In the Matter of the Termination of the Parent-Child Relationship of: A.S.(Minor Child), and B.R.(Mother) v. The Indiana Department of Child Services

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be Aug 27 2013, 5:32 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KRISTINA J. JACOBUCCI MICHAEL C. BROWN
Newby Lewis Kaminski & Jones, LLP Michigan City, Indiana
LaPorte, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
A.S. (Minor Child), )
)
And )
)
B.R. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 46A04-1302-JT-58
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE LAPORTE CIRCUIT COURT
The Honorable Thomas J. Alevizos, Judge
Cause No. 46C01-1206-JT-59
August 27, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, B.R. (Mother), appeals the trial court’s termination of her
parental rights to her minor child, A.S.1
We affirm.
ISSUES
Mother raises two issues on appeal, which we restate as:
(1) Whether the trial court violated Mother’s procedural due process rights when it
denied her request for a continuance; and
(2) Whether the Indiana Department of Child Services (DCS) presented clear and
convincing evidence to support the termination of Mother’s parental rights to her minor
child.
FACTS AND PROCEDURAL HISTORY
Mother is the mother of A.S., born on October 6, 2009. On February 12, 2011, the
Michigan City Police Department received a report of a child that had been left alone in
an apartment. When officers arrived at the apartment, there was no response at the home.
Because they could hear a child crying, they entered the apartment through a window.
1
The trial court also terminated Father’s parental rights, but he did not file an appellate brief and is not
part of this appeal. We will provide facts as to Father only as necessary to address Mother’s arguments.
2
The officers found A.S. alone in the apartment, wearing a diaper that was too small for
him. He was dirty and had a foul smell. The apartment was unclean, with moldy food,
feces, and dirty clothing on the floor. Because Mother failed to arrive home during the
one and a half hours the officers remained in the apartment, the officers notified DCS,
who removed A.S. from the home. Mother did not contact DCS or respond to the note
left by DCS at the home when A.S. was taken into custody. The following day, DCS
returned to the apartment and met with Mother. Mother did not inquire after her child or
asked where he was. She admitted to having left the child home alone to get some milk.
When she returned, she noticed police were present at her residence so she just kept
driving.
On June 6, 2011, the trial court adjudicated A.S. to be a Child in Need of Services
(CHINS). At the dispositional hearing on June 29, 2011, where Mother failed to appear
in person but was represented by counsel, the trial court ordered Mother to participate in
a drug treatment program, parenting classes and case management services, submit to
random drug screens, maintain stable housing and employment, keep DCS informed of
her criminal status and address, and participate in supervised visitation. On August 27,
2012, the DCS filed a petition to terminate Mother’s parental rights to her minor child.
On January 8, 2013, the trial court conducted a hearing on DCS’s petition. At the
beginning of the hearing, Mother orally requested a continuance to demonstrate her
willingness to participate in services and her ability to assume parental responsibilities.
The trial court denied her request. On January 9, 2013, the day following the evidentiary
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hearing, the trial court entered its Order, terminating Mother’s parental rights, finding in
pertinent part:
19. There is a reasonable probability that the conditions that resulted in the
Child’s removal or the reasons for placement outside the home of Mother
will not be remedied in that:
a. Mother has not completed any of the services ordered by the
court.
i. Mother was incarcerated in the LaPorte County Jail on July
1, 2011, two days after disposition, but was released on July
6, 2011.
ii. Mother was again incarcerated on July 20, 2011. Between
disposition on June 29, 2011, and July 1, 2011, Mother did
not participate in any of the services offered or provided;
between July 6 and July 20, 2011, Mother did not participate
in any services. She did not contact the [DCS] to inquire
about those services or her child.
iii. Mother was released from the LaPorte County Jail on
April 2, 2012 and did not seek any services during that date
and when she was once again incarcerated on May 29, 2012.
During the time she was in the community she did not
participate in or initiate any services nor did she contact
[DCS] and seek assistance with transportation.
b. Mother remained incarcerated from May 29, 2012 until she
bonded out of the LaPorte County Jail on December 21, 2012. In
those few days between her release and the fact-finding hearing
Mother contends that she has attended one AA/NA [meeting] on
December 24, 2012 and completed one online [Moral Recognition
Therapy] session at the library on December 23, 2012.
c. Mother has a history of unstable housing:
***
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iv. Mother is currently residing with three other individuals
at 1303 Wright Avenue; one of the individuals with whom
Mother lives has a history of substantiated child neglect.
v. The [trial court] may not approve of other placement of a
child in a home if a person who is currently residing in the
home has committed an act resulting in a substantiated report
of child abuse or neglect. [I.C. §] 31-34-20-1.5.
vi. Mother admits that this same individual with whom she is
living has a history of heroin use, but contends that she has
been clean for a year.
vii. Mother relies on others in the home to provide her
housing, utilities and transportation.
viii. Mother’s residence remains unstable and inappropriate
for a child.
d. Moreover, Mother has a history of criminal conduct.
i. Mother’s criminal conduct has resulted in her frequent and
extended incarceration, depriving Child of her ability to care
for him.
ii. The trial court must evaluate the parent’s habitual patterns
of conduct to determine whether there is a substantial
probability of future neglect or deprivation of the child.
iii. DCS is not required to rule out all possibilities of change;
rather, it need only establish “that there is a reasonable
probability that the parent’s behavior will not change.”
iv. Mother’s repeated pattern of criminal behavior, which
includes inter alia auto theft, theft, and neglect of a
dependent, resulting in incarceration that has caused her to be
absent for a significant amount of Child’s life.
v. Mother’s pattern of criminal activity which causes her to
be incapable of caring for Child and demonstrates that there is
a reasonable probability that the condition would not be
remedied.
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***
21. Termination of parental rights is in the best interest of the child in that:
a. The evidence supports the conclusion that conditions in the home
will not change and that continuation of the parent-child relationship
poses a threat to the well-being of the child.
b. He has been in the same foster home for nearly two years.
c. He has developed, is healthy and thriving in his current home.
d. He bonded to the entire family.
e. Child deserves permanency; an opportunity to be adopted by his
foster parents,
22. The [DCS] has a satisfactory plan for the care and treatment of the
child, which is adoption by the current foster parents.
(Appellant’s App. pp. 19-22 & 24-25).
Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Continuance
Mother first contends that her due process rights were violated when the trial court
denied her motion for continuance of the evidentiary hearing on the DCS’s petition to
terminate her parental rights. The decision to grant or deny a motion for a continuance
rests within the sound discretion of the trial court. Rowlett v. Vanderburgh Co. Office of
Family and Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006). We will reverse the
trial court only for an abuse of that discretion. Id. An abuse of discretion may be found
in the denial of a motion for a continuance when the moving party has shown good cause
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for granting the motion. Id. However, no abuse of discretion will be found when the
moving party has not demonstrated that he or she was prejudiced by the denial. Id.
Regarding the process due to a parent in termination proceedings, we have
previously explained that:
[t]he Due Process Clause of the United States Constitution prohibits state
action that deprives a person of life, liberty, or property without a fair
proceedings. 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 nature of the process due in a termination of parental rights
proceeding turns on the balancing of three factors: (1) the private interest
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.
In re C.C., 788 N.E.2d 847, 852 (Ind. Ct. App. 2003), trans. denied. In termination
cases, both the private interests of a parent and the countervailing governmental interests
that are affected by the proceedings are substantial. Id. In particular, this termination
action concerns Mother’s interest in the care, custody and control of her child, which has
been repeatedly recognized as one of the most valued relationships in our society. Id.
Additionally, it is well settled that the right to raise one’s child is an “essential, basic right
that is more precious than property rights.” Id. Thus, Mother’s interest in the accuracy
and justice of the proceeding is a “commanding” one. Id.
On the other hand, the State’s parens patriae interest in protecting the welfare of
the child is also significant. Id. “Although the State does not gain when it separates
children from the custody of fit parents, the State has a compelling interest in protecting
the welfare of the child by intervening in the parent-child relationship when parental
7
neglect, abuse or abandonment are at issue.” Tillotson v. Clay Co. Dep’t of Family and
Children, 777 N.E.2d 741, 745 (Ind. Ct. App. 2002), trans. denied.
In support of her argument that the trial court abused its discretion in denying her
request for a continuance, Mother relies on Rowlett v. Vanderburgh Co. Office of Family
and Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans. denied. In Rowlett, Father
was incarcerated two months after his minor children were taken into protective custody
and before he was ordered to perform any services. Id. at 618. Rowlett was still
incarcerated at the time his parental rights were terminated, not providing him with the
chance to participate in services. Id. At the scheduling conference, four months prior to
the termination trial, Rowlett objected to the date set because he was to be released six
weeks after the scheduled date of the hearing. Id. Then, a month later, still three months
before the hearing, Rowlett filed a motion to continue, which was denied by the trial
court. Id. On appeal, we found that Rowlett had made positive strides in turning his life
around while in prison, including not using drugs, participating in a Therapeutic
Community, participating in nearly 1,100 hours of individual and group services, and
earning twelve hours of college credit. Id. at 619-20. Based on Father’s improvement
and the fact that continuing the hearing until sometime after Rowlett was released would
have little immediate effect on the children as the plan was adoption by the maternal
grandmother, we concluded that the trial court should have granted Rowlett’s
continuance. Id. at 620.
8
Likening her situation to Rowlett, Mother asserts that because she was released
from incarceration a mere twelve days before the hearing on DCS’s petition to terminate
her parental rights, she did not have a meaningful opportunity to participate in services.
As such, she contends that she was prejudiced and her procedural due process rights were
violated.
We find Rowlett clearly distinguishable from Mother’s case. First, unlike Rowlett,
Mother waited until the day of the hearing to orally request a continuance. Furthermore,
our review of the chronological case summary shows that this was already the second
time Mother requested a continuance of the evidentiary hearing. Mother had made a first
request to continue the evidentiary hearing on the DCS’s termination petition scheduled
for December 10, 2012. On that date, Mother failed to appear at the hearing and her
counsel orally made the request on her behalf, which was granted by the trial court.
Second, while Rowlett was incarcerated during the entire pendency of the
proceeding, Mother has been in and out of jail during the CHINS and termination
procedures. Although Mother now complains that no services were available to her when
she was released from incarceration on December 21, 2012 because the petition to
terminate was pending, services were available to her during the times in between her
multiple incarcerations. During those times, not only did she not avail herself of those
services, she did not even initiate services.
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In light of these facts, we cannot conclude that Mother’s procedural due process
rights were violated. Therefore, the trial court did not abuse its discretion when it denied
her motion to continue the evidentiary hearing.
II. Sufficiency of the Evidence
On appeal, Mother argues that the DCS did not produce sufficient evidence to
support the termination of her parental rights to her minor child. We recognize that the
Fourteenth Amendment to the United States Constitution protects the traditional right of
parents to establish a home and raise their children. In re J.S.O., 938 N.E.2d 271, 274
(Ind. Ct. App. 2010). A parent’s interest in the care, custody, and control of his or her
children is arguably one of the oldest of our fundamental liberty interests. Id. However,
the trial court must subordinate the interests of the parents to those of the children when
evaluating the circumstances surrounding a termination of a parent-child relationship. In
re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App. 2009), trans. denied. Parental rights may
therefore be terminated when the parents are unable or unwilling to meet their parental
responsibilities. Id.
In reviewing termination proceedings on appeal, this court must not reweigh the
evidence nor assess the credibility of the witnesses. Id. We consider only the evidence
that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id.
Where the trial court has entered findings of fact and conclusions of law, we apply a two-
tiered standard of review. Id. First, we determine whether the evidence supports the
findings, and second, whether the findings support the conclusions of law. Id. In
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deference to the trial court’s position to assess the evidence, we set aside the trial court’s
findings and judgment terminating the parent-child relationship only if they are clearly
erroneous. Id.
In the instant case, Mother challenges the trial court’s conclusion of law
terminating her parental rights because there was not sufficient evidence to prove that (1)
the conditions that led to the removal of her child from the home would not be remedied
or (2) the continuation of the parent-child relationship posed a threat to A.S.’s well-being.
In order to terminate her rights, DCS was required to prove by clear and convincing
evidence:
(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents [would] not be
remedied.
(ii) There [was] a reasonable probability that the continuation
of the parent-child relationship[s] [posed] a threat to the well-
being of the child.
(iii) The child [had], on two (2) separate occasions, been
adjudicated [] in need of services[.]
(C) that termination [was] in the best interests of the child.
Ind. Code § 31-35-2-4(b)(2)(B), -(C); Bester v. Lake Cnty. Office of Family and
Children,839 N.E.2d 143, 148 (Ind. 2005). Clear and convincing evidence as a standard
of proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910
N.E.2d 851, 859 (Ind. Ct. App. 2009). It need not reveal that “the continued custody of
the parents is wholly inadequate for the child’s very survival.” Bester, 839 N.E.2d at 148
(quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.
11
1992)). Rather, it is sufficient to show that the child’s emotional and physical
development are threatened by the parent’s custody. Id.
When determining whether there is a reasonable probability that a parent will not
remedy the conditions justifying a child’s removal from the home, the trial court must
judge a parent’s fitness to care for his or her child at the time of the termination hearing.
Rowlett, 841 N.E.2d at 621. The trial court must evaluate the parent’s habitual patterns
of conduct to determine whether there is a substantial probability of future neglect or
deprivation of the child. C.T. v. Marion Cnty. Dept. of Child Services, 896 N.E.2d 571,
578 (Ind. Ct. App. 2008), trans. denied. DCS is not required to rule out all possibilities
of change; rather, it need only establish “that there is a reasonable probability that the
parent’s behavior will not change.” Id. (quoting In re Kay L., 867 N.E.2d 236, 242 (Ind.
Ct. App. 2007)). Moreover, the trial court may properly consider a parent’s criminal
history, drug and alcohol abuse, historical failure to provide support, and lack of adequate
housing and employment. Matter of D.G., 702 N.E.2d 777, 779 (Ind. Ct. App. 1998).
Here, the trial court focused on Mother’s non-existent compliance with the
dispositional decree and parental participation order, her repeated incarcerations, and her
lack of visitation with A.S., with the exception of a single visit which took place on May
31, 2011. Mother failed to keep the family case managers informed of her location and
the evidence reflects that she changed her address on a frequent basis while she continued
to rely on others to provide her with housing, utilities, and transportation. The trial court
also emphasized Mother’s history of criminal conduct. Moreover, it should be noted that
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at the time of the termination hearing, Mother had a pending criminal case, the
disposition of which was unknown.
Mother now complains that she was never given the chance to participate in
services. She notes that after her latest release, the DCS notified Mother that she was no
longer eligible for services as the DCS’s petition for termination of parental rights was
pending. Despite the DCS’s refusal to award her services, Mother points to her
participation in AA/NA meetings and Moral Recognition Therapy. She also claims to
have participated in a parenting class during her incarceration.
First, we note that we have previously established that a failure to provide services
does not serve as a basis on which to directly attack a termination order as contrary to
law. In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000). Moreover, the classes Mother
claims to have participated in since her release, amounted to a single AA/NA meeting on
December 24, 2012 and the completion of one online therapy session on December 23,
2012. Furthermore, even though Mother had times when she was not incarcerated, she
did not contact the DCS to get enrolled in services nor did she attempt to set up
visitations with A.S.
In sum, we determine that the evidence supports the trial court’s findings and the
findings are sufficient to support the trial court’s conclusion that the conditions leading to
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the removal of A.S. from Mother’s home would not be remedied.2 Therefore, we affirm
the trial court’s termination of her parental rights.
CONCLUSION
Based on the foregoing, we conclude that (1) the trial court did not abuse its
discretion when it denied Mother’s motion for a continuance and (2) the trial court’s
findings were sufficient to support its decision terminating Mother’s parental rights to her
minor child.
Affirmed.
KIRSCH, J. and C. J. ROBB concur
2
Mother also challenges the trial court’s conclusion of law terminating her parental rights because there
was not sufficient evidence to prove that the continuation of the parent-child relationship posed a threat to
A.S.’s well-being. Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, requiring that only one
of the three conditions under section (B) be proved true by clear and convincing evidence, we do not need
to reach Mother’s second assertion concerning A.S’s well-being.
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