MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 18 2020, 8:25 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana for Mother David E. Corey Leanna Weissmann Robert J. Henke Lawrenceburg, Indiana Deputy Attorneys General for Father Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 18, 2020 of the Parent-Child Relationship Court of Appeals Case No. of D.Y., Mother, T.W., Father, 19A-JT-1559 and A.W., Minor Child, Appeal from the D.Y. and T.W., Knox Superior Court The Honorable Appellants-Respondents, Gara U. Lee, Judge v. Trial Court Cause No. 42D01-1812-JT-33 Indiana Department of Child Services, Appellee-Petitioner.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 1 of 7 [1] D.Y. (“Mother”) and T.W. (“Father”) (together, “Parents”) separately appeal
the trial court’s order terminating their parental rights to their daughter, A.W.
(“Child”). On appeal, Parents raise the following restated issues for review:
I. Whether the Indiana Department of Child Services (“IDCS”) deprived them of due process by its failure to properly and timely respond to Parents’ discovery requests; and
II. Whether IDCS failed to prove by clear and convincing evidence that their parental rights should be terminated.
[2] We affirm.
Facts and Procedural History [3] On January 20, 2017, Mother admitted smoking K2 and possessing
paraphernalia. Mother was arrested for violating her probation. Because
Father was also incarcerated, Child was placed in the care of Maternal
Grandmother.
[4] On February 11, 2017, IDCS received a report that Maternal Grandmother was
using methamphetamine and was “high on Klonopin.” Ex. Vol. 1 at 21.
Maternal Grandmother submitted to a drug screen and told the IDCS case
manager that it would be positive for methamphetamine. Id. at 22. IDCS
removed the Child from Maternal Grandmother and placed her with other
relatives.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 2 of 7 [5] On February 14, 2017, IDCS filed its petition alleging that Child was a child in
need of services (“CHINS”) based on (1) the incarceration of both of her
parents and (2) Maternal Grandmother’s use of methamphetamine while caring
for Child. The trial court adjudicated Child a CHINS on April 27, 2017 and
granted IDCS wardship of Child on May 15, 2017.
[6] At the hearing on May 15, 2017, the trial court entered its dispositional order
directing Parents to take a number of actions related to their parenting. At the
time, Mother was scheduled to be out on work release on November 6, 2017.
Mother admitted that she relapsed in December 2017 and that she had “started
using again.” Id. at 163. In February 2018, Mother was arrested for assisting a
criminal, and her probation was revoked. Father was released on parole in July
2017, but he was returned to prison for possession of K-2.
[7] On June 11, 2018, the trial court found that Mother was only partially
compliant and Father was non-compliant. The Court adopted a permanency
plan that included adoption. In November 2018, the Trial Court found that
parents had not visited Child and had not complied with the case plan. At that
time, Mother was incarcerated again, and although Father had been released
from incarceration during the summer, he was not participating in services.
[8] On December 7, 2018, IDCS filed a petition to terminate Parents’ parental
rights to Child. A termination hearing was held. At the time of the hearing,
Mother was residing in an apartment as part of the Life After Meth program but
did not know how long she would reside there. Tr. Vol. 2 at 84. Father was
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 3 of 7 again incarcerated after his work release was revoked. Tr. Vol. 3 at 21. On July
8, 2019, the trial court entered its order terminating Parents’ parental rights.
Mother and Father now appeal.
Discussion and Decision
I. Discovery Requests [9] The trial court held its initial hearing on IDCS’s termination request on
December 10, 2018 and set fact-finding to commence on March 4, 2019. On
February 25, 2019, seventy-six days after the initial hearing in this cause and
seven days before the commencement of the termination hearing, Mother
propounded her discovery requests.
[10] Waiver is the intentional relinquishment of a known right. Am. Nat’l. Bank &
Trust Co. v. St. Joseph Valley Bank, 391 N.E.2d 685, 687 (Ind. Ct. App. 1979).
Indiana Trial Rule 33(c) provides a period of thirty-three days for a party’s
response to a discovery request. After her tender of discovery, the trial court on
two occasions offered Mother a continuance so that the court could compel
IDCS to provide answers to Mother’s discovery requests. Mother declined the
trial court’s offers and stated that she was prepared to proceed. By doing so,
Mother waived any obligation on the part of IDCS to provide the discovery.
II. Termination Order [11] To terminate the parent-child relationship, Indiana Code section 31-35-2-4(b)(2)
requires the State to allege and prove by clear and convincing evidence that
there is a reasonable probability that the condition that resulted in the child’s Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 4 of 7 removal or the reasons for placement outside the home of the parents will not
be remedied or that there is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the child. Ind. Code
§ 31-35-2-4(b)(2)(B). In addition, IDCS must show that termination is in the
best interests of the child and that there is a satisfactory plan for the care and
treatment of the child. Ind. Code § 31-35-2-4(b)(2)(C), (D).
[12] To determine whether the conditions that led to the child’s placement outside
the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must
determine what conditions led to their placement and retention in foster care,
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 a parent’s fitness at the time of the termination proceeding, taking
into consideration evidence of changed conditions and balancing a parent’s
recent improvements against “‘habitual pattern[s] of conduct to determine
whether there is a substantial probability of future neglect or deprivation.’”
E.M. v. Ind. Dep’t of Child Servs.,
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 18 2020, 8:25 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana for Mother David E. Corey Leanna Weissmann Robert J. Henke Lawrenceburg, Indiana Deputy Attorneys General for Father Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 18, 2020 of the Parent-Child Relationship Court of Appeals Case No. of D.Y., Mother, T.W., Father, 19A-JT-1559 and A.W., Minor Child, Appeal from the D.Y. and T.W., Knox Superior Court The Honorable Appellants-Respondents, Gara U. Lee, Judge v. Trial Court Cause No. 42D01-1812-JT-33 Indiana Department of Child Services, Appellee-Petitioner.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 1 of 7 [1] D.Y. (“Mother”) and T.W. (“Father”) (together, “Parents”) separately appeal
the trial court’s order terminating their parental rights to their daughter, A.W.
(“Child”). On appeal, Parents raise the following restated issues for review:
I. Whether the Indiana Department of Child Services (“IDCS”) deprived them of due process by its failure to properly and timely respond to Parents’ discovery requests; and
II. Whether IDCS failed to prove by clear and convincing evidence that their parental rights should be terminated.
[2] We affirm.
Facts and Procedural History [3] On January 20, 2017, Mother admitted smoking K2 and possessing
paraphernalia. Mother was arrested for violating her probation. Because
Father was also incarcerated, Child was placed in the care of Maternal
Grandmother.
[4] On February 11, 2017, IDCS received a report that Maternal Grandmother was
using methamphetamine and was “high on Klonopin.” Ex. Vol. 1 at 21.
Maternal Grandmother submitted to a drug screen and told the IDCS case
manager that it would be positive for methamphetamine. Id. at 22. IDCS
removed the Child from Maternal Grandmother and placed her with other
relatives.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 2 of 7 [5] On February 14, 2017, IDCS filed its petition alleging that Child was a child in
need of services (“CHINS”) based on (1) the incarceration of both of her
parents and (2) Maternal Grandmother’s use of methamphetamine while caring
for Child. The trial court adjudicated Child a CHINS on April 27, 2017 and
granted IDCS wardship of Child on May 15, 2017.
[6] At the hearing on May 15, 2017, the trial court entered its dispositional order
directing Parents to take a number of actions related to their parenting. At the
time, Mother was scheduled to be out on work release on November 6, 2017.
Mother admitted that she relapsed in December 2017 and that she had “started
using again.” Id. at 163. In February 2018, Mother was arrested for assisting a
criminal, and her probation was revoked. Father was released on parole in July
2017, but he was returned to prison for possession of K-2.
[7] On June 11, 2018, the trial court found that Mother was only partially
compliant and Father was non-compliant. The Court adopted a permanency
plan that included adoption. In November 2018, the Trial Court found that
parents had not visited Child and had not complied with the case plan. At that
time, Mother was incarcerated again, and although Father had been released
from incarceration during the summer, he was not participating in services.
[8] On December 7, 2018, IDCS filed a petition to terminate Parents’ parental
rights to Child. A termination hearing was held. At the time of the hearing,
Mother was residing in an apartment as part of the Life After Meth program but
did not know how long she would reside there. Tr. Vol. 2 at 84. Father was
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 3 of 7 again incarcerated after his work release was revoked. Tr. Vol. 3 at 21. On July
8, 2019, the trial court entered its order terminating Parents’ parental rights.
Mother and Father now appeal.
Discussion and Decision
I. Discovery Requests [9] The trial court held its initial hearing on IDCS’s termination request on
December 10, 2018 and set fact-finding to commence on March 4, 2019. On
February 25, 2019, seventy-six days after the initial hearing in this cause and
seven days before the commencement of the termination hearing, Mother
propounded her discovery requests.
[10] Waiver is the intentional relinquishment of a known right. Am. Nat’l. Bank &
Trust Co. v. St. Joseph Valley Bank, 391 N.E.2d 685, 687 (Ind. Ct. App. 1979).
Indiana Trial Rule 33(c) provides a period of thirty-three days for a party’s
response to a discovery request. After her tender of discovery, the trial court on
two occasions offered Mother a continuance so that the court could compel
IDCS to provide answers to Mother’s discovery requests. Mother declined the
trial court’s offers and stated that she was prepared to proceed. By doing so,
Mother waived any obligation on the part of IDCS to provide the discovery.
II. Termination Order [11] To terminate the parent-child relationship, Indiana Code section 31-35-2-4(b)(2)
requires the State to allege and prove by clear and convincing evidence that
there is a reasonable probability that the condition that resulted in the child’s Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 4 of 7 removal or the reasons for placement outside the home of the parents will not
be remedied or that there is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the child. Ind. Code
§ 31-35-2-4(b)(2)(B). In addition, IDCS must show that termination is in the
best interests of the child and that there is a satisfactory plan for the care and
treatment of the child. Ind. Code § 31-35-2-4(b)(2)(C), (D).
[12] To determine whether the conditions that led to the child’s placement outside
the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must
determine what conditions led to their placement and retention in foster care,
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 a parent’s fitness at the time of the termination proceeding, taking
into consideration evidence of changed conditions and balancing a parent’s
recent improvements against “‘habitual pattern[s] of conduct to determine
whether there is a substantial probability of future neglect or deprivation.’”
E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K.,
989 N.E.2d at 1231).
[13] Here, the conditions that led to Child’s removal from Parents’ care were
Mother’s incarceration due to drug use and Father’s incarceration. There was
significant evidence demonstrating Parents’ habitual patterns of conduct in
failing to address their drug problems and in failing to provide a safe,
consistent, nurturing residence and environment for Child. The trial court
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 5 of 7 found that the history of inconsistent compliance by both Mother and Father
was an indicator of future behavior. When Mother was not in a structured
environment, she abused drugs and engaged in criminal conduct. Mother’s
history shows that she is unlikely to remain sober and avoid criminal activities.
Father’s criminal history dates back to 2011. He was incarcerated for much of
the proceedings and admitted that, when he was not incarcerated, he was only
able to remain drug free for a month. The evidence presented supported the
conclusion that there was a reasonable probability that the reasons for Child’s
continued placement outside Parents’ home would not be remedied.1
[14] In determining what is in the best interests of the child, a trial court is required
to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.
App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.
denied), trans. dismissed. In doing so, the trial court must subordinate the
interests of the parents to those of the child involved. Id. Termination of a
parent-child relationship is proper where the child’s emotional and physical
development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.
App. 2002), trans. denied). A parent’s historical inability to provide a suitable,
stable home environment along with the parent’s current inability to do so
1 We do not have to address the issue of whether there was a reasonable probability that the continuation of the parent-child relationship posed a threat to Child’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 juvenile court need only find that one of the three requirements of subsection (b)(2)(B) has 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 19A-JT-1559 | February 18, 2020 Page 6 of 7 supports a finding that termination is in the best interest of the child. In re A.P.,
981 N.E.2d 75, 82 (Ind. Ct. App. 2012). The trial court need not wait until the
child is irreversibly harmed such that her physical, mental and social
development is permanently impaired before terminating the parent-child
relationship. In re A.K., 924 N.E.2d at 224.
[15] In light of the overwhelming evidence of Parents’ criminal activities, long
periods of incarceration, and drug use, we conclude that Child’s emotional and
physical development would be threatened if she remained in Parents’ custody.
Accordingly, we hold that the evidence supported the trial court’s
determination that termination of Parents’ parental rights was in Child’s best
interests.
[16] Based on the record before us, we cannot say that the trial court’s termination
of Parents’ parental rights to Child was clearly erroneous. We, therefore, affirm
the trial court’s judgment.
[17] Affirmed.
Bailey, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1559 | February 18, 2020 Page 7 of 7