In the Matter of: A.Q., K.Q., and R.Q. (Minor Children), R.O. (Mother) and C.Q. (Father) v. Indiana Department of Child Services ( 2018 )


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  •                                                                            FILED
    Jun 18 2018, 9:18 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
    R.O. (MOTHER)                                              Curtis T. Hill, Jr.
    Nicole A. Zelin                                            Attorney General
    Pritzke & Davis, LLP                                       Robert J. Henke
    Greenfield, Indiana                                        Deputy Attorney General
    ATTORNEY FOR APPELLANT                                     Indianapolis, Indiana
    C.Q. (FATHER)
    Linda Klain
    Law Office of Linda B. Klain, LLC
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of: A.Q., K.Q.,                              June 18, 2018
    and R.Q. (Minor Children),                                 Court of Appeals Case No.
    47A05-1710-JC-2353
    R.O. (Mother) and
    C.Q. (Father),                                             Appeal from the Lawrence Circuit
    Court
    Appellants-Respondents,
    The Honorable Andrea K.
    v.                                                 McCord, Judge
    The Honorable John M. Plummer
    Indiana Department of Child                                III, Referee
    Services,                                                  Trial Court Cause Nos.
    47C01-1501-JC-030
    Appellee-Petitioner
    47C01-1501-JC-031
    47C01-1506-JC-239
    Vaidik, Chief Judge.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018                     Page 1 of 16
    Case Summary
    [1]   In children in need of services (CHINS) cases, the Department of Child
    Services (DCS) sometimes proposes changes to the trial court regarding the
    permanency plan for the children. At the start of the CHINS case, the
    permanency plan typically calls for reunification of the children with their
    parents. As the CHINS case proceeds, however, DCS may recommend a
    number of changes to the plan, including termination of the parents’ rights. We
    determine that when the trial court approves DCS’s proposal to change a
    permanency plan from reunification to termination in a CHINS case, the
    decision is generally not suitable for interlocutory appeal, particularly where, as
    here, reunification services are not terminated, because parents are unable to
    prove actual harm by the change in the permanency plan. Rather, the parents
    are only able to show the potential for future harm—termination of their
    parental rights.
    [2]   In the matter before us, R.O. (“Mother”) and C.Q. (“Father”) bring their
    interlocutory appeal challenging the trial court’s order approving changes in the
    permanency plans in their children’s CHINS cases from reunification to
    termination. This Court’s motions panel accepted jurisdiction of the
    interlocutory appeal, and the parties fully briefed the case. Accordingly, we
    address the merits of the parents’ claims. Finding no error, we affirm.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 2 of 16
    Facts and Procedural History
    [3]   Mother and Father are a non-traditional couple; Father is seventy-nine years
    old, and Mother is twenty-seven years old. They have a long history with DCS
    that dates back to 2006. At that time, DCS substantiated a claim of sexual
    misconduct with a minor against Father; Mother, who was fifteen years old at
    the time, was the victim. Since then, however, Mother and Father have
    continued their relationship and have three children together: A.Q., K.Q., and
    R.Q., born in 2010, 2012, and 2015, respectively.
    [4]   In 2013, DCS substantiated claims of neglect of A.Q. and K.Q. against both
    Mother and Father due to a domestic-violence incident between the parents.
    Two months later, A.Q. and K.Q. both presented with injuries, and DCS again
    substantiated claims of neglect against Mother and Father. A.Q. had several
    physical injuries, some of which were over a year old, and K.Q. had a knot on
    the back of her head. Tr. Vol. VII pp. 82, 86. A.Q. and K.Q. were removed
    from the home and later adjudicated CHINS. Mother and Father engaged in
    services with DCS, and the children were ultimately returned to their care.
    [5]   Less than two years later, DCS received an allegation that A.Q. had been
    physically abused. A.Q. “had several marks and bruises on her,” including a
    bruise about “1 ½ inches in diameter on her chin that was purple.” Id. at 7.
    DCS responded the same day and went to Mother and Father’s house to speak
    with them and A.Q. Upon seeing the “almost black” bruise on A.Q.’s chin and
    other bruises on her head, DCS told Mother and Father to take A.Q. to the
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 3 of 16
    hospital. Id. Photographs of the bruises were taken and sent to a doctor at
    Riley Hospital for Children. Based on the photographs and A.Q.’s medical
    records, the doctor concluded that A.Q. was injured as a result of physical
    abuse. The doctor told DCS, “To obtain an injury to that degree, there must
    have been a lot of force behind it. . . . . [A.Q.] was either propelled to the floor
    or someone hit her directly under the chin.” Id. at 8. The doctor also stated
    that the other injuries to A.Q.’s head were consistent with A.Q. being grabbed
    or slapped. Mother and Father both stated that they did not know how A.Q.
    was injured and that the bruise appeared after A.Q. came home from school.
    DCS immediately removed A.Q. and K.Q. from the home and placed them
    with Father’s granddaughter (“foster mother”). At the time of removal, Mother
    was pregnant with R.Q. On January 28, DCS filed CHINS petitions for both
    A.Q. and K.Q., and three months later, the children were adjudicated CHINS.
    [6]   Meanwhile, the Lawrence County Sheriff’s Department was informed of A.Q.’s
    injuries and launched a criminal investigation. In March 2015, Mother was
    charged with Level 5 felony battery of a child less than fourteen years old. The
    criminal court issued a no-contact order for Mother and A.Q.
    [7]   A dispositional hearing in the CHINS cases was held in June 2015. Six days
    later, Mother gave birth to R.Q. Because of the CHINS adjudications for A.Q.
    and K.Q., DCS removed R.Q. from Mother and Father’s care while still in the
    hospital. R.Q. was also placed with foster mother, and DCS filed a CHINS
    petition for R.Q. On September 8, the court entered its dispositional order in
    A.Q. and K.Q.’s CHINS cases. Mother and Father were ordered, in part, to
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 4 of 16
    maintain weekly contact with the Family Case Manager (FCM), keep all
    appointments with service providers, engage in home-based counseling, and
    have supervised visits with A.Q. and K.Q. The permanency plan for A.Q. and
    K.Q. was reunification with Mother and Father.
    [8]   Around the same time as the dispositional order, A.Q. disclosed that Father
    had sexually abused her, and DCS substantiated the claim. K.Q. also made
    statements that Mother and Father had abused A.Q., but K.Q.’s disclosures had
    already been investigated by DCS. DCS moved to cease all parenting time and
    visitation for both parents and all three children. In January 2016, the court
    ordered that all parenting time and communication with A.Q. and her parents
    cease. However, the court ordered that K.Q. and R.Q. should continue to have
    supervised visitation with Mother and Father. It was also ordered that A.Q.
    and K.Q. undergo psychological evaluations to determine if they had been
    coached regarding the disclosures of abuse.
    [9]   Dr. Linda McIntire conducted the psychological evaluations. She met with
    Mother and Father and met individually with A.Q. and K.Q. Based on her
    interactions with Mother and Father, Dr. McIntire believed that they had not
    made any progress in their therapy because they “would not own that they’d
    done anything wrong,” and she found their level of denial to be “pretty
    concerning.” Tr. Vol. IV pp. 187, 206. Regarding her time with A.Q. and
    K.Q., Dr. McIntire noted that, over the course of the multi-day evaluation,
    K.Q. refused to discuss Father at all but was willing to talk about Mother. Dr.
    McIntire stated, “[W]hen a child refuses to speak, that is a painful avoidance.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 5 of 16
    That is not coaching.” Id. at 143. Dr. McIntire ultimately concluded that
    neither child had been coached regarding their disclosures of abuse. She
    explained that Mother and Father’s claim of coaching was a “manifestation of
    their pervasive denial of any wrong-doing, any problems, and any culpability
    relative to their children[.]” Appellants’ App. Vol. II p. 197.
    [10]   Meanwhile, R.Q.’s CHINS case and Mother’s criminal case were moving
    forward. In January 2016, the court held a fact-finding hearing in R.Q.’s
    CHINS case. R.Q. was adjudicated a CHINS and a dispositional order was
    entered in April 2016. In part, the parents were ordered to participate in
    individual and couples therapy, contact the FCM at least once a week, and
    participate in home-based services. The permanency plan for R.Q. was
    reunification. As for Mother’s criminal case, she pled guilty in January 2016 to
    battery of a child less than fourteen years old. She was sentenced to three years
    of supervised probation and forty hours of community service. The criminal
    court also ordered her to cooperate fully with DCS.
    [11]   In July 2016, DCS petitioned the court to approve changes in the permanency
    plans for all three children from reunification to termination. In its motion,
    DCS argued that the change was necessary because of the “lack of progress”
    Mother and Father had made with service providers and because of the “need
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 6 of 16
    for these children to live in a safe and permanent home.” Id. at 212. A multi-
    day permanency hearing began on October 31 and concluded on July 18, 2017.1
    [12]   In December 2016, while the permanency hearing was still ongoing, the trial
    court ordered Mother and Father to submit to psychological evaluations. Dr.
    Bart Ferraro conducted both evaluations. Regarding Mother, Dr. Ferraro noted
    that she was “stress sensitive, psychologically immature . . . apt to repeat
    problems and be slow to learn from her experience.” Appellants’ App. Vol. III
    p. 3. He added that Mother “will demonstrate difficulty over time attuning,
    appreciating, and addressing satisfactorily, the needs and feelings of others.” Id.
    As for Father, Dr. Ferro found that Father, like Mother, “has an ability to rise
    to a higher level of functioning for a delimited period, but may, over time and
    unmonitored, gravitate to more deficient habits and patterns should external
    support and guidance be removed.” Id. at 16.
    [13]   Over the course of the hearing, multiple DCS service providers testified. The
    providers stated that Mother and Father were some of the most compliant
    parents that they had every worked with, attending every appointment.
    However, most of the providers noted that Mother and Father had made no
    progress in services, especially individual therapy. FCM Christina Taylor said
    that Mother and Father had attended every therapy session but that they
    1
    The main reason for the lengthy permanency hearing was that six parties (DCS, Mother, Father, the foster
    mother, the Court Appointed Special Advocate, and the maternal grandmother), all represented by counsel,
    participated in the hearing.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018                      Page 7 of 16
    refused to take any responsibility for the January 2015 injuries to A.Q. FCM
    Taylor further testified that the goals of the dispositional decree had not been
    met and that the reason for removal had not been remedied. She also explained
    that changes in the permanency plans would not result in DCS terminating
    services for Mother and Father.
    [14]   George Freeman, who was the parents’ therapist in their 2013 CHINS case,
    was again appointed as Mother and Father’s therapist. He provided the parents
    with individual and couples counseling. Freeman stated that the parents would
    not admit that there was any kind of problem with their parenting style and that
    they were not at fault for any of the injuries. Tr. Vol. V pp. 92, 95. He opined
    that the parents were at a “stalemate” with DCS because the parents wouldn’t
    admit to any wrongdoing. Id. at 92. He added that Father blames the foster
    mother, DCS, and the service providers for his and Mother’s current situation.
    Id. at 118. Nevertheless, Freeman stated that he had no concerns with the
    children being placed back in the parents’ home. He admitted that he had made
    a similar recommendation in the 2013 CHINS case, that A.Q. and K.Q. were
    returned to Mother and Father’s care, and that the children were removed again
    in 2015 for the same reasons they were removed in 2013.
    [15]   A.Q. and K.Q.’s therapist, Lowry Adams, testified that the children were
    thriving in their foster home. Adams noted that K.Q. had some regression in
    her behavior—throwing herself down on the floor screaming—because she did
    not want to go on visits to Mother and Father’s house or have nightly phone
    calls with them. She added that A.Q. was “terrified of her biological parents”
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 8 of 16
    but had been able to improve in therapy because she felt safe in her foster home
    and had not gone on visits with her parents. Tr. Vol. V p. 18. Adams said,
    “with all certainty,” that visitation with the parents should not increase. Tr.
    Vol. IV p. 235.
    [16]   The visit supervisor, Andrew George, stated that K.Q. had verbally expressed
    to him that she did not want to go on visits with Mother and Father. Despite
    these expressions, George thought Mother and Father should progress from
    supervised to monitored visits with K.Q. and R.Q.
    [17]   Father also testified at the hearing. He stated that he had “a lot of issues” with
    the foster mother and that he thought that “everything [was] pretty much [her]
    fault.” Tr. Vol. VI p. 71.
    [18]   After the hearing concluded, the trial court issued its order approving DCS’s
    proposed changes to the permanency plans. Mother and Father each petitioned
    the court to certify its order for interlocutory appeal, and DCS did not respond
    to either petition. The trial court certified its order, and Mother and Father
    asked this Court to accept jurisdiction over their appeal. DCS did not respond
    to the motion. The Court’s motions panel granted the motion, and this
    interlocutory appeal ensues.
    Discussion and Decision
    [19]   Mother and Father contend that the trial court’s order approving the changes to
    the permanency plans from reunification to termination was clearly erroneous.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 9 of 16
    Before we address their argument, we first must address DCS’s argument that
    this appeal is “premature.” Appellee’s Br. p. 26.
    [20]   DCS claims that the changes to the permanency plans have not caused the
    parents actual harm. It relies on our decision in In re K.F., 
    797 N.E.2d 310
    (Ind. Ct. App. 2003), to support its position. In K.F., the court issued an order
    approving DCS’s proposed change to the permanency plan from reunification
    to termination. The K.F. parents did not petition for interlocutory appeal but
    rather appealed the court’s order as a final judgment. We held, in part, that the
    change in a permanency plan from reunification to termination is not an
    appealable final judgment because parents “are not prejudiced by the
    permanency plan” because the change does not terminate parents’ rights and
    parents “may challenge the propriety of terminating their parental rights and
    hold [DCS] to the stricter burden of proof required in such cases.” 
    Id. at 315
    .
    Despite the procedural differences in K.F. and the matter before us, we find
    DCS’s argument persuasive. For the same reasons articulated in K.F., we hold
    that an interlocutory appeal of a change in the permanency plan is generally
    premature. The change does not prejudice the parents because they still have a
    separate termination hearing, and the evidentiary burden on DCS to prove that
    termination is appropriate is higher than what DCS is required to prove in order
    to change the permanency plan from reunification to termination.
    [21]   DCS, however, did not respond to Mother’s or Father’s request for the trial
    court to certify its order for interlocutory appeal. Nor did DCS respond to
    Mother and Father’s motion for this Court to accept jurisdiction of their appeal
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 10 of 16
    after the trial court certified its order. Instead, DCS raised its argument for the
    first time in its brief. Because we accepted jurisdiction over the appeal and the
    parties have fully briefed the issue, we address Mother’s and Father’s
    arguments. Mother and Father appealed separately, and, where possible, we
    have consolidated their arguments.
    [22]   Permanency plans are part of the CHINS case, and decisions in CHINS cases
    are reviewed for clear error. In re S.K., 
    57 N.E.3d 878
    , 881-82 (Ind. Ct. App.
    2016). Here, the parties agree that a change in the permanency plan should also
    be reviewed for clear error. Father’s Br. p. 8; Mother’s Br. p. 18; Appellee’s Br.
    p. 27. We will neither reweigh the evidence nor judge the credibility of the
    witnesses. In re D.F., 
    83 N.E.3d 789
    , 796 (Ind. Ct. App. 2017). Rather, we
    consider only the evidence that supports the court’s determination and
    reasonable inference drawn therefrom. 
    Id.
    [23]   The parents argue that the evidence is insufficient to support the trial court’s
    order. They contend that the court’s finding that they are only in partial
    compliance with services is clearly erroneous and unsupported by the record.
    Mother and Father are correct that FCM Taylor stated, “They are the most
    compliant people I’ve met. They go to everything that they are supposed to go
    to.” Tr. Vol. V p. 248. But the full findings state:
    Mother is partially in compliance with the plan as follows:
    Mother has been participating in services including home based
    case management and therapy. Mother has not made the
    necessary progress in therapy and home based case work to
    maintain a viable permanency plan of reunification.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 11 of 16
    Father is partially in compliance with the plan as follows: Father
    has been participating in services including home based case
    management and therapy. Father has not made the necessary
    progress in services to maintain a viable permanency plan of
    reunification.
    Appellants’ App. Vol. III p. 23. Throughout the four-day permanency hearing,
    FCM Taylor and therapist Freeman testified multiple times that Mother and
    Father were attending their service appointments, but the parents were not
    making progress with their individual therapy. Namely, Mother and Father
    refused to accept responsibility for the injuries A.Q. sustained in January 2015,
    and they continued to blame others for their current situation. Father even
    testified that “everything is pretty much [foster mother’s] fault.” Tr. Vol. VI p.
    71. The evidence is sufficient to support the trial court’s finding that Mother
    and Father were not progressing with services, therapy, and home-based
    services to maintain permanency plans of reunification.
    [24]   The parents also contend that DCS did not provide reasonable services aimed at
    reunification. They argue that services provided to A.Q. were inadequate to
    support reunification because they had not seen her since March 2015 (Mother)
    and January 2016 (Father). DCS provided Mother and Father with individual
    therapy, couples therapy, home-based services, and supervised visits. A.Q. was
    given individual therapy to address her fears surrounding reunification. Again,
    the parents ignore the fact that they made no progress in therapy to address
    their actions, which is why the no-contact order was not lifted.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 12 of 16
    [25]   Furthermore, the parents claim that DCS replaced therapist Freeman and visit
    supervisor George after each testified that they had no issue with Mother and
    Father progressing to monitored visits and reuniting with the children. They
    contend that this is proof that DCS did not provide the necessary services for
    reunification. We agree that, as an isolated incident, the replacement of service
    providers who recommend reunification would be alarming. However, when
    taken in the context of the case as a whole, we do not agree with the parents’
    position. At the time Freeman and George were replaced, the case had been
    ongoing for over two years, and Freeman himself testified that Mother and
    Father were not willing to take accountability for what happened to A.Q. in
    January 2015. Furthermore, DCS did not just replace Freeman and George; it
    also replaced therapist Adams who recommended “with all certainty” that
    Mother and Father not be given more visitation time. The evidence is sufficient
    to show that DCS was providing necessary services for reunification.
    [26]   Additionally, Father raises a separate, distinct argument: his constitutional
    rights were violated by keeping A.Q. from him and Mother. In support of his
    argument, Father cites to our holding in a termination-of-parental-rights case,
    Lang v. Starke County Office of Family and Children, 
    861 N.E.2d 366
     (Ind. Ct. App.
    2007), trans. denied. But in Lang, we stated, “A parent has a constitutional right
    to raise his or her children, but this right is not absolute and must be
    subordinated to the children’s interests when the children’s emotional and
    physical development is threatened.” 
    Id. at 371
    . Father contends that his due-
    process rights were violated and that he “did everything DCS and the Court
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 13 of 16
    asked him to. And yet, neither Parent was ever even offered an opportunity to
    see the child.” Father’s Br. p. 12. But Father was given a fair, multi-day
    hearing to address reunification with A.Q. During that hearing it was
    repeatedly stated that Father and Mother were unwilling to take any
    responsibility for A.Q.’s January 2015 injuries—the reason why the children
    were removed from the home. Father also contends that the trial court’s no-
    contact order was not narrowly tailored because “Father was not accused of
    battery, yet he was given the same treatment as Mother who was charged and
    convicted of a crime.” 
    Id.
     Father fails to mention that the reason the trial court
    entered a no-contact order for both parents was A.Q.’s substantiated claim of
    sexual abuse by Father. Father would not discuss this claim with therapist
    Freeman other than to say that he did not do it and that A.Q. was coached into
    making that admission. Father has not convinced us that his constitutional
    rights were violated.
    [27]   Mother also makes a separate, distinct argument: the court’s order was clearly
    erroneous because it did not include a concurrent plan for reunification.
    “Concurrent planning . . . requires the identification of two (2) permanency
    plan goals and simultaneous reasonable efforts toward both goals with
    knowledge of all participants.” 
    Ind. Code § 31-9-2-22
    .1(b). Mother contends
    that DCS should have proposed a concurrent permanency plan that included
    reunification because she and Father were “active” participants in services and
    progressed in services. Mother’s Br. p. 27. She also claims that the concurrent
    plan was in the best interests of the children given “the length of time it would
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 14 of 16
    take to proceed through a termination proceeding[.]” 
    Id.
     Mother is correct that
    Indiana Code section 31-9-2-22.1 permits a trial court to adopt a concurrent
    permanency plan, but the statute does not mandate that DCS propose a
    concurrent permanency plan or that the court adopt a concurrent permanency
    plan. Additionally, the changes to the permanency plans do not terminate
    reunification services for Mother and Father. Regardless of the time it takes for
    the termination proceeding to be completed, Mother and Father are able to
    participate in services and make the necessary progress to regain custody of
    their children. See Appellants’ App. Vol. III pp. 22-25 (the trial court’s order
    approving the permanency changes does not order DCS to stop reunification
    services); Tr. Vol. V p. 146 (FMC Taylor testifying that changes to the
    permanency plans would not stop DCS from offering the parents or children
    services aimed at reunification). Furthermore, when the court issued its order
    in November 2017, this case had been ongoing for almost three years. During
    that time, Mother and Father had not made any progress in their individual
    therapy. Accordingly, the court’s decision to adopt a singular plan for
    permanency was not clearly erroneous.
    [28]   In summary, there was sufficient evidence presented over the four-day
    permanency hearing to support the trial court’s order approving the proposed
    changes to the permanency plans from reunification to termination. The trial
    court’s order was not clearly erroneous. Furthermore, we reiterate that a
    change in the permanency plan from reunification to termination is generally
    not suitable for interlocutory review, particularly where, as here, DCS and the
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 15 of 16
    court continue reunification services, because parents cannot show actual harm
    from the change; they can only show the potential for future harm.
    [29]   Affirmed.
    Pyle, J., and Barnes, Sr. J., concur.
    Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 16 of 16
    

Document Info

Docket Number: 47A05-1710-JC-2353

Judges: Vaidik

Filed Date: 6/18/2018

Precedential Status: Precedential

Modified Date: 10/19/2024