In the Termination of the Parent-Child Relationship of: B.C.C., S.C. and B.C. (Minor Children), And H.D. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 05 2020, 10:20 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
David E. Corey
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- May 5, 2020
Child Relationship of: Court of Appeals Case No.
19A-JT-2842
B.C.C., S.C. and B.C. (Minor
Children), Appeal from the Orange Circuit
Court
And
The Honorable Steven L. Owen,
H.D. (Mother), Judge
Appellant-Respondent, Trial Court Cause No.
59C01-1805-JT-117, 59C01-1805-
v. JT-118, & 59C01-1805-JT-119
Indiana Department of Child
Services,
Appellee-Petitioner.
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Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, H.D. (Mother), appeals the trial court’s termination of
her parental rights to her minor children, B.C.C., S.C., and B.C. (Children).
[2] We affirm.
ISSUES
[3] Mother raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by denying Mother’s motion to
dismiss because the fact-finding hearing was not commenced within ninety days
of the filing of the petition to terminate parental rights; and
(2) Whether the Department of Child Services (DCS) presented sufficient
evidence to support its petition to terminate the parent-child relationship.
FACTS AND PROCEDURAL HISTORY
[4] Mother and J.C. (Father) 1 are the biological parents to the Children, B.C.C.,
born on March 20, 2007, S.C., born on June 21, 2010, and B.C., born on June
6, 2011. In June of 2016, DCS received a report that the Children’s ten-year-
old half-brother (Sibling) had been sexually abused by Mother’s “significant
1
Father’s parental rights to his Children were terminated by the trial court. He did not appeal this decision.
Facts pertaining to Father will be included as necessary for this appeal.
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others.” (Exh. Vol. I, p. 64). Sibling disclosed that the Children had also been
sexually abused. On June 27, 2016, DCS filed a petition alleging the Children
were Children in Need of Services (CHINS) based on allegations that the
Children were sexually abused and Mother knew of the abuse but failed to
protect them. On March 29, 2017, the trial court conducted a fact-finding
hearing at which Mother failed to appear but at which Mother’s counsel
appeared. The trial court adjudicated Children to be CHINS at the hearing. In
its dispositional order, issued on July 20, 2017, the trial court ordered Mother to
contact the DCS family case manager (FCM) on a weekly basis, notify the
FCM of any changes to her address and employment, complete parenting and
psychological assessments, keep appointments with DCS, the FCM, and the
Children’s guardian ad litem (GAL), obtain and maintain a safe and secure
home, and attend all scheduled visitation with the Children.
[5] Throughout the CHINS proceedings, the trial court, in its review hearings,
consistently found that Mother did not comply with the Children’s case plan,
had not visited the Children since August 11, 2016, did not participate in
enhancing her parental abilities through services, and did not cooperate with
DCS. On June 5, 2018, DCS filed its verified petition to terminate Mother’s
parental rights to the Children.
[6] During the hearing on DCS’s petition for termination, Mother admitted that
she had done nothing to support the Children since the dispositional order
entered on July 20, 2017. She also conceded that she did not contact the FCM
on a weekly basis, notify DCS of her change of address or employment, or
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complete the parenting and psychological assessments. In November 2016, the
phone number Mother had provided to DCS stopped working and her
whereabouts were unknown throughout the majority of the proceedings. She
admitted that she did not attend all scheduled visitation with the Children as
she “kind of just gave up fighting.” (Transcript Vol. II, p. 94). Before giving
up, she had participated in ten out of twenty-four scheduled visits. During
these visits, Mother was unable to redirect the Children or provide structure.
Her last visit with the Children occurred in August 2016. At the time of the
termination hearing, Mother was living with her boyfriend and his daughter
and was working in Louisville. However, she also admitted that boyfriend was
the individual the Children and Sibling claimed had molested them and he was
a substantiated perpetrator of sexual abuse against Children and Sibling.
[7] The Children never returned to their Mother’s care since their removal on June
24, 2016. They were placed in foster care together, and while B.C.C. was
“often angry and sad” when Mother failed to visit, S.C. and B.C. do not
remember who “their [M]other was.” (Tr. Vol. II, p. 157). In September and
November 2016, the Children participated in assessments. B.C.C. was
diagnosed with PTSD, B.C. was diagnosed with PTSD and oppositional defiant
disorder, and S.C. was diagnosed with ADHD and oppositional defiant
disorder. DCS arranged for therapy services to address their past trauma, life
skills coaching, mentoring services, as well as behavioral modification, and
educational support. Although Children’s behavior has improved since being
placed in foster care, evidence at the termination hearing revealed that recently
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S.C. has asked other children to touch his buttocks, and he had requested to
touch theirs. B.C. and S.C. also were defecating and urinating in their pants or
in other places in the house. As DCS considered these behaviors linked to
sexual abuse and based on the substantiated finding of sexual abuse, DCS
arranged for psychosexual evaluations. According to the therapist, B.C. had
recently manifested some sexualized behaviors by asking a younger girl at
daycare to show him her private parts.
[8] On October 25, 2019, the trial court entered its Order, terminating Mother’s
parental rights to the Children and concluding, in pertinent part, that:
There is a reasonable probability that the conditions which
resulted in [B.C.C., S.C., and B.C.’s] removal and continued
placement outside the home will not be remedied by Mother [],
based on
a. The trauma experienced by the [C]hildren while in Mother’s
care[.]
b. The neglect and physical abuse that occurred to the [C]hildren
while in Mother’s care[.]
c. Mother and Father have failed to engage in and successfully
complete any services necessary for the parent to reunify with the
[C]hildren over the past three (3) years.
d. Mother and Father failed to maintain a relationship with the
[C]hildren for the past three (3) years.
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Termination of Mother and Father’s parental rights is in
[B.C.C.’s] best interest.
Termination of Mother and Father’s parental rights is in [S.C.’s]
best interest.
Termination of Mother and Father’s parental rights is in [B.C.’s]
best interest.
There is a satisfactory plan for the care and treatment for
[B.C.C., S.C., and B.C.,] that being adoption.
(Appellant’s App. Vol. II, p. 189).
[9] Mother now appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
I. Motion to Dismiss
[10] Mother contends that the trial court abused its discretion when it denied her
motion to dismiss the case because the fact-finding hearing was not commenced
within ninety days of the filing of the petition to terminate her parental rights.
She maintains that while DCS’s petition was filed on June 5, 2018, the fact-
finding hearing was not commenced until July 11, 2019, more than one and
one-half year after the filing of the petition.
[11] Mother filed her motion to dismiss citing Indiana Code section 31-35-2-6,
which provides:
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(a) Except when a hearing is required after June 30, 1999, under
section 4.5. of this chapter, the person filing the petition shall
request the court to set the petition for a hearing. Whenever a
hearing is requested under this chapter, the court shall:
(1) Commence a hearing on the petition not more than ninety
(90) days after a petition is filed under this chapter; and
(2) Complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under
this chapter.
(b) If a hearing is not held within the timeframe set forth in
subsection (a), upon filing a motion with the court by a party,
the court shall dismiss the petition to terminate the parent-
child relationship without prejudice.
Based on the statutory language, Mother requests this court to interpret the
‘hearing’ required under the language of the statute as a fact-finding hearing. 2
Matters of statutory interpretation present pure questions of law and are thus
reviewed de novo. Matter of M.S., 140 N.E.3d 279, 282 (Ind. 2020). We
presume that the legislature intended for the statutory language to be applied in
a logical manner consistent with the statute’s underlying policy and goals. Id.
2
In support of her argument, Mother distinguishes In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003), in
which this court held that Indiana law does not require that an initial hearing or fact-finding hearing be set
within a specific timeframe. However, In re L.V.N. is inapposite to the case before us as L.V.N. was decided
under a previous version of the current statute which provided that the person filing the petition may request
a hearing, and if a hearing is requested, the court shall commence a hearing not more than 90 days after the
petition was filed. See P.L. 35-1998, Sec. 21.
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[12] The record reflects that DCS filed its petition to terminate Mother’s parental
rights on June 5, 2018, and consequently, the ninety-day statutory period to
commence a hearing fell on September 3, 2018. Although DCS’s petition does
not include a request for the court to set a hearing, DCS filed a separate motion
requesting an initial hearing date. The record is undisputed that the trial court
conducted an initial hearing on June 6, 2018. However, because Mother failed
to appear, the court continued the hearing to which Mother’s counsel, who was
present, did not object. At the September 19, 2018 continued initial hearing,
Mother did not object when the trial court scheduled the fact-finding hearing on
November 16, 2018—outside the statutory timeframe of ninety days. On
November 9, 2018, Father moved to continue this hearing because he was
incarcerated and was on bedrest following a surgical procedure. DCS objected
to the continuance. The trial court granted Father’s motion and continued the
fact-finding hearing to January 24, 2019. DCS filed a continuing objection,
noting that Mother had not waived the statutory timeframes and the January
24, 2019 hearing date was outside the 180-day statutory timeframe. The trial
court did not rule on DCS’s continuing objection. On January 24, 2019, the
trial court conducted a fact-finding hearing and, although represented by
counsel, Mother failed to appear despite being aware of the date. At the
hearing, DCS moved to continue as she was the new DCS counsel in the
county and was not familiar enough with the case to move forward with the
hearing. Mother and Father, by counsel, moved to dismiss because the fact-
finding hearing had not been commenced within the statutory timeframe—DCS
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agreed. On February 1, 2019, the trial court entered its order, dismissing DCS’s
petition to terminate without prejudice.
[13] Nevertheless, four days later, on February 4, 2019, the trial court set aside its
earlier order granting dismissal and set a hearing on the motion to dismiss for
February 13, 2019. After the hearing, the trial court denied the parents’
motions to dismiss and set the factfinding hearing for March 27, 2019. DCS
sought a continuance of the hearing due to the unavailability of a witness,
noting that Mother did not object. Accordingly, the trial court granted the
motion and re-set the hearing for June 14, 2019. DCS again sought a
continuance due to the unavailability of its FCM. Mother did not object and
the trial court granted the continuance. The fact-finding hearing ultimately
occurred on July 11, 2019. At the commencement of the hearing, Mother
moved to dismiss the Cause because the fact-finding hearing was not
commenced within the statutory time period. DCS objected and the trial court
affirmed its prior ruling denying the motion to dismiss.
[14] The record is clear that at no point during the proceedings did Mother object to
the trial court setting the hearing outside the statutory timeframes and she
equally failed to object when DCS sought continuances when its witnesses and
counsel could not attend the hearing. See In re J.C. 134 N.E.3d 419, 426 (Ind.
Ct. App. 2019) (trial court did not err when it denied mother’s motion to
dismiss when, among others, she failed to object to the court setting hearings
outside the statutory timeframes); Matter of N.C., 83 N.E.3d 1265, 1267 (Ind. Ct.
App. 2017) (father is not entitled to relief when he acquiesced to fact-finding
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hearing being held 222 days after the termination petition was filed).
Accordingly, as Mother acquiesced in the setting of the hearing outside the
statutory timeframe, she cannot now complain and we conclude that the trial
court properly denied her motion to dismiss.
II. Termination of Parental Rights
A. Standard of Review
[15] Mother also challenges the termination of her parental rights to her Children.
The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cnty. Office of Family & 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, parental rights “are not absolute
and must be subordinated to the child’s interests in determining the proper
disposition of a petition to terminate parental rights.” Id. If “parents are unable
or unwilling to meet their parental responsibilities,” termination of parental
rights is appropriate. Id. We recognize that the termination of a parent-child
relationship is “an ‘extreme measure’ and should only be utilized as a ‘last
resort when all other reasonable efforts to protect the integrity of the natural
relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child
Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cnty.
Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).
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[16] Indiana courts rely on a “deferential standard of review in cases concerning the
termination of parental rights” due to the trial court’s “unique position to assess
the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.
dismissed. Our court neither reweighs evidence nor assesses the credibility of
witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.
2013). We consider only the evidence and any reasonable inferences that
support the trial court’s judgment, and we accord deference to the trial court’s
“opportunity to judge the credibility of the witnesses firsthand.” Id.
B. Termination of Parental Rights Statute
[17] In order to terminate a parent’s rights to his or her child, DCS must prove:
(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.
****
(iii) The child has been removed from the parent and has been
under the supervision of a local office . . . for at least fifteen (15)
months of the most recent twenty-two (22) months, beginning
with the date the child is removed from the home as a result of
the child being alleged to be a [CHINS] . . . ;
(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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(iii) The child has, on two (2) separate occasions, been
adjudicated a [CHINS];
(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). DCS must prove each of the foregoing elements by
clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,
92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the
existence of a fact to be highly probable.” Id.
[18] Mother’s main claim is focused on the allegation that there is insufficient
evidence to support the trial court’s determination that the conditions which
resulted in the removal of the Children have not been remedied. 3 It is well-
established that “[a] trial court must judge a parent’s fitness as of the time of the
termination hearing and take into consideration evidence of changed
conditions.” Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d
824, 828 (Ind. Ct. App. 1995), trans. denied. In judging fitness, a trial court may
properly consider, among other things, a parent’s substance abuse and lack of
adequate housing and employment. McBride v. Monroe Co. OFC, 798 N.E.2d
185, 199 (Ind. Ct. App. 2003). The trial court may also consider a parent’s
3
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove
only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21.
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failure to respond to services. Lang v. Starke Co. OFC, 861 N.E.2d 366, 372 (Ind.
Ct. App. 2007), trans. denied. “[H]abitual patterns of conduct must be evaluated
to determine whether there is a substantial probability of future neglect or
deprivation.” Stone, 656 N.E.2d at 828. A trial court “need not wait until the
children are irreversibly influenced by their deficient lifestyle such that their
physical, mental and social growth is permanently impaired before terminating
the parent-child relationship.” Id. Furthermore, “[c]lear and convincing
evidence need not reveal that the continued custody of the parents is wholly
inadequate for the child’s very survival. Rather, it is sufficient to show by clear
and convincing evidence that the child’s emotional and physical development
are threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at
1230.
[19] Mother’s argument focuses on the fact that the trial court relied solely “on the
historical failures of Mother rather than on her capacity to parent the Children
at the time of the termination hearing.” (Appellant’s Br. p. 20). In support of
her argument that the trial court’s findings are inadequate to support the
conclusion that the reasons given for the removal of the Children would not be
remedied, Mother relies on In re C.M., 960 N.E.2d 169, 175 (Ind. Ct. App.
2011), in which we reversed the trial court’s termination of parental rights as the
trial court’s sole reliance on the parent’s historical conduct was insufficient to
support the termination. This court reasoned that
the [trial] court’s focus on historical conduct, absent factual
findings as to Mother’s current circumstances or evidence of
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changed conditions, is akin to terminating parental rights to
punish the parent. And, without more, the findings are
insufficient to establish each element necessary to support the
conclusion that termination is warranted in this case.
Id. In In re C.M., the evidence reflected that Mother had made a significant
change in her circumstances, which the trial court had failed to consider in its
decision to terminate her parental rights. Id. at 172. She had given birth to
twins during the underlying CHINS proceedings, and the twins remained in her
care at all time. Id. Upon visiting Mother’s home, DCS declined to initiate
CHINS proceedings with respect to the twins. Id. at 172. Mother had
voluntarily enrolled in an IOP, her drugs screens were all negative, and she was
receiving unemployment benefits. Id.
[20] None of these changed circumstances exist here. Rather, by Mother’s own
admission, she “kind of just gave up fighting.” (Tr. Vol. II, p. 94). She failed to
take any action to improve her situation or to support the Children since the
dispositional order was entered on July 20, 2017. Mother also conceded that
she did not contact the FCM on a weekly basis, notify DCS of her change of
address or employment, and complete the parenting and psychological
assessments. In November 2016, the phone number Mother had provided to
DCS stopped working and her whereabouts were unknown throughout the
majority of the proceedings. Mother had participated in ten out of twenty-four
scheduled visits, with the last visit occurring in August 2016. During these
visits, Mother was unable to redirect the Children or provide structure.
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[21] Although Mother now also challenges the trial court’s findings with respect to
the sexual abuse the Children suffered, we find that these findings are supported
by the evidence. Specifically, the trial court found:
93. During mentoring sessions, all three (3) [C]hildren reported
trauma occurred while the [C]hildren were in the parent’s home,
both Mother’s home and Father’s home.
94. [The Children’s therapist] opined that [B.C.C., S.C., and
B.C.] have experienced more trauma than other children have.
****
107 [FCM] and [CASA] testified credibly that adoption is in the
[C]hildren’s best interest based on (a) Mother and Father failing
to maintain a relationship with the Children; (b) the amount of
trauma that occurred to the [C]hildren while in the parents’ care
(both Mother and Father); (c) Mother and Father failing to
participate in services to address the trauma to the [C]hildren and
to address the reasons for removal; and (d) the progress the
[C]hildren have made while in treatment and placement with
[foster parent].
(Appellant’s App. Vol. II, pp. 184-85).
[22] The record reflects that at the time of the termination hearing, Mother was
living with her boyfriend and his daughter and was working in Louisville.
Mother also admitted that boyfriend was the individual the Children and
Sibling claimed had molested them and he was a substantiated perpetrator of
sexual abuse against Children and Sibling. During the hearing, Mother testified
that Children were removed because “they had been sexually abused.” (Tr.
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Vol. II, p. 106). She indicated that based on conversations with the Children
and Sibling, she believed that Children had been actually sexually abused. The
FCM testified that DCS substantiated the abuse based on statements made by
the Children during their forensic interviews, as well as interviews with
witnesses and alleged perpetrators. In addition, the Children’s therapist who
worked with the Children on behavior modification and educational support,
testified that the Children had discussed some of the trauma that had happened
“in their parent’s house” during therapy sessions. (Tr. Vol. III, p. 5).
[23] “Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that parents’ past behavior is the best predictor of
their future behavior.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Mindful of
this guideline, we note that the evidence presented clearly and convincingly
shows that a reasonable probability exists that the conditions that led to the
Children’s removal from Mother’s care will not be remedied, especially in light
of the fact that Mother was living with the substantiated perpetrator of the
sexual abuse at the time of the termination hearing. At no point during the
proceedings did Mother exhibit a turnaround in her behavior or commence
participation in DCS’s services. A parent’s habitual unwillingness or lack of
commitment to address parenting issues and to cooperate with services
“demonstrates the requisite reasonable probability” that the removal conditions
will not change. In re G.M., 71 N.E.3d 898, 908 (Ind. Ct. App. 2017).
Accordingly, the trial court was entitled to weigh the evidence as it found
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appropriate in the context of this case, and we conclude that the trial court’s
findings support the judgment. 4
CONCLUSION
[24] Based on the foregoing, we conclude that the trial court did not abuse its
discretion by denying Mother’s motion to dismiss; and that DCS presented
sufficient evidence to support the trial court’s Order terminating Mother’s
parental rights to the Children.
[25] Affirmed.
[26] Mathias, J. and Tavitas, J. concur
4
Mother does not argue that the trial court’s termination of parental rights is not in the Children’s best
interest.
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