Opinion
22A-JT-381
07-15-2022
In the Matter of the Termination of the Parent-Child Relationship of C.S.C. and M.A.C. (Minor Children) v. Indiana Department of Child Services, Appellee-Petitioner. and M.C. (Mother) and D.P. (Father), Appellants-Respondents,
Attorney for Appellant M.C. Mark J. Wiley Bowers, Brewer, Garrett & Wiley, LLP Huntington, Indiana Attorney for Appellant D.P. Justin R. Wall Wall Legal Services Huntington, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this 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.
Appeal from the Huntington Circuit Court The Honorable Amy C. Richison, Magistrate Trial Court Cause Nos. 35C01-2106-JT-5, 35C01-2106-JT-6
Attorney for Appellant M.C.
Mark J. Wiley Bowers, Brewer, Garrett & Wiley, LLP Huntington, Indiana
Attorney for Appellant D.P.
Justin R. Wall Wall Legal Services Huntington, Indiana
Attorneys for Appellee
Theodore E. Rokita Attorney General of Indiana
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, CHIEF JUDGE
Case Summary
[¶1] D.P. ("Father") is the biological father and M.C. ("Mother") is the biological mother of C.S.C. and M.A.C. (collectively, the "Children"). The Department of Child Services ("DCS") became involved with family on September 4, 2019, after receiving a report that the Children were victims of neglect. On November 7, 2019, DCS removed the Children from Mother and Father's (collectively, "Parents") care and, on November 11, 2019, filed a petition alleging that the Children were children in need of services ("CHINS"). Parents subsequently admitted that the Children were CHINS and were ordered to complete certain services. DCS eventually petitioned to terminate Parents' parental rights to the Children after both failed to successfully complete the ordered services. Following an evidentiary hearing, the juvenile court granted DCS's termination petition. On appeal, Mother contends that DCS failed to present sufficient evidence to support the termination of her parental rights. Father does not challenge the sufficiency of the evidence but contends that the trial court abused its discretion in denying his request for a continuance. We affirm.
Facts and Procedural History
[¶2] The Children are twins, born to Mother on June 14, 2017. DCS became involved with the family on September 4, 2019, after having received a report alleging that Children were victims of neglect in that Children were exposed to drug use and violence. Specifically, the report indicated that Children were residing with their Grandmother and Grandmother's live-in boyfriend and that Grandmother's live-in boyfriend smoked marijuana regularly and had slapped a minor female. At the time, Grandmother reported that Mother had left the Children in her care.
[¶3] On October 22, 2019, DCS was informed that the Children were no longer living with Grandmother and that Grandmother had placed them in the care of their half-sibling's paternal aunt (the "Temporary Care Giver"). On October 27, 2019, M.A.C. hit his head, resulting in an injury that required medical attention, but the Temporary Care Giver was unable to reach either Mother or Grandmother to obtain permission to get medical treatment. DCS was eventually able to contact Mother on October 29, 2019, with Mother informing DCS that she had placed the Children with Grandmother approximately one year before and was aware of where the Children were currently residing. On November 6, 2019, the Temporary Care Giver notified DCS that she was no longer willing or able to care for the Children. Because there was no one willing or able to care for the Children, they were removed from Mother's care on an emergency basis on November 7, 2019.
[¶4] On November 12, 2019, DCS filed a petition alleging that the Children were a CHINS. In the petition, DCS alleged that Parents were unwilling or unable to provide necessary care and supervision for the Children. After Parents admitted the allegations set forth in the CHINS petition, the juvenile court adjudicated the Children to be CHINS. The juvenile court entered a dispositional order in which it ordered Parents to complete certain services, including refraining from criminal activity; maintaining clean, safe, and appropriate sustainable housing at all times; notifying DCS of any changes of household within five days of any change; cooperating with all case workers and the guardian ad litem ("GAL"); attending all appointments and maintaining communication with DCS; submitting to random drug screens and refraining from using illegal drugs and alcohol; and submitting to a parenting and substance-abuse assessments and following all recommendations. The juvenile court also ordered Mother to engage in therapeutic services and ordered Father to participate in a Fatherhood Engagement program to the extent recommended by service providers. Parents, however, failed to successfully complete the ordered services.
[¶5] On June 22, 2021, DCS filed petitions to terminate Parents' parental rights to the Children. The juvenile court held an evidentiary hearing on DCS's petitions on October 22 and December 10, 2021. Father's counsel requested a continuance of both of these dates after Father failed to appear. DCS objected to Father's requests, both of which were denied by the juvenile court.
[¶6] During the evidentiary hearing, DCS presented evidence outlining Parents' failure to make significant progress towards providing the Children with a safe and stable living environment. Following the conclusion of the evidence, the juvenile court took the matter under advisement. On February 15, 2022, the juvenile court entered two separate orders terminating Parents' parental rights to the Children.
Discussion and Decision
[¶7] "The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind.Ct.App. 2001), trans. denied. Parental rights, therefore, are not absolute and must be subordinated to the best interests of the child. Id. Termination of parental rights is proper where the child's emotional and physical development is threatened. Id. The juvenile court need not wait until the child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.
[¶8] In reviewing termination proceedings on appeal, this court will not reweigh the evidence or assess the credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind.Ct.App. 2004). We only consider the evidence that supports the juvenile court's decision and reasonable inferences drawn therefrom. Id. Where, as here, the juvenile court includes findings of fact and conclusions thereon in its order terminating parental rights, our standard of review is two-tiered. Id. First, we must determine whether the evidence supports the findings and, second, whether the findings support the legal conclusions. Id.
[¶9] In deference to the juvenile court's unique position to assess the evidence, we set aside the juvenile court's findings and judgment terminating a parent-child relationship only if they are clearly erroneous. Id. "A finding of fact is clearly erroneous when there are no facts or inferences drawn therefrom to support it." Id. A judgment is clearly erroneous only if the legal conclusions made by the juvenile court are not supported by its findings of fact, or the conclusions do not support the judgment. Id.
I. Sufficiency of the Evidence
[¶10] In challenging the juvenile court's order, Mother contends that the evidence is insufficient to sustain the termination of her parental rights to Children. In order to support the termination of Mother's parental rights to Child, DCS was required to prove the following:
(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.… (iii) The child has been removed from the parent … for at least fifteen (15) months of the most recent twenty-two (22) months … as a result of the child being alleged to be a child in need of services….
(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.
Ind. Code § 31-35-2-4(b)(2). Mother argues that the evidence is insufficient to prove subsections (B), (C), and (D).
A. Conditions Likely to be Remedied/Threat to Children's Wellbeing
[¶11] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the juvenile court need only find that one of the conditions listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind.Ct.App. 2003), trans. denied. Therefore, where the juvenile court determines that one of the factors has been proven and there is sufficient evidence in the record supporting the juvenile court's determination, it is not necessary for DCS to prove, or for the juvenile court to find, the other factors listed in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
[¶12] In this case, the juvenile court made numerous findings about the conditions resulting in the removal, the likelihood that said conditions would be remedied, and whether the continuation of the parent-child relationship posed a threat to the Children. Specifically, the juvenile court found:
The Children are [C.S.C.] and [M.A.C.], minor twins born June l4, 2017.
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m. During the past five (5) years, the children have lived at the following addresses with the following persons:
• November 7, 2019 to present: [C]hildren have been placed in licensed foster care in Allen County, Indiana.
• October 19, 2019 to November 7, 2019, the Children were voluntarily placed in other non-relative care by Maternal Grandmother in Huntington, Indiana.
• August 1, 2018, to October 19, 2019, Children were voluntarily placed in Maternal Grandmother's care by Mother, in Huntington County, Indiana.
• Prior to August 1, 2018, the [C]hildren are believed to have been in the care and custody of their Mother and/or a relative she chose to provide care.
n. Father, [D.P.], failed to appear at the Involuntary Termination of Parental Rights hearing.
o. Father has not had any contact with the [C]hildren since their removal.
p. Father failed to attend any of the Child-Family Team Meetings that have met on a regular/monthly basis since the removal of the Children.
q. Father has failed to engage in any of the services ordered under the Dispositional Decree.
r. Father is not employed nor does he have safe, suitable or stable housing.
s. Mother testified that she is currently homeless and living in a Women's shelter known as the Women's Life House.
t. Mother previously stayed at the Women's Life House in June 2021.
u. Mother had been unemployed since the children were removed on November 7, 2019, until November 2021.
v. On December 10, 2021, Mother testified that she had been employed for only five (5) days at McDonald's.
w. Mother does not provide her own transportation because she does not have a driver's license.
x. Mother testified and claimed to be sober for the past three months.
y. Mother testified to hearing voices.
z. Mother has not seen her children in over two (2) years.
aa. Mother struggled to identify changes in her personal
circumstances since her children were removed.
bb. Mother's therapist testified that Mother struggles to care for herself. Mother's mental health interferes frequently with her ability to care for herself.
cc. Therapist reports indicated that Mother discussed not being mentally, emotionally, physically or financially ready to take on full responsibility of parenting.
dd. Mother's therapist testified that Mother is not able to take on additional responsibilities at this time.
ee. GAL reported that Mother has not been able to maintain a bond with the [C]hildren.
ff. GAL reported that Mother has struggled to take responsibility for herself and her appointments.
gg. Mother has two (2) other children: one is living with paternal grandparents, while another is living with biological Father.
hh. Mother has both drug addiction and mental health issues.
ii. Mother has not bonded with the [C]hildren.
jj. FCM testified that Mother had a significant mental health setback on November 24, 2021.
kk. FCM testified that it would be devastating and unsafe for the [C]hildren to return to their mother's care.
ll. FCM testified that the DCS permanency plan was adoption.
mm. FCM testified that the [C]hildren have attached themselves to the foster parents who have cared for the [C]hildren since the
date of removal.
nn. Since removal, the [C]hildren no longer eat from the trash, they are at a healthy weight and their hair is no longer thinning or falling out. They are healthy and meeting their milestones.
oo. Foster parents have established and maintained doctor visits to address [C.S.C.]'s lazy eye issue.
pp. Foster parents have recently given each child their own bedroom.
qq. FCM has been able to visit and see the [C]hildren interact in their foster home.
rr. GAL reported that the [C]hildren have bonded with their caregivers and that each of the [C]hildren depend on them to meet their needs. The [C]hildren are comfortable seeking out their foster parents if they need comfort or encounter problems.
ss. At the time of initial removal, the [C]hildren individually or collectively struggled with night terrors, food insecurities, and being developmentally behind. While in their foster care home, most of these issues have greatly improved.
Appellant M.C.'s App. Vol. II pp. 123-26. Based on these findings, the juvenile court concluded both that (a) there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside parents' home will not be remedied and (b) there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the Children.
In setting forth the juvenile court's findings, we cite to the juvenile court's order entered with regard to M.A.C. The juvenile court entered a substantially identical order relating to C.S.C.
[¶13] When determining whether a reasonable probability exists that
the conditions justifying a child's removal and continued placement outside the home will not be remedied, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In so doing, the trial court may consider the parent's response to the services offered through the department of child services. A pattern of unwillingness to deal with parenting problems and to cooperate with those providing social services, in conjunction with unchanged conditions, support a finding that there exists no reasonable probability that the conditions will change. Additionally, [DCS] was not required to rule out all possibilities of change; rather, it needed to establish only that there is a reasonable probability that the parent's behavior will not change.In re B.J., 879 N.E.2d 7, 18-19 (Ind.Ct.App. 2008) (internal citations and quotations omitted).
[¶14] In arguing that the evidence was insufficient to sustain the juvenile court's conclusion, Mother merely blames DCS for her lack of a bond with the Children and argues that she "showed that she was actively engaged in substance abuse programing [sic], working on improving life skills, and engaged in individual counseling addressing mental health needs." Appellant M.C.'s Br. p. 20. Mother, however, does not specifically challenge any of the juvenile court's findings on appeal, so they "must be accepted as correct." Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992); see also M.M. v. A.C., 160 N.E.3d 1133, 1135 (Ind.Ct.App. 2020). The unchallenged findings support the juvenile court's conclusion that the conditions that resulted in Children's removal from Mother's care are not likely to be remedied. Mother's claim to the contrary amounts to nothing more than an invitation for this court to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
B. Children's Best Interests
[¶15] We are mindful that in considering whether termination of parental rights is in the best interests of the children, the juvenile court is required to look beyond the factors identified by DCS and look to the totality of the evidence. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind.Ct.App. 2003). In doing so, the juvenile court must subordinate the interests of the parents to those of the children involved. Id. "A parent's historical inability to provide a suitable environment along with the parent's current inability to do the same supports a finding that termination of parental rights is in the best interests of the children." Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 373 (Ind.Ct.App. 2007).
The [juvenile] court need not wait until the child is irreversibly harmed such that [his or her] physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Additionally, a child's need for permanency is an important consideration in determining the best interests of a child, and the testimony of the service providers may support a finding that termination is in the child's best interests.In re A.K., 924 N.E.2d 212, 224 (Ind.Ct.App. 2010) (internal citations omitted).
[¶16] FCM Monica Straight testified that she believed that termination of Parents' parental rights was in the best interests of the Children. When asked to explain why, FCM Straight testified that
My job is to ensure the best interest of the kiddos, and at this time - excuse me, sorry - [Mother] does not have a stable - I mean, outside The Life House, she doesn't have a stable house, a stable place to live. She hasn't had stable financial means to care for these children. She has no bond or no attachment with these children. She's been sober for just about six months, and that is definitely a concern. I feel like, you know, she does get overwhelmed fairly easy. I feel like putting the kids back would be devastating for them.Tr. p. 94. FCM Straight further testified that it would be "unsafe" to place the Children in an "unstable" living situation with Mother.
[¶17] In addition, the Children's GAL, Kathryn Garrett, testified that termination of Parents' parental rights was in the Children's best interests "due to [Parents] inability to care for the [C]hildren at this time, the longstanding instability, and I just don't believe that all of those things that, you know, required the removal have been fixed." Tr. p. 109. GAL Garrett further opined that termination of Parents' parental rights was in the Children's best interests, stating that
I recommend that both Mother and Father's parental rights be terminated. The [C]hildren have been in care for nearly two (2) years, and it is in their best interest to achieve permanency at this
time. Neither parent is in a position to provide a safe and stable home for the [C]hildren, and the circumstances that necessitated the removal have not been remedied. The case has not progressed toward reunification since the removal due to a lack of engagement and inconsistency by Mother and Father.
Appellant M.C.'s App. Vol. II p. 148.
[¶18] Given FCM Straight's and GAL Garrett's testimony and recommendations coupled with the juvenile court's unchallenged findings regarding Mother's ongoing inability to provide the Children with a safe and stable home, we conclude that the juvenile court's determination that termination of Mother's parental rights is in Children's best interests is supported by sufficient evidence. See Lang, 861 N.E.2d at 374 (providing that the testimony of the case worker, GAL, or a CASA regarding the children's best interests supports a finding that termination is in the children's best interests). Mother's claim to the contrary again amounts to nothing more than an invitation for this court to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
C. Sufficient Plan for Care of Children
[¶19] "We have explained before that the plan for the care and treatment of a child need not be detailed, so long as it offers a general sense of the direction in which the child will be going after the parent-child relationship is terminated." In re C.D., 141 N.E.3d 845, 854 (Ind.Ct.App. 2020), trans. denied.
A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the children. In other words, there need not be a guarantee that a suitable adoption will take place, only
that DCS will attempt to find a suitable adoptive parent. Accordingly, a plan is not unsatisfactory if DCS has not identified a specific family to adopt the children.In re A.S., 17 N.E.3d 994, 1007 (Ind.Ct.App. 2014) (internal citations omitted).
[¶20] The evidence clearly establishes that the plan for the care and treatment of the Children is adoption, which is a satisfactory plan. See id. To the extent that Mother argues otherwise, Mother is again merely requesting that we reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
II. Denial of Motion for Continuance
[¶21] For his part, Father contends that the trial court abused its discretion in denying his request for a continuance.
The decision to grant or deny a motion for continuance is within the sound discretion of the trial court. We will reverse only for an abuse of that discretion. An abuse of discretion occurs where the trial court reaches a conclusion that is clearly against the logic and effect of the facts or the reasonable and probable deductions that may be drawn therefrom. Where the trial court denies a motion for continuance, an abuse of discretion will be found if the moving party has demonstrated good cause for granting the motion. No abuse of discretion will be found where the moving party has not shown that he was prejudiced by the denial of his continuance motion.In re J.E., 45 N.E.3d 1243, 1246 (Ind.Ct.App. 2015) (internal citations omitted).
[¶22] Father characterizes the denial of his motion for continuance as a denial of his due process rights, arguing that "it is unclear whether [he] was provided sufficient notice of the termination hearings that commenced on October 22, 2021 and December 10, 2021." Appellant D.P.'s Br. p. 15.
When the State seeks to terminate parental rights, it must do so in a fundamentally fair manner that meets due process requirements. Due process affords parents the opportunity to be heard at a meaningful time and in a meaningful manner. This does not mean that parents have an absolute right to be physically present at the termination hearing.In re J.E., 45 N.E.3d at 1246 (internal citations omitted).
[¶23] Father does not argue that he was not provided with notice of the evidentiary hearings. He nonetheless "argues that due to the fundamental rights at stake, the notification requirement should be much greater than critical notices being delivered by a $0.53 stamp and a somewhat unreliable and overwhelmed United States Postal Service." Appellant D.P.'s Br. p. 16. Father concedes that case law does not support his notice argument "as Indiana Code § 31-35-2-6.5 only indicates that notice must be provided within a certain number of days prior [to] the hearings, but does not specify the type of notification required." Appellant D.P.'s Br. p. 16. Father, however, requests "that this Court find that the notices being sent pursuant to Indiana Code § 31-35-2-6.5 should rise to a level where service should have been had by personal service by sheriff or process server, posting and mailing, or registered or certified mail." Appellant D.P.'s Br. p. 16. While we are mindful of the significant rights impacted by the termination of one's parental rights, we reject Father's request that we impose more stringent burdens on DCS with regard to notice than those proscribed by statute.
[¶24] Indiana Code section 31-35-2-6.5(b) merely requires that notice be given to a parent "at least ten (10) days before a hearing on a petition or motion." The statute does not contain any requirements for how such notice must be given. However, with regard to a child's foster parents, subsection (d) requires that notice be given by either certified mail or face to face contact." See Ind. Code § 31-35-2-6.5(d). The specified means of notice contained in subsection (d) suggests that if the General Assembly had intended to require more stringent manners of providing notice to parents, it would have codified such requirements.
[¶25] Further, in general, Indiana Trial Rule 5(B)(2) allows for service by mail. As such, absent more stringent statutory requirements, we find service by mail to be a sufficient manner of providing notice. As we have previously concluded,
[t]o require service of subsequent papers, such as hearing notices, to rise to the level of service of process would permit a parent or other party entitled to notice to frustrate the process by failing to provide a correct address and would add unnecessarily to the expense and delay in termination proceedings when existing provisions adequately safeguard a parent's due process rights.In re B.J., 879 N.E.2d 7, 15 (Ind.Ct.App. 2008) (internal quotation omitted).
[¶26] The record reveals that DCS complied with Indiana Trial Rule 5(B) by sending notice to Father's last known address. Notice was therefore not defective under Indiana Code section 31-35-2-6.5. See id. at 16 (providing that notice was sent to Father pursuant to Trial Rule 5(B) and notice was therefore not defective under Indiana Code section 31-35-2-6.5). Further, the record is devoid of any indication that Father was not informed of the dates and times of the hearings or of any explanation for Father's absence. As Father concedes, "there is no constitutional right to be present at termination hearings." Appellant D.P.'s Br. p. 15. It is undisputed that Father was represented at the hearings by an attorney who participated in the proceedings on his behalf. Father has failed to show on appeal that he was prejudiced by the denial of his motion for continuance and has accordingly failed to prove that the trial court abused its discretion by denying said motion. See In re J.E., 45 N.E.3d at 1246 ("No abuse of discretion will be found where the moving party has not shown that he was prejudiced by the denial of his continuance motion.").
Conclusion
[¶27] Having concluded that the evidence is sufficient to support the juvenile court's order terminating Mother's parental rights to the Children and that the juvenile court did not abuse its discretion in denying Father's request for a continuance of the evidentiary hearing, we affirm.
[¶28] The judgment of the juvenile court is affirmed.
Najam, J., and Bailey, J., concur.