In the Matter of the Termination of the Parent-Child Relationship of A.A.D. and A.C.D. E.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 31 2018, 9:59 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 31, 2018
on the Parent-Child Relationship Court of Appeals Case No.
of A.A.D. and A.C.D.; 79A05-1708-JT-1949
E.B. (Mother) Appeal from the Tippecanoe
Superior Court
Appellant-Respondent,
The Honorable Faith A. Graham,
v. Judge
Trial Court Cause Nos.
The Indiana Department of 79D03-1610-JT-103
79D03-1610-JT-104
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] E.B. (“Mother”) appeals the termination of the parental relationship with her
children, A.A.D. (“A.A.D.”) and A.C.D. (“A.C.D.”).1 The gravamen of her
argument is that reversible error occurred when the trial court failed to ensure
the appointment of a court-appointed special advocate (“CASA”) to represent
the interests of her children in the termination hearing as required by INDIANA
CODE § 31-35-2-7. Because Mother is correct, we reverse and remand with
instructions for the trial court to ensure the appointment of a CASA.
[2] We reverse and remand with instructions.
Issue
The dispositive issue is whether reversible error occurred when
the trial court failed to ensure the appointment of a CASA to
represent the interests of Mother’s two children.
Facts
[3] Mother and Father are the parents of A.A.D., who was born in March 2009,
and A.C.D., who was born in August 2015. When A.C.D. was born, his
meconium tested positive for marijuana. He was also suffering withdrawal
symptoms from Suboxone, which Mother had taken while she was pregnant.
The Department of Child Services (“DCS”) removed six-year-old A.A.D. and
1
The trial court also terminated A.D.’s (“Father”) parental relationship with A.A.D. and A.C.D. Father is
not a party to this appeal.
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A.C.D. from their parents, and both children were adjudicated to be Children
in Need of Services (“CHINS”). In October 2015, the trial court ordered
Mother to participate in substance abuse treatment, home-based case
management services, and individual therapy. Mother was also ordered to
remain drug and alcohol free and to maintain stable housing and employment
to meet the needs of her family.
[4] When Mother failed to follow the court-ordered parent participation plan and
was subsequently charged with Level 6 felony theft, DCS filed a petition to
terminate her parental rights in October 2016. The Chronological Case
Summary (“CCS”) reveals that in November 2016, the trial court held an initial
hearing wherein Mother denied the allegations in the termination petition. The
specific CCS entry for that hearing states as follows: “Court appoints the
CASA Program in this cause to represent and protect the best interests of the
child(ren). CASA Director shall immediately assign a specific CASA.” (App.
4, 9). The order on the initial hearing also states as follows: “Court appoints
the CASA Program in this cause to represent and protect the best interests of
the child(ren). CASA director shall immediately assign a specific CASA.”
(App. 21). However, no CASA was ever appointed.
[5] The trial court held the first day’s hearing on the termination petition in
January 2017. At that time, both Mother and Father had executed documents
consenting to paternal grandfather’s (“Paternal Grandfather”) adoption of the
children. However, the trial court explained to the parents that it had “not even
approved [Paternal Grandfather] for placement [and that it] could approve that
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or could not approve that.” (Tr. 7). Also at the hearing, the trial court noted
that, “[n]o CASA is assigned to this.” (Tr. 12). DCS Caseworker Karen Travis
testified that the children had been placed in non-relative foster care since
October 2015.
[6] The second day’s hearing on the termination petition was held in April 2017.
DCS Caseworker Kelly Brewer (“Caseworker Brewer”) testified that Mother,
who had been convicted and sentenced to ten years for robbery, had also been
“unsuccessfully discharged from services with multiple providers.” (Tr. 30).
Caseworker Brewer, who further testified that Mother had failed to maintain
stable employment and housing, recommended terminating Mother’s parental
rights. After DCS had finished questioning Caseworker Brewer, the trial court
stated as follows: “CASA any partic – oh we don’t have a CASA assigned to
this case. I am sorry. [Mother’s Counsel], any particular questions?” (Tr. 41).
[7] Mother testified that she wanted Paternal Grandfather to adopt the children so
that she had the “chance to be in [her] kids’ lives when [she got] out of prison.”
(Tr. 51). She explained that she did not “want to lose [her children] forever and
if it [meant] that [she got her] rights terminated[,] [she] just want[ed her
children] to be with family.” (Tr. 53). Father testified that he worked ten to
twelve hour shifts five to six days a week and that he was not in a position to be
the primary caretaker of his children. He also testified that he wanted Paternal
Grandfather to adopt the children. No additional witnesses testified.
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[8] In July 2017, the trial court issued an order involuntarily terminating Mother’s
parental rights. The order provides, in relevant part, as follows:
DCS has a satisfactory plan of adoption for the care and
treatment of the children following termination of parental rights.
The children can be adopted and there is reason to believe an
appropriate permanent home has or can be found for the children
***with a relative.
(App. 39) (asterisks in original). Mother now appeals.
Statement of the Case
[9] Mother argues that the trial court committed reversible error when it failed to
ensure the appointment of a CASA as required by statute. We agree. The
traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. In
re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. A
parent’s interest in the care, custody, and control of her children is “‘perhaps
the oldest of the fundamental liberty interests.’” Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v. Granville,
530 U.S. 57, 65 (2000)). Because termination proceedings implicate the
fundamental relationship between parent and child, the legislature has provided
a detailed list of procedural requirements for courts to follow in such
proceedings. Matter of S.L., 599 N.E.2d 227, 229 (Ind. Ct. App. 1992).
[10] For example, INDIANA CODE § 31-35-2-7 provides that where, as here, a parent
objects to the termination of the parent-child relationship, “the court shall
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appoint: (1) a guardian ad litem [(“GAL”)]; (2) a court appointed special
advocate; or (3) both . . . for the child.” (emphasis added). Because neither
party challenges the trial court’s failure to appoint a GAL, we focus our
discussion on the trial court’s failure to ensure the appointment a CASA.
[11] A CASA is a community volunteer who has been appointed by the trial court to
represent and protect the best interests of a child with services requested by the
court, including researching, examining, advocating, facilitating, and
monitoring the child’s situation. IND. CODE § 31-9-2-28(b). This court has
previously explained that a CASA is an “integral participant[] in looking after
the best interest of children who are subjected to our court system.” 2 In re N.S.,
908 N.E.2d 1176, 1179 (Ind. Ct. App. 2009). The statutory right to have a
CASA to represent their best interests belong to the children, not the parent.
S.L. 599 N.E.2d at 229. Further, neither the parent nor the State can waive the
2
We specifically explained in detail as follows:
The State at first glance is seemingly acting to promote or protect the interest of the
children. However, it also has an interest in bringing to an end the financial burden it is
bearing while the child is in [DCS’s] custody. By terminating the parental rights, rather
than continuing with the CHINS procedures, the State pursues the route leading to the
adoption of the child and a conclusion to the State’s financial burden for the children.
Therefore, the interests of [DCS] and the interests of the child are not necessarily
identical. The legislature recognizing this reality enacted several statutes which direct or
permit the court to appoint a representative for the children involved in such proceedings.
S.L., 599 N.E.2d at 230 n.3.
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children’s statutory right, and the failure to appoint a CASA in such cases is not
harmless error. Id. at 229, 230.
[12] Here, the trial court initially complied with the statute when it ordered the
appointment of a CASA. However, at both days of the termination hearing,
the trial court acknowledged that no CASA had been appointed.3 At the time
of the hearing, the children were nine and two years old. Because of the trial
court’s failure to ensure the appointment of a CASA, no one represented the
interests of these young children. See id. As a result, reversible error occurred.
See id. See also Jolley v. Posey Cnty. Dep’t of Pub. Welfare, 624 N.E.2d 23, 23 (Ind.
Ct. App. 1993) (reversing and remanding when the trial court failed to appoint
a GAL in parental termination proceedings).
[13] Reversed and remanded with instructions.
Kirsch, J., concurs.
Bailey, J., concurs with separate opinion.
3
The transcript reveals that “a representative from the CASA Office” attended the first day’s hearing in
January 2017. (Tr. at 4). However, the representative did not testify or make recommendations, and despite
the representative’s presence, the trial court specifically stated that no CASA had been assigned to represent
the children’s interests. It appears that no representative attended the April 2017 hearing. Additionally, the
CCS does not show that a specific CASA had been assigned or appointed.
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IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination Court of Appeals Case No.
on the Parent-Child Relationship 79A05-1708-JT-1949
of A.A.D. and A.C.D.;
E.B. (Mother),
Appellant-Respondent,
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
Bailey, Judge, concurring with separate opinion.
I agree with my colleagues that, where a parent objects to the termination of the
parent-child relationship, Indiana Code Section 31-35-2-7 requires that the court
appoint a guardian ad litem (“GAL”) to represent the child. I write separately
to clarify that E.B. (“Mother”) did object to the termination of her parental
rights, in that she did not consent to the termination pursuant to Indiana Code
Section 31-35-1-6.
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“The voluntary termination of the parent-child relationship is controlled by statute.”
Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 282 (Ind. 2003).
In order for the court to accept a parent’s voluntary consent to the termination
of her parental rights:
the parents must give their consent in open court unless the court
makes findings of fact upon the record that:
(1) the parents gave their consent in writing before a person
authorized by law to take acknowledgments; and
(2) the parents were:
(A) advised in accordance with section 12[ 4] of this chapter; and
(B) advised that if they choose to appear in open court, the only
issue before the court is whether their consent was voluntary.
Ind. Code § 31-35-1-6(a).
Here, Mother did not give her consent to termination of her parental rights in writing, 5
nor was there evidence that she was advised of her rights in accordance with
Indiana Code Section 31-35-1-6(a)(2). Therefore, in order for her parental
rights to be voluntarily terminated, Mother must have consented in open court
1
Section 12 lists the advisements that parents must be given, including advisement that their consent is
permanent and cannot be revoked unless obtained by fraud or duress. I.C. § 31-35-1-12.
2
Mother’s written consent for her children’s paternal grandfather to adopt them was not admitted into
evidence and, in any case, was not a written consent to terminate her parental rights.
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to the termination. I.C. § 31-35-1-6(a). However, Mother’s testimony
regarding her wishes were ambiguous. She did consent in open court to the
paternal grandfather adopting her children so that the children could “be with
family,” and she could “have a relationship with them” when she was released
from prison. Tr. at 51-52. Yet, regarding the termination of her parental rights,
Mother stated, “I just don’t want to lose [the children] forever and if it means
that I get my rights terminated I just want them to be with family. That is all I
want.” Id. at 52-53. That is hardly a clear statement that she consented to the
termination of her parental rights. Rather, taken as a whole, Mother’s
testimony shows her intent that her rights to the children be terminated only if
they are adopted by family, such as the paternal grandfather. That was her
intent despite the trial court’s advisement that it would not necessarily agree to
place the children with the paternal grandfather.
It is beyond dispute that “the parent-child relationship is one of the most valued
relationships in our culture.” Neal, 796 N.E.2d at 285 (quotation and citation
omitted). Given parents’ fundamental liberty interest in the parent-child
relationship, “the certainty of a trial court’s decision to terminate a parent’s
parental rights to his or her child is paramount.” In re V.A., 51 N.E.3d 1140,
1144 (Ind. 2016). When the parent’s testimony regarding consent to
termination of parental rights is ambiguous, I believe we should err on the side
of protecting the parent-child relationship. Because Mother did not clearly
consent in open court to the termination of her parental rights and the trial
court did not make the findings of fact otherwise required by Indiana Code
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Section 31-35-1-6, I agree with my colleagues that Mother “object[ed]” to the
termination of her rights for purposes of Indiana Code Section 31-35-2-7, thus
requiring the appointment of a GAL.
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