MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Apr 28 2015, 10:13 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Russell Dean Bailey Gregory F. Zoeller Demotte, Indiana Attorney General of Indiana Robert J. Henke Abigail R. Miller Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 28, 2015 of the Parent-Child Relationship Court of Appeals Case No. of M.F., Mother, and L.T.F., 37A04-1410-JT-496 Child, Appeal from the Jasper Circuit Court M.F., The Honorable John D. Potter, Appellant-Respondent, Judge Cause No. 37C01-1401-JT-14 v.
Indiana Department of Child Services, Appellee-Petitioner.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 1 of 17 [1] M.F. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her child, L.T.F. (“Child”). She raises the following two restated
issues on appeal:
I. Whether the juvenile court abused its discretion in denying her motion to dismiss the termination proceedings on the basis that Mother did not have legal counsel during the underlying Child in Need of Services case; and II. Whether sufficient evidence was presented to support the termination of Mother’s parental rights. [2] We affirm.
Facts and Procedural History [3] On January 7, 2013, the Indiana Department of Child Services (“DCS”)
received a report concerning the welfare of Child, who was two months old. A
few days before, Mother and her then-boyfriend, J.L., were traveling with Child
from Wisconsin to Florida when their RV broke down in Jasper County,
Indiana. J.L. had a diabetic seizure and had been admitted into Jasper County
Hospital on January 4, 2013. While J.L. was in the hospital, Mother wanted to
stay with him, so she gave Child to a nurse working at the hospital to take care
of for a couple of days. Mother told the nurse that she had no money for
formula or diapers for Child.
[4] DCS family case manager (“FCM”) Donald Amadei investigated the
allegations on January 8, 2013, but was unable to locate Mother. Mother was
eventually located on January 11 at a BP station in Remington, Indiana, where
she, J.L., and Child were living in the RV. At that time, FCM Amadei found
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 2 of 17 that there was sufficient formula, diapers, and food to care for Child. On
January 15, 2013, FCM Amadei returned for a follow-up visit to the BP station
and found the RV was being impounded and Mother was not present. An
employee of the BP station informed FCM Amadei that Child had been left in
the care of a woman living in Remington. FCM Amadei located Child at a
residence in a Remington trailer park. Mother had given temporary care and
control of Child to a woman who lived there until she and J.L. could “get on
their feet.” Appellant’s App. at 60. Child was not familiar with the caretaker,
and FCM Amadei observed that the residence was filled with cigarette smoke
and a number of people were coming in and out. Child was taken into the
custody of DCS and placed in a foster home.
[5] DCS filed a CHINS petition alleging that Mother was unable to meet Child’s
basic needs for shelter and safety, had left Child with strangers until she was
back on her feet, and that Mother had an open DCS case in Wisconsin
regarding Child’s health and lack of medical care. An initial hearing was held
on the petition; Mother was present. After being advised of her rights,
including the right to be represented by counsel, Mother told the juvenile court
that she intended to hire private counsel. On March 1, 2013, Child was
adjudicated a CHINS after Mother admitted the allegations in the petition. A
dispositional hearing was held, and Mother was ordered to participate in
services recommended by DCS, including: (1) complete a parenting and family
functioning assessment; (2) attend twice weekly visitations with Child; (3)
complete a clinical assessment and follow all recommendations; (4) maintain
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 3 of 17 stable housing and employment for six consecutive months; and (5) develop
and implement a workable budget. On January 30, 2014, DCS filed a petition
to terminate Mother’s parental rights.1 Mother filed a motion to dismiss the
termination proceedings, which the juvenile court denied. An evidentiary
hearing on the petition was held on August 22, 2014.
[6] During the hearing, the following testimony and evidence was presented.
There were multiple instances of domestic and other violence during the
underlying case. On March 21, 2013, Mother and J.L. threatened their
apartment manager with a baseball bat and tire iron when they were told they
needed to move out. On March 27, 2013, Mother contacted police and
reported that J.L. had battered her in their vehicle. On May 18, 2013, Mother
was involved in a domestic dispute with J.L., and they were both arrested for
disorderly conduct. One of Mother’s home-based case workers witnessed two
incidents between Mother and J.L. where the police had to be called. On April
22, 2014, the police were called because Mother and J.L. threatened their
landlord when they were evicted from their apartment. On May 22, 2014,
Mother called the police to report that she had been battered by J.L. When the
police arrived, J.L. was no longer there, but Mother had abrasions on her chest,
right arm, and right leg and a swollen eye. When J.L. was located, he had a
large scratch on his arm and was subsequently arrested. Mother broke up with
1 During the pendency of this case, it was determined via paternity testing that J.O. was the biological father of Child. His parental rights were also involuntarily terminated concurrently with Mother’s parental rights. However, J.O. does not join in this appeal.
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 4 of 17 J.L. after that incident and moved to a domestic violence shelter. However,
Mother testified that there were times in the past where she separated from him
and then changed her mind.
[7] At the dispositional hearing in March 2013, Mother was referred to home-based
therapy to address issues of domestic violence and home-based management to
address her instability issues. Initially, Mother was not compliant with these
services. One of the home-based service providers attempted to contact Mother
to schedule services and was unable to reach her. On April 30, 2013, Mother
completed a parenting assessment and a mental health assessment, which both
recommended that she: (1) participate in individual therapy to address
symptoms of anxiety, depression, mood swings, and coping mechanisms; (2)
receive case management to help in finding and maintaining stable housing and
learning parenting skills; (3) continue supervised visitation with Child; and (4)
complete a medication evaluation for anti-anxiety medication and take all
prescribed medications. When Mother began working with the home-based
service providers, she did well with the parenting curriculum, but had difficulty
maintaining stable housing and employment. As of January 2014, Mother had
failed to participate in home-based therapy as recommended, but began
scheduled appointments later that month. From January 13, 2014 through
June 25, 2014, Mother had eighteen scheduled appointments; she cancelled
eight. In June 2014, Mother was continuing with home-based services, and
while she was open to parenting education, she still struggled with maintaining
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 5 of 17 employment. Mother never completed a psychiatric evaluation for medication
and remained inconsistent in maintaining weekly contact with DCS.
[8] Mother attended seventy out of ninety of the scheduled visits with Child during
the underlying case. At the visits, Mother interacted appropriately with Child,
but was easily distracted by her cell phone and other issues going on in her life.
Mother also used inappropriate language during visits and had to be redirected
several times for doing so. Between January 2014 and June 2014, Mother
began having transportation issues, and struggled to make it to visitations.
During that period of time, she missed seven out of twenty-two scheduled
appointments.
[9] During the underlying case, Mother had multiple jobs and residences. Between
April 2013 and August 2013, she was employed at four different locations,
including Denny’s, a construction job, an Italian restaurant, and Pizza Hut.
From February 2014 until April 2014, Mother worked at Kokomo Cab, and in
May 2014, she began working at Allied Steel, but was let go the next month.
Shortly before the evidentiary hearing, Mother was hired at Subway and was
supposed to start work the day before the hearing, but was unable to do so
because she did not have the appropriate clothes. Mother also testified that, at
the time of the hearing, she was planning to begin employment at Chipotle, but
had not yet undergone the background check or started working. She had ten
different jobs during the underlying case.
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 6 of 17 [10] Mother had fourteen different residences during the pendency of the underlying
case. These included living in an RV at a BP station, a Tuffy’s parking lot, the
AOK campground, the First Assembly Church parking lot, and on her boss’s
property. She also lived at a YMCA shelter, a domestic violence shelter in
Kokomo, and with a family she met at church. Mother had been evicted from
two different places since January 2013 and was kicked out of a domestic
violence shelter for threatening another shelter resident. At the time of the
hearing, Mother was living with a new boyfriend, A.S., in a trailer. She had
only been living with him for about a month and had known him for about
three or four months. Mother and A.S. lived in a two-bedroom trailer that had
no working electricity at the time of the hearing due to a past tenant not paying
the bill. A home-based case manager testified that the trailer lacked a screen in
the front door, had plywood on the floor which was unsafe for Child, was dirty,
and had fleas from animals. Mother testified that she and A.S. split the $275
per month rent equally.
[11] At the time of the hearing, Child had been removed from Mother’s care for
approximately twenty months. In that time, Mother’s DCS case manager
testified that Mother had made no progress in the goals given to her by DCS
and that there was no evidence that Mother would change her ways. Tr. at 25-
26. She further testified that Mother had failed to show that she had the ability
to provide Child with a safe and stable home environment. Id. at 26. The DCS
case manager also stated she believed that termination was in the best interests
of Child because Child had a significant bond with the foster parents and
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 7 of 17 needed permanency, which the foster family could provide. Id. The court
appointed special advocate (“CASA”) also recommended termination and
testified that, although Mother loved Child, she had made no real progress and
could not provide Child with a stable or permanent home. Id. at 86. The DCS
plan for Child was adoption. On September 22, 2014, the juvenile court issued
its findings, conclusions, and order terminating Mother’s parental rights.
Mother now appeals.
Discussion and Decision
I. Motion to Dismiss [12] Mother argues that the juvenile court abused its discretion when it denied her
motion to dismiss the termination proceedings. She specifically contends that
the juvenile court should have granted her motion to dismiss because she did
not have counsel during the CHINS proceedings. Mother claims that she did
not knowingly or voluntarily waive her right to counsel during the CHINS
proceedings, and therefore, her due process rights were violated.
[13] “When the State seeks to terminate the parent-child relationship, 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) (quotations omitted). “Likewise, due process
protections at all stages of CHINS proceedings are vital because every CHINS
proceeding has the potential to interfere with the rights of parents in the
upbringing of their children.” Id. (quotation omitted). Our Supreme Court has,
therefore, urged that the utmost caution should be used when “interfering with
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 8 of 17 the makeup of a family and entering a legal world that could end up in a
separate proceeding with parental rights being terminated.” In re K.D. & K.S.,
S.S. v. Ind. Dep’t of Child Servs., 962 N.E.2d 1249, 1259 (Ind. 2012). Thus, in
termination cases when it is argued that a parent’s due process rights were
violated as to the appointment of counsel in the CHINS proceedings, we
balance the following three factors: (1) the private interests affected by the
proceeding; (2) the risk of error created by the State’s chosen procedure; and (3)
the countervailing governmental interest supporting use of the challenged
procedure. In re G.P., 4 N.E.3d at 1165-66. In the present case, both the private
and governmental interests at issue are substantial. We must, therefore,
determine the risk of error created when counsel was not appointed during the
CHINS proceedings.
[14] Mother relies heavily on In re G.P. in her argument that her due process rights
were violated when she was not appointed counsel during the CHINS
proceedings. However, that case is easily distinguished from the present case.
There, the mother first waived counsel and admitted the CHINs allegations;
however, in a later CHINS hearing, she requested the appointment of legal
counsel in her CHINS case. 4 N.E.3d at 1160. After it determined that the
mother was entitled to counsel, the trial court said it would appoint her counsel,
but never did so. Id. Later, after the termination petition was filed, and the
mother again requested that counsel be appointed, the trial court appointed her
a public defender. Id. at 1161. The mother’s public defender filed a motion to
dismiss, which was denied by the trial court, and the mother’s parental rights
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 9 of 17 were eventually terminated. Id. Our Supreme Court found that the mother was
denied due process because statutory law requires that an “indigent parent who
requests a court-appointed attorney in a CHINS proceeding and is found by the trial
court to be indigent” must be appointed counsel. Id. at 1163 (emphasis added).
Because the mother had requested that counsel be appointed and was told she
would receive appointed counsel, the Supreme Court determined that the trial
court erred in not appointing counsel until later in the termination proceedings.
Id. at 1166.
[15] The present case is substantially different. Here, the record is clear that Mother
was advised of her rights including the right to counsel during the initial hearing
in the CHINS case. Appellant’s App. at 16. At that time, she told the juvenile
court that she intended to hire private counsel. Id. Additionally, unlike the
mother in In re G.P., there is nothing in the record to indicate that, after waiving
the appointment of counsel, Mother ever changed her mind and ever requested
the appointment of counsel. Further, there was no indication that the juvenile
court ever denied her the appointment of counsel at any point during the course
of the proceedings. Our Supreme Court made it clear that when an “indigent
parent . . . requests a court-appointed attorney in a CHINS proceeding and is found
by the trial court to be indigent[,]” the parent must be appointed counsel. In re
G.P., 4 N.E.3d at 1163 (emphasis added). Here, the record does not reflect that
Mother ever requested appointed counsel, and therefore, she cannot show a due
process violation. Mother cannot indicate anywhere in the record where she
was not advised of her right to counsel when she should have been, where she
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 10 of 17 requested appointed counsel and was not appointed such, or where she
requested but was denied appointed counsel. We conclude that she has not
shown a due process violation, and the juvenile court did not abuse its
discretion in denying her motion to dismiss the termination proceedings.
II. Sufficient Evidence [16] We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental
rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When
reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the 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 that are most favorable to the judgment. Id.
Moreover, in deference to the trial court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child
relationship only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.
[17] Here, in terminating Mother’s parental rights to Child, the juvenile court
entered specific findings and conclusions. When a trial court’s judgment
contains specific findings of fact and conclusions thereon, we apply a two-tiered
standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005). First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 11 of 17 support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1156 (Ind. Ct. App. 2013), trans. denied.
[18] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution. In
re C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are
not absolute and must be subordinated to the child’s interests when determining
the proper disposition of a petition to terminate parental rights. In re J.C., 994
N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, although the right to raise
one’s own child should not be terminated solely because there is a better home
available for the child, parental rights may be terminated when a parent is
unable or unwilling to meet his or her parental responsibilities. Id.
[19] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 12 of 17 (D) that there is a satisfactory plan for the care and treatment of the child. Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).
Moreover, if the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child relationship.
Ind. Code § 31-35-2-8(a) (emphasis added).
[20] Mother argues that DCS failed to prove the required elements for termination
by sufficient evidence. Specifically, Mother only contends that DCS failed to
present sufficient evidence that the conditions that resulted in Child being
removed would not be remedied. She asserts that, although she was initially
not compliant with services, she became more compliant over time and
attended counseling and visitations. She also concedes that there were a few
incidents of domestic violence involving J.L. during the CHINS case, but by the
time of the hearing, she was no longer with him. Mother further claims that she
attended her therapy and was making progress toward her case plan objectives
at the time of the hearing.
[21] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would 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 ascertain what conditions
led to their placement and retention in foster care.” Id. Second, “we
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 13 of 17 ‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). 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.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “We entrust that delicate balance to the trial court, which has
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination.” Id. Although trial courts are required to give due
regard to changed conditions, this does not preclude them from finding that
parents’ past behavior is the best predictor of their future behavior. Id.
[22] Here, the evidence showed that Child was removed from Mother’s care based
on Mother’s inability to meet Child’s basic needs for shelter and safety due to
the fact that they were living in an RV that was recently impounded and
Mother had left Child in the care of strangers until she could get back on her
feet. The case, therefore, began because of instability in Mother’s life and lack
of housing and employment, which continued throughout the duration of the
case. After Child was removed due to being left with strangers and Mother’s
admitted inability to care for Child at the time, Mother’s inconsistent living
situation was never remedied and she had fourteen different housing
arrangements during the underlying proceedings.
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 14 of 17 [23] Pursuant to the dispositional order, Mother was ordered to maintain stable
housing and employment for six consecutive months. During the pendency of
the case, Mother’s housing included living in an RV at a BP station, a Tuffy’s
parking lot, the AOK campground, the First Assembly Church parking lot, and
on her boss’s property. She also lived at a YMCA shelter, a domestic violence
shelter in Kokomo, and with a family she met at church. Mother was evicted
from two different places and was kicked out of a domestic violence shelter for
threatening another shelter resident. At the time of the hearing, Mother was
living with a new boyfriend, A.S., in a trailer and had only been living with him
for about a month, after knowing him for about three or four months. The
home they were living in was a two-bedroom trailer that had no working
electricity and lacked a screen in the front door, had plywood on the floor
which was unsafe for Child, was dirty, and had fleas from animals.
[24] Mother’s employment during the underlying case was similarly inconsistent.
She had ten different jobs during pendency of the case, none of which lasted
more than a few months. At the time of the hearing, Mother was supposed to
have started a new job at Subway the day before, but she did not go because she
did not have the appropriate clothes. She also stated she was going to start a
second job, but had not yet undergone the background check. The evidence
presented, therefore, showed that Mother was not able to remedy the reasons
that resulted in the removal of Child from her care, her instability and inability
to meet the needs of Child.
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 15 of 17 [25] Additionally, there was a history of domestic violence, which continued
throughout the underlying case. There were many incidents of domestic
violence and other violence reported concerning Mother and J.L. On two
different occasions, Mother and J.L. threatened a landlord when they were told
they were being evicted. The police were called several times by Mother on
reports of domestic violence by J.L. On one occasion, both Mother and J.L.
were arrested for disorderly conduct, and on at least one occasion, J.L. was
arrested for battering Mother. Mother was also asked to leave a domestic
violence shelter when she threatened another resident.
[26] There was also testimony that, although Mother attended visitations and
participated in home-based services, she was initially not compliant. The DCS
case worker assigned to Mother’s case testified that Mother complied with
services off and on, but made no progress toward the goals and objectives
established for her by DCS. Based on the evidence presented, we conclude that
the juvenile court did not err in finding that there was a reasonable probability
that the conditions that resulted in the removal and the reasons for continued
placement of Child outside Mother’s home would not be remedied.
[27] We will reverse a termination of parental rights “only upon a showing of ‘clear
error’ -- that which leaves us with a definite and firm conviction that a mistake
has been made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)
(quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record
before us, we cannot say that the juvenile court’s termination of Mother’s
parental rights to Child was clearly erroneous. Further, Mother’s arguments
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 16 of 17 are merely a request for us to reweigh the evidence and judge the credibility of
the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at 265.
We affirm the juvenile court’s judgment.
[28] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 37A04-1410-JT-496 | April 28, 2015 Page 17 of 17