K.M. v. Indiana Department of Child Services
997 N.E.2d 1114
| Ind. Ct. App. | 2013Background
- In early 2011 Mother brought two young children to Wabash County DCS and admitted CHINS allegations; Father (a convicted child molester) also admitted CHINS allegations while incarcerated.
- Parents were ordered to complete substance‑abuse treatment, counseling, parenting assessments, and participate in supervised visitation; both failed to complete services and Mother continued drug use.
- Father was repeatedly incarcerated during the proceedings; federal authorities refused to transport him or allow phone participation for the termination hearings.
- Parties agreed that the State would present its case over the first two hearings, a transcript would be sent to Father who would have two months to respond through counsel, and Mother would present evidence at a third hearing; Father received the State’s transcript and declined to present additional evidence.
- The trial court terminated both parents’ rights in March 2013, finding (inter alia) Mother prioritized drugs and her relationship with Father over the children and Father was unstable and a threat to the children; parents appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Father was denied due process by being unable to attend hearings and not receiving transcript of third hearing | Father: federal refusal to transport denied his right to be present and to respond because he lacked the third‑hearing transcript | State/Trial court: Father agreed to procedure, received transcript of State’s case (which included Mother’s testimony about him), had two months and counsel; no prejudice shown | Waived on appeal for failure to raise below; on merits, no due‑process violation — procedure and counsel representation minimized risk of error |
| Whether trial court’s findings were merely recitations of testimony (insufficient) | Parents: findings just recite witness testimony and therefore are inadequate | State: findings adopt testimony, draw inferences, and include credibility/demeanor assessments supporting conclusions | Findings were adequate — court made determinations of credibility and articulated reasons supporting termination |
| Whether there was a reasonable probability conditions causing removal would not be remedied (Mother) | Mother: she surrendered children voluntarily and later claimed sobriety; marijuana use alone insufficient | State: Mother continued using illegal drugs, failed services, remained in relationship with Father despite risk to children, and was incarcerated at final hearing | Clear and convincing evidence supported conclusion that conditions would not be remedied; termination affirmed |
| Whether Father’s incarceration alone precluded termination or whether his history/sex‑offender status made remedy unlikely | Father: inability to complete services due to incarceration is not adequate ground for termination (compare M.W.) | State: Father’s child‑molester conviction, allegations of molestation and instability, plus repeated incarceration, meant the underlying risks were unresolved | Distinguishable from M.W.; court found father posed specific risk to children and conditions unlikely to be remedied; termination affirmed |
Key Cases Cited
- Castro v. State Office of Family & Children, 842 N.E.2d 367 (Ind. Ct. App.) (due‑process protections required in parental‑rights termination cases)
- In re C.G., 954 N.E.2d 910 (Ind.) (no absolute right to attend termination hearing; transcript/audio procedure permissible)
- A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d 1107 (Ind. Ct. App.) (due‑process balancing in CHINS/termination proceedings)
- McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185 (Ind. Ct. App.) (failure to raise due‑process claim at trial waives it on appeal)
- Tillotson v. Clay Cnty. Dep’t of Family & Children, 777 N.E.2d 741 (Ind. Ct. App.) (effective counsel reduces risk of erroneous termination)
- Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143 (Ind.) (standard of review for termination — do not reweigh evidence)
- In re G.Y., 904 N.E.2d 1257 (Ind.) (State must prove statutory elements for termination by clear and convincing evidence)