Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Mar 11 2014, 10:16 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT (Mother): ATTORNEYS FOR APPELLEE:
CRAIG C. PARKER GREGORY F. ZOELLER
Parker Law, LLC Attorney General of Indiana
Richmond, Indiana
ROBERT J. HENKE
ATTORNEY FOR APPELLANT (Father): DAVID E. COREY
J. CLAYTON MILLER Deputy Attorneys General
Jordan Law, LLC Indianapolis, Indiana
Richmond, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary Termination of )
the Parent-Child Relationship of B.P., C.P., and )
D.P., the minor children, and A.H., the Mother, and
)
J.P., the Father: )
)
A.H. and J.P., )
)
Appellants-Respondents, ) No. 89A04-1310-JT-525
)
vs. )
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
)
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Darrin M. Dolehanty, Judge
Cause Nos. 89D03-1306-JT-5, -6, and -7
March 11, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
A.H. (“Mother”) and J.P. (“Father”) appeal from the involuntary termination of their
parental rights to their children B.P., C.P., and D.P. In so doing, Mother and Father each
contend that their due process rights were violated by the juvenile court’s inclusion in its
termination order findings of their lack of participation in services during their
incarceration on pending criminal charges, and by finding and concluding that the Wayne
County Department of Child Services (“WCDCS”) had a satisfactory plan for the care and
treatment of the children.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the juvenile court’s decision reveal that Mother and
Father were the biological parents of C.P., born on February 22, 2008, D.P., born on April
23, 2009, and B.P., born on July 14, 2010. On February 5, 2012, Richmond Police
Department Captain Neal VanMiddlesworth was sent to Mother and Father’s home. While
there, Captain VanMiddlesworth observed emergency medical technicians and other law
enforcement officers present at the house, as well as other members of Mother’s and
Father’s family. Mother, Father, and two or three other children were also present in the
home. The EMTs were working with an infant later identified as K.H., Mother and Father’s
youngest child. The EMTs carried K.H., who was deceased, out of the home.
Captain Van Middlesworth testified that, had the children remained in the home, he
would have contacted the local health department because of the condition of the home.
He described the conditions in the home as deplorable and trashy. In particular, he
observed used food containers, the odor of urine and feces, feces smeared on the wall, and
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dirty diapers in view.
Almost contemporaneously with the report to law enforcement, the WCDCS
received a report that the condition of Mother and Father’s home was possibly unsafe.
WCDCS received a second report pertaining to the family, this one involving K.H.’s death.
As a result of this report, WCDCS family case manager Megan Beck (“FCM Beck”) went
to Reid Memorial Hospital where she observed K.H. FCM Beck described K.H. as
deceased, small, pale, with sunken and loose skin. K.H.’s bones were prominent and
portions of his skin had deteriorated. FCM Beck spoke with family members at the hospital
and was told by Mother that K.H. had received regular medical care throughout his life and
that it was typical for K.H. to be isolated in his bedroom for the entire day.
FCM Beck then visited with K.H.’s siblings, C.P., D.P. and B.P. who were in the
care of relatives. FCM Beck observed that the children appeared clean and were dressed
appropriately, but were small in size for their ages. FCM Beck then went to Mother and
Father’s home. There she observed fecal material smeared on the window, the wall, and
in the carpet, a dirty diaper that was full, a plate, food wrappers and containers, and trash
on the floors. The kitchen was cluttered and dirty, and piles of clutter, clothes, and other
items were located throughout the home.
WCDCS filed a request to take the children into custody, which was granted on
February 6, 2012. The children were taken into protective custody and the emergency
custody order included findings that leaving the children in the home would be contrary to
their welfare as their sibling, K.H., appeared to have died as a result of neglect and that the
residence was not fit for human habitation. The emergency custody order was filed, and
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child in need of services (“CHINS”) proceedings instituted on behalf of the children. At
the detention hearing, the juvenile court made the children temporary wards of WCDCS,
and the foster placement which was already in place, was approved for continuation by the
juvenile court.
At a placement hearing held in the three CHINS cases, the juvenile court rejected
Mother’s proposed placement of the children with a relative and entered an order for the
continuation of the foster placement, which could not be changed without prior approval
from the juvenile court. Amended CHINS petitions were filed with respect to each of the
children, and a fact-finding hearing regarding those petitions was held on March 26, 2012.
Several witnesses testified at the hearing including FCM Beck, a detective from the
Richmond Police Department, and the pathologist who performed the autopsy on K.H. The
three children were each adjudicated as CHINS, and the order contained findings
supporting the adjudication, including but not limited to, the following: 1) that K.H. was
born weighing eight pounds and seven ounces, but at the time of his death at approximately
four months of age, he weighed six pounds and eight ounces; 2) the cause of K.H.’s death
was dehydration due to starvation; 3) Mother and Father were incarcerated and charged
with K.H.’s murder; 4) there was human or animal feces in the home with some spread on
the walls of the home; and 5) the children had both speech and behavioral problems that
had improved since their placement in foster care.
The juvenile court entered a dispositional order on April 20, 2012 granting wardship
of the children to WCDCS and maintaining the children’s placement in foster care. Mother
and Father were ordered to notify the WCDCS case manager of any changes in address,
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household composition, or contact information, and to execute the releases necessary for
WCDCS to monitor Mother’s and Father’s compliance. Included in the juvenile court’s
periodic review hearing order entered on August 24, 2012, the parents were required to
participate in parenting instruction and counseling made available to them in the course of
their incarceration. The order also acknowledged that Mother and Father had not visited
the children due to Mother’s and Father’s continued incarceration.
A permanency plan hearing was held on February 13, 2013. The juvenile court’s
order noted Mother and Father remained incarcerated and had been convicted of crimes
involving the death of K.H. The order also acknowledged that Mother and Father had not
participated in services due to their criminal charges and upon the advice of their respective
attorneys. The juvenile court approved a permanency plan for each of the children
involving the termination of Mother’s and Father’s parental rights and for adoption of the
children. At a review hearing held on July 1, 2013, the juvenile court noted that Mother
and Father remained incarcerated and that neither parent had visited with the children.
The WCDCS filed its termination petitions regarding each of the children on June
4, 2013. The evidentiary hearing on the termination petitions was held on September 26,
2013, at which both Mother and Father appeared in custody and represented by counsel.
Although Mother’s and Father’s challenges to the juvenile court’s order terminating their
parental rights involve the findings that they failed to participate in services and that
WCDCS had a satisfactory plan for the care and treatment of the children, we also set forth
the balance of the evidence presented to and found by the juvenile court at the termination
hearing.
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On February 15, 2012, the State charged Mother and Father with murder and three
counts of neglect of a dependent, each as a Class A felony. During Mother’s trial the
pathologist testified that, at the time of K.H.’s death, he was at the end of the state of
malnutrition and that his body had deteriorated substantially. The pathologist opined that
the process of malnutrition likely lasted approximately three months. At the conclusion of
Mother’s jury trial, she was convicted of the murder of K.H. and was subsequently
sentenced to a term of sixty years executed in the Indiana Department of Correction with
no time suspended. Mother pleaded guilty to three counts of neglect of a dependent, each
as a Class D felony, pertaining to the children. The trial court sentenced Mother to three,
concurrently-served, two-year sentences executed in the Indiana Department of Correction
with no time suspended. The trial court’s order reflected that those concurrent sentences
would be served consecutively to Mother’s sentence for murder.
Father’s jury trial resulted in a verdict of guilty but mentally ill for reckless homicide
on various counts. The trial court sentenced Father on his conviction of guilty but mentally
ill for neglect of a dependent as a Class A felony to a term of thirty-seven years executed
in the Indiana Department of Correction with no time suspended. Father pleaded guilty
but mentally ill to three counts of neglect of a dependent, each as a Class D felony, with
respect to the children. The trial court sentenced Father to three, concurrently-served, two-
year sentences executed in the Indiana Department of Correction with no time suspended.
The trial court’s order reflected that those concurrent sentences were to be served
consecutively to Father’s previously-imposed, thirty-seven-year executed sentence.
Since the children’s removal from the home, they were provided with significant
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therapy. FCM Dana Burton was assigned to the children’s cases. While assigned to the
cases, FCM Burton had the children undergo a variety of assessments to determine the
appropriate services to provide to each child. She saw the children daily for the first six
months, then weekly, then every other week, as the children progressed.
When FCM Burton first met with the children on February 6, 2012, she observed
that they were fussy, did not speak much, were screaming, and were upset. The children
were also infested with lice. During frequent visits early on to the foster home, FCM
Burton observed that the children would not speak, did not know each other’s names, and
did not know the names for common objects around them. D.P. was angry, frequently
growled, and clenched his fists a lot. The children did not know how to play with toys and
could not turn the pages of a book. On March 26, 2013, during her last visit with the
children, FCM Burton noted that children did not exhibit any of that past behavior.
Since the children were removed from their home, Mother and Father have visited
with them only once. WCDCS scheduled a visit with the children the day after their
removal, but Mother and Father overslept and missed the visit. Mother and Father did
attend the second visit that was scheduled on February 8, 2012. Mother and Father did not
have any additional visitation with the children because they have remained incarcerated
since February 13, 2012. Mother wrote to the children on a daily basis, but Father did not
contact the children by letter or telephone.
The children resided with their foster mother, Melissa Todd, from the date of their
removal through mid-September 2012, when they were placed in another foster home,
where they have remained since. Todd had served as a foster parent for eight other children
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prior to the children’s placement with her. She noted that the children came to her looking
pale and malnourished. For the first week of their placement with Todd, the children had
a bad odor, were dirty, had digestive problems, and were infested with lice. The children
did not seek each other’s comfort and did not recognize any relationship with each other.
The children spoke very little and referred to any food item as either pizza or a cookie.
D.P.’s vocabulary consisted mostly of curse words. The children’s eating habits were
unusually unhealthy, and their sleeping patterns were disrupted with night terrors or other
behavior indicative of a significant need for comfort. B.P. initially refused to be bathed,
expressing terror of anything in the bathroom, but by the time she left Todd’s care loved to
take baths. C.P.’s digestive problems resolved after doctors successfully removed several
impacted hair balls from his digestive system.
By the time the children left Todd’s care they knew their own names and those of
their siblings, they had relationships with each other, knew the names of body parts, and
could use utensils to feed themselves. The children’s behavioral clinician since early on in
the course of their therapy, and who had worked with over two hundred families and many
abused children, described the children as the neediest children with whom she had worked.
Although she still works with the children, the volume of services she has provided the
children has steadily decreased. CASA Director Karen Bowen worked with the children
during the course of the CHINS cases. She described the children’s progression from
appearing to be haunted, to becoming beautiful and sparkly children.
After taking the matter under advisement at the conclusion of the termination
hearing, the trial court entered its findings and orders terminating Mother’s and Father’s
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parental rights to each of the children. Mother and Father both separately appeal the orders,
but raise the same contentions.
DISCUSSION AND DECISION
With respect to Mother’s and Father’s due-process-violation claims, our Supreme
Court has recently stated the following with respect to the analysis:
It is well established that the involuntary termination of parental rights is an
extreme measure that is designed to be used as a last resort when all other
reasonable efforts have failed. Choices about marriage, family life, and the
upbringing of children are among associational rights the United States
Supreme Court has ranked as of basic importance in our society and are rights
sheltered by the Fourteenth Amendment against the State’s unwarranted
usurpation, disregard, or disrespect. “If any freedom not specifically
mentioned in the Bill of Rights enjoys a ‘preferred position’ in the law it is
most certainly the family.”
“The Due Process Clause of the U.S. Constitution and the Due Course of
Law Clause of the Indiana Constitution prohibit state action that deprives a
person of life, liberty, or property without a fair proceeding.” Parental rights
constitute an important interest warranting deference and protection, and a
termination of that interest is a “unique kind of deprivation.” However,
children have an interest in terminating parental rights that prevent adoption
and inhibit establishing secure, stable, long-term, continuous relationships.
When the State seeks to terminate the parent-child relationship, it must do so
in a manner that meets the requirements of due process. The U.S. Supreme
Court has written on the importance of heightened due process protections
whenever the State wishes to sever the parental bonds of children:
The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate
simply because they have not been model parents or have lost
temporary custody of their child to the State. Even when blood
relationships are strained, parents retain a vital interest in
preventing the irretrievable destruction of their family life. If
anything, persons faced with forced dissolution of their
parental rights have a more critical need for procedural
protections than do those resisting state intervention into
ongoing family affairs. When the State moves to destroy
weakened familial bonds, it must provide the parents with
fundamentally fair procedures.
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Due Process has never been defined, but the phrase embodies a requirement
of “fundamental fairness.” The U.S. Supreme Court has written that “the
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner.” The process due in a
termination of parental rights proceeding turns on the balancing of three
factors: (1) the private interests affected by the proceeding; (2) the risk of
error created by the State’s chosen procedure; and (3) the countervailing
governmental interest supporting use of the challenged procedure. The
balancing of these factors recognizes that although due process is not
dependent on the underlying facts of the particular case, it is nevertheless
“flexible and calls for such procedural protections as the particular situation
demands.” Finally, we must keep in mind the general principle that “if the
State imparts a due process right, then it must give that right.” A parent in a
proceeding to terminate the parent-child relationship is statutorily entitled to
(1) cross-examine witnesses, (2) obtain witnesses or tangible evidence by
compulsory process, and (3) introduce evidence on behalf of the parent.
In balancing the three-prong Mathews test, we first note that the private
interest affected by the proceeding is substantial-a parent’s interest in the
care, custody, and control of her child. We also note the countervailing
Mathews factor, that the State’s parens patriae interest in protecting the
welfare of a child is also substantial. Both the State and the parent have
substantial interests affected by the proceeding.
In re C.G., 954 N.E.2d 910, 916-18 (Ind. 2011) (internal citations omitted).
Here, Mother and Father assert that the juvenile court deprived them of their due
process rights because the court relied upon their invocation of their constitutional rights
to silence under the Fifth Amendment and consequent failure to participate in services upon
the advice of counsel as a justification to terminate their parental rights. They claim that
they were forced to choose between their liberty and their future relationship with their
children.
In the termination orders the juvenile court made two references to Mother’s and
Father’s participation in services. In particular, paragraph 23 reads as follows:
Permanency Plan Hearing was held on February 13, 2013. The Parents were
still in custody. The Order noted that the parents did not participate in
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services, upon advice of counsel. The permanency plan for each was ordered
as “termination of parental rights and adoption.”
Mother’s App. at 24. In paragraph (d) of the juvenile court’s conclusions, the following
appears:
Neither parent engaged in any service offered by the [WCDCS], and there is
no evidence to support a finding that the parents engaged in services on their
own.
Id. at 26.
Also, in the termination proceeding, WCDCS admitted orders from the CHINS
proceedings in which reference was made to Mother’s and Father’s participation in
services. In the August 24, 2012 order, the juvenile court found that Mother and Father
should participate in parenting instruction and counseling available to them during their
incarceration. In the February 13, 2013 order, the juvenile court found that Mother and
Father had not participated in services because of their pending criminal charges and upon
the advice of their attorneys. In the July 1, 2013 order, the juvenile court found that Mother
and Father had not been offered services at the request of their attorneys in their criminal
cases and because of their incarceration. No objections were made to the admission of
those exhibits at the termination hearing.
Mother and Father have arguably waived their constitutional claims because they
are presenting them for the first time on appeal. See Runkel v. Miami Cnty. Dep’t of Child
Servs., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (“Issues not raised at the trial court are
waived on appeal.”); Hite v Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d
175, 180 (Ind. Ct. App. 2006) (“It is well established that we may consider a party’s
constitutional claim waived when it is raised for the first time on appeal.”). Nevertheless
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we will address the merits of their claims.
Both parents cite to Everhart v. Scott County Office of Family & Children, 779
N.E.2d 1225 (Ind. Ct. App. 2002) in support of their arguments. In Everhart, the father
was incarcerated pending charges of aggravated battery and neglect of a dependent relating
to the child who was the subject of the petition for termination of parental rights. During
the pendency of both cases, father participated in counseling sessions in which he discussed
his own situation, but refused to discuss any events related to the child on the advice of
counsel, invoking his Fifth Amendment right against self-incrimination. On appeal, after
his parental rights were terminated, and he had pleaded guilty to the criminal charges, the
father alleged that the DCS had violated his right to due process by offering him services
while his criminal charges were pending, and then using his assertion of his right to silence
as evidence that he had no interest in his children. We noted that the father’s concern was
that the information relayed to the social worker might be used in his criminal proceedings
more than he was concerned about its use in the termination proceeding.
Finding no precedent to guide us in that particular context, we used the five-factor
test set forth in Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), cert. denied, 475 U.S.
1031 (1986), to determine whether a violation of due process is harmless. We determined
that the four of those five factors to be considered in a termination proceeding are: 1) the
use to which the fact of the invocation of the right against self-incrimination is used; 2)
who elected to pursue the line of questioning; 3) the amount of other evidence supporting
the termination of parental rights; and, 4) the intensity and frequency of the reference.
Everhart, 779 N.E.2d at 1231. Assuming a violation of the father’s rights to due process,
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we found that violation harmless in light of the amount of other evidence supporting the
termination of his parental rights. Id. at 1231-32.
Turning to the present case, assuming arguendo that Mother’s and Father’s due
process rights were violated, after applying the Bieghler test, we conclude that such
violation was harmless in light of the overwhelming evidence supporting the termination
of their parental rights to the children. The only reference to Mother’s and Father’s
invocation of their right to remain silent was taken from the orders in the underlying
CHINS proceedings, to which Mother and Father did not object. Counsel for the WCDCS
attempted to ask FCM Beck about why Mother and Father did not participate in services,
Father’s counsel objected, and the juvenile court did not allow FCM Beck to testify about
the reasons why Mother and Father did not participate in services. Additionally, counsel
for DCS did not mention Mother’s and Father’s participation in services during closing
arguments. The amount of evidence supporting the termination of Mother’s and Father’s
parental rights is overwhelming such that we conclude that the violation of Mother’s and
Father’s due process rights, if any, was harmless.
As for Mother’s and Father’s challenges to the sufficiency of the juvenile court’s
finding of a satisfactory plan for the children, we begin our review by acknowledging that
this court has long had a highly deferential standard of review in cases concerning the
termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When
reviewing a termination of parental rights case, we will not reweigh the evidence or judge
the credibility of the witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),
trans. denied. Instead, we consider only the evidence and reasonable inferences that are
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most favorable to the judgment. Id. Moreover, in deference to the trial 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
Here, in terminating Mother’s and Father’s parental rights, the juvenile court entered
specific findings and conclusions in each of its orders. When a juvenile court’s judgment
contains specific findings of fact and conclusions thereon, we apply a two-tiered standard
of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.
2005). First, we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. “Findings are clearly erroneous
only when the record contains no facts to support them either directly or by inference.”
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support
the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
Before an involuntary termination of parental rights may occur, the State is required
to allege and prove, among other things:
(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.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
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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). The State’s burden of proof for establishing these allegations
in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the juvenile
court finds that the allegations in a petition described in section 4 of this chapter are true,
the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis
supplied). At issue here is Mother’s and Father’s challenge to the sufficiency of the
evidence that the WCDCS had a satisfactory plan for the care and treatment of the children.
We observe that Mother and Father have not challenged the juvenile court’s findings
of fact; thus, they stand as proven. A party waives a challenge to the sufficiency of the
evidence supporting the trial court’s findings when the party does not provide any argument
relating to the sufficiency of the findings of the trial court on appeal. City of Whiting v.
City of E. Chicago, 266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977). Even so, the record in
this matter supports the juvenile court’s findings.
Mother and Father argue that WCDCS was required to present more detailed
evidence, i.e., present testimony from the pre-adoptive family or the identification of a
specific, prospective adoptive family, to demonstrate its plan for the adoption of the
children. However, WCDCS bears no such burden. We have stated that “[t]his plan need
not be detailed, so long as it offers a general sense of the direction in which the child will
be going after the parent-child relationship is terminated.” In re D.D., 804 N.E.2d at 268.
“Attempting to find suitable parents to adopt the children is clearly a satisfactory plan.”
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Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App.
2007). “The fact that there was not a specific family in place to adopt the children does
not make the plan unsatisfactory.” Id.The juvenile court had before it the testimony of FCM Beck that the plan for the
children was adoption. In September of 2012, the WCDCS identified a pre-adoptive home,
and the children were transitioned from Todd’s care to that pre-adoptive home, where they
remained at the time of the hearing. CASA Bowen understood adoption was WCDCS’s
plan for the children in the event of the termination of Mother’s and Father’s parental rights.
It was CASA Bowen’s opinion that adoption was in the best interests of the children. We
find no error in the juvenile court’s finding.
We will reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake has been
made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592
N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the
juvenile court’s termination of Mother’s and Father’s parental rights to the children was
clearly erroneous. We therefore affirm the juvenile court’s judgment.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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