In the Matter of the Termination of Parental Rights of: F.F. (Minor Child), and J.F. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 2, 2020
• Docket: 19A-JT-2423
• 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 Apr 02 2020, 10:19 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dorothy Ferguson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 2, 2020 of Parental Rights of: Court of Appeals Case No. 19A-JT-2423 F.F. (Minor Child), Appeal from the Madison Circuit and Court J.F. (Mother), The Honorable G. George Pancol, Appellant-Respondent, Judge Trial Court Cause No. v. 48C02-1904-JT-187

Indiana Department of Child Services, Appellee-Petitioner

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 1 of 12 [1] J.F. (Mother) appeals the trial court’s order terminating her parent-child

relationship with her minor son, F.F. (Child). Mother argues that the

termination proceedings violated her due process rights and that the evidence is

insufficient to support the termination order. Finding no due process violations

and that the evidence is not insufficient, we affirm.

Facts [2] Child was born in March 2008; his father is deceased. On December 28, 2016,

when Child was eight years old, the Department of Child Services (DCS)

received a report containing the following allegations: Mother was using

methamphetamine and alcohol and was impaired in Child’s presence; Child

witnessed domestic violence between Mother and her cousin and when Mother

cut her boyfriend with a knife; and Mother was not ensuring that Child had

enough to eat, was attending school, or was supervised appropriately. In

January 2017, DCS spoke with Child at school. He disclosed, among other

things, that he had “witnessed an event of extreme violence in the home,” that

“his Mother and Father used to physically fight a lot,” and that Mother “drinks

alcohol and then gets in fights.” Appellant’s App. Vol. II p. 100-01. Around

that same time, Mother tested positive for methamphetamine and

amphetamine.

[3] On February 1, 2017, DCS removed Child from Mother’s care and custody and

placed him in foster care. Two days later, it filed a petition alleging that Child

was a Child in Need of Services (CHINS). On March 21, 2017, the trial court

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 2 of 12 found Child to be a CHINS after Mother admitted to having substance abuse

issues. In the April 18, 2017, dispositional decree, the trial court ordered

Mother to, among other things, participate in individual and family counseling

and follow any treatment recommendations; complete a substance abuse

assessment and comply with any treatment recommendations; and submit to

random drug screens.

[4] Between February and September 2017, Mother participated inconsistently

with services. She completed a substance abuse assessment and started the

recommended outpatient services, but was discharged after she had an

altercation with the person running the class. She was referred to another

provider but did not follow up on the referral or participate with the service.

DCS also referred Mother to participate with individual counseling, but she did

not participate with that service either.

[5] Mother provided some, but not all, requested random drug screens. On March

31, 2017, she tested positive for marijuana; on May 16, for methamphetamine,

amphetamine, and cocaine; on May 22, for alcohol and methamphetamine; on

May 23, for alcohol and methamphetamine; on June 22, for marijuana; on June

23, for alcohol; on July 6, for alcohol; on July 13, for methamphetamine and

amphetamine; and on July 25, for methamphetamine. Mother admitted at the

termination hearing that she used illegal substances throughout the CHINS

case.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 3 of 12 [6] From September 2017 through January 2019, Mother completed two more

substance abuse assessments, but was discharged from the follow-up services for

noncompliance. She began home-based therapy and home-based case

management, but was discharged for noncompliance.

[7] For much of the case, Mother attended visits with Child, but had periods of

inconsistency. More than once, visits were closed because Mother missed

appointments. But DCS continued to make new referrals for visitations and

Mother continued to visit until June 2018. But from June through December

2018, Mother visited Child only once, around Christmas. She did not ever try

to reestablish visits after the 2018 Christmas visit.

[8] On January 10, 2019, Mother tested positive for methamphetamine. DCS

referred her for a new substance abuse assessment and treatment, but she failed

to comply. Throughout the case, Mother did not have stable employment and

was unable or unwilling to fully comply with or complete any of the court-

ordered services.

[9] On April 17, 2019, DCS filed a petition to terminate Mother’s parental rights.

Mother was present at the May 20, 2019, initial hearing in the termination

proceedings. The trial court appointed an attorney to represent Mother and

told Mother to meet with the attorney following the hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 4 of 12 [10] At some point, Mother was arrested on a probation violation.1 At the July 16,

2019, termination factfinding hearing, Mother was incarcerated in the Henry

County Jail but was present telephonically and by her attorney. Mother

testified at the hearing, admitting that she used methamphetamine repeatedly

throughout the CHINS case, that she had not obtained a sponsor for Alcoholics

Anonymous or Narcotics Anonymous, and that she had not completed

substance abuse treatment. Mother stated that before she was incarcerated, she

had begun looking for a drug treatment program and that after she was

released, she wanted to “get into rehab.” Tr. Vol. II p. 24.

[11] Child’s therapist testified that in her opinion, termination of Mother’s parental

rights was in Child’s best interests. Child was traumatized by his formative

years and needed ongoing therapy to address his issues. He needs the stability

and consistency provided in his preadoptive foster home. In the therapist’s

opinion, it is in Child’s best interests to be adopted by his foster family. The

Family Case Manager (FCM) and Court Appointed Special Advocate (CASA)

likewise agreed that it was in Child’s best interests to terminate the parent-child

relationship.

[12] The termination factfinding evidence closed at the end of the July 16, 2019,

hearing. On July 17, 2019, the trial court received a handwritten note from

1 Mother was on probation for an October 2018 possession of a legend drug conviction. She violated probation in April 2019, when multiple items of drug paraphernalia were found in her residence.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 5 of 12 Mother requesting a continuance for a hearing. It appears that the note had

been sent from jail on July 16, 2019, though the trial court did not receive it

until the next day. She asked to continue the termination hearing until such

time when she could appear in person.2

[13] On September 3, 2019, Mother’s attorney filed a motion to present new

evidence, alleging that since Mother had been released from incarceration, she

had set up and been participating with services. DCS objected, and the trial

court denied the motion. On September 23, 2019, the trial court entered an

order terminating the parent-child relationship. The trial court made numerous,

detailed findings of fact, including the following general findings:

The child’s mother has made no serious attempt to participate in any reunification services or otherwise remedy the child’s CHINS condition. All service provider referrals created in the case have been closed as unsuccessful due to mother’s lack of participation and absence. This includes visitation with the child, which the child’s mother has failed to do, thus sacrificing any lasting bond between herself and the child;

The child’s mother has engaged in a career of drug abuse and criminal activity throughout the CHINS and termination proceedings, through and including the date of termination trial . . . , at which time she was incarcerated for a probation violation. She has failed to stop this conduct and divert her attentions to becoming a better parent. She has made excuses

2 Mother briefly argues on appeal that the trial court erred in denying her request for a continuance. But the trial court did not receive the request until the day after the hearing took place. Additionally, Mother was present telephonically and by counsel at the hearing, and neither she nor her counsel requested a continuance at the outset of the hearing. Therefore, she is not entitled to relief on this basis.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 6 of 12 and blamed any other entity than herself for her failure to remedy the child’s CHINS conditions;

The child’s mother has failed to address and remedy her own long term and ongoing instability and inability to provide for herself, let alone the child;

As of the date of the trial session in the termination proceedings, the child has been removed from the home and care of the child’s mother for 29 consecutive months.

Appealed Order p. 9-10. Mother now appeals.

Discussion and Decision I. Due Process [14] Mother argues that her due process rights were violated because she was unable

to consult with her attorney prior to the termination hearing and because the

trial court denied her motion to submit new evidence two months after the

termination hearing had concluded. When the State seeks to terminate parental

rights, it must do so in a manner that meets the requirements of due process. In

re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014).

[15] With respect to Mother’s communication with her attorney, we note that she

did not lodge an objection on this basis to the trial court. That means that she

has waived this issue and that there is nothing in the record supporting her

assertion. We have no way of knowing whether, in fact, Mother was unable to

contact her attorney or, if that was the case, the reason for the lack of

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 7 of 12 communication.3 Under these circumstances, we cannot find a due process

violation.

[16] With respect to Mother’s request to reopen the evidence two months after the

termination hearing, we decline to find a due process (or any other) violation on

this basis. Mother was present telephonically and by counsel at the termination

hearing. She was able to present evidence (indeed, she testified at length) and

cross-examine witnesses. There is no due process or statutory requirement that

the trial court consider any evidence of remedial measures taken by a parent in

the months after the close of evidence, especially when Mother had had the

previous two and one-half years to participate with services and work on

becoming a safe and appropriate parent. While we commend Mother for the

steps she claims to have taken after being released from incarceration, those

actions simply occurred too late to be incorporated into the termination

hearing. We find no error on this basis.

II. Termination

A. Standard of Review [17] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

3 We know that Mother was aware of the identity of her attorney because Mother was present at the initial termination hearing, when the trial court appointed the attorney, informed Mother who it would be, and instructed Mother to meet with the attorney after that hearing.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 8 of 12 K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005) (internal quotations omitted).

[18] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(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.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 9 of 12 (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.

(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.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 10 of 12 B. Remedy of Conditions [19] Mother argues that the evidence does not support the trial court’s conclusion

that there is a reasonable probability that the conditions resulting in Child’s

removal and continued placement outside of her care and custody will not be

remedied. The reason for Child’s initial removal from Mother’s care and

custody was Mother’s ongoing substance abuse; the reasons for Child’s

continued removal from Mother were Mother’s substance abuse, instability,

and refusal to participate with court-ordered services.

[20] The record reveals that Mother continued to use methamphetamine and other

substances throughout the years-long CHINS case. While she completed

multiple substance abuse assessments, not once did she participate consistently

with or complete the recommended treatment. She likewise was unsuccessfully

discharged from individual counseling, home-based therapy, and home-based

case management.

[21] Perhaps most damning of all, Mother was inconsistent in attending visits with

Child. She was discharged from visits multiple times because of her failures to

attend. And as of the time of the termination hearing in July 2019, Mother had

not seen Child since December 2018. While Mother argues that she and Child

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 11 of 12 had a bond, we cannot find fault with the trial court’s conclusion that Mother’s

failure to attend visits consistently sacrificed whatever bond remained. 4

[22] At the time of the termination hearing, Mother was incarcerated for violating

probation that she was serving as a result of a drug-related conviction, and her

probation violation itself was likewise drug-related. Given the lengthy CHINS

case, during which Mother failed to make any significant progress on any of her

many issues despite many opportunities to do so, we can only conclude that the

trial court did not err by finding that there is a reasonable probability that the

conditions resulting in Child’s initial and continued removal from Mother’s

care will not be remedied.5

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

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

4 Mother insists that the only basis for the termination was her incarceration. It is patently clear from the record that this is untrue. 5 Mother also argues that the evidence does not support the trial court’s conclusion that continuation of the parent-child relationship poses a threat to Child’s well-being. Because the statute is phrased in the disjunctive and we have found the former element satisfied, we need not consider this one. But we note that the same evidence would likewise support this element as well as the trial court’s conclusion that termination is in Child’s best interests.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2423 | April 2, 2020 Page 12 of 12