R.C. (Father), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

Case Summary

[1] R.C. (Father) appeals the involuntary termination of his parental rights to his son, B.H. (Child). Father presents two issues for review:

1. Was Father deprived of due process during the underlying child in need of services (CHINS) proceedings?

2. Is the trial court's termination of Father's parental rights supported by clear and convincing evidence?

[2] We affirm.

Facts & Procedural History

[3] H.H. (Mother)¹ gave birth to Child on April 20, 2022. For the first two weeks of his life, Child was in the care and custody of Father. On May 4, 2022, the Indiana Department of Child Services (DCS) filed a petition alleging that Child was a CHINS due to (1) Child testing positive for methamphetamine and amphetamine shortly after birth, (2) Mother and Father having open CHINS cases for other children, (3) Mother having pending child neglect charges, (4) Father having a pending charge for domestic violence on a person under the age of fourteen,² and (5) DCS having concerns about domestic violence between Mother and Father. Shortly thereafter, Child was removed from Father's care and placed with Child's great grandparents.

[4] At the initial hearing on May 6, 2022, the trial court appointed counsel to represent both Mother and Father. On June 28, 2022, the CHINS court accepted a “general admission” from Father that Child was a CHINS. Exhibits at 14. On July 27, 2022, the court held a dispositional hearing and entered an order requiring Father to, among other things, contact his family case manager (FCM) every week, keep all appointments with service providers, maintain suitable, safe, and stable housing, secure and maintain a stable source of income, establish paternity, complete a parenting assessment and follow all recommendations, complete a substance abuse assessment and follow all recommendations, complete a psychological evaluation, and submit to random drug screens.

[5] At a status hearing on November 2, 2022, the court set a show cause hearing for November 16, 2022, due to Father's failure to appear for the hearing and comply with the court's orders.³ When Father did not appear for the show cause hearing, the court issued an order of contempt and a warrant for his arrest. In the same order, the court also found there was a conflict with Mother and Father having the same counsel and appointed separate counsel for Father.

[6] On January 9, 2023, Father was arrested and charged with possession of methamphetamine. Two days later, he was brought before the CHINS court for a sanctions hearing on the contempt finding. Father appeared at this hearing with his new counsel. For his contempt, the court sanctioned Father to ninety days with thirty days executed in the Madison County Jail. In his criminal case, Father pled guilty to possession of methamphetamine and was sentenced to three years, with one year served in the Continuum of Sanctions Program and the rest suspended to formal probation. Father was released from jail on April 10, 2023.

[7] On May 3, 2023, the court held a permanency hearing. The court found that Father had not completed a psychological intake or substance abuse assessment, had not maintained stable housing, and had not engaged in visits with Child. The court did note that Father's drug screens while incarcerated were negative for all substances. The permanency plan was changed to a plan of reunification with a concurrent plan of adoption and/or appointment of a guardian.

[8] On August 1, 2023, DCS filed a petition for termination of parental rights. The court scheduled a fact-finding hearing for September 19, but Father did not appear. The fact-finding hearing was eventually held on October 17, 2023. FCM Noel Keith testified at the hearing. She was assigned to the case in July 2022 and had met with Father approximately fifteen times. FCM Keith testified that Father did not visit Child from July 2022 until the summer of 2023. In June 2023, Father began supervised visits with Child, and he was “mostly compliant,” missing only two visits in August 2023. Transcript at 49.

[9] FCM Keith testified that after his release from incarceration, Father completed a substance abuse assessment and a mental health assessment. Father told FCM Keith that he was participating in the recommended individual counseling, but FCM Keith had received no documentation confirming such. According to Father's testimony, he had completed six of seventeen individual counseling sessions by the time of the termination hearing, and he would complete this service in another eleven weeks.⁴ FCM Keith noted that Father had tested negative for all substances since January 2023. This is consistent with Father's testimony that he last used methamphetamine on January 9, 2023. As to housing, Father had been living with his cousin in Muncie but had recently moved to Anderson to live with his brother.

[10] Amy Forshee, Father's home-based case manager, testified at the termination hearing for Father. Forshee had worked with Father previously and because Father had made no progress, she closed out services. She was reassigned to Father in the summer of 2023. At the time of the termination hearing, Forshee had been working with Father for nearly three months, and she testified that Father was doing “excellent.” Transcript at 99. Forshee testified that Father meets with her weekly, calls her two to three times a week, and has been working on employment and financial stability. She noted that Father was working part-time at a pet pantry and doing side construction work. She testified that Father had been approved for HUD housing in 2022 and should have his own place within two months. Forshee testified that “[c]ompared to the first time [she] worked with [Father] and this time, there is a complete turnaround.” Id. at 100. Given Father's status at the time of the termination hearing, Forshee did not believe his parental rights should be terminated.

[11] As of the termination hearing, Father's legal paternity of Child had not been established. Father claimed that he believed DCS was supposed to help him complete the necessary steps because DCS initiated the paternity testing.

[12] Janine McKinney, who was appointed in August 2023 to serve as the court appointed special advocate (CASA), testified that she recommended Child stay in his current placement because he is thriving in their care and that based on Father's history, she did not think it was in Child's best interests to give Father more time. She was “not satisfied that Father would be a good placement at all for Child.” Id. at 86. McKinney admitted that she had never met Father and indicated that her opinion in this regard was based on “what I've heard in Court today.” Id. at 87.

[13] DCS informed the court that the permanency plan for Child, who was then two years old, was to be adopted by his great grandparents, who were in their seventies at the time of the termination hearing. If their health became a concern, DCS had a contingency plan, where Child would be placed with Mother's sister and her family unit or the great grandparents’ youngest daughter and her family unit.

[14] DCS recommended termination of Father's parental rights because, although he had made some recent progress, he had not shown “significant progress towards reunification until approximately June of 2023 and only really engaged in services outside of supervised visitation since August of 2023.” Id. at 56. FCM Keith believed Father needed “to show far more consistency than he has shown the Department up to this point” for Child to be safely returned to his care. Id.

[15] On February 2, 2024, the court entered an order terminating Father's parental rights. Father now appeals.

Discussion & Decision

1. Due Process

[16] Father argues that he was deprived of due process at “a critical juncture” in the underlying CHINS proceedings that such ultimately resulted in the termination of his parental rights. Appellant's Brief at 14. Specifically, Father complains that he and Mother were appointed the same counsel at the CHINS initial hearing in May 2022, and that the court did not recognize the apparent conflict of interest and appoint him separate counsel until it issued its contempt order in November 2022. In support of his due process argument, Father directs us to In re G.P., 4 N.E.3d 1158 (Ind. 2014).

[17] We first note that at no point during the CHINS or termination proceedings did Father argue that he was deprived of his due process right to counsel during the initial stages of the CHINS proceedings. Father has therefore waived the issue for review. See Smith v. Marion Cnty. Dept. of Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994) (finding waiver of due process claim in a CHINS proceeding where issue not raised until following the termination proceedings), trans. denied.

[18] Waiver notwithstanding, we also find that Father's reliance on G.P. is misplaced. In that case, mother initially waived her right to counsel at the outset of CHINS proceedings but later requested that counsel be appointed. The trial court found mother to be indigent and thus, entitled to appointed counsel. The court, however, never appointed counsel to represent mother. Almost a year later, the CHINS proceedings transitioned to termination proceedings. Mother again requested appointed counsel, and the court appointed counsel to represent her in the termination proceedings. Mother's counsel moved to dismiss the termination petition on grounds that mother had been deprived of due process. The court denied her motion. Following a three-day fact-finding hearing, the court entered an order terminating mother's parental rights.

[19] On appeal, our Supreme Court determined that mother had a right to counsel and that deprivation of counsel during the CHINS proceedings, and especially at hearings where parental participation was cut off, had “a destructive collateral impact” on the termination judgment. Id. The Court held that the deprivation of counsel led to the “undoing of the CHINS process” and therefore, compelled “the undoing of the TPR process.” Id. The Court therefore vacated the judgment terminating parental rights.

[20] Here, however, Father was not denied counsel. At the initial hearing on the CHINS petition, the court appointed counsel to represent Father. Appointed counsel, who, albeit was also appointed to represent Mother, appeared on behalf of Father at the CHINS fact-finding hearing, at which Father admitted Child was a CHINS, and at the disposition hearing. The court appointed new counsel for Father, who represented Father throughout the remainder of the CHINS and termination proceedings.

[21] Crucial here is that Father was not deprived of counsel at any point during the CHINS proceedings. Father was represented by counsel when he admitted Child was a CHINS, the dispositional hearing, a periodic review hearing, and a show cause hearing. Father presents no cogent argument to show that appointment of counsel with an apparent conflict of interest in a CHINS case is tantamount to the complete denial of counsel.

[22] Father also challenges the CHINS fact-finding and dispositional orders on due process grounds. Specifically, Father claims that the trial court failed to enter specific findings in support of the CHINS adjudication. He also challenges the dispositional order as being “unrelated to the evidence, as no evidence was presented for an adjudication basis.” Id. These arguments, however, should have been raised in a timely appeal of the dispositional decree. As we long ago determined, “the time for appealing an issue in a CHINS proceeding commences when the dispositional decree is entered.” Id. Father did not raise these issues related to the CHINS matter in the trial court during the CHINS or termination proceedings. He cannot present them for the first time on appeal. See id.

[23] Father also challenges the contempt finding in the underlying CHINS action. Specifically, he claims that he never received notice of the rule to show cause hearing at which the court found him in contempt. For the same reasons just discussed, Father has waived this issue for review as the time to challenge the contempt finding has long passed.

2. Sufficiency

[24] The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009). The law provides for the termination of these rights when parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008). In addition, a court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating parental rights is not to punish parents, but to protect their children. Id.

[25] Under the statutory authority applicable at the time of the underlying termination proceedings,⁵ DCS was required to allege and prove by clear and convincing evidence that one of the following is true:

(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[.]

Ind. Code § 31-35-2-4(b)(2)(B). Among other things, DCS must also prove by clear and convincing evidence that termination is in the best interests of the child and that there is a satisfactory plan for care and treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D).

[26] When reviewing the termination of parental rights, 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 most favorable to the judgment. Id. In deference to the trial court's unique position to assess the evidence, we will set aside its 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. Thus, if the evidence and inferences support the decision, we must affirm. Id.

[27] In reviewing a trial court's specific findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. & Child., 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). A judgment is clearly erroneous only if the findings do not support the court's conclusions or the conclusions do not support the judgment thereon. Id.

[28] Father argues that the trial court's findings are not supported by the evidence and that those findings do not support the court's conclusions and judgment terminating his parental rights. Father first challenges the trial court's findings and conclusions that I.C. § 31-35-2-4(b)(2)(B)(i) or (ii) had been satisfied. Because only one subsection need be established by clear and convincing evidence, we will focus on Father's argument that his participation in services in the few months immediately prior to the termination hearing demonstrated a reasonable probability that the conditions resulting in Child's removal had been or would “very shortly” be remedied. Appellant's Brief at 28.

[29] In making a determination in this regard, the trial court must judge a parent's fitness to care for his child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent's habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation of the child. Id. In conducting this inquiry, courts may consider evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. A.F. v. Marion Cnty. Off. of Fam. & Child., 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

[30] In challenging the sufficiency of the evidence, Father focuses only on the evidence that portrays him in a positive light. While we acknowledge that there is evidence that demonstrates Father has made some positive strides, other evidence does not reflect so positively on Father's ability to provide a stable home for Child.

[31] The record reveals that Father did not participate in any services for over a year after Child was removed from his care. Father does not dispute this but presents excuses, such as his incarceration, for his failure. It was at this point that DCS requested that the permanency plan for Child be changed to a concurrent plan of adoption.

[32] The record shows that after the permanency plan was changed, Father began supervised visitations with Child in June and was “mostly compliant.” Transcript at 49. In the three months preceding the termination hearing, Father completed a substance abuse evaluation. According to Father, he was participating in recommended therapy, but he did not provide proof of such. The court found it “concerning” that Father had not yet completed the therapeutic recommendations, noting Father's delay in starting services until more than a year after the CHINS case commenced. Appellant's Appendix Vol. 2 at 22.

[33] The record does reveal that Father was working with his home-based case worker and had secured part-time employment and was working side jobs for extra money, but even his home-based caseworker acknowledged that at the time of the termination hearing, Father was not financially stable. Regarding housing, Father hoped to have HUD housing within two months, but at the time of the hearing, he was living with his brother after having lived with another relative. As to criminal history, Father was arrested and pled guilty to possession of methamphetamine during the pendency of the CHINS matter. He also had a separate, pending criminal matter that was set for a jury trial.

[34] The court's final finding against Father was that Father failed to appear for the first scheduled fact-finding hearing on the termination petition despite having personal notice of the date and its importance to the case. In its summation of its analysis, the court concluded that it was “telling” that Father waited until the permanency plan was changed and the termination petition was filed “to even minimally, let alone fully, comply with the CHINS court's orders, notwithstanding the well over a year that DCS has been involved.” Appellant's Appendix Vol. 2 at 24. In short, the court concluded that Father's efforts were too late. Having reviewed the record, we agree with DCS that the evidence supports the court's findings, and those findings support the court's conclusion that there is a reasonable probability that the conditions that resulted in Child's removal would not be remedied.

[35] To the extent Father challenges the court's findings that his efforts were “negligible” or that he “minimally” complied with the CHINS orders, such arguments are simply requests that we reweigh the evidence. Appellant's Appendix Vol. 2 at 22, 31. This we will not do. We also find that, to the extent Father argues that termination is not supported due to claimed procedural irregularities or shortcomings in the CHINS proceedings, his arguments are waived for the reasons discussed previously.

[36] Father also argues that the court's conclusion that termination is in Child's best interests is not supported by the evidence. In determining whether termination is in a child's best interests, the trial court “must look to the totality of the evidence.” Matter of Ma.H., 134 N.E.3d 41, 49 (Ind. 2019). A court must subordinate a parent's interests to those of the child, keeping in mind the central interest is the child's need for permanency. Further, “a parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.

[37] Here, the trial court determined that Father made no effort to have Child returned to his care for more than a year. In the three months prior to the termination hearing, Father had started participating in services but had not been able to secure adequate housing or a stable income, and the court had only Father's testimony about his continued participation in services to combat his substance abuse. At the termination hearing, FCM Keith testified that DCS was “not convinced that [Father] has made substantial progress to support the safety and well-being” of Child. Transcript at 56. The trial court agreed. We cannot say the court's conclusion in this regard is clearly erroneous.

[38] Finally, Father seems to challenge DCS's plan for Child. He raises concerns that Child's placement with his great grandparents, who are in their seventies, will not provide Child with permanent stability. He points out that they have even come up with a plan in the circumstance that they become unable to care for Child.

[39] For a plan to be “satisfactory,” for purposes of the statute, it “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.” Lang v. Starke Cnty. Off. of Fam. & Child., 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied. Here, DCS informed the court that the plan is for Child to be adopted by his great-grandparents, with whom Child has been placed since he was two weeks old. CASA testified that Child was “doing excellent” and was “very happy” in his placement. Transcript at 85. She described placement as “excellent caregivers” and “very attentive and caring and loving.” Id. at 85-86. While great grandparents recognized that, due to their age, having a back-up plan was warranted, such is a matter to be considered by the adoption court. See In re D.J., 755 N.E.2d 679, 685 (Ind. Ct. App. 2001) (providing that it is within the authority of the adoption court, not the termination court, to determine whether an adoptive placement is appropriate), trans. denied (2002). Father has not shown that DCS does not have a satisfactory plan for Child.

[40] Judgment affirmed.

FOOTNOTES

1.   Mother voluntarily consented to Child's adoption and was dismissed from the case. We therefore set out the facts herein as they relate to Father.

2.   The incident was alleged to have occurred about a year prior. At the time of the termination hearing, the matter remained pending for a jury trial.

3.   The CCS indicates that on November 15, 2022, notice of the hearing was sent to Father by text message. On appeal, Father maintains that he had no notice of the show cause hearing, including in his appendix a “Service Detail” entry stating that service to Father “[f]ailed” because there was “[n]o number to send text to.” Appellant's Appendix Vol. 2 at 27. This entry was never provided to the trial court, and the record does not reflect that Father argued lack of notice to the trial court at any point in time.

4.   Father provided no evidence supporting his testimony.

5.   Our legislature has made extensive changes to Ind. Code § 31-35-2-4, which became effective March 11, 2024. DCS filed its petition in 2023, under the prior version of the statute, which was still in effect when the termination order was issued.

Altice, Chief Judge.

Bailey, J. and Mathias, J., concur.