In re the Matter of: R.H. (Minor Child) and T.H. (Mother) v. The Ind. Dept. of Child Services

FILED
May 19 2016, 8:25 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle L. Gregory Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of: May 19, 2016
R.H. (Minor Child) Court of Appeals Case No.
Child in Need of Services 49A04-1509-JC-1402
and Appeal from the Marion Superior
T.H. (Mother), Court
Appellant-Respondent, The Honorable Marilyn Moores,
Judge
v.
The Honorable Gary Chavers,
Judge Pro-Tem
The Indiana Department of
The Honorable Danielle Gaughan,
Child Services, Magistrate
Appellee-Petitioner. Trial Court Cause No.
49D09-1411-JC-2664
Robb, Judge.
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 1 of 15
Case Summary and Issue
[1] R.H. was adjudicated a child in need of services (“CHINS”) shortly after her
birth. During the CHINS proceedings, the Marion County Department of
Child Services (“DCS”) filed a motion seeking an order that reasonable efforts
to reunify R.H. and T.H. (“Mother”) were not required. The juvenile court
issued such an order on August 17, 2015, and thereafter held a permanency
hearing on September 15, 2015, and changed the permanency plan for R.H.
from reunification to adoption. Mother appeals the no reasonable efforts order,
raising one issue for our review: whether the juvenile court’s order finding that
reasonable efforts to reunify the family are not required violated her rights
under Title II of the Americans with Disabilities Act (“ADA”) and Section 504
of the Rehabilitation Act (“RA Section 504”). Concluding the juvenile court
did not violate Mother’s rights in finding DCS was not required to make
reasonable reunification efforts, we affirm.
Facts and Procedural History
[2] Mother gave birth to R.H., her eleventh child, on November 2, 2014.1 None of
Mother’s children are in her custody. Her parental rights to two of her children
were involuntarily terminated in 2006 and 2007, respectively, and at least three
of her children were adopted by others. At the time of R.H.’s birth, a CHINS
1
R.H.’s father, D.C., signed a consent to her adoption during the CHINS proceedings and does not
participate in this appeal.
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 2 of 15
proceeding was in progress with regard to two of Mother’s other children.
Mother had no permanent residence, instead residing in various motels with her
mother and step-father, and she had not been employed since 2007.
[3] DCS took R.H. into custody immediately after her birth and filed a petition
alleging R.H. was a CHINS five days later. Following a joint initial and
detention hearing, the juvenile court determined that “it is contrary to [R.H.’s]
welfare to remain [in] the care [of Mother]” and that “reasonable efforts have
been made to prevent or eliminate the need for removal based on the numerous
services offered [to Mother] in other cases . . . .” Transcript at 8. The juvenile
court therefore ordered R.H.’s continued placement in foster care with
supervised parenting time between Mother and R.H. DCS recommended
Mother complete clinical and parenting assessments and cooperate in home-
based case management and therapy. Mother began weekly therapy and
supervised visits in late 2014 or early 2015.
[4] The juvenile court held a fact-finding hearing on April 21, 2015, at which
Mother did not appear. DCS stated at the beginning of the fact-finding hearing
that it intended to file a motion seeking a reasonable efforts exception. Several
DCS service providers testified, including family case managers Ashley Butler-
Panter and Alice Mann, and Mother’s therapist and visitation supervisor,
Tammy Bush. Mother had completed the parenting assessment with Bush,
although Bush testified she “didn’t really get a lot of information out of the
assessment” due to Mother’s inability to focus and answer questions. Id. at 49.
Mother was also participating in therapy with Bush, but Bush felt that although
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 3 of 15
continued therapy might help Mother function better in her own life, it would
not assist Mother in learning to take care of her children. Bush described
Mother as “very loving towards [R.H.]” during visitation, but expressed
concerns about Mother’s lack of awareness of safety issues (such as needing to
be reminded at each visit to use the belt on the changing table when changing
R.H.’s diapers), her inability to multitask (such as managing R.H. while also
handling diapers and wipes), and her difficulty judging things such as when and
how much R.H. needs to eat. Id. at 53-54. Ultimately, Bush did not feel
continued services would lead to reunification:
[S]he’s been involved with DCS for a very long time and . . . you
guys have offered her multiple services over the years that
haven’t been successful because she’s chosen not to follow
through and she feels that she can do it herself. In some ways
she’s very street wise. In some ways, she’s very innocent. But
the bottom line is she’s homeless. She has no money. She has
no job. She doesn’t want to apply for SSI. She doesn’t want our
help with her case work. She doesn’t want our help with finding
a job or filing for SSI.
Id. at 71. At the conclusion of the hearing, the juvenile court adjudicated R.H.
a CHINS.
[5] On May 7, 2015, DCS filed a Motion for No Reasonable Efforts Exception.
The motion alleged the parent-child relationship between Mother and two of
R.H.’s half-siblings had been involuntarily terminated, two of Mother’s children
had been placed in the custody of their fathers, and six of Mother’s children had
been adopted. The motion requested the juvenile court find that reasonable
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 4 of 15
efforts to reunify Mother with R.H. were not required pursuant to Indiana Code
section 31-34-21-5.6(b)(4) and (5). The juvenile court held a hearing on the
motion over two days in June 2015 and a third day in August 2015. Bush
testified much as she had at the fact-finding hearing that although Mother was
“very loving and very kind” during visitations with R.H., she has to be
reminded of the same things every week, such as using the belt on the changing
table and feeding R.H. appropriately. Id. at 96. “She tries really hard but it is
just her knowledge and her skills aren’t good enough to parent safely on her
own.” Id. at 97. Although Mother had been briefly employed during these
proceedings, by the final day of the hearing, she was no longer employed, she
was still moving from place to place, and it remained difficult for service
providers and case workers to reach her on any given day. Bush did not
believe, whether services continued for six months or a year, that Mother would
ever have the skills and judgment to care for R.H. At the conclusion of the
hearing, the juvenile court took the matter under advisement and set a hearing
for September that would either be a dispositional hearing or a permanency
hearing depending on the court’s ruling on DCS’s motion for a reasonable
efforts exception.
[6] On August 17, 2015, the juvenile court entered an order granting DCS’s
motion, finding that reasonable efforts to reunify Mother and R.H. are not
required because
Mother has been repeatedly offered services with regard to [R.H.]
and with regard to her older children. Services have repeatedly
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 5 of 15
closed unsuccessfully because of Mother’s lack of participation or
inability to make progress. Additionally, Mother has cognitive
limitations that inhibit her ability to make progress in the therapy
she has recently participated in. Mother has been homeless for at
least two and a half years and has been unemployed since 2007
until recent employment at McDonald’s. Mother is no longer
employed and her housing continues to be unstable. Mother has
resisted the efforts of service providers to assist her with locating
housing and applying for disability.
Appendix of Appellee at 4. The juvenile court suspended Mother’s parenting
time and set a permanency hearing for September 15, 2015.
[7] Following the permanency hearing, the juvenile court issued an order changing
the permanency plan from reunification to adoption. Mother filed a notice of
appeal the same day.
Discussion and Decision
I. Appealable Order
[8] The sole issue raised by Mother on appeal is whether the juvenile court erred in
granting DCS a reasonable efforts exception. DCS asserts that Mother’s appeal
is premature and should be dismissed because there is not yet a dispositional
order.
[9] A CHINS proceeding is initiated when DCS requests the juvenile court
authorize the filing of a petition alleging the child is a CHINS. Ind. Code § 31-
34-9-1. The juvenile court must authorize the filing of a petition if it finds
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 6 of 15
probable cause to believe the child is a CHINS. Ind. Code § 31-34-9-2. Unless
the parents admit the allegations of the petition, the juvenile court must hold a
fact-finding hearing within sixty days. Ind. Code § 31-34-11-1. If the court
finds that a child is a CHINS, it must enter judgment accordingly, order a
predisposition report, and schedule a dispositional hearing. Ind. Code § 31-34-
11-2. The dispositional hearing is to be held within thirty days of finding the
child is a CHINS. Ind. Code § 31-34-19-1(a). At the dispositional hearing, the
court must consider the alternatives for the child’s care, treatment,
rehabilitation, or placement and the necessity, nature, and extent of the parent’s
participation. Id. The juvenile court must enter written findings and
conclusions in its dispositional decree and may, among other things, order
supervision of the child by DCS, place the child in another home, award
wardship of the child to DCS, or order the child’s parents to complete family
services recommended by DCS. Ind. Code §§ 31-34-19-10; 31-34-20-1.
Periodic review and permanency hearings must be conducted. Ind. Code §§ 31-
34-21-2 (review hearings at least every six months); 31-34-21-7 (permanency
hearings at least every twelve months). Ordinarily, DCS is required to make
reasonable efforts during the CHINS proceedings to preserve or reunify the
family. Ind. Code § 31-34-21-5.5. At any phase of a CHINS proceeding,
however, the juvenile court may make a finding that reasonable efforts to
reunify a child with her parent are not required. Ind. Code § 31-34-21-5.6.
[10] We have held that the dispositional decree is the final appealable order from a
CHINS proceeding because it finally determines the rights of the parties. In re
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 7 of 15
J.V., 875 N.E.2d 395, 399 (Ind. Ct. App. 2007), trans. denied. All the other
proceedings are “mere preliminary step[s]” to the juvenile court determining at
a dispositional hearing what is to be done with the children. In re M.R., 452
N.E.2d 1085, 1088 (Ind. Ct. App. 1983); see also Smith v. Marion Cnty. Dep’t of
Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994) (“[T]he time for
appealing an issue in a CHINS proceeding commences when the dispositional
decree is entered.”), trans. denied. However, in M.R., we also noted
“[t]erminology may be confusing. Sometimes what is denominated an ‘order’
may really be a final judgment and vice versa. The focus is on what is actually
done. A rose by any other name is still a rose.” 452 N.E.2d at 1088 (citations
omitted).
[11] The State is correct that there is no specific dispositional order in the record of
this case nor does the chronological case summary reflect that a specific
dispositional hearing had been held at the time the juvenile court found DCS
was not required to make reasonable efforts to reunify the family. It is unclear
why this is, as the juvenile court is statutorily required to hold a dispositional
hearing within thirty days of a CHINS finding. See Ind. Code § 31-34-19-1.
R.H. was formally adjudicated a CHINS on April 21, 2015. 2 The order Mother
2
The juvenile court’s order on the fact-finding hearing set an “Other” hearing for June 1, 2015, a date which
exceeds thirty days from the finding that R.H. is a CHINS. Appellant’s Appendix at 27. On June 1, 2015,
the juvenile court held the first day of a three-day hearing on the DCS motion for a reasonable efforts
exception. At the conclusion of the reasonable efforts hearing in August 2015, the juvenile court said it
would set either a dispositional or a permanency hearing depending on its ruling on the DCS motion,
implying no dispositional hearing had yet been held. The order granting DCS’s motion set a permanency
hearing. And yet, the juvenile court’s order on the permanency hearing states:
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 8 of 15
appeals was issued on August 17, 2015, well over thirty days after the CHINS
finding with no apparent dispositional hearing having been held. Nonetheless,
we look to the effect of the orders the juvenile court had entered prior to
Mother’s notice of appeal. The juvenile court had already determined that
R.H. was under the wardship of DCS and that she was to be placed in foster
care. The no reasonable efforts order, in addition to finding that DCS was not
required to make reasonable efforts to reunify Mother and R.H., suspended
Mother’s visitation with R.H. The permanency order changed the permanency
plan from reunification to adoption. In short, whether or not there is an order
denominated a “dispositional decree” in the record, the juvenile court’s orders
as a whole serve the purpose of a dispositional decree and further, effectively
end the relationship between Mother and R.H. and allow DCS to move
The Court having considered the questions as to whether or not it should continue
jurisdiction and whether the dispositional decree should be modified now finds that it is
in the children’s [sic] best interest for the Court to continue jurisdiction. The Court
further determines that the dispositional decree should not be modified.
Appellant’s App. at 109 (emphasis added).
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 9 of 15
forward with termination proceedings.3 If Mother is not allowed to appeal this
issue now, she may never be able to. See Smith, 635 N.E.2d at 1148 (holding
that because the mother did not appeal the issue of whether she was entitled to
court-appointed counsel in a CHINS proceeding until following termination
proceedings, she had waived the issue). Thus, whether or not the court’s
orders are technically a final judgment, they operate as one, and consequently,
we will consider Mother’s argument.
II. Reasonable Efforts Exception
[12] Indiana Code section 31-34-21-5.6 was enacted in response to the Adoption
Assistance and Child Welfare Act, which authorizes federal subsidies to states
for their operation of child welfare programs, conditioned on certain
requirements. G.B. v. Dearborn Cnty. Div. of Family & Children, 754 N.E.2d 1027,
1030 (Ind. Ct. App. 2001), trans. denied. One of the requirements for a state to
be eligible for federal payments is that it have a plan which provides that
3
A petition to terminate the parent-child relationship must allege, among other things, that one of the
following is true:
(i) The child has been removed from the parent for at least six (6) months under a
dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family
preservation or reunification are not required, including a description of the court’s finding, the date
of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a
local office or probation department 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 allege to be a child in need of services or a delinquent child . . . .
Ind. Code § 31-35-2-4(b)(2)(A) (emphasis added).
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 10 of 15
reasonable efforts to reunify a parent and child shall not be required if a court
has previously determined the parental rights of the parent to a sibling of the
child should be involuntarily terminated. 42 U.S.C. § 671(a)(15)(D)(iii).
Accordingly, Indiana Code section 31-34-21-5.6 provides that reasonable efforts
to reunify a child with the child’s parent are not required if the court finds the
“parental rights of a parent with respect to a biological or adoptive sibling of a
child who is a child in need of services have been involuntarily terminated by a
court order . . . .” Ind. Code § 31-34-21-5.6(b)(4). DCS alleged in its motion
for a reasonable efforts exception that Mother’s parental rights to two of R.H.’s
biological half-siblings had been involuntarily terminated, one in 2006 and one
in 2007.4 The juvenile court determined that, due to the prior terminations,
reasonable efforts to reunify Mother and R.H. were not required. Mother does
not dispute the CHINS adjudication was based on sufficient evidence, nor does
she dispute her history of parental rights’ terminations provides an adequate
basis for the juvenile court to find that reasonable reunification efforts were not
required. She argues, however, that the juvenile court’s order relieving DCS of
the obligation to provide reunification services unlawfully discriminated against
4
The motion alleges that pursuant to Indiana Code sections 31-34-21-5.6(b)(4) and (5) reasonable efforts to
reunify R.H. with Mother should not be required. Section (b)(5) applies if the court finds the child is an
abandoned infant and finds, after a written report and recommendation from an appointed guardian ad litem
or court appointed special advocate, that reasonable efforts to locate the child’s parents or reunify the family
would not be in the child’s best interests. There is no evidence that R.H. is an abandoned child.
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 11 of 15
her because she is entitled to reasonable accommodations for her undiagnosed
disabilities in the CHINS proceedings.5
[13] Mother bases her claim on the ADA and RA Section 504. Congress enacted
the ADA to eliminate discrimination against individuals with disabilities and
create causes of action for qualified people who have faced such discrimination.
See 42 U.S.C. § 12101(b). The ADA provides, in pertinent part: “[N]o
qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132 (emphasis added). The ADA requires that the
public entity make “reasonable modifications” to allow the qualified person to
receive services or participate in programs or activities. 28 C.F.R. §
35.130(b)(7). Similarly, RA Section 504 provides: “No otherwise qualified
individual with a disability in the United States . . . shall, solely by reason of her or
his disability, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance . . . .” 29 U.S.C. § 794(a) (emphasis added). 6
5
DCS argues Mother has waived this claim for failure to raise it to the trial court. It does not appear Mother
raised this particular issue to the trial court, but given our preference for deciding cases on their merits, Omni
Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied, we will consider Mother’s argument
notwithstanding any waiver.
6
The Rehabilitation Act is addressed to discrimination against individuals with disabilities in employment
opportunities, see 29 U.S.C. § 701(b), and defines an individual with a disability as one who has a physical or
mental impairment “which for such individual constitutes or results in a substantial impediment to
employment” and who “can benefit in terms of an employment outcome from vocational rehabilitation
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 12 of 15
[14] It is true that “[o]nce [DCS] opts to provide services during the CHINS
proceedings to assist parents in improving parental skills, the provision of those
services must be in compliance with the ADA.” Stone v. Daviess Cnty. Div. of
Children & Family Servs., 656 N.E.2d 824, 830 (Ind. Ct. App. 1995), trans. denied.
Assuming Mother has a disability7 and assuming she was otherwise eligible to
receive services,8 she would be entitled to reasonable accommodations in the
provision of reunification services. In fact, Bush’s testimony supports the
notion that Mother’s shortcomings were accommodated in these proceedings –
her therapy appointments and visitations were scheduled back-to-back to
improve her attendance, Bush helped her keep a calendar of appointments
because she struggles with dates and times, and she was offered assistance in
obtaining housing, a job, and SSI benefits, but declined. Notably, although
Mother argues the failure to provide future services violates the ADA and RA
Section 504, she does not argue the services she actually received failed to
comply. She therefore essentially acknowledges the services DCS provided
complied with the statutes. Mother was offered numerous services in her other
services” provided under the act, 29 U.S.C. § 705(20). It is unclear how RA Section 504 applies to the
provision of reunification services to Mother, and she has made no individualized argument with respect to
the two statutes she claims have been violated in this case. Likewise, we will not distinguish the two statutes
in our discussion.
7
Although Mother’s home-based therapist testified that she “felt like [Mother has] some intellectual
disabilities as well as some mental health issues,” tr. at 49, there was no evidence that Mother has been
officially diagnosed with a disability.
8
For purposes of the ADA, a “qualified individual with a disability” is an individual with a disability “who,
with or without reasonable modifications to rules, policies, or practices, the removal of architectural,
communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the participation in programs or activities provided by a
public entity.” 42 U.S.C. § 12131(2) (emphasis added).
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 13 of 15
CHINS cases and in this case until the juvenile court granted the reasonable
efforts exception, yet she remains unable to effectively parent.
[15] “[T]he ADA was not intended ipso facto to re-write state substantive law.” Id.
Moreover, “[e]very child is entitled to a minimum level of care regardless of the
special needs or limited abilities of its parents. In the final analysis, the rights of
the parents under the Fourteenth Amendment and the ADA must be
subordinated to the protected rights of the children.” Id. at 831. Here, the
juvenile court determined pursuant to state statute that DCS was not required
to provide services to Mother due to her previous history of parental rights’
terminations. See id. at 830 (holding there were no grounds for challenging in a
termination proceeding the alleged failure to comply with the ADA in the
provision of services because services are not required by the termination
statute). Neither the DCS request nor the juvenile court’s finding pursuant to
Indiana Code section 31-34-21-5.6 that services were not required was based on
Mother’s disability and she was not subjected to discrimination in the
application of the statute. Any individual with Mother’s history, whether under
a disability or not, would be treated the same by a juvenile court applying the
statute.
Conclusion
[16] Mother was not denied services or reasonable accommodations to participate in
those services because of her disability and the juvenile court did not violate her
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 14 of 15
rights by entering an order finding that DCS was not required to make
reasonable reunification efforts.
[17] Affirmed.
Najam, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 15 of 15