Opinion
23A-JT-2697
05-30-2024
In the Matter of the Termination of the Parent-Child Relationship of Kys.K. and Kyn.K. (Minor Children); v. Indiana Department of Child Services, Appellee-Petitioner J.V. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vigo Circuit Court The Honorable Daniel W. Kelly, Magistrate Trial Court Cause Nos. 84C01-2303-JT-206 84C01-2303-JT-207
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
TAVITAS, JUDGE
Case Summary
[¶1] J.V. ("Mother") appeals the trial court's order terminating her parental rights to two of her children. Mother argues that her due process rights were violated during the CHINS and termination of parental rights proceedings and that the trial court clearly erred by terminating her parental rights. We find these arguments to be without merit. Accordingly, we affirm.
Issues
[¶2] Mother raises two issues, which we restate as:
I. Whether the removal of the Children, termination of Mother's trial home placement, and admission of certain testimony violated Mother's due process rights.
II. Whether the trial court clearly erred by terminating Mother's parental rights.
Facts
[¶3] This case stems from the Department of Child Service's ("DCS") petition to terminate Mother's parental rights to two of her children, Kys.V. ("Son") and Kyn.V. ("Daughter") (collectively "Children"). Children share the same father, K.K. ("Father"). Son was born in October 2019, and he and Mother both tested positive for methamphetamine at his birth. Mother had not received prenatal care and stated that she was "a heavy meth user prior to learning of her pregnancy." Tr. Vol. III p. 6. DCS removed Son from Mother, placed him in relative care, and filed a petition alleging that Son was a child in need of services ("CHINS") based upon Mother's substance abuse. On November 4, 2019, Mother admitted to the allegations, and the trial court adjudicated Son to be a CHINS.
Father's parental rights to Children were also terminated, and he does not participate in this appeal.
[¶4] Son was first placed with Maternal Aunt, with whom Mother also lived. This placement progressed to a trial home placement with Mother in 2020. The trial home placement, however, was terminated in September 2020 when Mother gave birth to Daughter. Daughter was born prematurely, and, like Son, Daughter also tested positive for methamphetamine at birth. DCS filed a petition alleging that Daughter was a CHINS based upon Mother's substance abuse and removed both Children from Mother. Daughter was adjudicated to be a CHINS on January 14, 2021, after a fact-finding hearing.
[¶5] The dispositional orders in both of the CHINS cases required Mother to engage in services, maintain stable income and housing, submit to drug screens, and address her substance abuse. Mother, however, continued to screen positive for illegal substances and eventually refused to participate in drug screens. Mother was living with friends or with family, and her employment was sporadic.
[¶6] Mother expressed interest in participating in a residential treatment program with Volunteers of America. Mother, however, declined to register after she learned that she would not be able to bring the Children with her initially; at the time, Mother's visitations were still supervised. DCS would only allow the Children to stay with Mother at Volunteers of America once she demonstrated commitment to the program.
[¶7] During the CHINS proceedings, Mother gave birth to two other children, both of whom also tested positive for methamphetamine at birth. Kry.V. was born prematurely at twenty-five weeks with underdeveloped lungs and other complications in 2022. DCS filed another CHINS petition; however, before an adjudication was determined, Kry.V. died after a do-not-resuscitate order was issued. M.D. was born in 2023 and is in the custody of his father, P.D.
[¶8] The Children were eventually placed with a foster family who plans to adopt them. DCS filed a petition to terminate Mother's parental rights to Children on March 13, 2023. The trial court held fact-finding hearings on July 31, August 21, September 26, and October 3, 2023. DCS explained that it sought termination of Mother's parental rights because of Mother's lack of stable income, stable housing, and progress in treating her substance abuse. Regarding Mother's income, Mother worked on an "as needed basis" for "a few different contractors" doing cleaning jobs. Tr. Vol. II p. 23. Mother's work was "hit and miss," and she had not worked in approximately one and one-half months at the time of the July 31, 2023 hearing. Supp. Tr. p. 24. Mother lived with various family members and friends during the CHINS proceedings and was living with her parents at the time of the July 31, 2023 hearing. Mother testified that she had recently found a rental residence and planned to move in "within the [] next month." Tr. Vol. II p. 53.
DCS filed a previous petition to terminate Mother's parental rights in January 2022; however, DCS moved to dismiss the petition because DCS did not meet the statutory time requirements of Indiana Code Section 31-35-2-6.
[¶9] Mother has failed to remain drug free and cooperate with DCS regarding referrals. Although Mother behaved appropriately during visitations, her substance abuse prevented visitations from progressing beyond the supervised level. DCS made several referrals for substance abuse treatment programs; however, Mother never participated in any of the programs. Additionally, Mother cancelled "a majority" of team meetings, Mother's therapy services were terminated after she failed to participate, and Mother had pending criminal charges for auto theft. Tr. Vol. III p. 79.
[¶10] The Court Appointed Special Advocate ("CASA") agreed with DCS and recommended termination of Mother's parental rights. The CASA testified that she had no concerns regarding Mother's love for the Children or her care for them during visitations. The CASA, however, recommended termination because Mother's visitations had not progressed beyond the supervised level and because Mother was "unwilling to really accept" her need for substance abuse treatment. Tr. Vol. II p. 164.
[¶11] DCS was also concerned that Mother would not address her substance abuse in time for Son to form healthy bonds with a permanent caregiver. DCS offered testimony from Son's therapist, Katherine Kinney, who diagnosed Son with reactive attachment disorder. Reactive attachment disorder occurs when a child fails to form a "parental attachment" to a specific caregiver between the ages of eighteen months and five years, "which causes a lot of trouble." Id. at 111-12. According to Kinney, when she first started treating Son in March 2022, Son was failing to "thrive," was "very emotional," and "was hitting, biting, [and] nonverbal." Id. at 111. After engaging in play therapy with Kinney, Son was speaking in full sentences and was "less aggressive ...." Id. at 113. Son, however, still required "attachment therapy" with a permanent caregiver. Id. at 112. Kinney testified that she could not do this therapy until Son obtained a permanent caregiver because, if Son engaged in attachment therapy "with a nonpermanent person," Son's condition would be "worse later." Id.
[¶12] Mother denied that she had a drug problem. She stated that she had not used illegal drugs since March 2022 and indicated that she was willing to screen at the conclusion of the July 31, 2023 hearing. Mother, however, tested positive for methamphetamine after this hearing and tested positive for cocaine after the August 21, 2023 hearing.
[¶13] Mother also sought to discount Kinney's testimony regarding Son's reactive attachment disorder diagnosis as the product of "undue influence" between Kinney and Son's foster mother. Supp. Tr. p. 8. Mother offered the testimony of a previous DCS service provider, Maxine Wievenga, who testified that, one time when Wievenga dropped off the Children at Foster Mother's hair salon, Kinney was also at the salon. Wievenga formed the impression that Foster Mother and Kinney had agreed that Foster Mother would provide hairdressing services for Kinney in exchange for Kinney providing play therapy for Son, even though Kinney normally did not work with children under the age of five.
[¶14] On October 12, 2023, the trial court issued its order terminating Mother's parental rights to the Children. The trial court found the following: Mother failed numerous drug screens throughout the CHINS proceedings and then refused to comply with screening; Mother failed screens during the termination fact-finding hearings; Mother never participated in substance abuse treatment; and Mother continued to deny that she needed such treatment. Mother's unstable income and housing along with her pending criminal charges also impeded reunification. The trial court ultimately found that Mother was "further from remedying the obstacles to her reunification" than she was when the CHINS proceedings began. Appellant's App. Vol. III p. 47. The trial court concluded that termination of Mother's parental rights was in the best interests of the Children and that DCS had a satisfactory plan for the Children's care, namely, adoption. Mother now appeals.
Discussion and Decision
[¶15] We first address Mother's due process challenges to the termination of parental rights order and conclude that Mother's due process rights were not violated. We then turn to Mother's argument that the trial court clearly erred by ordering her parental rights terminated and conclude that the trial court did not clearly err. Thus, we ultimately affirm the judgment of the trial court.
I. Mother's due process rights were not violated
[¶16] Mother first challenges the termination of parental rights order on due process grounds. As this Court has explained:
When the State seeks to terminate parental rights, "it must do so [] in a manner that meets the requirements of due process." The nature of the process due in proceedings to terminate parental rights is governed by a balancing of the "three distinct factors" specified in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893 (1976): the private interests affected by the proceeding; the risk of error created by the State's chosen procedure; and the countervailing governmental interest supporting use of the challenged procedure.
The private interest affected by the proceeding is substantial-a parent's interest in the care, custody, and control of his or her child. And the State's interest in protecting the welfare of a child is also substantial. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions.
In looking at the risk of error created by DCS's actions, we keep in mind that "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." "[T]hese two proceedings-CHINS and TPR-are deeply and obviously intertwined to the extent that an error in the former may flow into and infect the latter." And "[a]ny procedural irregularities in a CHINS proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights."In re D.H., 119 N.E.3d 578, 588 (Ind.Ct.App. 2019) (internal citations omitted), trans. denied. We "also consider the general proposition that, if the State imparts a due process right, then it must give that right." Id. at 588-89 (citation omitted).
[¶17] As a threshold matter, the State argues that Mother's due process challenges are waived because Mother did not raise them during the underlying proceedings. In D.H., 119 N.E.3d at 586, the mother challenged the trial court's termination order based on alleged due process violations during the CHINS proceedings, and the State argued that the mother's due process challenges were waived because the mother had not raised them before the trial court. "Generally, a party waives on appeal an issue that was not raised before the trial court. However, we have discretion to address such claims, especially when they involve constitutional rights, the violation of which would be fundamental error." Id. The Court went on to address Mother's due process challenges notwithstanding the fact that they were not raised before the trial court. Thus, although Mother's due process challenges were arguably waived here, we will address them nonetheless.
A. Removal of the Children and termination of the trial home placement
[¶18] Mother first argues that DCS violated her due process rights by removing the Children and by terminating Mother's trial home placement. Mother has not carried her burden of persuasion. Indiana Code Section 31-34-2-3(a) governs the removal of children without a court order and provides, in relevant part:
[T]he child may be taken into custody by a law enforcement officer, probation officer, or caseworker acting with probable cause to believe the child is a child in need of services if:
(1) it appears that the child's physical or mental condition will be seriously impaired or seriously endangered if the child is not immediately taken into custody;
(2) there is not a reasonable opportunity to obtain an order of the court; and
(3) consideration for the safety of the child precludes the immediate use of family services to prevent removal of the child.
[¶19] DCS alleged that the Children were CHINS pursuant to Indiana Code Sections 31-34-1-1 and -10. Indiana Code Section 31-34-1-1 provides, in relevant part: A child is a child in need of services if before the child becomes eighteen (18) years of age:
(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision:
(A) when the parent, guardian, or custodian is financially able to do so; or
(B) due to the failure, refusal, or inability of the parent, guardian, or custodian to seek financial or other reasonable means to do so[.]
Indiana Code Section 31-34-1-10 provides, in relevant part:
Except as provided in sections 12 and 13 of this chapter, a child is a child in need of services if:
(1) the child is born with: * * * * *
(C) any amount, including a trace amount, of a controlled substance, a legend drug, or a metabolite of a controlled substance or legend drug in the child's body, including the child's blood, urine, umbilical cord tissue, or meconium[.]Both statutes also require that the child needs treatment, or rehabilitation that: "(A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court." Ind. Code. §§ 31-34-1-1(2); 3134-1-10(2).
[¶20] Mother argues that DCS lacked evidence that Mother "seriously harmed or endangered" the Children and that DCS did not follow its policies regarding removal of a child when the Children tested positive for methamphetamine at birth. Appellant's Br. p. 19. Mother further argues that DCS's conduct violated her due process rights because the Children's "lack of permanency" was caused by DCS's actions. Id.
[¶21] We are not persuaded by Mother's arguments. Son was removed after he tested positive for methamphetamine at birth. Mother admitted at the hospital that she was a "heavy meth user" prior to learning of her pregnancy, and Mother had not received prenatal care. Tr. Vol. III p. 6. Mother later admitted that Son was a CHINS pursuant to Indiana Code Sections 31-34-1-1 and -10, and she does not now challenge that admission.
[¶22] Son's trial home placement with Mother was terminated in September 2020 after Daughter also tested positive for methamphetamine at birth. The trial court later adjudicated Daughter to be a CHINS based on Mother's methamphetamine use. Because the Children tested positive for methamphetamine at birth and because Mother continued to use methamphetamine during the period of time of the trial home placement, Indiana Code Sections 31-34-1-1 and -10 are clearly applicable, and DCS had probable cause to believe that the Children were CHINS at the time of the removals. Additionally, Mother's continued methamphetamine use provided DCS with sufficient cause to terminate Mother's trial home placement.
[¶23] As for Mother's argument that DCS violated its policy by removing the Children, the Child Welfare Policy in effect at the time of the Children's removals provided: "With the exception of IC 31-34-1-10, the decision to substantiate or unsubstantiate an allegation of Child Abuse or Neglect (CA/N) should not be based solely on the existence or absence of substance use." Ind. Dep't of Child Servs. Child Welfare Policy, Ch. 4, Section 40 p. 1 (effective January 1, 2018, through April 30, 2022) (emphasis added). Because Indiana Code Section 31-34-1-10 is applicable here, DCS was permitted to find that Mother's continued substance abuse endangered the Children. DCS did not err by removing the Children or by terminating the trial home placement, and the Children remained removed because Mother continued to use methamphetamine and failed to seek substance abuse treatment. Cf. In re D.P., 213 N.E.3d 552, 560 (Ind.Ct.App. 2023) (affirming CHINS adjudication based, in part, on parents' methamphetamine use, denial of need for substance abuse treatment, and failure to cooperate with DCS), trans. denied. DCS's actions, thus, did not create a risk of error in the proceedings in violation of Mother's due process rights.
B. Kinney's testimony
[¶24] Mother next argues that her due process rights were violated because Kinney was, according to Mother, a biased witness. Kinney testified that, when she first began treating Son in March 2022, Son was aggressive and nonverbal, but after engaging in play therapy, Son was speaking in full sentences and his behavior improved. Kinney further testified that she diagnosed Son with reactive attachment disorder and that Son needed attachment therapy with a permanent caregiver. Mother argues that Kinney was biased and her testimony is unreliable because: (1) neither the DCS caseworker nor the CASA observed that Son was nonverbal when they spoke with him in July and November 2022; (2) Foster Mother is Kinney's hair stylist; and (3) Kinney does not normally engage in play therapy with children of Son's age.
[¶25] We are not persuaded by Mother's arguments. It is common for parties to call witnesses who will present favorable testimony, and one of the primary purposes of cross-examination is to reveal a witness's bias so that the fact-finder can give the witness's testimony appropriate weight. See, e.g., Standifer v. State, 718 N.E.2d 1107, 1110 (Ind. 1999) (noting that "[t]he partiality of a witness is subject to exploration at trial [] and is always relevant as discrediting the witness and affecting the weight of his testimony"). Here, the facts surrounding Mother's claim of bias were elicited at the fact-finding hearing, and it is the function of the trial court to assess the credibility of witnesses and the weight to be given to testimony. The trial court here was equipped to weigh Kinney's testimony appropriately. Mother essentially asks us to reweigh Kinney's testimony, which we cannot do. Accordingly, we do not find that Mother's due process rights were violated.
II. The trial court did not clearly err by terminating Mother's parental rights
[¶26] Mother next argues that several of the trial court's findings of fact are clearly erroneous and that the trial court clearly erred by finding that termination of her parental rights was in the Children's best interests. Mother has not carried her burden of persuasion.
[¶27] The Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K. v. Ind. Dep't of Child Servs., Dearborn Cnty. Off., 989 N.E.2d 1225, 1230 (Ind. 2013). Thus, "a parent's interest in the upbringing of [his or her] child is 'perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054 (2000)). We recognize, however, that parental rights are not absolute and must be subordinated to the child's best interests when determining the proper disposition of a petition to terminate parental rights. Id.; see also In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) ("Parents have a fundamental right to raise their children-but this right is not absolute."), cert. denied, 140 S.Ct. 2835 (2020), reh'g denied. "When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated." Ma.H., 134 N.E.3d at 45-46.
[¶28] Pursuant to Indiana Code Section 31-35-2-8(c), the trial court "shall enter findings of fact that support the entry of the conclusions required by subsections (a) and (b)" when granting a petition to terminate parental rights. Here, the trial court did enter findings of fact and conclusions thereon in granting DCS's petition to terminate Mother's parental rights. We affirm a trial court's termination of parental rights decision unless it is clearly erroneous. Ma.H., 134 N.E.3d at 45. A termination of parental rights decision is clearly erroneous when the trial court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision. Id. We do not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the trial court's judgment. Id.
Indiana Code Section 31-35-2-8, governing termination of a parent-child relationship involving a delinquent child or CHINS, provides as follows:
(a) Except as provided in section 4.5(d) of this chapter, 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.
(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.
A. Findings of fact
[¶29] Mother first challenges the trial court's findings that she lacked stable income and housing. Regarding Mother's income, Mother worked doing cleaning jobs, but her work was "hit and miss" and she had not worked in approximately one and one-half months at the time of the July 31, 2023 hearing. Supp. Tr. p. 24. As for Mother's housing, Mother lived with various family and friends during the CHINS proceedings and was living with her parents at the time of the July 31, 2023 fact-finding hearing. Mother indicated, during this hearing, that she planned to move into her own residence "within [a] month"; however, Mother never offered evidence at the later fact-finding hearings that she did indeed move. Tr. Vol. II p. 53. The trial court's findings here are not clearly erroneous.
[¶30] Mother also challenges the trial court's finding that Mother "declined all substance use treatment offered to her ...." Appellant's App. Vol. III p. 48.
Mother relies on her testimony-from the final fact-finding hearing-that she had an "appointment" for intensive outpatient treatment at "Valley Professionals" scheduled for October 17, 2023. Supp. Tr. p. 10. Mother, however, consistently refused substance abuse treatment throughout the proceedings, Mother had not yet begun any treatment at Valley Professionals, and the trial court was not obligated to credit Mother's testimony. The trial court's finding is not clearly erroneous.
B. Best interests
[¶31] Lastly, Mother argues that the trial court clearly erred by finding that termination of her parental rights was in the Children's best interests. We are not persuaded. At the time of the termination proceedings, Indiana Code Section 31-35-2-4(b)(2)(C) provided that a petition to terminate a parent-child relationship involving a child in need of services must allege, in part, that termination is in the "best interests of the child." DCS must establish this allegation by clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
The applicable version of Indiana Code Section 31-35-2-4(b)(2) further provided that a petition to terminate the parent-child relationship 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;
(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.
[¶32] In determining what is in the best interests of a child, the trial court is required to look at the totality of the evidence. Ma.H., 134 N.E.3d at 49. 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. K.T.K., 989 N.E.2d at 1235. A trial court need not wait until a child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id. Additionally, a child's need for permanency is a "central consideration" in determining the best interests of a child. Id.
[¶33] Here, both Children tested positive for methamphetamine at birth. Mother continued to use methamphetamine during the CHINS proceedings and gave birth to two more children who also tested positive for methamphetamine at birth. Mother has made little, if any, progress in treating her substance abuse. The CASA testified that termination was in the Children's best interests and expressed doubt regarding whether Mother will "ever [] seek substance use treatment or ever [] be able to maintain sobriety to be able to safely care for the children." Tr. Vol. II p. 166.
[¶34] Additionally, Son has been diagnosed with reactive attachment disorder and needs attachment therapy with a permanent caregiver. Mother has not demonstrated that she can fulfill this role. Although Mother behaves appropriately with the Children during visitations and is bonded with them, Mother's continued substance abuse prevented visitations from progressing beyond the supervised level. Based on the totality of the evidence, we cannot say that the trial court clearly erred by finding that termination was in the Children's best interests. See In re C.S., 190 N.E.3d 434, 439-40 (Ind.Ct.App. 2022) (affirming termination of parental rights order based on mother's continued methamphetamine use and CASA's recommendation that termination was in the child's best interests), trans. denied.
Mother also argues that the trial court's finding regarding Mother's resistance to Kry.V.'s do-not-resuscitate order does not support the termination of parental rights order. We do not address this argument because the termination of parental rights order is supported by the trial court's remaining findings.
Conclusion
[¶35] Mother's due process rights were not violated, and the trial court did not clearly err by terminating Mother's parental rights to the Children. Accordingly, we affirm.
[¶36] Affirmed.
Mathias, J., and Weissmann, J., concur.