In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.J.B. (Minor Child) and N.D. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 06 2020, 10:45 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
LaPlante LLP Attorney General
Evansville, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary August 6, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of B.J.B. (Minor 20A-JT-462
Child) Appeal from the Vanderburgh
and Superior Court
The Honorable Robert J. Pigman,
N.D. (Father), Judge
Appellant-Respondent, Trial Court Cause No.
82D04-1902-JT-276
v.
The Indiana Department of
Child Services,
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] N.D. (Father) appeals the involuntary termination of his parental rights to his
minor child B.J.B. (Child). We affirm.
Facts and Procedural History
[2] B.J.B. was born on January 17, 2015. R.B. (Mother) is her biological mother.
Father is her biological father, and paternity was established in a separate cause
by the Vanderburgh Superior Court. The Vanderburgh County Division of
Family and Children (DCS) filed a petition to terminate Father’s parental rights
on February 11, 2019. Factfinding hearings were held on July 3 and August 1,
2019. 1 Thereafter, the trial court made the following relevant findings of fact: 2
5. Prior to filing the most recent CHINS petition [September 5,
2017], DCS investigated allegations that Mother had been
admitted to St. Vincent Hospital on August 30, 2017 for an
attempted suicide wherein she ingested over 25 [K]lonopin. She
also tested positive for methamphetamine, amphetamine,
benzodiazepine, and marijuana while at the hospital. The report
source stated she was suffering from post-partum depression.
6. Mother was uncooperative and refused to speak to the
assessment worker. The assessment worker went to Mother’s
home. She refused to permit him access to the home, to Child,
1
Separate evidentiary hearings were held regarding Mother, and her parental rights were involuntarily
terminated on August 2, 2019. Mother is not a party to this appeal.
2
We have replaced references to the parties’ names and initials with the aforementioned designations.
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and to Child’s nine[-]month[-]old sibling, A.D. In an assessment
during the prior month of July, Mother had claimed that Child
was staying with relatives out of state far away. She would not
name the relative or identify the state. Child was unable to be
located.
7. While the assessment worker was outside Mother’s home, a
Vectren utilities truck parked outside the home. The utility
worker told the assessment worker that he was shutting off the
gas and electric to the home.
….
9. On September 5, 2017, DCS filed a Verified Petition Alleging
that Child was in need of services under cause number, 82D04-
1709-JC-001604, due to Mother’s overdose, suicide attempt,
untreated mental health conditions, substance abuse, and home
conditions.
10. An initial and detention hearing was held [and Child was
ordered detained for her protection] on September 5, 2017….
C. FACTS RELATING TO CHILD’S CONTINUED
REMOVAL FROM [FATHER’S] HOME AND CARE:
REASONABLE PROBABILITY OF [FATHER] NOT
REMEDYING REASONS FOR REMOVAL, THREAT TO
CHILD’S WELLBEING
1. Father has a criminal history that includes multiple
convictions for domestic violence. In November of 2005, Father
was charged with Domestic Battery and Interference with
Reporting of a Crime. He [pled] guilty and received a sentence of
one year in the Vanderburgh [C]ounty [J]ail suspended on the
condition he enroll in and complete Domestic Abuse
Intervention Program.
2. In June of 2006, Father was charged with domestic battery. He
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entered into a plea agreement and pled guilty to battery enhanced
to a class D felony. He received a sentence of eighteen months
with the department of corrections but the sentence was
suspended upon his successful completion of a domestic abuse
intervention program.
3. In February of 2008, Father was charged with felony
residential entry, domestic battery, and resisting law
enforcement. He entered a plea agreement and pled guilty to
misdemeanor trespass and resisting law enforcement. He was
sentenced to two years in the Vanderburgh [C]ounty [J]ail,
sentence suspended.
4. In addition to Father’s history of domestic violence, he suffers
from severe mental illness that includes delusions, paranoia, and
visual and auditory hallucinations. Father has been diagnosed
with Other Psychotic Disorder Not Due to a Substance or
Known Psychological Condition, Mild Intellectual Disabilities,
Post-Traumatic Stress Disorder, and Personality Disorder.
5. On January 17, 2015, DCS received a report alleging that
Mother had tested positive for amphetamines at the birth of
Child. She also tested positive for cocaine two weeks before
delivery. On January 22, 2015, DCS filed a Verified Petition
Alleging that Child was in need of services under cause number,
82D04-1501-JC-000097, due to Mother’s substance abuse.
During the course of that CHINS case, alleged Father had
personal notice of the CHINS proceedings but did not appear
before the Court. He was defaulted and never participated in the
CHINS proceeding. Child was eventually reunited with Mother
in March of 2016.
6. In July of 2016, Father was charged with felony theft of a
firearm, pointing a firearm at another, and unlawful possession
of a firearm by a domestic batterer. He entered into an agreement
and pled guilty to theft of a firearm and unlawful possession of a
firearm by a domestic batterer. He was sentenced to one year in
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the department of corrections with his sentence suspended on the
condition he meet with Southwestern Indiana Mental Health and
participate in the Recovery Works Program while on probation.
7. Father attempted to explain the events that resulted in these
charges to his therapist much later in February of 2018 while
undergoing a comprehensive assessment at Southwester[n]
Behavioral Health. He still had difficulty recognizing his
delusions from reality. …
8. Also in July of 2016, during his incarceration, Father was
charged with two counts of felony prisoner possessing a deadly
weapon. …
9. Approximately a year and a half after Child was reunified with
her Mother in her prior CHINS case, DCS filed a Verified
Petition Alleging that Child was again a child in need of
services….
10. Child was later located with Father on September 7, 2017. He
stated that Mother had abandoned Child to his care several
months earlier. He had not taken any steps to establish paternity
and had multiple felony convictions. Father was then residing
with girlfriend [S.B.], who tested positive for methamphetamine.
Child was removed from Father on that date with the assistance
of law enforcement.
11. Father had sought treatment for his mental illness in August
of 2017, reporting he was having a difficult time as he was caring
for Child.
….
15. Father had a few supervised visits with Child in late
September and early October 2017. … [H]e cut the visit short
when Child cried inconsolably. Visits were put on hold in early
October when he had active warrants for his arrest.
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16. Father has had no contact with Child since October of 2017.
….
19. In early spring of 2018, Father continued to suffer from
extreme paranoia and reported that he remained paranoid of
others, believing everyone is planning to kill him all of the time.
….
21. In July of 2018, Father was admitted to Deaconess Cross
Pointe where he was diagnosed with Psychotic Disorder [and]
cocaine abuse from testing positive for cocaine, ….
….
24. Shortly [after paternity was established], Father’s disposition
was held on August 7, 2018. He was ordered to continue
receiving treatment at Southwestern Behavior Healthcare and
asked to sign releases so DCS could obtain treatment records. He
was ordered to participate in fatherhood engagement which
included the services of a parent aide to help him resource, assist
with obtaining housing, and securing a source of income. He was
ordered to remain drug and alcohol free and submit to random
drug screens. He was also to undergo a parenting assessment to
evaluate what types of parenting classes might best assist him.
25. The Parenting and Family Functioning Assessment of Father
was undertaken by Oliva Golike at Ireland Home Based Services
who met with Father six times in August and September of 2018.
26. During that period of time, Father had no source of income,
had lived in two homeless shelters, and was currently staying in a
hotel with [J.B.] who stated she was helping him out so he would
not be homeless.
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27. During the assessment, Ms. Golike found an obvious
disturbance in Father’s affect, mood, and behavior during the
sessions. He further shared with her a variety of events such as
participating in a gang and shooting while in the gang, being
[run] off the road in an ice storm, traveling with a carnival as a
child, being charged with capital murder but released when the
killer was found, and having an ankle injury from having to jump
off a two[-]story building when people were trying to kill him.
….
29. She was unable to complete the assessment with Father
because he became loud and she felt uncomfortable and left.
….
31. Father reports he takes his medications, but presented
multiple months of unconsumed medication bottles to his skills
training coach and psychiatrist “consistent with impressive non-
compliance” in December of 2018.
….
33. In March of 2019, a hearing was held on Father’s desire to
resume visitation with the child. Prior to the conclusion of the
hearing, an agreement was reached between the parties that
therapeutic visitation with Father would only resume after
therapist Hanna Stoltz had met with Child and determined Child
was ready and such visits would be appropriate.
34. Thereafter, Father continued to communicate frequently and
erratically with Ms. Stoltz until he sent her the threatening text “I
wanna see my daughter I am about to get angry” on March 30,
2019.
35. Father was arrested on March 30, 2019 and charged with
domestic battery with bodily injury to a pregnant woman and
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intimidation where threat is to commit a forcible felony against
his live[-]in girlfriend [J.B.] He was incarcerated from the time of
his arrest until those charges were dismissed on July 3, 2019, the
first day of the termination hearing.
36. During the course of the CHINS proceeding, Father has not
maintained stable housing and often suffered periods of
homelessness. At the time of termination hearing, he indicated he
was sleeping in the living room of the one[-]bedroom apartment
of his god-aunt. Father simply doesn’t have a place for him and
Child to live.
37. During the course of the CHINS proceeding Father has had
no reliable source of income and has unsuccessfully applied for
disability on multiple occasions.
Appealed Order at 3-8 (underlining omitted).
[3] The trial court made seventeen additional findings of fact regarding Child’s best
interests and DCS’s adoption plan for Child due to the vast improvements
Child has made with both behavior and anxiety in her pre-adoptive placement.
Based upon the findings of fact, the trial court concluded that DCS had met its
burden of proving by clear and convincing evidence that: (1) there is a
reasonable probability that the conditions that resulted in Child’s removal and
continued placement outside the home will not be remedied by Father; (2) there
is a reasonable probability that continuation of the parent-child relationship
between Father and Child poses a threat to Child’s well-being; (3) termination
of the parent-child relationship between Father and Child is in Child’s best
interests; and (4) DCS has a satisfactory plan for Child’s care and treatment,
which is adoption. Id. at 11; see also Ind. Code § 31-35-2-4(b)(2)(B) (listing
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elements that DCS must prove in termination proceeding); Ind. Code § 31-37-
14-2 (specifying burden of proof). Accordingly, the trial court determined that
DCS had proven the allegations of the petition to terminate and therefore
terminated Father’s parental rights. Father now appeals.
Discussion and Decision
Section 1 – We exercise our discretion to consider the merits
of this appeal despite Father’s untimely notice of appeal.
[4] Father begins by conceding that his notice of appeal was untimely filed.
Acknowledging that the State has never filed a motion to dismiss, Father simply
anticipates that the State will seek dismissal in its appellee’s brief and urges us
to deny that request. The State does not seek dismissal. 3 As timeliness of the
notice of appeal is not a jurisdictional issue, and the State does not otherwise
raise the issue, we exercise our discretion and turn to the merits of the appeal.
See In re O.R., 16 N.E.3d 965, 971 (Ind. 2014) (noting that “[a]lthough a party
forfeits its right to appeal based on an untimely filing of the Notice of Appeal,
this untimely filing is not a jurisdictional defect depriving the appellate courts of
authority to entertain the appeal” and also noting that in cases involving the
parent-child relationship “it is this unique confluence of a fundamental liberty
interest along with ‘one of the most valued relationships in our culture’ that has
often influenced this Court as well as our Court of Appeals to decide cases on
3
Instead, the State concedes that, due to no fault of Father, appellate counsel was not appointed until after
the deadline for filing the notice of appeal had passed. Appellee’s Br. n.4 at 8.
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their merits rather than dismissing them on procedural grounds.”) (citation
omitted).
Section 2 – Any error in the admission of evidence was
harmless; Father has waived his challenge to the court’s
termination of his parental rights by failing to make a cogent
argument.
[5] Before addressing Father’s claim that the trial court erred in terminating his
parental rights, we must note as a general matter that “[t]he purpose of
terminating parental rights is not to punish the parents but, instead, to protect
their children. Thus, although parental rights are of a constitutional dimension,
the law provides for the termination of these rights when the parents are unable
or unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799,
805 (Ind. Ct. App. 2008) (citation omitted). “[T]ermination is intended as a last
resort, available only when all other reasonable efforts have failed.” Id.[6] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
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Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
[7] Father’s sole contention is that the trial court abused its discretion in taking
judicial notice of and admitting evidence of some of his criminal history during
the termination proceedings. The admission of evidence is left to the sound
discretion of the trial court, and we will not reverse that decision unless the
court’s decision is against the logic and effect of the facts and circumstances
before it. In re A.H., 832 N.E.2d 563, 567 (Ind. Ct. App. 2005). Moreover, not
all trial court error is reversible. Matter of L.S., 125 N.E.3d 628, 633 (Ind. Ct.
App. 2019). “The improper admission of evidence is harmless error when the
judgment is supported by substantial independent evidence to satisfy the
reviewing court that there is no substantial likelihood that the questioned
evidence contributed to the judgment.” Id. (citation omitted).
[8] Here, we need not even discuss Father’s evidentiary allegation of error, as we
have little difficulty determining that any error was harmless at most. Indeed,
Father admittedly challenges only two of the trial court’s extensive findings of
fact (findings C(1) and C(2)). See Reply Br. at 4. Father challenges none of the
remaining fifty-five findings of fact supporting the trial court’s termination of
his parental rights. Accordingly, those findings stand as proven. T.B. v. Ind.
Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012). The trial court’s
termination order is supported by substantial unchallenged evidence, much of
which we referenced in our facts and procedural history section, to satisfy us
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that there is no substantial likelihood that the questioned evidence contributed
to the judgment.
[9] Moreover, Father’s entire remaining argument comprises a single statement,
without relevant citation to the record or to legal authority, that the “remaining
findings … on their own are not enough to support the conclusion that Father’s
parental rights should be terminated.” Appellant’s Br. at 12. This is wholly
inadequate to establish reversible error, and therefore his challenge to the trial
court’s termination of his parental rights is waived for failure to make a cogent
argument. 4 See Ind. Appellate Rule 48(A)(8)(a) (issue must be supported by
cogent argument, including citations to the record and relevant case law); see
also In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) ( “To the extent that
Mother argues that the trial court’s findings or conclusions are clearly
erroneous, Mother has waived this issue by failing to make a cogent
argument.”), trans. denied. The trial court’s order terminating Father’s parental
rights is affirmed.
[10] Affirmed.
Robb, J., and Brown, J., concur.
4
In response to the State’s allegation of waiver, Father claims in his reply brief that he specifically argued in
his principal brief “that the trial court failed to show that termination was in the best interest of the child.”
Reply Br. at 4. However, neither “best interest” nor any remotely related phrase appears anywhere in
Father’s principal brief.
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