In the Term. of the Parent-Child Relationship of: I.C. (Minor Child) and J.C. (Mother) v. The Ind. Dept. of Child Services (mem. dec)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Apr 26 2016, 8:24 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald E. C. Leicht Gregory F. Zoeller
Kokomo, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- April 26, 2016
Child Relationship of: Court of Appeals Case No.
34A02-1509-JT-1531
I.C. (Minor Child)
Appeal from the Howard Circuit
And Court
J.C. (Mother), The Honorable Lynn Murray,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 34C01-1504-JT-104
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, J.C. (Mother), appeals the trial court’s termination of
her parental rights to I.C. (Child). 1
[2] We affirm.
ISSUES
[3] Mother raises two issues on appeal, which we restate as follows:
1) Whether Mother waived her challenge of the trial court’s dispositional
order on vagueness grounds; and
2) Whether Mother waived her argument that the Department of Child
Services (DCS) failed to provide adequate services to reunify her with
Child.
FACTS AND PROCEDURAL HISTORY
[4] Child was born to Mother on July 20, 2007. In February of 2012, DCS
received a report that Mother was threatening to kill Child and her other two
younger children at Meijer in Kokomo, Indiana. Mother brought her three
children to the store in an attempt to contact the younger children’s father, who
was employed there. Mother appeared to be overwhelmed and unable to
1
Child’s biological father is unknown and is not part of these proceedings.
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handle the children. Mother stated that she was suffering from postpartum
depression and was in need of medication. DCS initiated an Informal
Adjustment and proceeded to inspect Mother’s residence, which DCS found to
be below minimal sanitary norms and unsuitable for the children. The
following day, after family members cleaned the residence, DCS returned the
children to Mother’s care and later closed the initial adjustment on July 30,
2012.
[5] On July 26, 2013, DCS received another report alleging that Mother and her
boyfriend yell and curse at Child and her half-siblings, that they get into
physical fights in front of the children, that the residence is unsanitary, that
there is a foul smell emitting from the residence, and that the stove and
refrigerator are not working. DCS attempted to contact the family, however, all
attempts were unsuccessful until July 31, 2013.
[6] On July 31, 2013, DCS visited the family’s residence and observed trash on the
front porch, sidewalk, and driveway, with two old diapers and a pair of girl’s
bikini bottoms lying on the ground. There was a strong odor of animal feces
and urine emitting from the residence. Mother was observed to arrive home
with Child and her half-siblings in a vehicle without proper car-seats or boosters
for the children. Mother did not allow DCS into the residence to check the
living conditions and stated that they were in the process of moving in after the
house had recently been flooded. Mother also stated that the residence was not
suitable for the children, and they had been staying with her relatives. After
obtaining permission from one of the relatives, who owned the family’s
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residence, DCS inspected the house and found it to be unsanitary and
unsuitable for the children. Inside, DCS found a small zoo—consisting of a
puppy, a very large potbellied pig, snakes, rabbits, and cats. DCS confirmed
that the stove and refrigerator were not functional. Further, when DCS
caseworkers engaged the children, they stated, contrary to Mother’s contention
that they stayed elsewhere, that they all slept on the couch inside the residence.
Neighbors also informed DCS that the family’s residence had not been flooded.
When DCS caseworkers attempted to explain the allegations and discrepancies
to Mother, she became angry, verbally abusive, and threatened them. She
started yelling at her neighbors, whom she suspected of reporting her to DCS,
and told them, “I have a gun and I know how to use it.” (Ex. 1, p. 2). As a
result of the assessment, DCS caseworkers decided to remove all three children
due to the conditions of the home, allegations of Mother’s maltreatment of the
children, and Mother’s threatening statements and demeanor. Child was
placed with Mother’s cousin and the two younger children were placed with
their biological father. 2 After the children were removed, Mother informed
DCS that she was supposed to take medication for her hormones and
depression; however, she had not taken the medication for a long time.
[7] On August 2, 2013, DCS filed its petition alleging that Child was a child in
need of services (CHINS) based on unsanitary home conditions, and Mother
and her boyfriend engaging in “physical fights” in front of Child and her half-
2
Child’s younger half-siblings remained with their biological father after he obtained custody over them.
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siblings. (DCS Ex. 3, p. 2). On the same day, the trial court held a detention
hearing where Mother appeared with counsel. At the conclusion of the
hearing, the trial court ordered Child to remain in the relative’s care.
[8] On September 30, 2013, the trial court held a fact-finding hearing where Mother
stipulated that her home was unsafe and unsanitary. The trial court adjudicated
Child to be a CHINS. The trial court also took judicial notice of DCS’s
preliminary report of investigation which documented concerns regarding
Mother’s mental health and behavior and Child’s well-being while in her care.
The trial court ordered Mother, in relevant part, to:
a) Participate in supervised visitation with [Child]. DCS was to
conduct home visit of Mother’s residence and transition
visitation into her home if the home was found to be clean
and appropriate for visitation. DCS had discretion to
transition the visitation to semi[-]supervised and/or
unsupervised as appropriate.
b) Participate in a mental health evaluation and follow the
recommendations of the evaluation.
c) Participate in Homemaker services.
d) Participate in Parent Educator services.
e) Not utilize corporal punishment [on Child].
(Appellant’s Br. pp. 22-23).
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[9] The trial court held five review hearings between February 3, 2014 and April
20, 2015. After each review hearing, the trial court found that Mother had not
complied with Child’s case plan, had not enhanced her parental abilities, and
had not cooperated with DCS. As a result, the trial court changed the
permanency plan to adoption on April 20, 2015.
[10] On April 8, 2015, DCS filed its petition for termination. On July 13 and 27,
2015, the trial court held evidentiary hearings. At one of the hearings, Mother
testified that she had difficulty attending drug screenings at DCS’s office. She
testified that she had supervised visitations on Tuesdays, Wednesdays, Fridays,
and Saturdays, with visitation hours from 9 a.m. to noon and then from 1:30
p.m. to 3:30 p.m. She was required to call in between 8 a.m. and 9 a.m. each
day to inquire if she was scheduled for a random drug screen that day. She was
required to undergo three drug screens per week, with one drug screen
conducted anytime between 9 a.m. and 3:30 p.m. on the scheduled day in
DCS’s office and the other two performed at her residence. On the days when
her drug screens in DCS’s office overlapped with her visitations, Mother had
only 90 minutes to complete her screen and proceed to the visitation. She
stated that the time window was not enough for her to attend all appointments
as scheduled because she had no transportation. This was the first time she
raised the issue.
[11] The purpose of Mother’s drug screenings was to determine if she was taking her
prescribed medications. After Mother screened positive for cannabis in
February and March of 2015, the purpose of the screens also became to
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determine if Mother was using illegal drugs. Mother further testified she had
not contacted DCS family case manager Khristen Scircle (FCM Scircle) to
inform her about the scheduling issue. Despite the scheduling inconvenience,
Mother also testified that the issue had not affected her visits with Child. She
testified that either her home-based provider, arranged by DCS, or her father
transported her to DCS’s office for drug screenings whenever possible. Mother
further stated that FCM Scircle never told her that she had to choose between
taking drug screens or her visitations. Finally, FCM Scircle testified that
Mother had not been denied any visitation time due to her having to screen on
the same day as her visits.
[12] On September 8, 2015, the trial court entered its Order, terminating Mother’s
parental rights to Child and made the following findings:
37. . . . Mother did not make herself available for drug screens
between December 19, 2014 and January 4, 2015. . . .
38. On February 12, 2015, Mother’s visitation with [Child] was
suspended after she tested positive for cannabis in a drug screen
taken [on] February 4[, 2015]. Subsequently, Mother tested
positive for cannabis in screens taken [on] March 12 and March
23, 2015. Mother failed to show for other scheduled drug
screens. As a result, Mother missed most of the visits from
February 27 through May 22, 2015.
****
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52. At times Mother was cooperative [with] drug screens
administered at her home, but often uncooperative to being drug
screened at the DCS office.
****
59. Mother’s visitation has been inconsistent due to her refusal
to submit to drug screens when requested or failed screens or her
cancelling visits.
(Appellant’s App. pp. 38-39, 43, 45).
[13] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Vagueness
[14] Initially, we note that Mother appeals after the trial court’s termination of her
parental rights to Child. However, in her appellate brief, she challenges neither
the trial court’s findings of fact nor its conclusions thereon. Mother’s only
contention is centered on the trial court’s dispositional order that required her
to participate in services following the trial court’s adjudication of Child as a
CHINS on September 30, 2013, and her difficulties in attending her
appointments because of the alleged conflict in scheduling. As such, we
conclude that Mother does not dispute DCS’s evidence presented at the
termination proceeding, the trial court’s factual findings, its reliance on those
findings, and its conclusions.
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[15] As to the trial court’s dispositional order, Mother specifically argues that the
trial court’s order to “participate” in services was “unconstitutionally vague”
because she did not “reasonably understand” the trial court’s “participation”
requirement. (Appellant’s Br. pp. 10, 14). Mother acknowledges that the
unconstitutional vagueness doctrine is used in criminal law context; however,
she urges us to extend its application to the trial court’s orders in a
“civil/juvenile context.” (Appellant’s Br. p. 10). We decline her request.
[16] First, Mother raises the issue for the first time on appeal. She raised it neither
with the CHINS court nor during the termination proceedings. As such, we
conclude that Mother waived the issue. See In re B.R., 875 N.E.2d 369, 373
(Ind. Ct. App. 2007) (failure to raise an issue with the juvenile court constitutes
waiver of that issue on appeal), trans. denied.
[17] Second, Mother provides no legal authority for her argument. She cited to
several cases where criminal defendants were challenging the criminal statute
that served as the basis of their convictions on vagueness grounds. See Lock v.
State, 971 N.E.2d 71, 74-75 (Ind. 2012) (the defendant challenged part of
Indiana’s motor vehicle code); Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007)
(the defendant challenged the criminal confinement statute). Mother, however,
provided no authority permitting the application of the unconstitutional
vagueness doctrine to court orders in civil cases. “We will not become an
advocate for a party nor will we address argument[s] which are either
inappropriate [or], too poorly developed or improperly expressed to be
understood.” Thacker v. Wentzel, 797 N.E.2d 342, 345 (Ind. Ct. App. 2003)
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(quoting Ramsey v. Review Bd. of Ind. Dep’t of Workforce Dev., 789 N.E.2d 486, 486
(Ind. Ct. App. 2003)). As such, we conclude that Mother waived her argument.
See Ind. Appellate Rule 46(A)(8)(a) (an appellant must support each argument
with cogent reasoning and citations to the authorities, statutes, and the record);
In re J.V., 875 N.E.2d 395, 402 (Ind. Ct. App. 2007) (a party waives any issue
raised on appeal where the party fails to develop a cogent argument or provide
adequate citation to authority), trans. denied.
[18] Moreover, in more than two years after the trial court issued its order, Mother
never requested the trial court to clarify what “participation” meant. In those
two years, the trial court conducted six CHINS review and permanency
hearings where Mother was represented by counsel. However, Mother never
filed a motion to clarify and never took any action to seek further guidance as to
her alleged failure to reasonably understand the trial court’s order. To the
contrary, the record reveals that she understood what “participation” meant as
she attended the services, the drug screens, and visitations. Because Mother
had no vehicle, we are mindful that the 90-minute window might not be
realistically sufficient to attend all required appointments using public
transportation. Nevertheless, Mother never addressed these concerns to DCS.
In fact, she testified at the termination hearing that she never actually missed
her visitations with Child because she had either her home-based provider or
her father transport her to DCS’s office when needed. As such, we find no
merit in Mother’s argument and therefore refuse to address it.
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II. Adequate Services
[19] In her second very brief argument, Mother asserts that because DCS failed to
recognize the alleged scheduling issue and her lack of transportation, DCS
created a conflict and did not provide the required services. For the same
reasons discussed above, because Mother raised the issue for the first time on
appeal and because she did not provide a cogent argument supported by
citations to legal authority, we conclude that she waived her second issue as
well. See Thacker, 797 N.E.2d at 345; In re B.R., 875 N.E.2d at 373; App. R.
46(A)(8)(a). Moreover, as we have previously noted, “[T]he responsibility to
make positive changes will stay where it must, on the parent. If the parent feels
the services ordered by the court are inadequate to facilitate the changes
required for reunification, then the onus is on the parent to request additional
assistance from the court or DCS.” Prince v. Dep’t of Child Servs., 861 N.E.2d
1223, 1231 (Ind. Ct. App. 2007). Because Mother should have raised the
scheduling issue with DCS or the trial court prior to the termination hearing,
but failed to do so for more than two years, we conclude that she should bear
the responsibility for the failure.
[20] Waiver notwithstanding, our review of the record indicates that DCS provided
sufficient services to reunify Mother with Child. Mother argues that DCS
created the conflict and that she lacked the transportation to attend her drug
screenings in the 90-minute window between her visitations. However, she
seems to ignore the fact that DCS also arranged the home-based provider to
transport her to DCS’s office for the screens when needed. Mother used the
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services many times; all she needed to do was to call the provider.
Alternatively, when the provider was not available, Mother called her father.
With these arrangements, as she testified, Mother did not miss any visitations
due to the required drug screens in DCS’s office.
[21] In sum, Mother does not challenge the trial court’s termination order or its
findings of fact and conclusions of law. She only challenges the trial court’s
dispositional order entered at the outset of the CHINS proceeding, essentially
arguing that her compliance with the order was inconsistent because she had
difficulties in attending her required appointments. Because Mother raised the
scheduling issue and the ensuing legal arguments for the first time on appeal
and because her arguments were not cogent and lacked support in legal
authority, we conclude that she waived these claims.
CONCLUSION
[22] Based on the foregoing, we hold that Mother waived her challenge of the trial
court’s dispositional order on unconstitutional vagueness grounds and waived
her argument as to DCS’s alleged failure to provide services.
[23] Affirmed.
[24] Kirsch, J. and Pyle, J. concur
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