In the Matter of the Term. of the Parent-Child Relationship of: A.D. and C.D. and Ch.D. and Cl.D. v. Ind. Dept. of Child Services (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 07 2015, 8:32 am
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.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 7, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: 84A05-1504-JT-157
Appeal from the Vigo Circuit
A.D. and C.D. (Minor Children) Court
The Honorable David R. Bolk,
and Judge
Ch.D. (Mother) and Cl.D. The Honorable Daniel W. Kelly,
(Father), Magistrate
Appellants-Respondents, Trial Court Cause Nos.
84D09-1407-JT-713 and -714
v.
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Indiana Department of Child
Services,
Appellee-Petitioner
Crone, Judge.
Case Summary
[1] Ch.D. (“Mother”) and Cl.D. (“Father”) (collectively “the Parents”) appeal the
trial court’s involuntary termination of their parental rights to their minor
children, A.D. and C.D. (collectively “the Children”). In the midst of the
termination evidentiary proceedings, the Parents informed the trial court that
they wished to stop the proceedings and concede to the termination of their
respective parental rights. Although the Parents indicated that they would
prefer a voluntary termination of their rights, when the trial court indicated that
the termination would remain involuntary as alleged in the petition to
terminate, the Parents assured the court that they still wanted their parental
rights terminated. The Parents’ sole contention on appeal is that the trial court
abused its discretion when it granted the involuntary, rather than voluntary,
termination of their parental rights. Finding no abuse of discretion or reversible
error, we affirm.
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Facts and Procedural History
[2] On March 24, 2013, the trial court authorized the emergency removal of seven-
year-old A.D. and five-year-old C.D. from the Parents’ care after Father made
allegations that Mother was sexually abusing A.D. Following an investigation,
neglect and sexual abuse allegations against both Mother and Father regarding
the Children were substantiated. On May 26, 2013, the Vigo County
Department of Child Services (“DCS”) filed its petition alleging that the
Children were Children in Need of Services (“CHINS”). The trial court
subsequently held a factfinding hearing and adjudicated the children as CHINS
upon stipulation by the Parents. Thereafter, the court held a dispositional
hearing and entered its decree requiring the Parents to participate in services.
[3] After Parents made no progress in remedying the conditions that resulted in the
Children’s removal from the home, DCS filed its petition to involuntarily
terminate the Parents’ parental rights. A termination hearing was scheduled
and began on December 15, 2014. DCS presented ten witnesses and fourteen
exhibits. At the conclusion of the day, the trial court continued the remainder
of the hearing to January 29, 2015. The DCS still had the testimony of one
witness to present, and the Parents had not yet presented their case.
[4] On January 27, 2015, two days prior to the continued termination hearing, the
trial court held a CHINS permanency hearing. At the outset of the hearing, the
Parents’ counsel informed the trial court that “they would just like their
[parental] rights terminated today” instead of coming back to court to finish the
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termination hearing. Jan. Tr. at 4. 1 Counsel stated, “I think that they would
prefer it to be voluntary but it[’]s my understanding that because how far into the
Fact Finding Trial we were … I explained to them that I thought it was going to
be too late but that I would ask.” Id. Because DCS filed the original petition
for involuntary termination, the trial court asked DCS its position on the issue.
DCS indicated, “We are not inclined to grant the Voluntary.” Id. at 5. In light
of this position, the trial court addressed the Parents and asked them if they still
wanted to “go ahead and have it terminated.” Id. Mother responded, “We
want it done today, please.” Id. Likewise, Father stated, “So we want it over
with.” Id. The trial court granted the Parents’ request to cancel further
proceedings and concluded the hearing. On March 13, 2015, the trial court
entered detailed findings of fact, conclusions thereon, and an order terminating
the Parents’ parental rights. 2 This appeal ensued.
Discussion and Decision
[5] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). However, parental rights are “not
absolute and must be subordinated to the child’s interests when determining the
1
Although the Parents had separate public defenders who were present at the permanency hearing, Father’s
counsel spoke on behalf of both Parents.
2
We do not specifically mention the trial court’s detailed findings and conclusions here because the Parents
do not challenge those findings and conclusions, or the underlying evidentiary support, on appeal. However,
we must acknowledge that the trial court’s findings indicate that these children were subjected to sexual
abuse and neglect of the most horrendous nature at the hands of the Parents.
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proper disposition of a petition to terminate parental rights.” Id. (citation
omitted). Accordingly, parental rights may be terminated when the parents are
unable or unwilling to meet their parental responsibilities. Id. “Because the
ultimate purpose of the law is to protect the child, the parent-child relationship
will give way when it is no longer in the child’s interest to maintain this
relationship.” In re M.N., 27 N.E.3d 1116, 1119 (Ind. Ct. App. 2015) (citation
omitted), trans. denied.
[6] The Parents concede that their parental rights should have been terminated;
they simply challenge whether the termination should have been considered
involuntary or voluntary. We begin by noting that the voluntary termination of
parental rights and the involuntary termination of parental rights are different
dispositions governed by separate statutory provisions. See Ind. Code § 31-35-1-
4 (voluntary termination); Ind. Code § 31-35-2-4 (involuntary termination).
Here, DCS petitioned for the involuntary termination of the Parents’ parental
rights pursuant to Indiana Code Section 31-35-2-4 and the termination
evidentiary hearing began and proceeded on that basis. Nevertheless, the
Parents baldly assert that they had “a concomitant right to seek voluntary
termination of their parental rights” in the midst of the termination proceeding.
Appellants’ Br. at 6.
[7] We note that the Parents cite no authority, and we are unaware of any, to
support their assertion of this concomitant right. Moreover, the Parents fail to
provide cogent argument or reasoning to support their contention that the trial
court was obligated to convert the involuntary termination proceeding that was
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already underway into a voluntary termination proceeding merely because they
preferred it to be so. Accordingly, the Parents have waived our review of their
argument. See A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4
(Ind. Ct. App. 2013) (failure to support arguments with cogent reasoning results
in waiver on appeal), trans. denied; see also Ind. Appellate Rule 46(A)(8)(a)
(requiring each contention be supported by cogent reasoning and citations).
[8] Waiver notwithstanding, we find no abuse of discretion or reversible error. Our
review of the record reveals that more than a month after DCS presented ample
substantive evidence in support of its petition to involuntarily terminate the
Parents’ parental rights, the Parents decided that, rather than presenting their
respective cases in opposition, they would instead effectively admit to the
allegations in the petition in order to get the termination “over with” and to get
“on with [their] business.” Jan. Tr. at 5. At no time did the Parents file or
request leave to file a petition for voluntary termination, nor did they condition
their concession to the termination of parental rights on DCS amending its
original petition. Indeed, despite their voiced preference that the termination be
considered voluntary, the Parents assured the trial court that they wished to
terminate even after DCS indicated that it would not amend the involuntary
petition. It was only after receiving the Parents’ assurances that the trial court
proceeded to involuntarily terminate their rights. Therefore, the Parents have
invited the alleged error of which they now complain. Error invited by the
complaining party is not reversible error. C.T. v. Marion Cnty. Dept. of Child
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Servs., 896 N.E.2d 571, 588 (Ind. Ct. App. 2008), trans. denied (2009). The trial
court’s involuntary termination of parental rights is affirmed.
[9] Affirmed.
Vaidik, C.J., and Bailey, J., concur.
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