In the Matter of the Termination of Parent-Child Relationships of A.Q., K.Q., and R.Q. (Minor Children), R.O. (Mother), and C.Q. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 29, 2020
• Docket: 19A-JT-1997
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 29 2020, 10:05 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 ATTORNEY FOR APPELLEE R.O. (MOTHER) Robert J. Henke Donna J. Jameson Deputy Attorney General Greenwood, Indiana Indianapolis, Indiana ATTORNEY FOR APPELLANT C.Q. (FATHER) Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 29, 2020 of Parent-Child Relationships of Court of Appeals Case No. A.Q., K.Q., and R.Q. (Minor 19A-JT-1997 Children), Appeal from the Lawrence Circuit R.O. (Mother), Court The Honorable Nathan G. Nikirk, and Judge Pro Tempore C.Q. (Father), Trial Court Cause Nos. Appellants-Respondents, 47C01-1811-JT-373 47C01-1811-JT-374 v. 47C01-1811-JT-375

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 1 of 13 Indiana Department of Child Services, Appellee-Petitioner

Baker, Judge.

[1] R.O. (Mother) and C.Q. (Father) (collectively, Parents) appeal the trial court’s

order terminating their parent-child relationships with A.Q., K.Q., and R.Q.

(collectively, Children). The Parents argue that the termination order should be

reversed because their due process rights were violated. Finding no due process

violation, we affirm.

Facts [2] In January 2006, then-sixty-eight-year-old Father (who was born in 1938) was

substantiated1 by the Department of Child Services (DCS) for sexual

misconduct with a minor. The minor was then-fifteen-year-old Mother (who

was born in 1990).

1 After receiving a report of abuse or neglect and investigating the allegations, DCS must either find the report “substantiated” or “unsubstantiated.” Ind. Code § 31-33-8-12.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 2 of 13 [3] A.Q. was born to Parents in July 2010. In February 2011, DCS substantiated

allegations of neglect because of A.Q.’s failure to thrive. In May 2011, new

neglect allegations were substantiated for, among other things, permitting A.Q.

to be alone with Father despite his substantiated history of sexual misconduct

with a minor.

[4] K.Q. was born in May 2012. In February 2013, DCS substantiated allegations

of neglect against Parents for engaging in domestic violence in the presence of

the children. In April 2013, DCS filed a petition alleging that the children were

Children in Need of Services (CHINS) because both children had sustained

numerous, significant injuries (including lacerations, contusions, hematomas,

abrasions, and bruises) requiring medical treatment over the past year.

Evidently, the family participated appropriately, as the CHINS case was closed

on May 7, 2014.

[5] On January 26, 2015, DCS received a report of child abuse regarding A.Q. She

had dark bruises on her face and chin and was taken to the hospital for an

assessment. A physician at Riley Hospital in Indianapolis concluded that the

most likely medical explanation of the child’s injuries was physical abuse.

Subsequently, A.Q. participated in a forensic interview. She disclosed the

following in that interview: Mother had held her up by the chin and shut her

head in a door; Mother had grabbed her by the throat, pushed her up against a

wall, and slammed her down; and Mother had caused scarring to A.Q.’s chin

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 3 of 13 with a fork. The four-year-old stated that Mother did this to her because

“mommy don’t love me[.]” Ex. Vol. I p. 17.2

[6] DCS removed the children from Parents’ care and custody and filed a petition

alleging that the children were CHINS on January 27, 2015. On April 27,

2015, the trial court found the two children to be CHINS. The trial court later

entered a dispositional decree requiring Parents to participate with services,

including completing a parenting assessment, participating in individual and

couples therapy, participating with home-based casework, and complying with

any recommendations stemming from those services.

[7] R.Q. was born on June 20, 2015. On June 23, 2015, DCS removed R.Q. from

Parents’ care and custody based on the ongoing CHINS case for R.Q.’s siblings

and, on June 25, 2015, filed a petition alleging that R.Q. was a CHINS. The

trial court found R.Q. to be a CHINS on February 23, 2016.3

[8] During the approximately four years between the adjudication of the older

children as CHINS and the termination hearing in this case, Parents and

Children participated in numerous services, including therapy, individual

therapy, counseling, couples therapy, family consultant, supervised visitation,

clinical services specialist, DCS case management services, parent aid,

2 On November 30, 2015, Mother pleaded guilty to Level 5 felony battery on a person less than fourteen. 3 The reason for the lengthy delay between the filing of the R.Q. CHINS petition and the trial court’s CHINS adjudication is not clear from the record.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 4 of 13 budgeting aid, multiple psychological evaluations, First Steps, home-based

casework and case management, child and family team meetings (CFTMs),

tutoring, and mental health assessments. Despite all the services, Parents

remained “adamant that everybody else is at fault but them,” tr. vol. III p. 139,

and had “zero recognition of what they’ve done” that caused the CHINS and

termination cases to be filed, tr. vol. VII p. 81.

[9] Over the course of the CHINS case, visits did not go well and highlighted the

lack of a bond between Parents and Children. During visits, Father was angry,

demanding, and threatening, causing the providers to have safety concerns.

Mother frequently became agitated and emotional, yelling at Children; Father

engaged in manipulative behavior with respect to A.Q.; and Parents frequently

made inappropriate comments and had inappropriate discussions. A second

visitation supervisor had to be added because of the safety concerns expressed

by the first. Children were reluctant to visit Parents and often interacted with

service providers more than Parents at those visits. Visits were suspended

permanently in August 2018 for K.Q. and R.Q.; they had ended before then for

A.Q.

[10] A home-based therapist working with the family believed that Children were

not safe in Parents’ presence. A.Q. had “a lot of emotional toil following

visitation and phone calls” with Father, including panic attacks and nightmares.

Ex. Vol. I p. 57. K.Q. and A.Q. were vehement about not wanting to return to

their Parents’ custody, and R.Q. had no bond or connection with Parents. A.Q.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 5 of 13 once reported that if she had to return to Parents, there would have been

“severe physical retaliation that could lead to her death.” Id. at 58.

[11] In June 2015, DCS substantiated allegations of sexual abuse with respect to

Father. A.Q. had revealed that Father had sexually abused her, saying that he

had vaginally penetrated her with a pencil over fifty times. A provider who

conducted a parenting assessment of Father concluded that he was deceptive

about DCS’s involvement, his past substantiation of sexual abuse, and his

relationship with Children.

[12] In April 2016, K.Q. and A.Q. completed psychological evaluations to help

determine whether they had been coached in their allegations of physical and

sexual abuse. The clinical psychologist reported that K.Q. was traumatized,

did not want to talk about her parents, and had test scores that were indicative

of “youth who have suffered significant abuse and/or neglect in their early

years, and who currently demonstrate attachment concerns.” Ex. Vol. 1 p. 90.

She concluded that A.Q. had “endured significant sexual trauma” and had seen

her parents having sex and abusing each other and had been abused by them.

Appellants’ Joint App. Vol. II p. 56. The psychologist found no evidence that

either child had been coached and diagnosed both children with post-traumatic

stress disorder and impaired attachment ability. As to Parents, the psychologist

testified as follows at the termination hearing:

The totality of my finding[s] showed stark contrast between what the biological parents reported to me and what records showed. Showed significant trauma in the children[, and] substantiated

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 6 of 13 that there had been abuse of the children and that they had been traumatized at early ages. And when records show me that there has been at that point, five years of DCS involvement, at least intermittently, in which . . . there’s services provided, and through the course of multiple services and involvement with the agency and the court, that there is still zero recognition of what they’ve done, that’s a concern for me.

I probably wouldn’t have made that recommendation [to terminate the relationship] as firmly if there hadn’t been years of basically, failed efforts to get these parents to get on board and to say, yeah, maybe we shouldn’t beat each other up in front of the children, or to be honest. But to come at this point and be as deceptive as they were, and as lacking in any ownership and insight as they are, tells me that the prognosis for change was not good.

Tr. Vol. VII p. 81.

[13] Mother submitted to psychological evaluations in July 2015 and December

2016. The first psychologist was unable to reach a conclusive diagnosis because

of Mother’s responses and predilection for presenting herself in an overly

favorable light. She recommended that Mother participate in individual

therapy. The second psychologist diagnosed Mother with persistent depressive

disorder, major depressive disorder, anxiety disorder, and mixed personality

disorder with emotionally unstable and antisocial features. That psychologist

recommended that therapy continue and/or additional therapies be added, but

noted that any potential progress “would take a substantial amount of time.”

Appellants’ Joint App. Vol. II p. 62. Father also submitted to a psychological

evaluation and presented with a strong pattern of denial during the evaluation.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 7 of 13 The psychologist recommended that Father engage in individual and couples

therapy but stated that given Father’s adamant denials, any progress would be

slow.

[14] Parents participated to varying degrees with court-ordered services, including

individual therapy, couples therapy, and home-based services. They generally

attended visits. But despite the many services offered, and years of

participation, little to no progress was made on the underlying issues.

[15] On November 5, 2018, DCS filed petitions to terminate the parent-child

relationships between Parents and Children. The termination hearing took

place on April 18, 25, 26, and 29, 2019. At that time, A.Q. and K.Q. had been

placed in the same foster home for four years, and R.Q. had been there since

birth. All three were bonded to the foster family and working on their

respective issues and traumas. The Family Case Manager, Court Appointed

Special Advocate, and all service providers who worked with Children testified

that termination was in Children’s best interests.

[16] On July 29, 2019, the trial court entered an order granting DCS’s petitions. In

pertinent part, the trial court found as follows:

183. The Court further finds that Mother’s complete lack of ability after nearly 4.5 years of therapy and services to recognize and protect her children is extremely alarming, especially in light of the fact that Mother herself testified that she made an allegation against [Father] when she was a minor child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 8 of 13 ***

198. The Court finds that Father continues to deny, minimize and distort the trauma the children have endured. Instead, Father attempted to blame the [foster] placement and divert issues onto the foster parents, service providers, and investigators. Father’s complete lack of ability to recognize the children’s issues demonstrate his inability to protect them.

***

Conclusions

. . . Mother and Father have had since June 17, 2015 for [A.Q.] and [K.Q.] and April 11, 2016 for [R.Q.)] . . . to accomplish the steps necessary to have their children returned to their care. The Court believes there is a clear pattern of abuse and neglect by Mother and Father. Mother has a criminal conviction for battery against [A.Q.] and DCS substantiated sexual abuse against Father. In addition, the evidence presented demonstrates that several providers have identified behavioral issues, PTSD, and genuine fear exhibited by the children in regard to their parents. Father has failed to comply with services and while Mother has been somewhat compliant, Mother continues to deny the most basic facts that led to the removal of the children. The Court simply does not believe Mother understands or appreciates the level of trauma the children (especially [K.Q.] and [A.Q.]) have suffered.

Appealed Order p. 22, 24, 26-28. Parents now appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 9 of 13 Discussion and Decision [17] The only argument that Parents make on appeal is that the termination order

should be reversed because their due process rights were violated. Specifically,

they argue that there are specific services that they should have been provided

that DCS did not offer to them. Mother maintains that she should have

received more intensive mental health services, and Father insists that he

should have been referred to sex offender treatment and that A.Q. and Parents

should have received family therapy.

[18] Initially, we note that this appeal is the first time Parents make this argument.

At no point during the CHINS case did they request additional services, nor did

they argue at the termination hearing that the termination petitions should be

denied based on a due process violation. As such, they have waived the

argument altogether. In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016) (holding that

“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”); see also

In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (holding that “a parent

may not sit idly by without asserting a need or desire for services and then

successfully argue that he was denied services to assist him with his parenting”).

[19] Waiver notwithstanding, we note that parents are constitutionally entitled to

fundamentally fair procedures in termination proceedings. E.g., Santosky v.

Kramer, 455 U.S. 745, 753-54 (1982). Because of the ways in which the CHINS

and termination statutes interlock, “procedural irregularities in a CHINS

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 10 of 13 proceeding[] may be of such import that they deprive a parent of procedural due

process with respect to the termination of his or her parental rights.” A.P. v.

Porter Cty. Office of Family & Children, 734 N.E.2d 1107, 1112-13 (Ind Ct. App.

2000).

[20] Parents do not allege that they were not provided with sufficient hearings

during the CHINS proceeding, nor do they allege that they did not receive

notice of all required hearings or service of court orders, petitions, and motions.

They were each represented by counsel and do not allege that they did not have

the opportunity to present evidence or cross-examine witnesses at CHINS and

termination hearings. In other words, they undisputedly received all the judicial

process that was due to them.

[21] With respect to the conduct of DCS, it is true that DCS shortcomings may

violate the due process rights of parents in the context of CHINS and

termination proceedings. In re T.W., 135 N.E.3d 607 (Ind. Ct. App. 2019),

trans. denied. The T.W. Court held that:

for a parent’s due process rights to be protected in the context of termination proceedings, DCS must have made reasonable efforts to preserve and/or reunify the family unit in the CHINS case (unless the no reasonable efforts exception applies). What constitutes ‘reasonable efforts’ will vary by case, and as noted above, it does not necessarily always mean that services must be provided to the parents.

Id. at 615.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 11 of 13 [22] In T.W., DCS essentially decided as soon as the father was released from

incarceration that the child would be better off in foster care. As a result, the

Family Case Manager made no genuine efforts to provide the father with any

services or support, going so far as to cancel visits between father and child. In

that case, this Court found that “DCS wholly failed to make reasonable efforts”

to preserve the relationship between the father and his child, thereby denying

the father’s due process rights. Id. at 618.

[23] Here, in contrast, DCS gave Parents four years to make progress on their very

serious issues.4 Parents and Children were provided with many services,

including individual therapy, counseling, couples therapy, family consultant,

supervised visitation, clinical services specialist, DCS case management

services, parent aid, budgeting aid, multiple psychological evaluations, First

Steps, home-based casework and case management, CFTMs, tutoring, and

mental health assessments. We can only find that these efforts were more than

reasonable under the circumstances.

[24] Yes, DCS failed to provide more intensive therapy to Mother (though it did

offer her many years of therapy in which she made little to no progress) and sex

offender treatment to Father (though he continued to adamantly deny that he

abused A.Q. and undoubtedly would have refused to participate sincerely with

4 In fact, Parents have received more than four years of services. They received services in 2006 when Father molested teenaged Mother. They again received services in 2011 when multiple allegations of neglect were substantiated and again for approximately one year in 2013-14 during their first CHINS case.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 12 of 13 such a service). DCS also failed to refer A.Q. and Parents for family therapy

(an understandable decision, given A.Q.’s therapist’s belief that any further

contact between A.Q. and Parents would be harmful to A.Q.’s mental and

emotional health). But the omission of these very specific services—for which

Parents never asked—does not undercut the reasonableness of the substantial

efforts DCS made to help reunify this family.

[25] Despite the years of services, Parents made little to no progress. They

continued to deny there were problems, blamed everyone around them while

accepting no responsibility for their actions, and denied that they needed to

change the way they parented. There is no reason, based on this record, to

believe that additional services would have in any way altered their trajectory.

[26] For all these reasons, we decline to find that Parents’ due process rights were

violated during the CHINS and/or termination proceedings.

[27] The judgment of the trial court is affirmed.

Bradford, C.J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1997 | May 29, 2020 Page 13 of 13