MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 15 2018, 9:29 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary June 15, 2018 Termination of the Parental Court of Appeals Case No. Rights of: 18A-JT-77 Ch.S. & Co.S. (Minor Children) Appeal from the Fayette Circuit Court and The Honorable Hubert Branstetter, A.R. (Mother), Jr., Judge Appellant-Respondent, Trial Court Cause Nos. 21C01-1707-JT-267 v. 21C01-1707-JT-268
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 1 of 10 Bailey, Judge.
Case Summary [1] A.R. (“Mother”) appeals the termination of her parental rights to Ch.S. and
Co.S. (“Children”) upon the petition of the Indiana Department of Child
Services, Fayette County (“the DCS”). She presents a single, consolidated
issue: whether the DCS established, by clear and convincing evidence, the
requisite statutory elements to support the termination decision. 1 We affirm.
1 Mother asks that, in our review of the evidence, we disregard factual findings derived from the Child in Need of Services (“CHINS”) records. The termination order states that certain facts – relative to parental drug screens and housing – were “adopted as facts found for purposes of [the] termination proceeding.” (Appealed Order at 2.) The DCS asked that the trial court take judicial notice of CHINS records, pursuant to Evidence Rule 201(a), which provides that some kinds of facts may be judicially noticed, as follows: The court may judicially notice: (1) a fact that: (A) is not subject to reasonable dispute because it is generally known within the trial court’s territorial jurisdiction, or (B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (2) the existence of: (A) published regulations of governmental agencies; (B) ordinances of municipalities; or (C) records of a court of this state. The rule permits the trial court to judicially notice “the existence of” records of a court of this state – the language does not extend to judicial recognition of facts within the records. See In re D.P., 72 N.E.3d 976, 983 (Ind. Ct. App. 2017). However, termination cases “often must refer to and rely heavily upon records in different, but related, proceedings.” In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012). If a trial court takes judicial notice of the existence of records of other court proceedings, as occurred in this case, “there must be some effort made to include such ‘other’ records in the record of the current proceeding.” Id. The taking of judicial notice of
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 2 of 10 Facts and Procedural History [2] Mother and her husband, (“Father”), who is now deceased, had two children,
Co.S., born February 27, 2008, and Ch.S., born July 19, 2010. On April 18,
2016, the DCS filed a petition alleging that Children were Children in Need of
Services (“CHINS”) due to Mother’s drug use and parental inability to provide
adequate food, shelter, and medical care. On November 22, 2016, Children
were adjudicated CHINS.
[3] Mother was ordered to participate in reunification services. She and Father
engaged in supervised visitation with Children; Father was the more interactive
parent. After Father’s death from a heart attack, Mother and Children engaged
in therapeutic visitation sessions; the visitation supervisor considered a portion
of these visits to be positive parent-child interactions. As to the remainder of
the services offered to Mother, she was non-compliant. The DCS plan changed
from reunification to termination of parental rights and adoption of Children by
their paternal grandmother.
records of a court of this state “does not mean that the facts within them were conclusive.” Withers v. State, 15 N.E.3d 660, 664 (Ind. Ct. App. 2014). Rather, the parties are “free to contest the facts.” Id. To the extent that the language of the order on appeal suggests that the trial court merely “adopted” CHINS facts and gave them conclusive effect, this is incorrect. The trial court took judicial notice of the existence of CHINS records, the CHINS records were admitted into evidence, and the DCS elicited testimony consistent with the factual determinations made in the CHINS orders. Thus, despite the trial court’s reference to “adoption” of facts, the termination decision did not rest solely upon a paper record. See In re D.P,, 72 N.E.3d at 983 (recognizing the need for independent, admissible evidence of a father’s drug use as opposed to taking “notice of all facts contained within a court record.”) Here, the DCS presented admissible evidence of Mother’s conduct and she was not deprived of the opportunity to contest facts underlying the CHINS orders. At bottom, much of Mother’s own testimony supports the trial court’s findings and conclusions.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 3 of 10 [4] On July 25, 2017, the DCS petitioned to terminate Mother’s parental rights.
An evidentiary hearing was conducted on November 14, 2017, at which
Mother, her most recent caseworker, and the visitation supervisor testified. The
DCS proffered as evidentiary exhibits 2013 CHINS records and 2016 CHINS
records. Upon relevance and hearsay objections from Mother, the trial court
admitted into evidence only the more recent CHINS records.
[5] Mother testified regarding her desire to be reunited with Children, her current
living arrangements, and her admitted non-compliance with DCS referrals.
Mother opined that she needed a “one on one recovery coach” to address any
potential for relapse and that the DCS referrals, such as for group therapy, were
not appropriate. (Tr. at 72.) Visitation supervisor Myra Hisel (“Hisel”) testified
that Mother had “lots of missed visits,” some attributable to transportation
issues, but had enjoyed “good interactions” with Children over the last two
months. (Tr. at 40-41.) Hisel estimated that, overall, one in four visits had
been positive. Family case manager Molly Parkhurst (“Parkhurst”) testified
that Mother had been offered various services in addition to visitation but had
completed none. Mother had refused multiple drug screens and had tested
positive for illegal substances on several screens that were administered.
[6] After the DCS presented its witnesses, DCS counsel asked that the trial court
take judicial notice of the CHINS “causes” and the trial court responded that
judicial notice would be taken “of those cases.” (Tr. at 65.) Mother did not
object.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 4 of 10 [7] On December 11, 2017, the trial court issued its termination order.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 15 2018, 9:29 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 Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary June 15, 2018 Termination of the Parental Court of Appeals Case No. Rights of: 18A-JT-77 Ch.S. & Co.S. (Minor Children) Appeal from the Fayette Circuit Court and The Honorable Hubert Branstetter, A.R. (Mother), Jr., Judge Appellant-Respondent, Trial Court Cause Nos. 21C01-1707-JT-267 v. 21C01-1707-JT-268
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 1 of 10 Bailey, Judge.
Case Summary [1] A.R. (“Mother”) appeals the termination of her parental rights to Ch.S. and
Co.S. (“Children”) upon the petition of the Indiana Department of Child
Services, Fayette County (“the DCS”). She presents a single, consolidated
issue: whether the DCS established, by clear and convincing evidence, the
requisite statutory elements to support the termination decision. 1 We affirm.
1 Mother asks that, in our review of the evidence, we disregard factual findings derived from the Child in Need of Services (“CHINS”) records. The termination order states that certain facts – relative to parental drug screens and housing – were “adopted as facts found for purposes of [the] termination proceeding.” (Appealed Order at 2.) The DCS asked that the trial court take judicial notice of CHINS records, pursuant to Evidence Rule 201(a), which provides that some kinds of facts may be judicially noticed, as follows: The court may judicially notice: (1) a fact that: (A) is not subject to reasonable dispute because it is generally known within the trial court’s territorial jurisdiction, or (B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (2) the existence of: (A) published regulations of governmental agencies; (B) ordinances of municipalities; or (C) records of a court of this state. The rule permits the trial court to judicially notice “the existence of” records of a court of this state – the language does not extend to judicial recognition of facts within the records. See In re D.P., 72 N.E.3d 976, 983 (Ind. Ct. App. 2017). However, termination cases “often must refer to and rely heavily upon records in different, but related, proceedings.” In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012). If a trial court takes judicial notice of the existence of records of other court proceedings, as occurred in this case, “there must be some effort made to include such ‘other’ records in the record of the current proceeding.” Id. The taking of judicial notice of
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 2 of 10 Facts and Procedural History [2] Mother and her husband, (“Father”), who is now deceased, had two children,
Co.S., born February 27, 2008, and Ch.S., born July 19, 2010. On April 18,
2016, the DCS filed a petition alleging that Children were Children in Need of
Services (“CHINS”) due to Mother’s drug use and parental inability to provide
adequate food, shelter, and medical care. On November 22, 2016, Children
were adjudicated CHINS.
[3] Mother was ordered to participate in reunification services. She and Father
engaged in supervised visitation with Children; Father was the more interactive
parent. After Father’s death from a heart attack, Mother and Children engaged
in therapeutic visitation sessions; the visitation supervisor considered a portion
of these visits to be positive parent-child interactions. As to the remainder of
the services offered to Mother, she was non-compliant. The DCS plan changed
from reunification to termination of parental rights and adoption of Children by
their paternal grandmother.
records of a court of this state “does not mean that the facts within them were conclusive.” Withers v. State, 15 N.E.3d 660, 664 (Ind. Ct. App. 2014). Rather, the parties are “free to contest the facts.” Id. To the extent that the language of the order on appeal suggests that the trial court merely “adopted” CHINS facts and gave them conclusive effect, this is incorrect. The trial court took judicial notice of the existence of CHINS records, the CHINS records were admitted into evidence, and the DCS elicited testimony consistent with the factual determinations made in the CHINS orders. Thus, despite the trial court’s reference to “adoption” of facts, the termination decision did not rest solely upon a paper record. See In re D.P,, 72 N.E.3d at 983 (recognizing the need for independent, admissible evidence of a father’s drug use as opposed to taking “notice of all facts contained within a court record.”) Here, the DCS presented admissible evidence of Mother’s conduct and she was not deprived of the opportunity to contest facts underlying the CHINS orders. At bottom, much of Mother’s own testimony supports the trial court’s findings and conclusions.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 3 of 10 [4] On July 25, 2017, the DCS petitioned to terminate Mother’s parental rights.
An evidentiary hearing was conducted on November 14, 2017, at which
Mother, her most recent caseworker, and the visitation supervisor testified. The
DCS proffered as evidentiary exhibits 2013 CHINS records and 2016 CHINS
records. Upon relevance and hearsay objections from Mother, the trial court
admitted into evidence only the more recent CHINS records.
[5] Mother testified regarding her desire to be reunited with Children, her current
living arrangements, and her admitted non-compliance with DCS referrals.
Mother opined that she needed a “one on one recovery coach” to address any
potential for relapse and that the DCS referrals, such as for group therapy, were
not appropriate. (Tr. at 72.) Visitation supervisor Myra Hisel (“Hisel”) testified
that Mother had “lots of missed visits,” some attributable to transportation
issues, but had enjoyed “good interactions” with Children over the last two
months. (Tr. at 40-41.) Hisel estimated that, overall, one in four visits had
been positive. Family case manager Molly Parkhurst (“Parkhurst”) testified
that Mother had been offered various services in addition to visitation but had
completed none. Mother had refused multiple drug screens and had tested
positive for illegal substances on several screens that were administered.
[6] After the DCS presented its witnesses, DCS counsel asked that the trial court
take judicial notice of the CHINS “causes” and the trial court responded that
judicial notice would be taken “of those cases.” (Tr. at 65.) Mother did not
object.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 4 of 10 [7] On December 11, 2017, the trial court issued its termination order.
Discussion and Decision Standard of Review – Sufficiency of the Evidence [8] When we review whether the termination of parental rights is appropriate, we
will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d
1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable
inferences that are most favorable to the judgment. Id. In so doing, we give
“due regard” to the trial court’s unique opportunity to judge the credibility of
the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We will set aside
the trial court’s judgment only if it is clearly erroneous. K.T.K. v. Ind. Dep’t of
Child Servs, 989 N.E.2d 1225, 1229 (Ind. 2013). In order to determine whether
a judgment terminating parental rights is clearly erroneous, we review the trial
court’s judgment to determine whether the evidence clearly and convincingly
supports the findings and the findings clearly and convincingly support the
judgment. I.A., 934 N.E.2d at 1132.
Requirements for Involuntary Termination of Parental Rights [9] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are
of a constitutional dimension, the law provides for the termination of those
rights when the parents are unable or unwilling to meet their parental
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 5 of 10 responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143,
147 (Ind. 2005). The State is required to prove that termination is appropriate
by a showing of clear and convincing evidence, a higher burden than
establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.
[10] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must
allege and prove by clear and convincing evidence in order to terminate a
parent-child relationship:
(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 well-being of the child.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 6 of 10 (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.
[11] Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and
therefore the court need only to find that one of the three requirements of
subsection (b)(2)(B) was established by clear and convincing evidence. See In re
L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).
Analysis [12] Mother contends that insufficient evidence supports the termination decision.
She first focuses upon whether there is clear and convincing evidence of a
reasonable probability that she would fail to remedy the conditions that led to
Children’s removal.
[13] This invokes a “two-step analysis.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014).
First, we identify the conditions that led to removal; and second, we must
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. In the second step, the trial court must judge parental
fitness as of the time of the termination hearing, taking into consideration the
evidence of changed conditions. Id. (citing Bester, 839 N.E.2d at 152). The trial
court is entrusted with balancing a parent’s recent improvements against
habitual patterns of conduct. Id. The trial court has discretion to weigh a
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 7 of 10 parent’s prior history more heavily than efforts made only shortly before
termination. 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.
[14] Children were removed due to allegations that their parents were unable to
provide them with a drug-free home and other necessities. According to
Mother’s testimony, the DCS removed Children based upon an allegation that
she had maintained “a heroin house.” (Tr. at 29.) Mother insisted that she had
neither used heroin nor admitted as much to a caseworker, as alleged at the
time of removal. Mother had refused several drug screens and had most
recently tested positive for amphetamines and methamphetamine. Mother also
denied methamphetamine use but proffered an explanation that marijuana she
had used might have been adulterated with other substances.
[15] Mother testified regarding her opposition to some of the offered reunification
services, as to location, type, and service provider. Mother expressed a
preference for continuing to use marijuana; she felt that it helped her avoid
more addictive substances. She wanted individual, as opposed to group,
therapy, and she wanted to receive services at Centerstone rather than
Meridian. According to Mother, she had “already been” to inpatient treatment,
she knew herself and her needs, and she did not feel that additional group
therapy would be beneficial. (Tr. at 8, 67.) She admitted having refused some
drug screens because she “didn’t click with” the most recent family case
manager and sometimes wanted “just to piss Molly off.” (Tr. at 20, 23.)
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 8 of 10 Mother acknowledged that she was unwilling to sign a release to permit the
DCS to obtain her medical records. She had been unemployed for twelve
years, but had applied for disability benefits.
[16] Parkhurst testified that Mother had been offered substance abuse treatment,
drug screens, home-based case management services, therapy, and child visits.
She further testified that Mother: refused multiple drug screens, submitted a
recent screen that was positive for methamphetamine and amphetamine, stated
in a team meeting that she would not participate in substance abuse services
because they were not needed, repeatedly tested positive for marijuana, did not
complete individual counseling, did not maintain stable housing, and did not
complete the intake process to receive home-based case management services
related to parenting skills, housing, or employment.
[17] In sum, Mother was non-compliant with each of the reunification services
offered to her and she opposed future services that were not tailored to her
terms. The evidence clearly and convincingly supports the trial court’s findings
of fact regarding Mother’s conduct; the findings clearly and convincingly
support the conclusion that the conditions leading to Children’s removal would
not likely be remedied.2
2 We need not address Mother’s challenge to the trial court’s conclusion that there was a reasonable probability that the continuation of the parent-child relationship posed a threat to Children’s well-being because Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the trial court need only find that one of the three requirements of subsection (b)(2)(B) has
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 9 of 10 [18] Mother also contends that the DCS did not present clear and convincing
evidence that termination of parental rights is in Children’s best interests. In
determining what is in a child’s best interests, the 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. Children have been removed from Mother’s care since April of 2016
and Mother has not progressed beyond having supervised visits with Children.
As of the termination hearing, she had no independent source of income. She
had lived for a month or two in an apartment furnished by a boyfriend. Mother
had not been employed in the last twelve years. She did not release her medical
records or comply with services including drug screens. As such, the totality of
the evidence suggests that Mother was unable to care for Children. We find no
clear error in the trial court’s findings and judgment.
Conclusion [19] The DCS established by clear and convincing evidence the requisite elements to
support the termination of parental rights.
[20] Affirmed.
Crone, J., and Brown, J., concur.
been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-77 | June 15, 2018 Page 10 of 10