MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 02 2016, 8:57 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 Mark K. Leeman Gregory F. Zoeller Leeman Law Office and Attorney General of Indiana Cass County Public Defender Logansport, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 2, 2016 of the Parent-Child Relationship Court of Appeals Case No. of B.S. (Child) and K.S. 09A02-1603-JT-640 (Mother); Appeal from the Cass Circuit Court K.S. (Mother), The Honorable Leo T. Burns, Appellant-Respondent, Judge Trial Court Cause No. v. 09C01-1509-JT-20
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 1 of 7 May, Judge.
[1] K.S. (“Mother”) appeals the involuntary termination of her parental rights to
her daughter, B.S. (“Child”). She argues DCS failed to prove Child had been
out of her care for fifteen of the last twenty-two months, as required by Indiana
Code section 31-35-2-4(b)(2)(A)(iii) for termination of her parental rights. We
affirm.
Facts and Procedural History [2] Child was born to Mother 1 on September 27, 2012, and is four (4) years old.
On August 1, 2014, the Department of Child Services (“DCS”) removed Child
from Mother’s home on an emergency basis after receiving a report that Mother
tested positive for methamphetamine. On August 5, 2014, DCS filed a petition
alleging Child was a Child in Need of Services (“CHINS”) based on Mother’s
illegal drug use. On November 26, 2014, the trial court held a fact finding
hearing and adjudicated Child a CHINS. At that time, Child remained in foster
care.
[3] On December 17, 2014, the court held a dispositional hearing, and on
December 29, 2014, the court issued its dispositional decree. The decree made
1 R.L. (“Father”) does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 2 of 7 Child a ward of the State, continued her in foster care, and ordered Mother to
participate in services so that she and Child could be reunified.
[4] The juvenile court held periodic case review hearings on January 28, 2015, and
July 15, 2015. At both hearings, the court noted Mother was not compliant
with her case plan because she was not consistently participating in services.
The court further found Child’s needs were being met by foster care placement.
[5] On September 16, 2015, DCS filed its Verified Petition for Involuntary
Termination of Parental Rights. (App. Vol. II at 7.) The trial court held fact
finding hearings on DCS’s petition to terminate parental rights on December 9,
2015, and January 12, 2016. On February 19, 2016, the trial court terminated
Mother’s parental rights.
Discussion and Decision [6] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s
rights, the State must file a petition in accordance with Indiana Code section
31-35-2-4 and then prove the allegations therein by clear and convincing
evidence. Id. at 1260-61. If the court finds the allegations in the petition are
true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[7] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 3 of 7 evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.
Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences most favorable to the judgment. Id. We will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.
[8] Mother argues DCS failed to prove Child had been removed from Mother for at
least fifteen months at the time DCS filed its petition to terminate parental
rights. In relevant part, a petition to terminate the parent-child relationship
must allege:
(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[.]
Ind. Code § 31-35-2-4(b)(2)(A)(i)-(iii). That language is unambiguously written
in the disjunctive. In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008), trans.
denied. Thus, the State must prove at least one of those requirements “is true at
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 4 of 7 the time the termination petition is filed.” 2 In re K.E., 963 N.E.2d 599, 601-602
(Ind. Ct. App. 2012).
[9] The trial court found Child had “been removed from her parents for more than
six (6) months pursuant to the terms of the dispositional decree,” (Appellant’s
App. Vol. II at 73), and the record supports that finding. B.S. was formally
removed from Mother’s home pursuant to a dispositional decree on December
29, 2014. DCS filed its petition for termination of parental rights approximately
nine months later on September 16, 2015. Therefore, DCS proved by clear and
convincing evidence that B.S. had been removed from Mother’s care for well
over the six-month minimum required by Indiana Code section 31-35-2-
4(b)(2)(A)(i). See A.F. v. Marion County Office of Family & Children, 762 N.E.2d
1244, 1251 (Ind. Ct. App. 2002) (where children removed over six months
under dispositional decree, burden met under Ind. Code § 31-35-2-4(b)(2)(A)),
trans. denied sub nom. Faver v. Marion County Office of Family & Children, 774
N.E.2d 515 (Ind. 2002)).
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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 Nov 02 2016, 8:57 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 Mark K. Leeman Gregory F. Zoeller Leeman Law Office and Attorney General of Indiana Cass County Public Defender Logansport, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 2, 2016 of the Parent-Child Relationship Court of Appeals Case No. of B.S. (Child) and K.S. 09A02-1603-JT-640 (Mother); Appeal from the Cass Circuit Court K.S. (Mother), The Honorable Leo T. Burns, Appellant-Respondent, Judge Trial Court Cause No. v. 09C01-1509-JT-20
The Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 1 of 7 May, Judge.
[1] K.S. (“Mother”) appeals the involuntary termination of her parental rights to
her daughter, B.S. (“Child”). She argues DCS failed to prove Child had been
out of her care for fifteen of the last twenty-two months, as required by Indiana
Code section 31-35-2-4(b)(2)(A)(iii) for termination of her parental rights. We
affirm.
Facts and Procedural History [2] Child was born to Mother 1 on September 27, 2012, and is four (4) years old.
On August 1, 2014, the Department of Child Services (“DCS”) removed Child
from Mother’s home on an emergency basis after receiving a report that Mother
tested positive for methamphetamine. On August 5, 2014, DCS filed a petition
alleging Child was a Child in Need of Services (“CHINS”) based on Mother’s
illegal drug use. On November 26, 2014, the trial court held a fact finding
hearing and adjudicated Child a CHINS. At that time, Child remained in foster
care.
[3] On December 17, 2014, the court held a dispositional hearing, and on
December 29, 2014, the court issued its dispositional decree. The decree made
1 R.L. (“Father”) does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 2 of 7 Child a ward of the State, continued her in foster care, and ordered Mother to
participate in services so that she and Child could be reunified.
[4] The juvenile court held periodic case review hearings on January 28, 2015, and
July 15, 2015. At both hearings, the court noted Mother was not compliant
with her case plan because she was not consistently participating in services.
The court further found Child’s needs were being met by foster care placement.
[5] On September 16, 2015, DCS filed its Verified Petition for Involuntary
Termination of Parental Rights. (App. Vol. II at 7.) The trial court held fact
finding hearings on DCS’s petition to terminate parental rights on December 9,
2015, and January 12, 2016. On February 19, 2016, the trial court terminated
Mother’s parental rights.
Discussion and Decision [6] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s
rights, the State must file a petition in accordance with Indiana Code section
31-35-2-4 and then prove the allegations therein by clear and convincing
evidence. Id. at 1260-61. If the court finds the allegations in the petition are
true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[7] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 3 of 7 evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.
Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
reasonable inferences most favorable to the judgment. Id. We will set aside a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.
[8] Mother argues DCS failed to prove Child had been removed from Mother for at
least fifteen months at the time DCS filed its petition to terminate parental
rights. In relevant part, a petition to terminate the parent-child relationship
must allege:
(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[.]
Ind. Code § 31-35-2-4(b)(2)(A)(i)-(iii). That language is unambiguously written
in the disjunctive. In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008), trans.
denied. Thus, the State must prove at least one of those requirements “is true at
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 4 of 7 the time the termination petition is filed.” 2 In re K.E., 963 N.E.2d 599, 601-602
(Ind. Ct. App. 2012).
[9] The trial court found Child had “been removed from her parents for more than
six (6) months pursuant to the terms of the dispositional decree,” (Appellant’s
App. Vol. II at 73), and the record supports that finding. B.S. was formally
removed from Mother’s home pursuant to a dispositional decree on December
29, 2014. DCS filed its petition for termination of parental rights approximately
nine months later on September 16, 2015. Therefore, DCS proved by clear and
convincing evidence that B.S. had been removed from Mother’s care for well
over the six-month minimum required by Indiana Code section 31-35-2-
4(b)(2)(A)(i). See A.F. v. Marion County Office of Family & Children, 762 N.E.2d
1244, 1251 (Ind. Ct. App. 2002) (where children removed over six months
under dispositional decree, burden met under Ind. Code § 31-35-2-4(b)(2)(A)),
trans. denied sub nom. Faver v. Marion County Office of Family & Children, 774
N.E.2d 515 (Ind. 2002)).
2 DCS cites In re J.W., Jr., 27 N.E.3d 1185, 1189 (Ind. Ct. App. 2015), for the proposition that the fifteen- month waiting period is calculated at the time of the termination hearing, rather than at the time the petition is filed. (Appellee’s Br. at 21.) However, as we recently held, DCS’s reliance on J.W. for this point of law is misplaced, because the only issue before the court in J.W. was whether the fifteen-month waiting period should be tolled due to DCS’s failure to provide services. See D.B. v. Indiana Dept. of Child Services, No. 54A01-1603-JT-607, 2016 WL 4917683, at *4 (Ind. Ct. App. Sept. 15, 2016). When our court has been “squarely presented” with the issue of whether the children had been removed for fifteen of the most recent twenty-two months, we have held an involuntary termination petition must satisfy the requirements of Ind. Code § 31-35-2-4(b)(2)(A) at the time the involuntary termination petition was filed. See id. at *5 (citing In re Q.M., 974 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2012)).
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 5 of 7 [10] Mother nevertheless takes issue with the trial court’s finding, “Child has been
removed from the home and custody of the parents and has been under the
supervision of DCS for at least fifteen (15) of the most recent twenty-two (22)
months[.]” (Appellant’s App. Vol II at 73.) Mother concludes this statement is
“clearly erroneous” because, at the time DCS filed its petition, fifteen months
had not passed since Child was initially removed from her home. (Appellant’s
Br. at 10.) Mother is correct the court’s finding is erroneous -- only thirteen
months had passed between August 1, 2014, when DCS removed Child from
Mother and September 16, 2015, when DCS filed its petition. However,
roughly nine months – well over the six month minimum -- had passed since
the court formally removed Child from Mother under a dispositional decree
under Ind. Code § 31-35-2-4(b)(2)(A)(i). Therefore, the trial court properly
concluded the requirements of Ind. Code § 31-35-2-4-(b)(2)(A) were satisfied.
See A.F., 762 N.E.2d at 1251 (where children removed over six months under
dispositional decree, burden met under Ind. Code § 31-35-2-4(b)(2)(A)). The
fact that fifteen months had not passed since Child was initially removed from
the home at the time DCS filed its petition for termination cannot serve as a
basis for reversal. See J.M. v. N.M., 844 N.E.2d 590, 599 (Ind. Ct. App. 2006)
(“To the extent that the judgment is based on erroneous findings, those findings
are superfluous and are not fatal to the judgment if the remaining valid findings
and conclusions support the judgment.”).
[11] Mother does not specifically challenge any other of the trial court’s findings or
conclusions. Accordingly, we affirm.
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 6 of 7 [12] Affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 09A02-1603-JT-640 | November 2, 2016 Page 7 of 7