In the Matter of: K.H. (Child Alleged to be in Need of Services) and R.H. (Mother) R.H. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 13 2019, 10:46 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jarvis E. Newman III Curtis T. Hill, Jr.
Newman and Newman LLC Attorney General of Indiana
Albion, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: November 13, 2019
K.H. (Child Alleged to be in Court of Appeals Case No.
Need of Services) and R.H. 19A-JC-913
(Mother); Appeal from the Noble Superior
R.H. (Mother), Court
The Honorable Steven C. Hagen,
Appellant-Respondent,
Judge
v. Trial Court Cause No.
57D02-1705-JC-42
The Indiana Department of
Child Services,
Appellee-Petitioner
May, Judge.
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[1] R.H. (“Mother”) appeals the trial court’s order terminating the Department of
Child Service’s (“DCS”) wardship over her daughter, K.H. (“Child”). She
argues the trial court violated her right to due process when it did not rule on
two pending motions prior to terminating the wardship. We affirm.
Facts and Procedural History
[2] Child was born to Mother on September 19, 2014. Mother did not notify J.C.
(“Father”) that he was the father of Child. Mother and Child lived with
maternal grandparents. On May 18, 2017, Child was in the car with Mother
when police initiated a traffic stop. Police found methamphetamine,
marijuana, and paraphernalia in the car. Officers arrested Mother. Following
her arrest, DCS requested that Mother complete a drug screen, which was
positive for amphetamine, methamphetamine, and THC. Mother could not
provide an appropriate caregiver for Child, so DCS removed Child from
Mother’s care at that time.
[3] On May 19, 2017, DCS filed a petition alleging Child was a Child in Need of
Services (“CHINS”) based on Mother’s drug use, arrest, and inability to
provide an appropriate caregiver for Child. On June 6, 2017, DCS filed a
predispositional report with the trial court, indicating DCS was trying to locate
Father, the man Mother reported as the Child’s father. DCS also made
recommendations regarding services for Mother should Child be adjudicated a
CHINS.
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[4] On June 15, 2017, Mother1 admitted Child was a CHINS and the trial court
immediately held a dispositional hearing. On July 2, 2017, the trial court
ordered Mother to refrain from using illegal substances; provide random drug
screens; complete psychiatric, parenting, and substance abuse assessments; and
follow all recommendations from the assessments based on DCS’s requested
services from the June 6 predispositional report. On August 7, 2017, the trial
court entered a separate parental participation order that listed the same service
requirements.
[5] On October 6, 2017, DCS filed a progress report with the trial court indicating
it had located Father and DNA testing completed in September confirmed
Child’s paternity. The report also indicated Mother had thus far been non-
compliant with services and had tested positive for illegal substances on
multiple occasions. On October 10, 2017, Father entered an appearance in the
CHINS matter and admitted Child was a CHINS. On November 14, 2017,
DCS filed a predispositional report as to Father. On December 7, 2017, the
trial court entered its dispositional order as to Father based on DCS’s
recommendations and ordered Father to complete services including meeting
with the Family Case Manager, keeping all appointments with the service
providers, and visiting Child. The trial court granted Father an extended
visitation with Child from December 7 through 10, 2017.
1
While the exact date is unclear, Mother was released from jail prior to the June 15, 2017, hearing.
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[6] On December 13, 2017, Father filed a motion to modify Child’s placement and
requested Child be placed with him. He alleged he was the “non-offending”
parent and Child’s current placement with maternal grandmother was
inappropriate because Mother also resided with maternal grandmother and
continued to use drugs. (Appellee’s App. Vol. II at 62.) Father indicated he
had filed a Petition to Establish Paternity and Custody of Child in another court
and had not been accused of any wrongdoing in the current CHINS case.
[7] On December 19, 2017, Mother’s therapist filed a report with the trial court
indicating Mother had been diagnosed with PTSD; cannabis use disorder, mild;
amphetamine-type substance disorder, mild; and other circumstances related to
child neglect. Mother’s therapist reported Mother told her that Mother’s
substance abuse began at age nine, and Mother was actively working on
overcoming her addiction. Mother’s therapist had also observed Father’s
visitation with Child and expressed no concerns. On December 21, 2017, the
trial court held a hearing 2 on the matter and the same day entered an order
granting Father’s request to have Child placed with him, to commence on
December 30, 2017. The order provided Mother would be allowed supervised
visitation through DCS and maternal grandparents would be allowed
unsupervised visitation with Child “upon the express condition that [Mother]
not be present during any portion of said visitation.” (Id. at 64.)
2
The record does not include a transcript of this hearing.
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[8] On January 12, 2018, the trial court issued a Nunc Pro Tunc Order amending
its December 21 order, allowing maternal grandparents “liberal reasonable
unsupervised visitation (as determined by DCS) with Child upon the express
condition that [Mother] not be present during any portion of said visitation.”
(Id. at 65.) On January 23, 2018, Father filed a motion to terminate or restrict
grandparent visitation. On February 1, 2018, maternal grandparents filed a
motion to intervene in the CHINS proceedings. The trial court set a hearing on
February 8, 2018, to discuss these matters.
[9] On February 2, 2018, Mother filed a motion to reunify or show cause why
reunification should not occur. Mother alleged she had been denied visitation
with Child on five dates because of weather conditions, scheduling errors, and
difficulty with transportation; Father has “not been conducive to fostering the
relationship between Mother and child and DCS has taken no action[,]” (id. at
67-8); Father “tried to prevent grandparent’s [sic] from having visitation[,]” (id.
at 68); Father “has been leaving the child with his mother for the three day
period and two day period in which he works[,]” (id.); paternal grandmother
will not allow Mother to speak with Child when Child is in paternal
grandmother’s care because paternal grandmother cannot allow video calls on
her phone and does not have cellular signal to allow regular calls; Child had
complained her “bottom hurt[,]” (id.); the parties disagreed regarding how to
potty train Child; and Child “pleads with Mom that she doesn’t want to go
back to Dad’s house saying she wants to go home and be with Mom.” (Id. at
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69.) The trial court added Mother’s motion to the items to be discussed during
the February 8 hearing.
[10] On February 6, 2018, Mother filed a motion to correct error, asking the trial
court to either: (1) vacate and dismiss the CHINS proceeding, or (2) restore the
June 22, 2017, dispositional decree or have a new evidentiary hearing regarding
Child’s placement with maternal grandparents. Mother argued one of those
actions was required because:
1. The CHINS judgment was erroneous as no determination of
serious endangerment or impairment was made.
2. The current placement judgment is not supported by the
evidence contained in the record.
3. The current placement judgment is against the weight of the
evidence presented to the Court.
4. The current placement judgment is a modification of the
Mother’s dispositional order which order was made contrary to
her procedural due process rights.
(Id. at 71-2.) Mother also filed a memorandum of law in support of her motion
to correct error.
[11] On February 8, 2018, the trial court held a hearing and denied maternal
grandparents’ motion to intervene. On February 28, 2018, the trial court
denied Mother’s motion to correct error. The trial court set a review hearing for
March 15, 2018, and an evidentiary hearing on all pending motions for April
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12, 2018. On March 15, 2018, the trial court held the review hearing. During
the March 15 hearing, the trial court noted that the paternity court would likely
deal with Child’s custody during a hearing in May and “it’s just a question then
of cleaning up after the end of it all.” (Tr. Vol. II at 43.) The trial court then
vacated the April 12 hearing and set a hearing for August 30, 2018. On April
11, the trial court issued an order finding DCS, Child, and Father had complied
with Child’s case plan and that Child’s placement with Father was appropriate.
However, Mother had only partially complied with Child’s case plan, had
tested positive for illegal drugs during the reporting period, and had not
benefitted from services. Services were to continue and Child was to remain
with Father.
[12] On April 2, 2018, Mother filed a notice of appeal which was subsequently
dismissed with prejudice. 3 On April 12, Mother filed a motion to reconsider the
trial court’s order of April 11, which dealt with the issues presented at the
March 15 hearing. In her motion to reconsider, Mother alleged “numerous
factual errors and insufficient findings” including that one of Mother’s attorneys
was not named in the order; one of the DCS attorneys was improperly
included; Father’s name was misspelled; the number of times Mother tested
3
On June 25, 2018, Mother filed her appellant’s brief challenging her admission to the CHINS allegations
and Child’s subsequent placement with Father. On August 13, 2018, DCS filed a motion to dismiss Mother’s
appeal as untimely. On September 14, 2018, this court dismissed Mother’s appeal with prejudice. On
October 22, 2018, Mother filed a petition for rehearing, which this court denied on November 27, 2018.
Mother then filed a petition to transfer to the Indiana Supreme Court on December 27, 2018, which our
Indiana Supreme Court denied on February 28, 2019.
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positive for drugs during the reporting period was incorrect; Mother’s
participation in certain services was not reported; and generally, Father’s
compliance with the case plan was overemphasized and Mother’s progress was
ignored.
[13] On May 29, 2018, the paternity court awarded Father physical and legal
custody of Child to be effective upon the CHINS court’s approval or the
dismissal of the CHINS proceedings. See In re Paternity of K.H., 116 N.E.3d
504, 509 (Ind. Ct. App. 2018), trans. denied. On June 7, 2018, DCS filed a
motion to terminate the CHINS wardship because Father had been granted
physical and legal custody of Child in the paternity case. On August 17, 2018,
DCS filed a motion for a permanency hearing. The trial court scheduled the
hearing for August 30, 2018. Mother filed a motion to stay hearing on August
27, 2018, and the court noted in the Chronological Case Summary that it would
consider that motion at its August 30 hearing.
[14] The trial court held a hearing on August 30, 2018, and denied DCS’s motion
for a permanency hearing because Mother’s appeal of the trial court’s CHINS
order had yet to be decided. On September 19, 2018, DCS again filed a motion
to terminate its wardship of Child because our court dismissed Mother’s appeal
of the CHINS adjudication with prejudice on September 14, 2018. Mother filed
an objection to the termination of DCS’s wardship. On November 28, the trial
court held a hearing and took the matter under advisement. On November 29,
Mother filed another objection to the termination of DCS’s wardship, arguing
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that she was in the process 4 of appealing the paternity order and that the
outcome of that appeal could affect the CHINS proceedings. We issued an
opinion on Mother’s appeal of the paternity order on December 13, 2018, and
our Indiana Supreme Court denied transfer on February 28, 2019.
[15] On March 21, 2019, the trial court held a hearing on DCS’s motion to
terminate wardship of Child. DCS argued the reasons for removal had been
remedied because “reunification with a parent has occurred. The child is safe
with father, that occurred through a custodial modification out of the custodial
court[.]” (Tr. Vol. II at 48.) Father agreed with DCS and noted Child had been
in his care for over a year. The Court Appointed Special Advocate indicated
Child was “doing great” in Father’s care. (Id. at 51.) Mother argued there were
“factual issues that need to be determined” and “there are pending motions on
the case . . . [specifically] a motions [sic] to reunify [and] a motion to correct the
record[.]” (Id. at 52.) DCS maintained Mother’s arguments were an attempt at
a “second bite of the apple” and the issues Mother contended were still pending
“were addressed at the appellate level.” (Id. at 54.) The same day, the trial
court issued an order terminating DCS’s wardship over Child because
“[p]ermanency for the Child has been achieved through Reunification with
Father. The Indiana Supreme Court has denied appellant’s (Mother) petition to
transfer.” (Appellant’s App. at 19.)
4
Mother filed a notice of appeal of the paternity order on August 1, 2018.
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Discussion and Decision
[16] The U.S. Constitution protects the relationship between parent and child. Troxel
v. Granville, 530 U.S. 57, 66 (2000); see also Matter of Joseph, 416 N.E.2d 857, 860
(Ind. Ct. App. 1981). The Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to direct the care, custody, and control
of their children. Troxel, 530 U.S. at 66. However, this right is not unlimited,
and the State has the authority under its parens patriae power to intervene when
necessary to protect children within its borders. In re T.H., 856 N.E.2d 1247,
1250 (Ind. Ct. App. 2006). We have consistently held a parent’s rights must be
subordinated to the best interests of the child. In re A.A.C., 682 N.E.2d 542, 544
(Ind. Ct. App. 1997).
[17] Mother argues the trial court violated her right to due process when it
terminated DCS’s wardship of Child before ruling on two pending motions.
She argues that, because the trial court did not rule on those motions or hold
hearings thereon, she did not have an “opportunity to show that she is a good
candidate for reunification with her child[.]” (Br. of Appellant at 6.)
[18] In a proceeding involving parental rights, parents have certain due process
rights that essentially require those proceedings be fundamentally fair. E.P. v.
Marion Cty. Ofc. of Family & Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App.
1995). When we determine if a parent’s due process rights have been violated,
we balance 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
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countervailing governmental interest supporting use of the challenged
procedure.” A.P. v. Porter Cty. Ofc. of Family & Children, 734 N.E.2d 1107 (Ind.
Ct. App. 2000), reh’g denied. Ultimately, the resulting balance of those factors
must provide “the opportunity to be heard at a meaningful time and in a
meaningful manner.” In re G.P., 4 N.E.3d 1158, 1166 (Ind. 2014).
[19] We agree that Mother’s interest in maintaining a relationship with her Child is
substantial, though we note that the termination of DCS wardship does not
terminate Mother’s rights to Child – instead, it requires that she abide by the
parenting time guidelines as set forth by the paternity court in its custody order.
We also agree that the governmental interest here – the protection of Child – is
substantial. Thus, we turn to the risk of error of the action.
[20] This CHINS case has been pending for over two years. Child has been placed
with Father for most of that time. Two courts – the CHINS court and the
paternity court – have considered the fitness of each parent to care for Child
over a series of multiple hearings. Mother has consistently tested positive for
illegal substances and has not participated in the services required by the
CHINS depositional order. The motions to be ruled on – one contesting
Child’s placement with Father and the other requesting certain changes in an
order that is no longer appealable – are moot considering the fact that the focus
of the CHINS inquiry – Child – is no longer in need of the coercive intervention
of the court. See, e.g, M.S. v. Indiana Dept. of Child Services, 999 N.E.2d 1036,
1041 (Ind. Ct. App. 2013) (affirming dismissal of DCS wardship when mother
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was “ill-equipped” to care for Child and continued placement with father
satisfied all concerns set forth in CHINS petition).
[21] Based on these facts, we conclude the risk associated with the termination of
DCS’s wardship of Child is low because Mother had multiple opportunities in
two different courts to be heard regarding her fitness to care for Child and she
appealed rulings by those courts in two separate appellate proceedings, one
which was dismissed as untimely and the other which was affirmed. Both
appeals were also denied transfer by our Indiana Supreme Court. As such,
Mother’s due process rights were not violated.
Conclusion
[22] The trial court did not violate Mother’s due process rights when it terminated
DCS’s wardship of Child prior to ruling on two pending motions concerning
issues that had already been litigated before the trial court. Accordingly, we
affirm.
[23] Affirmed.
Najam, J., and Bailey, J., concur.
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