In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.J. (Minor Child) and K.T. (Mother) and P.J. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Apr 18 2018, 8:46 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 APPELLANTS ATTORNEYS FOR APPELLEE
Andrew J. Sickmann Curtis T. Hill, Jr.
Boston Bever Klinge Cross & Chidester Attorney General
Richmond, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary April 18, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of D.J. (Minor 89A01-1711-JT-2675
Child) and Appeal from the Wayne Superior
K.T. (Mother) and P.J. (Father), Court
The Honorable Darrin M.
Appellants-Respondents,
Dolehanty, Judge
v. Trial Court Cause No.
89D03-1707-JT-14
The Indiana Department of
Child Services,
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] K.T. (“Mother”) and P.J. (“Father”) (collectively “Parents”) appeal the trial
court’s order involuntarily terminating their parental rights to their minor child,
D.J. (“Child”). Parents contend that the trial court erred in concluding that
there is a reasonable probability that the conditions that resulted in Child’s
removal will not be remedied and that termination is in Child’s best interests.
They also contend that their due process rights were violated when the trial
court overruled their objections to being called as witnesses by the Indiana
Department of Child Services (“DCS”) at the factfinding hearing. Finding no
error and no due process violation, we affirm.
Facts and Procedural History
[2] Parents are Child’s biological parents. Before Child was born, Parents lived
with Child’s two half siblings, Jo.B. and Ja.B. In March 2016, DCS filed
petitions alleging that Jo.B. and Ja.B. were children in need of services
(“CHINS”). In May 2016, Parents admitted to the truthfulness of the
allegations in the petitions, including that they each had a substance abuse
problem that affected their ability to care for the children. The trial court in
those proceedings ordered Parents to participate in certain services. On August
19, 2016, the court held a detention hearing, after which the children were
removed from Parents’ home and made temporary wards of DCS.
[3] Child was born on August 22, 2016. One week later, while Child was still in
the hospital, DCS filed a petition alleging Child to be a CHINS. The trial court
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authorized DCS to take Child into protective custody because he had tested
positive for illegal substances at birth and Parents were using illegal drugs,
including heroin. DCS placed Child with his maternal aunt. Parents initially
denied the allegations in the CHINS petition but ultimately admitted that Child
was a CHINS and that they had a substance abuse problem. In November
2016, the trial court issued a dispositional order directing Parents to participate
in various services. DCS referred Parents for outpatient and residential
substance abuse treatment, supervised parenting time, drug screens, and a
residential detoxication program. As detailed more fully below, after a hearing
on January 23, 2017, the trial court found Parents in contempt of the
dispositional order and sentenced them to sixty days of incarceration, to be
stayed on the condition of full compliance with the order. 1
[4] In March 2017, the CHINS cases were closed for Jo.B. and Ja.B., who at that
time were living with their biological father. On July 5, 2017, DCS filed a
petition to involuntarily terminate Parents’ parental rights to Child. On
October 12, 2017, the trial court held a factfinding hearing, during which DCS
called Parents as witnesses in its case in chief over their objections. On October
1
On that same date, a contempt hearing was also held in Jo.B.’s and Ja.B.’s CHINS cases. Mother admitted
that drug screens administered between September and December of 2016 showed that she had used heroin,
marijuana, suboxone, and hydrocodone. Father admitted that drug screens administered between September
and December of 2016 showed that he had used heroin, marijuana, and cocaine. “He also admitted that he
had failed to attend substance abuse therapy and was removed from that program due to having failed to
attend.” Appealed Order at 2. He further admitted that he had missed six visits with the children in
November 2016.
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30, 2017, the court issued an order setting out the foregoing undisputed facts
and the following additional findings:2
34. Shannon Trancoso was selected as the Court Appointed
Special Advocate (CASA) for Child, as of October 28, 2016.
35. Ms. Trancoso has observed interaction between Child,
Mother and Father.
36. During the course of Child’s CHINS case, Ms. Trancoso has
spoken with Mother about her addiction issues. Mother has
expressed to Ms. Trancoso that her addiction started at the age of
nineteen (19). Mother is now twenty-five (25) years old. Mother
was not specific about which drug or drugs she was abusing.
37. Mother has expressed to Ms. Trancoso a desire to not be an
addict.
38. Father has expressed to Ms. Trancoso that he does not like
the "position" he is in currently.
39. Ms. Trancoso has not seen Child or his parents since
February, 2017.
40. Patrice Mabry is employed as a Family Case Manager
(FCM) for the DCS, and was assigned to Jo.B.’s and Ja.B[.]’s
CHlNS cases.
….
42. At some point during Child’s CHINS case, FCM Mabry was
assigned to that case as well.
2
We have replaced references to the parties’ names where appropriate.
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….
44. Both Mother and Father admitted to FCM Mabry that they
had substance abuse issues.
….
46. On some date that was not disclosed, FCM Mabry took
Father to Tara Treatment Center, for inpatient treatment. Father
was not admitted into the treatment program due to not having
his diabetes condition under control.
….
52. Tom Pennington is an addictions counselor for Meridian
Services.
53. Mr. Pennington interacted with Mother through the
attempted provision of “IOP” or intensive outpatient therapy.
54. IOP sessions are held three (3) times per week; three (3)
hours per session.
55. Mother was involved in Mr. Pennington’s services from
December, 2016 through February, 2017.
56. In December, 2016, Mother attended one (1) appointment
with Mr. Pennington, where they discussed her substance abuse
issues, and where they determined that she should start action
IOP sessions after the first of the year.
57. During IOP sessions in January, 2017, Mother was
somewhat resistant to the program, but warmed up to it and
participated well in sessions.
58. During the January sessions, Mother admitted that she was
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using marijuana, xanax, and opiates.
59. In February, 2017, Mother’s attendance at IOP sessions
dropped off. Mr. Pennington called Mother to encourage her
attendance, but she stopped attending.
60. In August, 2017, Mother attended three (3) or four (4)
sessions of IOP, but has not attended since then.
61. Mother has not completed the IOP program.
62. At a hearing held on January 23, 2017, Mother admitted that
she had used heroin between November 4 and December 27,
2016.
63. At the same hearing, Father admitted that he had used
heroin, marijuana, and cocaine between November 9 and
December 19, 2016. He also admitted that he had failed to
attend substance abuse therapy at Meridian Health Services, and
had failed to visit Child six (6) times in November 2016.
64. Based upon the admissions described above, the Court
concluded that Mother and Father were both in contempt of
Court for not complying with the Dispositional Order.
65. Jessica Bell is a Behavioral Clinician for Meridian Services.
66. Ms. Bell was assigned to provide services for Mother in
January, 2017, and served as Mother’s “case manager.”
67. Ms. Bell worked with Mother to help her identify "triggers"
to her drug use/abuse. She also worked with Mother to help her
find coping skills to prevent drug use/abuse.
68. At some time during Ms. Bell’s involvement as case
manager, Mother told her that she had been abusing suboxone
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and marijuana.
69. Mother did not attend all of her appointments with Ms. Bell.
70. Mother was engaged and motivated during the appointments
she did attend.
7|. Prior to this trial, the last time Mother attended an
appointment with Ms. Bell was toward the end of August, 2017.
….
78. Jeremy Bane is a home-based services case manager for
Wernle Family and Children Treatment.
79. In late June, 2017, Mr. Bane received a referral from the
DCS to provide supervised parenting time/visitation services for
Mother and Father.
….
85. Mr. Bane has observed Mother and Father to be compliant,
to communicate well, and to be nurturing and caring toward
Child. He has observed the parents to select age appropriate
activities for their child.
86. Mr. Bane has had no concerns about how the parenting time
sessions have gone.
87. Mr. Bane tries to encourage the parents to work on their
rehabilitation needs. and even took Father to the Richmond State
Hospital on September 25, 2017 in an effort to enter into a rehab
program at that facility. Following a drug screen in the
admission process, Father was not admitted into the State
Hospital program.
88. If parental rights are terminated, the DCS plans for Child to
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be adopted by his aunt, … with whom he has been placed since
shortly after his birth.
….
94. Despite the existence of a child support order, [Child’s aunt]
has not received any child support payments from Mother or
Father to assist her in caring for Child.
95. Mother has been unemployed since 2015.
96. Mother has three (3) children.
97. None of Mother’s children lives with her at this time. Child
is placed with a relative. Ja.B. and Jo.B. live with their father.
98. Father is thirty-two (32) years old.
99. Father has two (2) children, including Child.
100. Neither of Father’s children lives with him.
Based upon these findings. the Court concludes that the DCS has
sustained the Petition by clear and convincing evidence; more
specifically that:
….
2. Child has been removed from both parents, for at least six (6)
months, under the Dispositional Order in his Child in Need of
Services (CHINS) case.…
3. Child was removed from his parents’ care shortly after birth.
and has continuously remained outside of their care since then,
because both parents were abusing drugs that necessarily
impaired their ability to care for their child. There remains a
greater than reasonable probability that the parents’ respective
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addictions to drugs, and continued abuse of drugs, are not likely
to be remedied.
4. Ending the relationship between Child and his parents, and
providing for a stable and sober parent or parents is the best
course of action for this child and termination of parental rights is
in Child’s best interest.
5. There is a satisfactory plan for Child’s care and treatment, that
plan being adoption.
IT IS THEREFORE ORDERED that the parent-child
relationship [between Parents and Child] is hereby terminated ….
Appealed Order at 3-7 (citation to exhibit omitted). Parents now appeal.
Discussion and Decision
[5] “Parental rights are of a constitutional dimension, but the law provides for the
termination of these rights when the parents are unable or unwilling to meet
their parental responsibilities.” In re D.P., 27 N.E.3d 1162, 1165 (Ind. Ct. App.
2015). “The purpose of terminating parental rights is not to punish parents, but
to protect their children.” Id. “The involuntary termination of parental rights is
the most extreme sanction a court can impose on a parent because termination
severs all rights of that parent to his or her children.” In re R.A., 19 N.E.3d 313,
321 (Ind. Ct. App. 2014), trans. denied (2015). “For this reason, termination is
intended as a last resort, available only when all other reasonable efforts have
failed.” Id.Court of Appeals of Indiana | Memorandum Decision 89A01-1711-JT-2675 | April 18, 2018 Page 9 of 16
[6] A petition for the involuntary termination of parental rights must allege in
pertinent part:
(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.
….
(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) (emphasis added). DCS must prove “each and
every element” by clear and convincing evidence. In re G.Y., 904 N.E.2d 1257,
1261 (Ind. 2009); Ind. Code § 31-37-14-2. If the trial court finds that the
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allegations in the petition are true, the court shall terminate the parent-child
relationship. Ind. Code § 31-35-2-8(a).
[7] “Our standard of review is highly deferential in cases concerning the
termination of parental rights.” D.P., 27 N.E.3d at 1165.
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.
C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 92-93 (Ind. Ct. App. 2014)
(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 W.M.L., 82 N.E.3d 361, 367 (Ind. Ct. App. 2017).
[8] Parents contend that the trial court clearly erred in concluding that there is a
reasonable probability that the conditions that resulted in Child’s removal will
not be remedied3 and that termination is in Child’s best interests. They also
3
As stated above, the trial court concluded that there was a “greater than reasonable probability” that the
conditions that resulted in Child’s removal will not be remedied. Appealed Order at 7. We take this to mean
that DCS surpassed its statutory burden. We express no opinion on this assessment.
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claim that their due process rights were violated by being called as witnesses by
DCS at the factfinding hearing.
Section 1 – The trial court’s order is not clearly erroneous.
[9] To determine whether the conditions that resulted in a child’s removal will not
be remedied, the trial court engages in a two-step analysis. In re A.W., 62
N.E.3d 1267, 1273 (Ind. Ct. App. 2016). “The court first identifies the
conditions that led to removal and then determines whether there is a
reasonable probability that those conditions will not be remedied.” Id. “The
second step requires trial courts to judge a parent’s fitness at the time of the
termination proceeding, taking into consideration evidence of changed
conditions, and balancing any recent improvements against habitual patterns of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.” Id. (quotation marks omitted). “Trial courts have discretion to
weigh a parent’s prior history more heavily than efforts made only shortly
before termination, and the court may find that a parent’s past behavior is the
best predictor of her future behavior.” Id. The trial court may consider services
offered by DCS and the parent’s response to those services as evidence of
whether conditions will be remedied. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. “Where there are only
temporary improvements and the pattern of conduct shows no overall progress,
the court might reasonably find that under the circumstances, the problematic
situation will not improve.” In re Involuntary Termination of Parent Child
Relationship of A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). DCS “is not
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required to provide evidence ruling out all possibilities of change; rather, it need
only establish that there is a reasonable probability that the parent’s behavior
will not change.” A.D.S., 987 N.E.2d at 1157 (quotation marks omitted).
[10] In determining what is in a child’s best interests, the trial court is required to
look to the totality of the evidence. In re A.G., 45 N.E.3d 471, 479 (Ind. Ct.
App. 2015), trans. denied (2016). In so doing, the court must subordinate the
interests of the parents to those of the child. Id. “The court need not wait until
the child is irreversibly harmed before terminating the parent-child
relationship.” Id.[11] Parents challenge only eight of the trial court’s one hundred findings (numbers
36, 37, 38, 44, 46, 58, 62, and 63), claiming that they are insufficiently specific
to support the court’s conclusions that there is a reasonable probability that the
conditions that resulted in Child’s removal, i.e., Parents’ addiction to and abuse
of drugs, will not be remedied and that termination is in Child’s best interests. 4
They assert that “[w]hat was offered at the fact finding hearing was a general
framework of some substance abuse, but it was unclear when drugs were used,
over what time period, and whether substance abuse remained a problem at the
time of the fact finding hearing.” Appellants’ Br. at 15-16.
[12] We disagree. Parents do not specifically challenge the CASA’s testimony
regarding Mother’s admission to a six-year history of drug addiction. During
4
We treat Parents’ best interests argument as coextensive with their remedied conditions argument.
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the CHINS proceedings involving Child and his half siblings, which started in
March 2016, Parents admitted to using (and/or testing positive for using)
heroin, cocaine, meth, marijuana, Xanax, and opiates up to and including
January 2017. Parents admitted to having a substance abuse problem in
September 2016 and only sporadically attended court-ordered substance abuse
therapy and treatment. Mother stopped attending sessions two months before
the October 2017 factfinding hearing, and a drug screen prevented Father from
enrolling in a rehabilitation program less than three weeks before the hearing.
Based on the trial court’s findings and the reasonable inferences to be drawn
therefrom, we cannot say that the trial court clearly erred in concluding that
there is a reasonable probability that the conditions that resulted in Child’s
removal will not be remedied and that termination is in Child’s best interests.
Section 2 – Parents’ due process rights were not violated as a
result of being called as witnesses by DCS.
[13] When DCS called Parents as witnesses during its case in chief, they objected on
the basis that they would be asked incriminating questions regarding drug use
and other matters. The trial court overruled the objections and noted that
Parents’ counsel could object to such questions on Fifth Amendment grounds,
which counsel did.5 The trial court sustained those objections and stated that it
would decline to draw negative inferences from Parents’ refusal to testify. Cf.
5
See U.S. CONST., amend. V (“No person … shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law ….”).
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Hardiman v. Cozmanoff, 4 N.E.3d 1148, 1152 (Ind. 2014) (noting that Fifth
Amendment protects individual against being involuntarily called as witness
against himself in criminal prosecution but “‘does not forbid adverse inferences
against parties to civil actions when they refuse to testify in response to
probative evidence offered against them.’”) (quoting Baxter v. Palmigiano, 425
U.S. 308, 318 (1976)).
[14] On appeal, Parents argue that the termination order should be reversed because
the trial court’s overruling of their objections to being called as witnesses
violated their due process rights. DCS argues, and we agree, that reversal is not
required because Parents cannot demonstrate harm resulting from any alleged
due process violation, given that the trial court declined to draw negative
inferences from their refusal to answer certain questions on Fifth Amendment
grounds. See Ind. Appellate Rule 66(A) (“No error or defect in any ruling or
order or in anything done or omitted by the trial court or by any of the parties is
ground for granting relief or reversal on appeal where its probable impact, in
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light of all the evidence in the case, is sufficiently minor so as not to affect the
substantial rights of the parties.”). Therefore, we affirm.6
[15] Affirmed.
Bailey, J., and Brown, J., concur.
6
We reject Parents’ argument that “procedural due process should afford parents like Mother and Father the
ability to not be called as witnesses against themselves, pursuant to the rights enshrined in the Fifth
Amendment as incorporated to the states by the Fourteenth Amendment.” Appellants’ Br. at 28. This
argument is based on the faulty premise that termination proceedings are quasi-criminal in nature. Cf. In re
E.D., 902 N.E.2d 316, 322 (Ind. Ct. App. 2009) (“The due process safeguards afforded a defendant in a
criminal trial are not applicable to a parent in a civil termination proceeding. Indeed, our Indiana Supreme
Court has recognized that ‘criminal prosecutions and termination proceedings are substantially different in
focus. The resolution of a civil juvenile [termination] proceeding focuses on the best interests of the child,
not on guilt or innocence as in a criminal proceeding.’”) (alteration in E.D.) (quoting Baker v. Marion Cty.
Office of Family & Children, 810 N.E.2d 1035, 1039 (Ind. 2004)), trans. denied.
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