Lanny B. v. Marion County Department of Child Services

889 N.E.2d 326, 2008 Ind. App. LEXIS 1340
CourtIndiana Court of Appeals
DecidedJune 27, 2008
DocketNo. 49A02-0712-JV-000103
StatusPublished
Cited by39 cases

This text of 889 N.E.2d 326 (Lanny B. v. Marion County Department of Child Services) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lanny B. v. Marion County Department of Child Services, 889 N.E.2d 326, 2008 Ind. App. LEXIS 1340 (Ind. Ct. App. 2008).

Opinion

OPINION

FRIEDLANDER, Judge.

Lanny B. (Father) appeals the termination of his parental rights in Marion [331]*331Superior Court, Juvenile Division, to his children, L.C. and L.B. In so doing, Father presents the following restated issues on appeal:

1. Did the juvenile court commit reversible error in denying Father’s motion to dismiss?
2. Did the juvenile court violate Father’s constitutional right to due process of law when it denied his request for appointment of counsel during the CHINS proceedings?
3. Did the MCDCS fail to prove by clear and convincing evidence the statutory elements required for termination of Father’s parental rights?

We affirm.

Father and Stephanie C. (Mother) are not married, but have been involved in a relationship and have lived together, on and off, for approximately seventeen years. Father and Mother are the biological parents of L.C., born on August 22, 1991, and L.B., born on August 16, 1994. Mother has three additional children including, Ja. C., born on February 16, 2001, Jas.C., born on April 15, 2003, and, T.C., born on September 2, 2006. Father has financially supported and helped to raise all five children as if they were his own.1

On July 21, 2004, L.C., L.B., Ja.C., and Jas.C. were taken into temporary protective custody due to an incident of domestic violence between Mother and Father, which occurred in the children’s presence. On July 23, 2004, the MCDCS filed a petition alleging all four children were chib dren in need of services (CHINS) citing the incident of domestic violence and Ja. C.’s severely decayed teeth. An initial hearing on the CHINS petition was held on the same day wherein Mother admitted to the allegations of the petition. Father did not appear at the hearing. The juvenile court subsequently found there was probable cause to believe the children were CHINS and issued an order directing the children to remain temporary wards of the MCDCS.

On September 15, 2004, a fact-finding hearing on the CHINS petition was held. Father was present and requested a public defender. Father’s request was denied. At the conclusion of the hearing, the juvenile court determined L.C., L.B., Ja.C., and Jas.C. to be CHINS. The juvenile court thereafter formally removed the children from the care and custody of Mother. The court reset the fact-finding hearing as to Father for November 3, 2004.

On November 3, 2004, the juvenile court proceeded to disposition as to Father and ordered the children removed from Father’s care and custody. The court then ordered Father, via a Participation Decree, to participate in a variety of services in order to achieve reunification with his children. Specifically, Father was ordered to, among other things: (1) participate in a parenting assessment and successfully complete all resulting recommendations including parenting classes and home-based services; (2) participate in a program addressing issues of domestic violence; (3) submit to a drug and alcohol assessment and follow any resulting recommendations; (4) secure and maintain suitable housing and stable employment; (5) maintain weekly contact with the case manager; (6) exercise regular visitation with the children as recommended by the case manager; and, (7) complete a psychological evaluation.

[332]*332Father initially complied with some, but not all, of the court-ordered services. Father completed a parenting assessment, drug and alcohol assessment, parenting classes, and domestic violence classes. Father also obtained and maintained legal employment as a welder. Father failed a drug screen, however, and was therefore ordered to participate in and complete an Intensive Outpatient Program (IOP) in April 2005. Father attended several treatment sessions, but continued to test positive for illegal substances during treatment and eventually quit attending. Father refused to participate in another IOP and refused to submit to subsequent random drug screens despite multiple referrals.

Father’s visitation with the children was inconsistent throughout the duration of the CHINS case. When Father did visit with the children, he was oftentimes observed falling asleep and speaking in a negative manner about the foster parents. Father’s visitation with the children was eventually suspended due to his inconsistent attendance after a visit on October 26, 2006, where Father became enraged and was observed yelling and screaming in the presence of the children before abruptly leaving the visitation early.

Following a permanency hearing held on June 30, 2005, where Father was present and represented by private counsel, the juvenile court noted that the MCDCS had filed a petition to terminate Father’s parental rights to L.C. and L.B. and ordered that the “[p]lan for permanency” be changed from reunification with parents to “termination” of parental rights ' and “[ajdoption.” Exhibits, Vol. 1 at 31 (Petitioner’s Exhibit 13). Father was subsequently assigned a public defender. On November 30, 2006, a hearing commenced on the termination petition. Father did not appear but was represented by counsel. During the hearing, MCDCS caseworker Keith Terrell (Terrell) admitted during cross-examination that notice of the termination hearing had been sent by the clerk of the court. At the conclusion of the MCDCS’s case-in-chief, the attorneys for both parents made a joint motion for judgment on the evidence, claiming, among other things, that the MCDCS failed to properly notify the parents of the termination hearing. The juvenile court took the matter under advisement and on December 5, 2006, granted the parents’ joint motion and dismissed the MCDCS’s termination petition for failure to comply with the notice provision under Ind.Code Ann. § 31-35-2-6.5 (West, PREMISE through 2007 1st Regular Sess.).2

Two months later, on February 6, 2007, the MCDCS filed a second petition for the involuntary termination of Father’s parental rights to L.C. and L.B. A four-day, consolidated fact-finding hearing commenced on August 22, 2007, continued on September 5 and September 12, 2007, and concluded on September 24, 2007. Father appeared and was represented by counsel. The juvenile court took the matter under advisement and, on September 28, 2007, issued its judgment terminating Father’s parental rights to L.C. and L.B. This appeal ensued.

Father argues that the juvenile court’s judgment terminating his parental rights to L.C. and L.B. is clearly erroneous. Specifically, Father claims the juvenile court abused its discretion when it denied his motion to dismiss. Father further asserts the juvenile court violated his consti[333]*333tutional right to due process of law when it denied his request for appointment of counsel during the CHINS proceedings. Finally, Father contends the MCDCS failed to prove by clear and convincing evidence all the statutory elements of I.C. § 31-35-2-4(b)(2) as is required for the involuntary termination of parental rights. We will address each .argument in turn.

1.

In asserting the trial court abused its discretion by failing to grant his motion to dismiss, Father relies on the doctrine of res judicata. Specifically, Father argues that the MCDCS “sought and obtained a second bite at the apple in front of a new magistrate ...

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Cite This Page — Counsel Stack

Bluebook (online)
889 N.E.2d 326, 2008 Ind. App. LEXIS 1340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanny-b-v-marion-county-department-of-child-services-indctapp-2008.