In the Matter of Involuntary Termination of the Parent-Child Relationship of G.P. (Minor Child), and his Mother, J.A., (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner.
No. 49A02-1208-JT-643
Court of Appeals of Indiana
March 28, 2013
Rehearing Denied May 16, 2013
985 N.E.2d 786
ROBB, Chief Judge.
Robert J. Henke, DCS Central Administration, Patrick M. Rhodes, Indiana Department of Child Services, Indianapolis, IN, Attorney for Appellee.
OPINION
ROBB, Chief Judge.
Case Summary and Issues
J.A. (“Mother“) appeals the termination of her parental rights. She presents two restated issues on appeal: 1) whether she was denied due process when the trial court failed to appoint her an attorney for the underlying Child in Need of Services (“CHINS“) proceeding; and 2) whether sufficient evidence supported the termination of her parental rights. Concluding that her due process rights were not violated, and that there was sufficient evi-
Facts and Procedural History
G.P. was born in 2009. In October 2010, the Department of Child Services (“DCS“) removed G.P. from Mother‘s home and filed a petition alleging that G.P. was a CHINS. That same month, an initial hearing was held at which Mother waived counsel and admitted to the CHINS allegations, and G.P. was found to be a CHINS. In November 2010, there was a dispositional hearing at which G.P. was formally removed from Mother‘s care, although he had been in the care of DCS in the intervening month. G.P. was placed with his paternal grandparents. Mother was allowed supervised visitation, and was ordered to complete certain services.1 Ordered services included weekly contact with the DCS Family Case Manager (“FCM“), notifying the FCM of changes in contact information, keeping all appointments with DCS, maintaining suitable housing and a stable source of income, discontinuing drug use, participating in home-based counseling, completing a parenting assessment and all recommendations developed as a result of the assessment, and participating in random drug screens.
In December 2010, Mother‘s visitation was suspended for failure to adequately engage in services. In February 2011, a review hearing was held. At that point, Mother was one missed session away from being discharged from an intensive outpatient drug treatment program due to missing appointments. Mother requested counsel at this hearing, and the court found that she was indigent and determined that she was entitled to appointment of counsel. It appears, however, that the court failed to actually appoint counsel. In May 2011, Mother appeared pro se at a review hearing, and did not mention the lack of representation. By that hearing, Mother had been discharged from all services. She had failed to complete her intensive outpatient program and had failed to reschedule it. Mother indicated that she wanted to re-engage with services. The plan for permanency at the end of this hearing was reunification, and a permanency hearing was scheduled for August 16, 2011.
In August 2011, Mother moved to her mother‘s house in Virginia without notifying DCS. On August 16, 2011, Mother failed to appear for the permanency hearing. DCS requested that the plan be changed to adoption, and G.P.‘s guardian ad litem (“GAL“) agreed. The plan for permanency at the end of the hearing was set for adoption. Two days later, DCS filed a petition for involuntary termination of Mother‘s parental rights. In September 2011, an initial hearing was held on the termination; Mother failed to appear and the hearing was continued. At the continued hearing later that month, Mother failed to appear and DCS requested a default hearing. The court continued for an initial hearing in December with a default hearing scheduled for January 2012. In October 2011, Mother was served with summons by publication regarding the scheduled hearings. Sometime after that, Mother returned the certified mail card for a summons that had been sent to her mother‘s house in Virginia.
In December 2011, Mother failed to appear at the continued initial hearing. On January 9, 2012, the scheduled default hearing was re-scheduled for February.
Discussion and Decision
I. Due Process
A. Standard of Review
CHINS proceedings are separate and distinct from termination proceedings. Hite v. Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 182 (Ind.Ct.App.2006). Parents are entitled to representation in termination proceedings,
The Due Process clause of the
B. Failure to Appoint Counsel for Mother
In order for Mother‘s parental rights to be terminated, DCS needed to prove by clear and convincing evidence:
(A) that one (1) 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 alleged to be a child in need of services or a delinquent child;
(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;
(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.
As for hearings following the May 2011 hearing, Mother argues that having counsel would have allowed her to inform the court of things such as her reasons for moving, the steps she was taking toward
II. Sufficiency of the Evidence
A. Standard of Review
In determining whether the evidence is sufficient to support a judgment terminating parental rights, we neither reweigh the evidence nor judge the credibility of the witnesses. In re D.J., 755 N.E.2d 679, 683 (Ind.Ct.App.2001), trans. denied. We consider only the evidence favorable to the judgment and the reasonable inferences to be drawn therefrom. Id. When reviewing the findings of fact and conclusions of law upon which a termination of parental rights is premised, we engage in a two-tiered standard of review: we first determine whether the evidence supports the findings, and second, whether the findings support the judgment. Id. We will reverse only upon a showing of clear error. Id. A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. In re A.J., 877 N.E.2d 805, 815 (Ind.Ct.App.2007), trans. denied. A judgment is clearly erroneous only if the findings of fact do not support the trial court‘s conclusions thereon, or the conclusions thereon do not support the judgment. Id.
In evaluating the circumstances surrounding the termination, the court must subordinate the interests of the parents to those of the child. R.G. v. Marion Cnty. Office, Dep‘t of Family & Children, 647 N.E.2d 326, 328 (Ind.Ct.App.1995), trans. denied. Termination of parental rights is proper where the child‘s emotional and physical development is threatened. Id. The trial court need not wait until the child is irreversibly harmed such that his physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.
To determine whether a reasonable probability exists that the conditions justifying a child‘s continued placement outside the home will not be remedied, the trial court must judge a parent‘s fitness to care for her children at the time of the termination hearing and take into consideration evidence of changed conditions. In re D.D., 804 N.E.2d 258, 266 (Ind.Ct.App.2004), trans. denied. However, the trial court must also evaluate the parent‘s habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. Id.
Mother contests a handful of the specific findings and conclusions of the trial court. We believe that these findings and conclusions would be supported by the record, but moreover we agree with the State that, even if these findings are omitted, the remaining findings are sufficient to support the conclusion of the court that termination was appropriate. The record indicates that Mother did not consistently participate in services when she was in Indiana, and that she was discharged from all services and did not re-engage. She moved out of state without informing DCS, and did not keep in contact with DCS. At some point after the termination hearing was scheduled, she began a treatment program in Virginia, and successfully completed it just prior to the trial. However, that was long after the CHINS case started, and also months after the termination petition was filed. She has a history of entering rehab programs and then relapsing regardless of whether she completed the program or not, and so we agree with the trial court that it would take time after this last program to be convinced that she is truly sober. Both DCS and the GAL agreed that G.P. was in a safe and appropriate home with his grandparents, who were ready to adopt him, and that termination was in his best interest. We conclude that the evidence supports the court‘s findings, and that those findings support the conclusions in favor of termination.
Conclusion
Concluding that Mother was not denied her due process rights when the trial court failed to appoint her counsel in the CHINS case, and that sufficient evidence supports the termination of her parental rights, we affirm.
Affirmed.
MAY, J., and PYLE, J., concur.