J.E. (Mother) and R.B. (Father), Appellants-Respondents v. Kids’ Voice of Indiana Appellee-Guardian Ad Litem (2025)

MEMORANDUM DECISION

[1] J.E. (Mother) and R.B. (Father) have two young sons who were removed from their care for lacking a safe and stable home free of domestic violence and substance abuse. Three years after the removal, Mother continued her illegal drug use, and Father was incarcerated and not due for release for another 21/212 years. The juvenile court therefore terminated Mother's and Father's parental rights. On appeal, Mother and Father separately contend the evidence did not support the court's ruling. Father also alleges ineffective assistance of counsel and a deprivation of due process. We affirm.

Facts

[2] Mother and Father (collectively, Parents) are the married parents of sons, H.B., born February 2, 2019, and L.B., born December 18, 2020 (collectively, Children). Mother also has three adult children over the age of twenty.

[3] When H.B. was only a few months old, Father was charged with Level 5 felony intimidation. Father later pleaded guilty to the charge. Meanwhile, the Indiana Department of Child Services (DCS) petitioned to find H.B. to be a child in need of services (CHINS). The juvenile court found H.B. to be a CHINS but later dismissed the case.

[4] After the birth of their youngest son, L.B., and less than two weeks after the closure of H.B.’s CHINS case, Mother allowed Father to come to the domestic violence shelter where she resided with Children. The visit resulted in a confrontation between Parents, which led DCS to remove Children from Parents’ care and file another CHINS petition in May 2021. The CHINS petition alleged Parents had failed to provide Children with necessary food, clothing, shelter, medical care, education, or supervision.

[5] The juvenile court found Children to be CHINS due to Parents’ domestic violence, their inability to provide safe housing, and Mother's substance abuse. Although Mother denied drug use, the court found that Mother had tested positive for methamphetamines and amphetamines recently and that L.B. had been born with amphetamines in his system. At the dispositional hearing, the court ordered Mother to participate in home-based therapy, case management, parenting education, substance abuse assessment and treatment, random drug screens, and domestic violence services. As for Father, the court ordered him to complete a parenting assessment, substance abuse assessment, random drug screens, domestic violence services, and father engagement services.

[6] Father was jailed for a drug-related offense from December 2021 to April 2022, when he was transferred to a work release program. For a brief period, Father had employment and re-engaged with Children. But he soon lapsed into non-compliance with the CHINS dispositional orders while also violating his probation. The latter resulted in Father's reincarceration.

[7] DCS petitioned to terminate the parental rights of both Mother and Father in March 2023. By the time of the termination hearing a year later, Children had lived in the same foster home for three years. When first placed, H.B., then two years old, had developmental delays and knew only about five words. The foster parents enrolled him in developmental preschool, which helped with his emotional regulation and speech. Both Children were thriving in the foster home, got along well with the foster parents’ daughter, and were bonded to the foster family. The foster parents expressed their willingness to adopt Children.

[8] Father remained incarcerated at the time of the termination hearing as a result of his probation revocation. During his incarceration, Father had participated in Recovery While Incarcerated, a drug rehabilitation program, and the Inside-Out Dad Program aimed at helping incarcerated fathers improve their parenting skills. Father's earliest release date from his probation revocation matter was September 2026, but he had two outstanding warrants in other unresolved matters.

[9] By the time of the termination hearing, Mother had failed to provide documentation of her claimed employment and housing. While the termination petition was pending, Mother had 236 unforgiven missed tests. Mother had shown improvement during her visits with Children, but she failed to complete the services ordered by the CHINS court.

[10] At the start of the third and final termination hearing, which was conducted remotely, Father informed the court before Father's counsel joined the hearing:

[FATHER]: I- I don't want to be in here.

THE COURT: Uh, I'm sorry, sir?

[FATHER]: I- I don't want to be here at this, because this is not acceptable to me where, you know, we're not talking about a house or a car here, you know and this is over a computer screen. This is (sic) my children, right. And- and I already know the outcome, so I don't want to present, I—I just don't wan tot (sic) hear it. (background noise).

THE COURT: Alright, then. Sir, you're free to leave ․

THE COURT: I need [Father's counsel] ․ The record should reflect that before I went on the record the Father indicated he did not want to be there. I told him he could leave. Um, and he left ․ [N]ow I show that we have [Father's counsel] with us. And again[,Father's counsel,] your client had indicated that he did not want to attend, and he left ․

[DCS]: Judge, I just wanted to lay a clear record of what happened before we got on the record, that [Father] was present, and it appeared he was present at his D.O.C. facility. He told the Court and everyone else that was on the call that he did not wish to participate, that you[,] Judge, allowed him the choice to leave and he got up and walked away. Um, I'd also like to note that [Father's counsel] had no objection to his client appearing virtually at the previous trial setting and that was how he was to appear today ․

[FATHER'S COUNSEL]: [DCS's counsel] is correct. I had no objection to him appearing virtually today. If he chose not to appear, that is his choice.

Tr. Vol. II, pp. 220-23.

[11] Although Father was absent during the evidentiary portion of the final hearing, Father's counsel remained to represent Father. The hearing was relatively brief and involved the presentation of only two witnesses—Father's mother and the court appointed special advocate (CASA)—and final argument. The CASA testified that termination of Parents’ rights and adoption of the Children was in Children's best interests because Parents were not moving toward creating a stable and loving home. The court ultimately terminated the parental rights of both Mother and Father. Parents individually appeal.

Discussion and Decision

[12] On appeal, Mother and Father raise overlapping issues in separate briefs. Father challenges the sufficiency of the evidence supporting termination of his parental rights and contends the juvenile court denied him due process through its actions in connection with Father's departure from the final hearing. He also alleges ineffective assistance of counsel. Mother only challenges the sufficiency of the evidence supporting the termination of her parental rights.

[13] We conclude that Father has not established ineffective assistance of counsel and that no violation of Father's right to due process occurred. We also find clear and convincing evidence to support the court's judgment.

I. Father Was Not Denied Due Process

[14] A parent's right to raise their child is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV; In re A.H., 751 N.E.2d 690, 701 (Ind. Ct. App. 2001). The State therefore must adhere to due process requirements when seeking to terminate parental rights. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). “[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).

[15] Father contends the juvenile court denied him due process. This error occurred, according to Father, when the court “received Father's unauthorized communication,” “advised him in the absence of counsel that he was free to leave,” and “fail[ed] to adequately explain the nature of Father's objection to trial counsel.” Father's Br., pp. 26, 28. As Father has raised this due process claim for the first time on appeal, he has waived it. See Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010) (due process claims are generally waived when raised for the first time on appeal); see also McBride v. Monroe Cnty. Off. of Fam. & Child., 798 N.E.2d 185, 194-95 (Ind. Ct. App. 2003) (concluding that a parent's due process claim was waived through failure to raise or argue the issues in the trial court).

[16] To overcome this waiver, Father alleges fundamental error. “[F]or this court to reverse based on fundamental error, the error must have been a clearly blatant violation of basic and elementary principles, and the harm or potential for harm therefrom must be substantial and appear clearly and prospectively.” In re B.R., 875 N.E.2d 369, 375 (Ind. Ct. App. 2007). In other words, “fundamental error is error such that, if not rectified, would be a denial of due process.” Brabandt v. State, 797 N.E.2d 855, 861 (Ind. Ct. App. 2003) (internal citations omitted).

[17] “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.” In re C.G., 954 N.E.2d at 917. As both the State and Father have substantial interests affected by this proceeding, we focus on the risk of error created by the juvenile court's actions when resolving due process claims in this context. Id. at 917-18.

[18] Father claims the trial court's communications to him implicated Indiana Code of Judicial Conduct 2.9(A), which specifies that “[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending or impending matter” except under limited circumstances. But any error that occurred did not deprive Father of due process.

[19] Father was present during the first two evidentiary hearings and was represented by counsel at the final hearing, which comprises 29 pages of a 250-page transcript. Only two witnesses testified at the final hearing: the CASA and Father's mother. Aside from recommending termination, the CASA offered largely cumulative testimony about Father's actions since the beginning of DCS's involvement with Children. Father's mother focused her testimony on Mother, whom she viewed as an excellent parent. Father's mother testified that Father had made mistakes, but she believed he could lead a stable life as he had done for a brief time before his latest incarceration.

[20] Given the limited nature of the final hearing, we view the risk of error arising from Father's absence from this brief hearing as minimal, particularly considering Father had no absolute constitutional right to appear at the proceeding. In re K.W., 12 N.E.3d 241, 244 (Ind. 2014). Father does not reveal how the final hearing might have proceeded differently if he had been present.

[21] The evidence from the prior hearings, which Father attended, overwhelmingly favored the termination of his parental rights, as discussed in greater detail in section III of this opinion. Father had been incarcerated twice since DCS first became involved with Children and was expected to be in prison at least another 21/212 years after the final termination hearing. He also had two open warrants for other alleged offenses that ultimately could extend his incarceration.

[22] Beyond that, domestic violence between Mother and Father contributed to the removal of Children, and Father had not completed the services necessary for reunification. Children had been in foster care for three years. Father had not visited with Children during his incarceration and, thus, had not seen Children for months.

[23] Given all of these circumstances, the record shows that Father had a meaningful opportunity to be heard, despite his absence from the final hearing. Regardless, Father has failed to show that the harm or potential for harm flowing from the juvenile court's handling of Father's absence was “substantial or appear[s] clearly and prospectively,” as is required before an error may be deemed fundamental. See B.R., 875 N.E.2d at 375. Accordingly, we reject Father's claim that the juvenile court committed fundamental error.

II. Father Has Not Shown Ineffective Assistance of Counsel

[24] In a related claim, Father claims that trial counsel's failure to object upon learning of Father's departure from the final hearing constituted ineffective assistance of counsel. When reviewing such a claim, we consider whether the parent received “a fundamentally fair trial whose facts demonstrate an accurate determination.” Baker v. Marion Cnty Off. of Fam. & Child., 810 N.E.2d 1035, 1041 (Ind. 2004). “The question is not whether the lawyer might have objected to this or that, but whether the lawyer's overall performance was so defective that the appellate court cannot say with confidence” that the requirements for termination of parental rights were met. Id.

[25] Father contends that his counsel's failure “to take action to mitigate the damage of the juvenile court's actions” relating to Father's departure should undermine this Court's confidence in the outcome. Father's Br., p. 32.¹ But we have already determined in our analysis of Father's due process claim that the events at the beginning of the final hearing did not deprive him of a fundamentally fair trial because Father had a meaningful opportunity to be heard. Father has not shown that he was deprived of the effective assistance of counsel.

III. The Juvenile Court Did Not Commit Clear Error When It Terminated the Parental Rights of Mother and Father

[26] As to its petition to terminate Mother's and Father's parental rights, DCS bore the burden of proving by clear and convincing evidence:

(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.

* * *

(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) (2019).²

[27] In reviewing the termination of parental rights, we do not reweigh evidence or judge witness credibility. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). We apply a two-tiered standard of review requiring a determination of, first, whether the evidence supports the findings and, second, whether the findings support the judgment. Id. We will set aside the judgment only if clearly erroneous. Id.

[28] Mother challenges each of the juvenile court's essential conclusions required by Indiana Code § 31-35-2-4(B)-(D) (2019) (remedying conditions, threat to child, best interests, and satisfactory plan). Father challenges the juvenile court's conclusions under Indiana Code § 31-35-2-4(B) (remedying conditions and threat to child). We find the juvenile court's judgment is not clearly erroneous.

i. Remedying Conditions

[29] When determining whether the conditions that led to a child's removal will not be remedied, the juvenile court must judge a parent's fitness to care for the child at the time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010). Yet the court must also evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. Id.

[30] Mother claims the evidence showed that she had remedied the conditions that resulted in Children's removal or the reasons for Children's placement outside her home. Father claims he remedied these conditions as well.

[31] Children were removed due to Parents’ inability to provide stable housing free of domestic violence and substance abuse. Children remained outside Parents’ care due to Father's incarceration, substance abuse by Mother and Father, and the failure of both parents to complete court-ordered services. The record supports the juvenile court's conclusion that neither parent has remedied these circumstances.

[32] The evidence left in question whether Mother could provide a home free of domestic violence. Mother completed a domestic violence assessment, which resulted in a recommendation that Mother engage in a domestic violence recovery program. But Mother failed to participate and eventually was discharged from the program. At the time of discharge, the person who ran the recovery program found that Mother was unstable and likely to regress as to domestic violence. Mother and Father remained married at the time of the termination hearing, despite their volatile history together.

[33] Mother was equally ineffective in addressing her substance abuse issues. Mother missed 236 drug tests and offered only diluted test results as evidence that she no longer uses illegal drugs. Testimony showed that diluted tests are not reliable because they are likely the result of a person trying to camouflage drug use. And although Mother belatedly completed a substance abuse assessment, it showed a high probability that she had a substance abuse disorder.

[34] The assessment also showed that Mother was in denial about her condition. This finding was buttressed by Mother's failure to inform her home-based counselor that she had any issues with drugs. In fact, Mother falsely represented to the counselor that she had submitted to drug tests regularly. Mother also had not completed substance abuse treatment as ordered. At the time of the termination hearing, Mother was awaiting trial on a methamphetamine charge arising from her arrest six months earlier.

[35] As for housing and employment, Mother offers only unsupported claims that she had a job and a home. Mother never provided documentation of either, despite several requests from DCS. Given all this evidence, the juvenile court did not err in concluding that the conditions that led to removal of Children from Mother's home had not been and likely would not be remedied.

[36] As for Father, he claims the juvenile court improperly focused on his substance abuse and domestic violence. Although Mother's substance abuse contributed to Children's removal and continued placement outside her home, Father's substance abuse also was a factor in the latter. Between his periods of incarceration during the CHINS case, Father underwent a 14-day drug treatment program in June 2023 and then tested positive for amphetamine once and for fentanyl twice. He submitted no further drug screens after August 3, 2023. In all, Father missed around 100 random drug screens ordered by the CHINS court. Father testified that he tested positive for methadone and cocaine in August 2023 and that his probation was revoked three months later because he refused to enter a 9-month drug treatment program.

[37] As to domestic violence, Mother testified that Father had engaged in domestic violence in front of Children. An altercation between Mother and Father at a domestic violence shelter resulted in the filing of the underlying CHINS proceeding. Although Father points to the lack of evidence of further domestic violence, Mother and Father were not in contact with each other after the filing of the CHINS case. Thus, we do not know whether the lack of domestic violence is due to physical separation or reformation.

[38] And ultimately, Father simply was not available to parent Children. His scheduled released date was 21/212 years after the termination hearing. His two outstanding warrants had not been resolved. Such evidence raised the possibility that Father's incarceration might extend beyond the 21/212 years. Given all this evidence, the juvenile court did not commit clear error in finding a reasonable probability that the conditions resulting in Children's removal or the reasons for their placement outside the home of the parents will not be remedied.

ii. Threat to Children

[39] In light of our ruling on the prior issue of remedying conditions, we need not address Mother and Father's challenge to the juvenile court's conclusion that continuation of each parent-child relationship poses a threat to Children. See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (ruling that because Indiana Code § 31-35-2-4(B)(2) is written in the disjunctive, DCS need prove only the remedying circumstances or the threat prongs but not both).

iii. Best Interests of Children

[40] We also reject Mother's claim that the juvenile court erred in concluding that termination of her parental rights was in the best interests of Children. In evaluating a child's best interests, courts look to the totality of the evidence. In re A.I., 825 N.E.2d at 811. “[T]he trial court must subordinate the interests of the parents to those of the children.” Id. “The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship.” In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014).

[41] Mother had failed to significantly address any of the issues that led to Children's removal. Her substance abuse and domestic violence issues were unresolved. She also had no safe home for Children or the ability to provide for them financially. Clear and convincing evidence supports the juvenile court's conclusion that termination of Mother's parental rights was in Children's best interests.

iv. Satisfactory Plan

[42] Mother's claim of insufficient evidence that DCS had a satisfactory plan for the care and treatment of Children also is unavailing. “Indiana courts have traditionally held that for a plan to be ‘satisfactory’ ․ 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.’ ” In re A.S., 17 N.E.3d at 1007 (quoting Lang v. Starke Cnty. Off. of Fam. & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007)).

[43] The evidence showed that adoption was DCS's plan for Children and that Children's foster parents had expressed a willingness to adopt both. Adoption generally is a satisfactory plan. Id. As clear and convincing evidence supported all the juvenile court's conclusions challenged by Mother, we find no error in the court's termination of her parental rights.

[44] We affirm the juvenile court's judgment terminating the parental rights of Mother and Father.

FOOTNOTES

1.   Father also expresses interest in raising allegations of ineffective assistance of counsel that are not apparent on the face of the record. He does not specify those allegations. Although he acknowledges he cannot raise a claim based on evidence not in the record, he argues that this direct appeal is his only chance to seek relief based on the alleged ineffective assistance of counsel. See Baker v. Marion Cnty Off. of Fam. & Child., 810 N.E.2d 1035, 1038 (Ind. 2004) (noting that the Indiana Code provides for appointment of counsel for indigent parents in termination of parental rights proceedings but not in their quests for collateral relief). We decline Father's invitation to remand for further investigation of these claims.

2.   Indiana Code § 31-35-2-4 was amended after DCS petitioned to terminate the parental rights of Mother and Father. See P.L. No. 69-2024 (House Enrolled Act 1310). Those amendments do not impact this appeal.

Weissmann, Judge.

Judges Pyle and Felix concur. Pyle, J., and Felix, J., concur.