In the Matter of The Termination of Parent-Child Relationship of: D.G. (Minor Child) and K.A. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 31 2018, 9:00 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
Daniel G. Foote Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of The October 31, 2018
Termination of Parent-Child Court of Appeals Case No.
Relationship of: 18A-JT-1058
D.G. (Minor Child) Appeal from the Marion Superior
Court
and
The Honorable Gary Chavers,
K.A. (Mother), Judge Pro Tem
Appellant-Respondent, The Honorable Larry Bradley,
Magistrate
v. Trial Court Cause No.
The Indiana Department of 49D09-1709-JT-843
Child Services,
Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1058 | October 31, 2018 Page 1 of 24
Case Summary and Issues
[1] K.A. (“Mother”) appeals the termination of her parental rights as to D.G.
(“Child”) and raises three issues on appeal, which we consolidate and restate as
the following two issues: (1) whether the juvenile court’s judgment terminating
Mother’s parental rights was clearly erroneous; and (2) whether the termination
proceeding was fundamentally fair when Mother represented herself at the fact-
finding hearing. Concluding the juvenile court’s judgment was not clearly
erroneous and Mother knowingly and voluntarily waived her right to counsel,
we affirm.
Facts and Procedural History
[2] Child was born on December 11, 2010, and suffers from ADHD, autism, and a
metabolic disorder which requires continuing medical care. On August 1, 2014,
Child was removed from Mother because Mother was arrested for shoplifting,
tested positive for heroin and marijuana, and failed to take Child to Child’s
medical appointments. On August 4, 2014, the Indiana Department of Child
Services (“DCS”) filed a petition alleging that Child was a Child in Need of
Services (“CHINS”). At the initial hearing, the juvenile court found Mother to
be indigent and granted her request for appointed counsel.
[3] Child began a temporary trial visit with Mother around August 21, 2014, but by
September 25, 2014, the juvenile court had again removed Child from Mother
because Mother began testing positive for drugs soon after the trial visit began.
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Mother and DCS reached an Agreed Entry in which Child was adjudicated a
CHINS on October 30, 2014, and Mother was ordered to participate in home-
based case management and therapy, complete a substance abuse evaluation
and follow treatment recommendations, and undergo random drug screens.
Child began a second temporary trial visit on July 5, 2016, after Mother began
to have negative drug screens, but Child was again removed from the home on
September 8 after Mother tested positive for drugs.
[4] Following a permanency hearing on January 19, 2017, the juvenile court
changed the permanency plan for Child from reunification to adoption finding,
in part:
1. On [sic] DCS filed a petition alleging that the child was in
need of services due to [Mother] being arrested for shoplifting
and because of her substance abuse.
2. On August 1, 2014 [Child] was removed from his mother’s
care and placed in foster care. He was returned to her care from
August 21, 2014 until September 25, 2014 when [Child] was
removed again because of [Mother’s] substance use and placed
in foster care. [Child] was returned to [Mother’s] care from July
6, 2016 until September 8, 2016 and was removed again due to
[Mother’s] drug use and placed in relative care until November
2016 when [Child] was placed in foster care.
***
5. [Mother] was positive for methamphetamine in October
2016. She was recently evicted from a cousin’s home, and tested
positive for methamphetamine and THC today.
6. [Mother] has engaged in parenting time only 3 times since
November 2016.
***
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8. [Child] has medical needs and it has been difficult to find a
pre-adoptive home for him.
Exhibits, Volume I at 179.
[5] The juvenile court held another permanency hearing on June 29, 2017, and
found that Mother failed to participate in services and screened positive for
methamphetamine. DCS subsequently filed its Verified Petition for Involuntary
Termination of Parent-Child Relationship on September 22. At the initial
hearing on October 20, Mother engaged in a colloquy with the court in which
she stated she would proceed pro se and the juvenile court explained the
consequences of doing so. As a result, the juvenile court found Mother “does
not plan to engage counsel and . . . determine[d] that [Mother] freely and
voluntarily waive[s] counsel.” Appellant’s Appendix, Volume II at 30. A fact-
finding hearing was held on January 17, 2018, and on April 9, 2018, the
juvenile court issued its order terminating Mother’s parental rights, finding the
following:
2. A Child in Need of Services Petition “CHINS” was filed on
[Child] on August 4, 2014, . . . on allegations that [Mother]
tested positive for heroin and marijuana, that the home was in
deployable [sic] condition, and that [Child] was being medically
neglected over [Child’s] special needs. [Mother] had also
recently been arrested for shoplifting.
3. Although [Child] was removed from the home at the August
4, 2014, initial hearing, [Child] was placed back in the home on
August 21, 2014, on temporary in-home trial visitation.
4. Due to [Mother] testing positive for marijuana, [Child] was
again ordered detained and removed from the home on
September 25, 2014.
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***
7. [Mother] was up and down with her participation in services
and tested for heroin, methamphetamine, cocaine, marijuana and
alcohol at times.
8. In 2016, [Mother] was participating in services, and started
testing drug negative, to the point that [Child] was placed in-
home on July 5, 2016.
9. After the in-home placement, the IDCS received a June 29,
2016 drug screen positive for amphetamine and
methamphetamine. After [Mother] test[ed] positive for
methamphetamine, cocaine, and alcohol in August of 2016,
[Child] was removed from the home on September 8, 2016.
[Child] was never placed back with [Mother].
10. [Child] had been removed from [Mother] for at least six (6)
months under a dispositional decree, and was placed outside the
home and under the care and supervision of the IDCS for at least
fifteen (15) of the most recent twenty-two (22) months, prior to
this termination action being filed on September 22, 2017.
11. [Mother] continued to test positive for drugs and her
participation in services dropped off.
12. Even though therapy was referred eight times, [Mother]
failed to successfully complete therapy due to her non-
participation.
13. Home based case management was referred at least four
times to address instability and transportation.
14. [Mother] has not had independent stable housing during the
CHINS case. She has stayed with relatives and currently resides
with her mother-in-law. At one point she was living out of a car.
15. [Mother] has not been able to maintain employment, having
gone through various jobs. She testified she was working at
Family Dollar though the family case manager had no
knowledge of that employment.
16. [Mother] did obtain a vehicle twice during the CHINS case,
but both cars were repossessed.
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17. Case management is still an open referral but is close to
being unsuccessfully closed.
18. The most concerning safety issue is [M]other’s inability to
maintain sobriety. She has had periods of sobriety during the
CHINS case but has relapsed. She has admitted to drug use two
weeks prior to the trial in this matter.
19. Four referrals were made for a substance abuse assessment
and three referrals were made for the recommended treatment
program. If a program was completed, there has been a
subsequent relapse.
20. [Mother] speaks with [Child] telephonically, but has only
visited [Child] once in the past year.
21. [Mother] was engaged with [Child] during the last parenting
time session but [Child] was distrustful of her. A bond does exist
between [Child] and [Mother].
***
23. [Child’s] disruptive behavior worsens after [Child] speaks
with [Mother].
24. [Child] craves stability. Instability affects [Child] adversely.
25. [Child’s] placement is not pre-adoptive due to [Child’s]
caregiver not being able to meet [Child’s] needs full time with
another special needs child in the home.
26. [Child] is adoptable and a permanent placement is being
sought.
27. 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 [Mother] who has not
remedied conditions of drug abuse and instability in the almost
three and one-half years that have elapsed since [Child’s] CHINS
case was filed.
28. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to [Child’s] well-being in
that it would pose as a barrier to obtaining permanency for
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[Child] through an adoption after being a ward for so long.
[Mother] cannot safely parent or meet [Child’s] needs without
successfully overcoming sobriety and stability issues.
29. Termination of the parent-child relationship is in the best
interests of [Child]. Termination would allow [Child] to be
adopted into a stable and permanent home where all of [Child’s]
needs will be safely met.
Appellant’s App., Vol. II at 13-14. Mother now appeals.1
Discussion and Decision
I. Standard of Review
[6] The Fourteenth Amendment to the United States Constitution protects parents’
right to raise their children. Bester v. Lake County Office of Family and Children,
839 N.E.2d 143, 147 (Ind. 2005). “A parent’s interest in the care, custody, and
control of his or her children is ‘perhaps the oldest of the fundamental liberty
interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). However,
these rights are not absolute and may be terminated when parents are unable or
unwilling to meet their parental responsibilities. In re D.D., 804 N.E.2d 258,
264-65 (Ind. Ct. App. 2004), trans. denied. When reviewing a termination of
parental rights, we do not reweigh the evidence or judge the credibility of the
witnesses and only consider the evidence and reasonable inferences most
favorable to the judgment. Id.1
We note that Child’s Father’s parental rights were also terminated; however, he does not participate in this
appeal and we have limited our recitation of the facts to those relevant to Mother.
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[7] Pursuant to Indiana Code section 31-35-2-8(c), the juvenile court entered
findings of fact to support its conclusion regarding the termination of the
parent-child relationship. When the juvenile court issues findings of fact and
conclusions of law, we apply a two-tiered standard of review: we first determine
whether the evidence supports the findings, and then whether the findings
support the judgment. K.E. v. Indiana Dep’t of Child Servs., 39 N.E.3d 641, 646
(Ind. 2015). We will set aside the juvenile court’s judgment if it is clearly
erroneous, id., namely, when we are firmly convinced a mistake has been made,
B.H. v. Indiana Dep’t of Child Servs., 989 N.E.2d 355, 363 (Ind. Ct. App. 2013).
II. Termination of Parental Rights
A. Remedied Conditions
[8] Mother argues the record fails to demonstrate the conditions which led to
Child’s removal will not be remedied or that the continuation of the parent-
child relationship poses a threat to Child’s well-being. To terminate parental
rights, the State must demonstrate by clear and convincing evidence:
(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.
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***
(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); see also Ind. Code § 31-37-14-2 (stating burden of
proof in termination proceedings). Because section 4(b)(2)(B) is written in the
disjunctive, the juvenile court only had to find sufficient evidence to support
one of the requirements in subsection (B) to terminate Mother’s parental rights,
in addition to the other requirements of section 4(b)(2). B.H., 989 N.E.2d at
364. Here, the juvenile court found evidence supporting (2)(B)(i) and (2)(B)(ii).
Mother challenges both findings.
[9] Because it is dispositive, we only examine the issue of whether the evidence
shows that there is a reasonable probability that the conditions resulting in
Child’s removal or continued placement outside Mother’s care will not be
remedied. Id. To determine this, we engage in a two-step analysis. In re V.A.,
51 N.E.3d 1140, 1145 (Ind. 2016). First, we determine what conditions led to
the child’s placement outside of the home, and then whether there is a
reasonable probability that those conditions will not be remedied. Id. In
determining whether a reasonable probability that the conditions that led to
removal of a child will not be remedied, a juvenile court should evaluate a
parent’s fitness to care for his or her child at the time of the termination hearing,
as well as “habitual patterns of conduct to determine the probability of future
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neglect or deprivation of the child” and services offered to the parent. In re D.J.,
755 N.E.2d 679, 684 (Ind. Ct. App. 2001), trans. denied.
[10] Here, the juvenile court found Child was initially removed from Mother “on
allegations that [Mother] tested positive for heroin and marijuana, that the
home was in deployable [sic] condition, and that [Child] was being medically
neglected over [Child’s] special needs. [Mother] had also recently been arrested
for shoplifting.” Appellant’s App., Vol. II at 13.2 The conditions that led to
Child’s removal indicate instability and Mother’s inability to care for Child.
[11] Mother argues that the evidence at the fact-finding hearing demonstrates that
she “experienced some interruptions, based in part on the death of her husband,
illness and a hospitalization, the death of her husband in September of 2015,
and a September 2016 bout with substance abuse.” Brief of Appellant at 24.
She argues she now has stable housing and employment and her case manager
testified that she was fully engaged with Child and the two shared a bond.
Mother concedes that while Mother’s current case manager “did not feel that
Mother had not yet reached the goals for her services, he testified that Mother
2
As part of her argument that the record does not establish by clear and convincing evidence that the
conditions that led to removal will not be remedied, Mother contends that although the State offered the
original CHINS Petition into evidence at the fact-finding hearing, “there is no evidence in the record that
Mother admitted to any of the specific allegations made in that Petition.” Brief of Appellant at 23. She
argues because the “Agreed Entry” in which Child was adjudicated a CHINS was not in the record, “it is
difficult to ascertain what specific facts led to [Child’s] placement outside the home[,]” and therefore, it
would have been difficult for the juvenile court to conclude the conditions will not be remedied under the
statute. Id. Mother correctly states the “Agreed Entry” was not admitted into evidence at the termination
hearing; however, testimony by Shannon Taylor, Guardian ad Litem with Child Advocates, establishes the
underlying conditions which led to Child’s removal. See Transcript, Volume II at 99.
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should have more time to engage in services, as it would increase the likelihood
that she would address her issues, and that with additional services,” she would
be able to meet Child’s needs. Id. However, the evidence presented at the fact-
finding hearing revealed Mother’s continued pattern of instability, supporting
the juvenile court’s finding that a reasonable probability exists that the
conditions that led to Child’s removal will not be remedied and its judgment
terminating Mother’s parental rights.
[12] As to Mother’s substance abuse issues, she admitted to home-based care
manager, Beth Lopez, that she had used methamphetamines, amphetamines,
marijuana, alcohol, and snorted prescription pills in 2016. See Transcript,
Volume II at 24. At the fact-finding hearing, Lopez testified she would not
recommend reunification in this matter, citing Mother’s inability to maintain
sobriety as her “biggest concern[.]” Id. at 30. As she explained, with the “cycle
of instability” that intermittent sobriety causes, it is difficult “to maintain stable
housing, employment, be able to meet [Child’s] needs medically. It would
require [Mother] to be sober to transport [Child], attend school things, so
sobriety would be my biggest concern.” Id. Ultimately, Lopez testified she
would not recommend Child be placed with Mother and that more time would
not increase the likelihood Mother will address her issues.
[13] Throughout this matter, Mother has been referred to home-based therapy eight
times but failed to complete it due to non-participation. At the time of the fact-
finding hearing, Mother’s case management referral was still open, but in
jeopardy of being unsuccessfully closed due to non-participation. The juvenile
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court found that “[f]our referrals were made for a substance abuse assessment
and three referrals were made for the recommended treatment program[,]” and
if any were completed, Mother has subsequently relapsed. Appellant’s App.,
Vol. II at 14.
[14] The testimony at the fact-finding hearing supports the juvenile court’s finding
that the conditions that led to removal will not be remedied with additional
time. At the fact-finding hearing, Child’s guardian ad litem, Alane Singleton,
testified that Child has not been placed back with Mother because she does not
have stable housing or employment and has not been drug free. Singleton
testified she would not recommend Child be placed with Mother because she is
not able to properly care for Child and did not believe Mother should be given
additional time to complete services. Jen Blevins, a Family Case Manager with
DCS, testified that re-referring Mother to services was not likely to increase the
likelihood of remedying the reasons for Mother’s referral given that Mother has
had nearly three years to address the issues and has not done so. Similarly,
when asked whether Child could be placed with Mother if given more time,
Annegelique Parker, a home-based therapist, testified:
I struggle with that because as a therapist I obviously think
people can change . . . . My issue is that it’s been open for so
long and how much longer would we give her to change or make
the necessary changes. Would it sustain and what would that do
to [Child]?
Tr., Vol. II at 60. Parker also did not think Mother is capable of consistently
interacting with Child given the history of the case.
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[15] Although the initial plan was reunification, DCS recommended changing the
plan to adoption based on these conditions, namely, Mother’s non-participation
in services, unstable housing, and lack of employment. Additionally,
throughout this case, Mother obtained two different vehicles, but both were
repossessed, and she has not had independent and stable housing, and at some
point, was living out of her car. Mother did testify that as of the time of the
fact-finding hearing, she had stable employment at Family Dollar, which the
case manager had no knowledge of, and was living with her mother-in-law;
however, she also admitted to her case manager to using marijuana two weeks
prior to the fact-finding hearing. See Tr., Vol. II at 43-44. Mother has not had
independent housing throughout this case and her sobriety continues to be a
major concern as she has not maintained sobriety for longer than six months at
a time throughout this matter.
[16] We acknowledge that the purpose of terminating parental rights is to protect the
child and is considered a “last resort, available only when all other reasonable
efforts have failed.” B.H., 989 N.E.2d at 364-65 (internal quotations and
citation omitted). In almost three and one-half years since this case
commenced and despite numerous referrals, Mother has failed to successfully
address her substance abuse issues and has demonstrated a pattern of
instability. Thus, the evidence supports the juvenile court’s finding that there is
a reasonable probability that the unstable conditions which led to Child’s
removal will not be remedied and this finding supports the juvenile court’s
judgment terminating Mother’s parental rights to Child.
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B. Best Interests of Child
[17] Mother contends the State did not establish by clear and convincing evidence
that involuntary termination of her parental rights with Child would be in
Child’s best interests as required by Indiana Code section 31-35-2-4(b)(2)(C).
Specifically, Mother contends that Child’s therapist “hesitated to recommend
termination” and testified that Mother “had been able to take care of [Child’s]
needs and should be able to do it again.” Br. of Appellant at 27.
[18] In determining the best interests of the child, the juvenile court evaluates the
totality of the evidence and need not wait until the child is “irreversibly
harmed” before terminating parental rights. A.D.S. v. Indiana Dep’t of Child
Servs., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In addition to
evidence that the conditions that led to a child’s removal will not be remedied, a
case manager and child advocate’s recommendation to terminate the parent-
child relationship is sufficient to prove by clear and convincing evidence that
termination of parental rights is in the child’s best interests. Id. at 1158-59.
[19] This court has held that a parent’s non-remedied substance abuse and domestic
violence issues alone are sufficient to support a juvenile court’s conclusion that
termination of parental rights is in the child’s best interests although
permanency is a “central consideration” in determining the child’s best
interests. Id. at 1159 (internal quotation omitted).
[20] As to Child’s best interests, the juvenile court found that Mother has not visited
with Child regularly, Child’s behavior worsens after contact with Mother, and
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Child craves stability that Mother does not provide. The juvenile court found
termination of Mother’s parental rights to be in the best interests of Child as it
“would allow [Child] to be adopted into a stable and permanent home where all
[Child’s] needs will be safely met.” Appellant’s App., Vol. II at 14.
[21] Mother relies on several cases to challenge the juvenile court’s finding that
termination is in Child’s best interests.3 However, Mother’s reliance on these
cases is misplaced and can be clearly distinguished from the present matter.
These cases differ from Mother’s case as those parents demonstrated personal
improvement and commitment to reunification with their children. As noted
above, Mother has not achieved the stability Child needs or made
improvements in Child’s best interests.
[22] As to testimony regarding Child’s best interests, Lopez, home-based case
manager, testified she would not recommend Mother’s reunification with Child
based on Mother’s sobriety issues and instability. Jen Blevins, family case
manager, and Shannon Taylor, guardian ad litem, both testified that
termination of the parent-child relationship was in Child’s best interests. See
Tr., Vol. II at 83-84, 100. Although either of these recommendations or
Mother’s ongoing substance abuse issues are sufficient to demonstrate by clear
and convincing evidence that termination of parental rights is in Child’s best
interests alone, permanency is the main consideration. See A.D.S., 987 N.E.2d
3Mother cites In re G.Y., 904 N.E.2d 1257 (Ind. 2009); In re J.M., 908 N.E.2d 191 (Ind. 2009); and H.G. v.
Indiana Dep’t of Child Servs., 959 N.E.2d 272 (Ind. Ct. App. 2011), trans. denied, to support her argument.
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at 1158-59. Mother has not achieved the requisite stability and Child was
placed in a pre-adoptive home in the time before the juvenile court issued its
order.
[23] The evidence in the record sufficiently supports the juvenile court’s finding that
termination of Mother’s parental rights is in Child’s best interests and will allow
Child to ultimately be adopted into a home that can provide stability and meet
Child’s needs.
C. Satisfactory Plan
[24] Mother also argues the termination of her parental rights and Child’s adoption
is not a “satisfactory plan” pursuant to Indiana Code section 31-35-2-4(b)(2)(D)
because the State had not identified a permanent home for Child and the facts
in this matter “do not warrant the ‘extreme measure’ of termination[.]” Br. of
Appellant at 29-30.
[25] As discussed above, the evidence supports the juvenile court’s findings and
judgment terminating Mother’s parental rights. As to Mother’s contention that
termination and adoption is not a “satisfactory plan” contemplated by the
statute, a plan “need not be detailed” to constitute a “satisfactory plan” under
the statute so long as the plan provides a “general sense” of where the child will
be going after the parental rights are terminated. In re A.S., 17 N.E.3d 994,
1007 (Ind. Ct. App. 2014), trans. denied. Moreover, a satisfactory plan does not
have to guarantee that a suitable adoption will take place, only that the State
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will attempt to do so. Id. “Accordingly, a plan is not unsatisfactory if DCS has
not identified a specific family to adopt the children.” Id.[26] At the time of the fact-finding hearing, Child was in foster care and DCS was
“searching for a pre-adoptive and stable home for [Child]” and was conducting
visitation with a possible new placement. Tr., Vol. II at 85. By the time the
juvenile court issued its order on April 9, 2018, Child had been placed in a pre-
adoptive home. Therefore, we conclude termination of Mother’s parental rights
and Child’s adoption is a “satisfactory plan” under the statute.
III. Due Process
[27] Finally, Mother argues that the fact-finding hearing in the termination matter
was fundamentally unfair. Specifically, she argues that “counsel should have
been appointed to represent her in this matter” and the juvenile court erred by
permitting her to decline the appointment of a public defender when Mother
was not capable of defending her case. Br. of Appellant at 30.
[28] “Due process has never been defined, but the phrase embodies a requirement of
‘fundamental fairness.’” In re D.P., 27 N.E.3d 1162, 1166 (Ind. Ct. App. 2015)
(quotation omitted). Termination of a parent-child relationship must meet the
requirements of due process, D.T. v. Indiana Dep’t. of Child Servs., 981 N.E.2d
1221, 1224 (Ind. Ct. App. 2013), and a parent is entitled to counsel during these
proceedings, Ind. Code § 31-32-2-5; Ind. Code § 31-32-4-1(2). Because a parent
has a fundamental liberty interest in the care and custody of his or her child, we
have held it is a due process violation to remove a child from an indigent parent
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“without affording that parent the right to assistance of court-appointed
counsel.” Matter of Adoption of C.J., 71 N.E.3d 436, 442 (Ind. Ct. App. 2017).
Thus, a juvenile court has an obligation to appoint counsel to an indigent
parent unless the parent knowingly and voluntarily waives the right to counsel.
Ind. Code § 31-32-4-3(2); Ind. Code § 31-32-5-5.
[29] Mother was found to be indigent in August 2014 during the CHINS
proceedings. At the initial termination hearing in October 2017, Mother
engaged in the following colloquy with the juvenile court regarding
representation:
The Court: You do have the right to counsel, if you wish to hire
an attorney you may. If you wish to have an
attorney and you cannot afford one, I would
appoint a public defender to represent you. Would
you like to have a public defender?
[Mother]: No sir.
The Court: How do you want to go forward?
[Mother]: I want to represent myself.
The Court: Ok. I need to admonish you that if you represent
yourself you’d be held to the same standards as an
attorney as far as evidence and procedure. And the
outcome obviously can be the loss of your parental
rights. Well then, I guess we could just set this for
trial.
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[Mother]: Can I say something Your Honor?
The Court: Uh hm.
[Mother]: The only reason that DCS is basically keeping…
The Court: Well, I don’t want to get into any of the evidence or
anything so, that must be for trial.
[Mother]: So who do I need to talk to have visits with [Child]
then since they won’t set them up?
The Court: It would be the other Court, the CHINS Court.
[Mother]: How do I do that cause I can’t just go talk to the
Judge?
The Court: Well see this is…you’d have to ask at a hearing. I
don’t know when your next hearing is. But this is…
[Mother]: I don’t have one.
The Court: […] just one of those things and you can’t ask me
how to do procedure like this because you’re
representing yourself, that’s why…
[Mother]: Ok, well I don’t have another hearing in there.
They’ve closed that to come to this Courtroom.
The Court: There should be a review hearing. You have a
permanency hearing set for January the 4th.
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[Mother]: Ok, at what time, 1?
The Court: 9:30. Your last hearing was last month on the 21st.
[Mother]: Yeah.
The Court: Were you at that hearing?
[Mother]: Uh hm.
The Court: Ok. But I guess, I mean, my warning to you about
representing yourself, you know, you just asked
how to [sic] do I do this and if that happens in the
trial I can’t, you know, take your side of the case
and give you legal advice so, ok just want to make
sure you know. . . .
Tr., Vol. II at 5-7.
[30] Mother now argues that the fact-finding hearing in this matter was
fundamentally unfair because she was “permitted to forego the appointment of
a public defender, in spite of the court’s admonishment[.]” Br. of Appellant at
30. Mother points to the fact that due to lack of counsel she was unable to
cross-examine the witnesses, certain findings were unsubstantiated by
admissible evidence, and the State was able to introduce evidence without
objection, some of which she alleges contained “unproven allegations and
hearsay.” Id. at 31. In support of her argument, Mother also improperly relies
on our supreme court’s holding in Baker v. Marion Cty. Office of Family &
Children, 810 N.E.2d 1035 (Ind. 2004). In Baker, the court confronted the issue
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1058 | October 31, 2018 Page 20 of 24
of whether the criminal standard for ineffective assistance of counsel applies in
termination proceedings and determined it does not; instead the inquiry on
review of counsel’s performance in a termination case is “whether it appears
that the parents received a fundamentally fair trial whose facts demonstrate an
accurate determination.” Id. at 1041. Baker is inapplicable in the instant case
because Mother represented herself at the fact-finding hearing.
[31] Indiana Code section 31-32-5-5 states that a parent who is entitled to
representation by counsel “may waive that right if the parent does so knowingly
and voluntarily.” An examination of the record reveals Mother waived her
right to counsel at the initial hearing and did not request counsel thereafter. See
In re G.P., 4 N.E.3d 1158, 1164 (Ind. 2014) (“[W]e have never held that a
litigant who elects to waive the right to counsel is permanently bound by that
decision . . . .”). “[A] pro se litigant is held to the same standards as a trained
attorney and is afforded no inherent leniency simply by virtue of being self-
represented[,]” which the juvenile court explained to Mother at the initial
hearing. Id. Mother was aware of these standards and the consequences of
failing to meet the standards as explained by the juvenile court. See id.Nevertheless, Mother chose to proceed pro se despite the juvenile court’s
admonishment. Based on her dialogue with the juvenile court, Mother
knowingly and voluntarily waived her right to counsel and we cannot conclude
the fact-finding hearing was fundamentally unfair due to her lack of
representation.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1058 | October 31, 2018 Page 21 of 24
[32] At the end of her argument, Mother briefly argues there was no “compelling
reason” to proceed with the fact-finding hearing in January 2018 when the State
had not yet found a pre-adoptive home for Child. Br. of Appellant at 30.
Specifically, Mother contends the juvenile court’s denial of the guardian ad
litem’s request for a continuance until a pre-adoptive home for Child was found
and the fact that Mother still had an open referral for services calls into question
the accuracy and fairness of the proceeding. However, Mother fails to support
these contentions by cogent reasoning or citation to authorities, statutes, or the
record as required by Indiana Appellate Rule 46(A)(8)(a). Therefore, we
conclude Mother has waived any argument as it relates to these contentions.
Conclusion
[33] For the foregoing reasons, we conclude the juvenile court’s judgment
terminating Mother’s parental rights was not clearly erroneous and because
Mother waived her right to counsel, she was not denied due process by the
juvenile court’s failure to appoint counsel for her. Accordingly, we affirm.
[34] Affirmed.
May, J., concurs.
Baker, J., concurs with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1058 | October 31, 2018 Page 22 of 24
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of The Court of Appeals Case No.
Termination of the Parent-Child 18A-JT-1058
Relationship of:
D.G. (Minor Child)
and
K.A. (Mother),
Appellant-Respondent,
v.
The Indiana Department of
Child Services,
Appellee-Petitioner
Baker, Judge, concurring.
[35] I fully concur with the majority opinion, as I believe we are compelled to
affirm. I write separately to express my hope that trial courts in this State will
do a more thorough job of questioning parents in termination proceedings who
indicate a wish to proceed pro se than what occurred here. I acknowledge that
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1058 | October 31, 2018 Page 23 of 24
trial courts in termination proceedings are not required to engage in the same
colloquy as must occur in criminal cases when defendants wish to proceed pro
se. But I would hope, given the profound seriousness of what is at stake in
termination proceedings, that our trial courts would err on the side of a
thorough and careful conversation with parents in these circumstances to
ensure beyond a doubt that their waiver of counsel is both voluntary and
knowing. In this case, I do not believe that a thorough or careful enough
conversation occurred. But while it leaves me deeply uncomfortable, I agree
with the majority that we are compelled to affirm.
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