in-the-matter-of-the-termination-of-the-parent-child-relationship-of-jg ( 2014 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
NOAH L. GAMBILL GREGORY ZOELLER
Wagner, Crawford, and Gambill Attorney General of Indiana
Terre Haute, Indiana
ROBERT J. HENKE
Deputy Attorney General
DAVID E. COREY
Deputy Attorney General
Indianapolis, Indiana
Feb 27 2014, 9:41 am
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF: )
)
J.G. AND C.G. (MINOR CHILDREN) )
)
AND )
)
B.G. (MOTHER), )
) No. 84A05-1305-JT-219
)
Appellant-Respondent, )
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE VIGO CIRCUIT COURT
The Honorable Daniel W. Kelly, Magistrate
The Honorable David R. Bolk, Judge
Cause No. 84C01-1110-JT-1249
84C01-1110-JT-1250
February 27, 2014
OPINION – FOR PUBLICATION
MATHIAS, Judge
B.J.G. (“Mother”) appeals the Vigo Circuit Court’s order terminating her parental
rights to J.G. and C.G., two of her seven children. Concluding that Mother has forfeited
her right to appeal because she failed to file a timely Notice of Appeal, we dismiss her
appeal.
Facts and Procedural History
Mother has a history of drug abuse, mental illness, domestic violence, and periods
of incarceration. She does not have custody of any of the seven children she has given
birth to. Her extensive history with the Department of Child Services (“DCS”) dates
back to 2001. While the instant termination proceedings were underway in 2011, the
parental rights of both Mother and D.F. (“Father”) were terminated as to two other
children not the subject of this appeal. See D.F. v. Ind. Dep’t of Child Servs., 959 N.E.2d
932 (Ind. Ct. App. Dec. 20, 2011) (memorandum decision).
During her incarceration while prior termination proceedings were underway in
the D.F. case, on November 15, 2010, Mother gave birth to twins, J.G. and C.G. Mother
was incarcerated at the time of the twins’ births because she violated her probation on a
conviction for possession of methamphetamine by testing positive for that illegal
substance. She continued to test positive for methamphetamine while she was pregnant
with the twins. Four days after the twins’ births, on November 19, 2010, the DCS filed a
Child in Need of Services (“CHINS”) petition. After a fact finding hearing, the children
were found to be CHINS and were formally removed from Mother’s care.
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Over the course of her history with DCS, Mother has been diagnosed with
schizophrenia, paranoid type, schizoaffective disorder, bipolar type, and substance
dependence. She has been hospitalized on numerous occasions as a result of her mental
illnesses.
Father is not a party to this appeal, although his parental rights to J.G. and C.G.
were also terminated. Father has been convicted of domestic battery against Mother on
two separate occasions. Mother has also reportedly battered Father on numerous
occasions. Mother’s on-again, off-again relationship with Father spans several years, and
they were still residing together in November 2012.
DCS made referrals to Mother for counseling, evaluations and parent aide services.
Mother struggled to complete job applications and rejected her parent aide’s suggestions
concerning shelters or facilities where Mother could obtain housing. Mother also missed
doctor’s appointments scheduled to address her continuing mental health issues. Over an
eight month period, from February 7 to October 28, 2011, Mother tested positive for
illegal substances fourteen times, which included positive screens for marijuana, cocaine,
amphetamine, and methamphetamine. She also missed twenty-eight drug screens.
On October 28, 2011, the DCS filed its petition to terminate Mother’s parental
rights to J.G. and C.G. During continuing visitations with J.G. and C.G., Mother was
nervous, but she tried to interact with the children. Mother also cancelled twelve
visitations with the children. Despite all of the services offered through DCS, Mother
did not make any progress in her parenting skills, and caseworkers concluded that Mother
and the children were not bonded.
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Mother last visited the children on or about October 24, 2011. Thereafter,
Mother’s visits with the children ceased because she was arrested for criminal
confinement. Specifically, Mother took a young child from the child’s backyard because
Mother believed that the child was one of her older children for whom her rights had
been terminated. As a result, Mother was placed in an in-patient unit of a psychiatric
facility for five months.
In 2012, Mother also began participating in the P.A.I.R. program, which is a
mental health diversion program, and she graduated from that program in December 2012.
But during the approximate twelve months she participated in the P.A.I.R. program, she
tested positive for crack cocaine in March 2012, and she was also homeless for a period
of time during the summer of 2012. Simultaneous with her participation in the P.A.I.R.
program, Mother enrolled in Next Steps in April 2012, which is a sober living
arrangement. But Mother left that program sometime in June 2012 and was using alcohol.
Mother also participated in addictions treatment. Mother’s addictions counselor observed
that Mother had made progress in addressing her addiction issues, but also believed that
Mother had not embraced the recovery community, and Mother’s prognosis was still
“poor and guarded.” December 10, 2012 Tr. pp. 70, 72.
Mother failed to appear at the May 24, 2012 termination hearing, but was
represented by counsel. Shortly thereafter, the trial court issued its order terminating
Mother’s parental rights. Mother timely appealed the termination order, but the appeal
was dismissed because Mother failed to submit any other documents or pay the filing fee.
However, on its own motion and after a hearing was held, on July 27, 2012, the trial court
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set aside its first termination order because Mother believed that the May 24, 2012
termination hearing had been continued.
Therefore, evidentiary hearings were again held on December 10, 2012 and
January 2, 2013. Mother’s family case manager testified that termination of Mother’s
parental rights was in the children’s best interests because Mother failed to complete
services, especially those provided to address her substance abuse, Mother missed drug
screens, has a history of domestic violence, and Mother had not substantially progressed
in her ability to parent despite three years of services. Tr. pp. 153-54. The court
appointed special advocate (“CASA”) acknowledged Mother’s recent progress, but had
concerns about Mother’s ability to remain drug free. The CASA also recommended
termination of Mother’s parental rights given Mother’s history of relapse. On March 25,
2013, the trial court issued an order terminating Mother’s parental rights to J.G. and C.G.
Mother filed a Notice of Intent to Appeal on April 4, 2013. In that document, she
requested the appointment of separate, outside counsel for appeal of the March 25, 2013
termination order. The trial court appointed appellate counsel on April 25, 2013, and
Mother’s Notice of Appeal was filed on May 3, 2013, well past the thirty-day time limit
for filing appeals of final judgments.
I. Timely Appeal
We first address whether Mother’s appeal is timely. A party initiates an appeal by
filing a Notice of Appeal with the trial court clerk within thirty days after entry of a final
judgment. Ind. Appellate Rule 9(A)(1). Appellate Rule 9 requires the following
information to be included in the Notice of Appeal: a designation of the appealed
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judgment or order; a designation of the court to which the appeal is taken; direction for
the trial court clerk to assemble the Clerk’s Record; and a designation of the portions of
the Transcript that should be prepared. App. R. 9(F); see also Form App. R. 9–1.
In Indiana, timeliness of filing a notice of appeal is of the utmost
importance. This is especially true in time-sensitive cases involving child
support and other child-related issues. “The timely filing of a notice of
appeal is a jurisdictional prerequisite, and failure to conform to the
applicable time limits results in forfeiture of an appeal.”
Bohlander v. Bohlander, 875 N.E.2d 299, 301 (Ind. Ct. App. 2007), trans. denied
(citation omitted).
Here, Mother filed her Notice of Appeal well beyond the thirty-day time limit
established in Appellate Rule 9. However, she did file a Notice of Intent to File an
Appeal before the thirty-day time limit had expired. Therefore, Mother argues that we
should ignore the thirty-day time limit in Appellate Rule 9(A) because appellate counsel
was not appointed until after the thirty-day time limit had expired. In response, the State
argues that Mother forfeited her appeal by failing to file a timely Notice of Appeal, citing
In re the Involuntary Termination of the Parent-Child Relationship of D.L., 952 N.E.2d
209 (Ind. Ct. App. 2011), trans. denied.
In Termination of D.L., the trial court issued a termination order on August 20,
2010, terminating the Parents’ parental rights to their five youngest children, and a
separate order on August 23, 2010, terminating Parents’ parental rights to their oldest
child. On August 30, 2010, Mother filed a “Notice of Intent to Appeal and Request for
Appointment of Counsel” with the trial court, and the court appointed appellate counsel
that same day. The next day, Father filed an identical Notice of Intent to Appeal, and the
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same appellate counsel was appointed that day. On September 23, 2010, appellate
counsel filed a Notice of Appeal with respect to all six cause numbers. The September
23, 2010 Notice of Appeal was filed three days late for the August 20 termination order
and one day late for the August 23 termination order.
The Parents argued that their appeal of the termination orders was timely because
their Notices of Intent to Appeal, filed within the Appellate Rule 9 thirty-day time limit,
were the functional equivalent of the required Notice of Appeal. Mother’s Notice of
Intent to Appeal stated:
COMES NOW, [Mother], by Counsel ... and advises the Court that she
wishes to pursue an appeal of the termination of her parental rights, which
occurred on August 20, 2010.
As a result of her having Counsel appointed for her in the Termination
Cause, she respectfully moves the Court to appoint Counsel to represent her
in the appellate process.
WHEREFORE, Counsel for [Mother] requests that Counsel be appointed
for [Mother] for purposes of processing her appeal.
Id. at 212 (record citation omitted). Father’s Notice of Intent to Appeal and Request for
Appointment of Counsel was identical to Mother’s in all relevant parts.
Our court made the following observations in response to Parents’ arguments that
this pleading was the functional equivalent of a Notice to Appeal:
It is clear that the purpose of this pleading was to have counsel appointed
who would then file a Notice of Appeal on behalf of Parents. Other than
identifying one of the two termination orders issued by the trial court, no
part of this pleading fulfills the requirements of a Notice of Appeal as
described in Appellate Rule 9. Only one of the two final appealable orders
issued by the trial court is identified; the court to which the order is to be
appealed is not identified; the clerk of the court is not requested to assemble
the Clerk’s Record; and the court reporter is not requested to transcribe any
or all of the hearings conducted in this case. Rule 9, especially when
considered in conjunction with the form Notice of Appeal in the appendix
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to the Rules, is clear regarding what must be included in a Notice of Appeal.
None of those things are included in the Notices of Intent to Appeal filed by
Parents.
***
[T]he Notices of Intent to Appeal filed by Parents in this case do not fulfill
the purpose of the notice of appeal requirement—to serve as a mechanism
to alert the trial court and the parties of the initiation of an appeal and to
trigger action by the trial court clerk and court reporter, setting in motion
the filing deadlines imposed by the Appellate Rules.
Id. at 212-13. Because the Parents failed to file their Notices of Appeal within thirty days
of the final judgment(s), we concluded that the Parents forfeited their right to appeal and
the appeal was dismissed. Id.
In this case, Mother’s Notice of Intent to Appeal also lacks the information
required to fulfill the Appellate Rule 9(F) Notice of Appeal requirements. Mother’s
Notice of Intent to Appeal provides:
Comes now Mother, [], by her counsel, Steven D. Cuvelier, and
respectfully files her Notice of Intent to Appeal the Order of Involuntary
Termination of Parental Rights entered by this Court on or about the 8th
day of March, 2013.
Mother requests this Court to appoint separate outside counsel to
appeal the Involuntary Termination and for all other relief in the premises.
Appellant’s App. p. 44.
Mother argues that this Notice of Intent to Appeal should suffice because unlike
the circumstances in D.L., the Appellate Rule 9(A) thirty-day time limit expired before
the trial court appointed Mother’s appellate counsel. The trial court approved the order
involuntarily terminating Mother’s parental rights on March 22, 2013, and her Notice of
Intent to Appeal was filed on April 4, 2013. Appellate counsel was appointed on April
24, 2013, more than thirty days after the final judgment was issued.
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In Sewell v. State, 939 N.E.2d 686 (Ind. Ct. App. 2010), the trial court did not
appoint appellate counsel within thirty days of the final judgment. Therefore, after the
trial court appointed appellate counsel, the court granted Sewell additional time to file his
Notice of Appeal. Our court dismissed Sewell’s appeal because the appellate rules do not
permit trial courts to expand the time limit prescribed by Appellate Rule 9; therefore, the
trial court lacked jurisdiction to grant Sewell additional time to file a Notice of Appeal.
Our court dismissed Sewell’s appeal because the Notice of Appeal was not filed within
the thirty days of the final judgment. Id. at 687.
However, we observed that under the Indiana Post Conviction Rules, Sewell could
petition the court for permission to pursue a belated appeal. See id.; see also Ind. Post-
Conviction Rule 2; Gutermuth v. State, 868 N.E.2d 427, 429 (Ind. 2007). Specifically, a
criminal defendant may be permitted to file a belated appeal where the “failure to file a
timely notice of appeal was not due to the fault of the defendant[.]” See P-C.R. 2(1)(a).
Appellate Rule 9(A)(5) provides that “[u]nless the Notice of Appeal is timely filed, the
right to appeal shall be forfeited except as provided by P.C.R. 2.” (Emphasis added).
Mother is not eligible to file a belated appeal under P.C.R. 2, and her Notice of Appeal
was not timely filed; therefore, we conclude that she has forfeited her right to appeal the
trial court’s order terminating her parental rights.
II. Termination of Mother’s Parental Rights on the Merits
In D.L., although the Parents forfeited their right to appeal the termination orders,
our court briefly discussed whether there was any clear error in the trial court’s judgment.
After acknowledging the “constitutional dimensions of a termination case,” our court
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addressed whether the evidence was sufficient to support termination of Parents’ parental
rights, albeit in a cursory fashion. Id. at 214. In light of Mother’s constitutional right to
establish a home and raise her children,1 we elect to follow the D.L. court’s example and
briefly address the sufficiency of the evidence of the termination of Mother’s parental
rights.
In its findings, the trial court analyzed the factors enumerated in Indiana Code
section 31-35-2-4(b) before concluding that Mother’s parental rights should be
terminated. In her Appellant’s brief, Mother only argues that the trial court clearly erred
when it concluded that there is a reasonable probability that the conditions that resulted in
the removal of the children were not remedied.2 See In re D.B., 942 N.E.2d 867, 871
(Ind. Ct. App. 2011) (“In deference to the juvenile court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child relationship
only if it is clearly erroneous.”).
The record supports Mother’s claim that shortly before the December 2012 and
January 2013 termination hearings, she had made some progress addressing her issues
with substance abuse and her mental health. However, Mother’s assertion that she is now
1
Given the constitutional rights implicated in these proceedings, we urge our supreme court to consider
allowing belated appeals in cases where the parent’s parental rights have been terminated. As our courts
have often stated: “The traditional right of parents to establish a home and raise their children is protected
by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct.
App. 1996), trans. denied. However, a trial court must subordinate the interests of the parents to those of
the child when evaluating the circumstances surrounding a termination. In the Matter of Termination of
the Parent Child Relationship of K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).
2
Mother does not challenge the trial court’s findings that continuation of the parent-child relationship
poses a threat to the well-being of the children and that termination of Mother’s parental rights was in the
children’s best interests. See Ind. Code § 31-35-2-4(b). She has therefore waived those arguments on
appeal. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 n.4 (Ind. Ct. App. 2013), trans.
denied.
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a “completely different person” is a request to reweigh the evidence and the credibility of
the witnesses, which our court will not do.
Mother has a long-standing history of substance abuse, and although she claims to
be sober, her prognosis is still poor. Service providers were concerned with good reason
in light of her history, that Mother would relapse. Mother also maintains her relationship
with Father, who abuses alcohol, and despite the history of domestic violence between
them. Mother failed to complete DCS provided services and cancelled multiple
visitations with the children. Visitations ultimately ceased in October 2011 when Mother
was arrested for criminal confinement. Mother has received services from DCS for many
years and still has not progressed in her ability to parent. After reviewing the record, we
conclude that Mother cannot establish that the trial court clearly erred in finding that
“there is a reasonable probability that the conditions that resulted in the child[ren]’s
removal or the reasons for placement outside the home of the parents will not be
remedied.” See I.C. § 31-25-2-4(b)(2)(B)(i). Simply stated, sufficient evidence supports
the trial court’s decision to terminate Mother’s parental rights.
Conclusion
Because Mother’s Notice of Appeal was untimely, we dismiss her appeal from the
trial court’s order terminating her parental rights to J.G. and C.G.
Dismissed.
BRADFORD, J., and PYLE, J., concur.
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