearing because Mother’s appeal of the trial court’s CHINS

order had yet to be decided. On September 19, 2018, DCS again filed a motion

to terminate its wardship of Child because our court dismissed Mother’s appeal

of the CHINS adjudication with prejudice on September 14, 2018. Mother filed

an objection to the termination of DCS’s wardship. On November 28, the trial

court held a hearing and took the matter under advisement. On November 29,

Mother filed another objection to the termination of DCS’s wardship, arguing

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 8 of 12 that she was in the process 4 of appealing the paternity order and that the

outcome of that appeal could affect the CHINS proceedings. We issued an

opinion on Mother’s appeal of the paternity order on December 13, 2018, and

our Indiana Supreme Court denied transfer on February 28, 2019.

[15] On March 21, 2019, the trial court held a hearing on DCS’s motion to

terminate wardship of Child. DCS argued the reasons for removal had been

remedied because “reunification with a parent has occurred. The child is safe

with father, that occurred through a custodial modification out of the custodial

court[.]” (Tr. Vol. II at 48.) Father agreed with DCS and noted Child had been

in his care for over a year. The Court Appointed Special Advocate indicated

Child was “doing great” in Father’s care. (Id. at 51.) Mother argued there were

“factual issues that need to be determined” and “there are pending motions on

the case . . . [specifically] a motions [sic] to reunify [and] a motion to correct the

record[.]” (Id. at 52.) DCS maintained Mother’s arguments were an attempt at

a “second bite of the apple” and the issues Mother contended were still pending

“were addressed at the appellate level.” (Id. at 54.) The same day, the trial

court issued an order terminating DCS’s wardship over Child because

“[p]ermanency for the Child has been achieved through Reunification with

Father. The Indiana Supreme Court has denied appellant’s (Mother) petition to

transfer.” (Appellant’s App. at 19.)

4 Mother filed a notice of appeal of the paternity order on August 1, 2018.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 9 of 12 Discussion and Decision [16] The U.S. Constitution protects the relationship between parent and child. Troxel

v. Granville, 530 U.S. 57, 66 (2000); see also Matter of Joseph, 416 N.E.2d 857, 860

(Ind. Ct. App. 1981). The Due Process Clause of the Fourteenth Amendment

protects the fundamental right of parents to direct the care, custody, and control

of their children. Troxel, 530 U.S. at 66. However, this right is not unlimited,

and the State has the authority under its parens patriae power to intervene when

necessary to protect children within its borders. In re T.H., 856 N.E.2d 1247,

1250 (Ind. Ct. App. 2006). We have consistently held a parent’s rights must be

subordinated to the best interests of the child. In re A.A.C., 682 N.E.2d 542, 544

(Ind. Ct. App. 1997).

[17] Mother argues the trial court violated her right to due process when it

terminated DCS’s wardship of Child before ruling on two pending motions.

She argues that, because the trial court did not rule on those motions or hold

hearings thereon, she did not have an “opportunity to show that she is a good

candidate for reunification with her child[.]” (Br. of Appellant at 6.)

[18] In a proceeding involving parental rights, parents have certain due process

rights that essentially require those proceedings be fundamentally fair. E.P. v.

Marion Cty. Ofc. of Family & Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App.

1995). When we determine if a parent’s due process rights have been violated,

we balance three factors: “1) the private interests affected by the proceeding, (2)

the risk of error created by the State's chosen procedure, and (3) the

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 10 of 12 countervailing governmental interest supporting use of the challenged

procedure.” A.P. v. Porter Cty. Ofc. of Family & Children, 734 N.E.2d 1107 (Ind.

Ct. App. 2000), reh’g denied. Ultimately, the resulting balance of those factors

must provide “the opportunity to be heard at a meaningful time and in a

meaningful manner.” In re G.P., 4 N.E.3d 1158, 1166 (Ind. 2014).

[19] We agree that Mother’s interest in maintaining a relationship with her Child is

substantial, though we note that the termination of DCS wardship does not

terminate Mother’s rights to Child – instead, it requires that she abide by the

parenting time guidelines as set forth by the paternity court in its custody order.

We also agree that the governmental interest here – the protection of Child – is

substantial. Thus, we turn to the risk of error of the action.

[20] This CHINS case has been pending for over two years. Child has been placed

with Father for most of that time. Two courts – the CHINS court and the

paternity court – have considered the fitness of each parent to care for Child

over a series of multiple hearings. Mother has consistently tested positive for

illegal substances and has not participated in the services required by the

CHINS depositional order. The motions to be ruled on – one contesting

Child’s placement with Father and the other requesting certain changes in an

order that is no longer appealable – are moot considering the fact that the focus

of the CHINS inquiry – Child – is no longer in need of the coercive intervention

of the court. See, e.g, M.S. v. Indiana Dept. of Child Services, 999 N.E.2d 1036,

1041 (Ind. Ct. App. 2013) (affirming dismissal of DCS wardship when mother

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 11 of 12 was “ill-equipped” to care for Child and continued placement with father

satisfied all concerns set forth in CHINS petition).

[21] Based on these facts, we conclude the risk associated with the termination of

DCS’s wardship of Child is low because Mother had multiple opportunities in

two different courts to be heard regarding her fitness to care for Child and she

appealed rulings by those courts in two separate appellate proceedings, one

which was dismissed as untimely and the other which was affirmed. Both

appeals were also denied transfer by our Indiana Supreme Court. As such,

Mother’s due process rights were not violated.

Conclusion [22] The trial court did not violate Mother’s due process rights when it terminated

DCS’s wardship of Child prior to ruling on two pending motions concerning

issues that had already been litigated before the trial court. Accordingly, we

affirm.

[23] Affirmed.

Najam, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019 Page 12 of 12