In the Matter of the Termination of the Parent-Child Relationship of J.W., Jr., A.W., and D.D., Minor Children, T.D., Mother, and J.W., Sr., Father v. Ind. Dept. of Child Services

Mar 25 2015, 9:32 am

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Erin L. Berger Gregory F. Zoeller
Thomas G. Krochta Attorney General of Indiana
Vanderburgh County Public Defender’s
Office Robert J. Henke
Evansville, Indiana Deputy Attorney General

Abigail R. Miller
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination March 25, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of J.W., Jr., A.W., and D.D., 82A04-1408-JT-380
Minor Children, Appeal from the Vanderburgh
Superior Court
T.D., Mother, and J.W., Sr., The Honorable Brett J. Niemeier,
Father, Judge, The Honorable Renee Allen
Ferguson, Magistrate
Appellants-Respondents,
Case Nos. 82D01-1401-JT-4, 82D01-
v. 1401-JT-5, and 82D01-1401-JT-6

Indiana Department of Child
Services,
Appellee-Petitioner.

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 Najam, Judge.

Statement of the Case
[1] T.D. (“Mother”), and J.W., Sr. (“Father”) (collectively, “the Parents”) appeal

the trial court’s termination of their parental rights over J.W., Jr., Z.W., and

D.D. (“the Children”). The Parents raise a single issue for our review: whether

the statutory waiting period under Indiana Code Section 31-35-2-4(b)(2)(A)(iii)

is tolled during any period in which the Indiana Department of Child Services

(“DCS”) fails to provide or otherwise make services available to a parent prior

to seeking the termination of that parent’s parental rights. On this question of

first impression, we hold that Indiana Code Section 31-35-2-4(b)(2)(A)(iii)

simply requires the DCS to demonstrate compliance with the statutory waiting

period—namely, that a child has been removed from a parent for fifteen of the

most recent twenty-two months immediately prior to the termination hearing.

That statute does not condition the waiting period on whether the DCS

provided or otherwise made available any type of services to the parent. As

such, we affirm the trial court’s termination of the Parents’ parental rights.

Statement of the Facts
[2] On August 31, 2012, DCS filed verified petitions alleging the Children to be

Children in Need of Services (“CHINS”). On September 11, 2012, the court

adjudicated the Children to be CHINS. Thereafter, the court issued a

dispositional order and ordered the Parents to participate in parenting aid

services, supervised visitation, and random drug screens.

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[3] On July 2, 2013, DCS filed a petition to terminate the Parents’ parental rights.

On August 13, the court suspended that part of its dispositional order in the

CHINS proceeding that required the Parents to participate in services and

visitation. However, on December 17, the court dismissed the DCS’s

termination petition as prematurely filed, and the court reinstated the

suspended requirements for the Parents to participate in services and visitation.

[4] On January 14, 2014, DCS filed its second petition to terminate the Parents’

parental rights, which was a timely petition. After a fact-finding hearing, the

court terminated Mother’s and Father’s parental rights over the Children. In

doing so, the court found, among other things, that the Children had been

removed from the Parents’ care for at least fifteen of the most recent twenty-two

months; that both Mother and Father had been unemployed and unable to

maintain employment throughout most of the CHINS proceedings; that both

Mother and Father were homeless throughout most of the CHINS proceedings

and at the time of the termination hearing; that Mother and Father had

admitted at the termination hearing that they were not in a position to take

custody of the Children; and that Mother and Father had repeatedly failed to

cooperate with, attend, or make progress in the parenting aid services,

visitation, and drug screens when those programs had been made available to

them. This appeal ensued.

Discussion and Decision
[5] The Parents appeal the termination of their parental rights. We begin our

review of this issue by acknowledging that “[t]he traditional right of parents to
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 establish a home and raise their children is protected by the Fourteenth

Amendment of the United States Constitution.” Bailey v. Tippecanoe Div. of

Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

denied. However, a trial court must subordinate the interests of the parents to

those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cnty. Office of Family & Children (In re K.S.), 750

N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

relationship is proper where a child’s emotional and physical development is

threatened. Id. Although the right to raise one’s own child should not be

terminated solely because there is a better home available for the child, parental

rights may be terminated when a parent is unable or unwilling to meet his or

her parental responsibilities. Id. at 836.

[6] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove, in relevant part:

(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
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 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.

Ind. Code § 31-35-2-4(b)(2) (emphasis added). DCS’s “burden of proof in

termination of parental rights cases is one of ‘clear and convincing evidence.’”

R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind.

2009) (quoting I.C. § 31-37-14-2).

[7] When reviewing a termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Office

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 of Family & Children (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

that are most favorable to the judgment. Id. Moreover, in deference to the trial

court’s unique position to assess the evidence, we will set aside the court’s

judgment terminating a parent-child relationship only if it is clearly erroneous.

Judy S. v. Noble Cnty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208

(Ind. Ct. App. 1999), trans. denied.

[8] Here, in terminating the Parents’ parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cnty. Office of Family & Children, 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). If the evidence and inferences support the trial court’s

decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[9] The Parents’ only argument on appeal1 is that the DCS failed to demonstrate

that the Children had been removed from the Parents for at least fifteen of the

twenty-two months immediately prior to the termination hearing. See I.C. § 31-

1
The Parents concede that the DCS demonstrated all other elements required to terminate their parental
rights.

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 35-2-4(b)(2)(A)(iii). According to the Parents, “the calculation of months

should have been tolled by the number of months that services were suspended

by DCS” in accordance with the DCS’s prematurely filed July 2013 petition for

the termination of parental rights. Appellants’ Br. at 3. The Parents concede

that, absent this proposed tolling, fifteen of the relevant twenty-two months

have passed.2

[10] The Parents’ argument presents a question of first impression and requires us to

interpret Indiana Code Section 31-35-2-4(b)(2)(A)(iii). Statutory interpretation

is a question of law and is reviewed de novo, or without deference to the trial

court’s interpretation. Curley v. Lake Cnty. Bd. of Elections & Registration, 896

N.E.2d 24, 34 (Ind. Ct. App. 2008), trans. denied. As our supreme court has

stated:

When interpreting a statute, appellate courts independently
review a statute’s meaning and apply it to the facts of the case
under review. If a statute is unambiguous, that is, susceptible to
but one meaning, we must give the statute its clear and plain
meaning. If a statute is susceptible to multiple interpretations,
however, we must try to ascertain the legislature’s intent and
interpret the statute so as to effectuate that intent. We presume
the legislature intended logical application of the language used
in the statute, so as to avoid unjust or absurd results.

2
The DCS asserts that we need not consider this argument on appeal because the Children had been
removed for at least six months pursuant to a dispositional decree, which satisfies an alternative provision of
Indiana Code Section 31-35-2-4(b)(2)(A), namely, subpart (i). But the trial court did not find that subpart (i)
had been satisfied; rather the court found and relied exclusively on subpart (iii). We restrict our review of the
court’s judgment accordingly.

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 State v. Evans, 810 N.E.2d 335, 337 (Ind. 2004) (quoting Bolin v. Wingert, 764

N.E.2d 201, 204 (Ind. 2002)). Moreover, “in interpreting a statute, we must

consider not only what the statute says but what it does not say.” Curley, 896

N.E.2d at 37. In other words, “we are obliged to suppose that the General

Assembly chose the language it did for a reason.” State v. Prater, 922 N.E.2d

746, 750 (Ind. Ct. App. 2010), trans. denied.

[11] Indiana Code Section 31-35-2-4(b)(2)(A)(iii) required the DCS to demonstrate

that

[t]he 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[.]

That language is unambiguous and simply requires the DCS to demonstrate

that a specific waiting period has occurred—namely, fifteen of the most recent

twenty-two months immediately prior to the termination hearing—with a child

removed from the parent. That statutory language does not condition that

waiting period on whether the DCS provided or otherwise made available any

type of services to the parent or, for that matter, whether the parent successfully

or unsuccessfully participated in any services.

[12] Indeed, the Parents’ attempt to read such a provision into our termination

statutes is contrary to well-established case law. The Indiana Supreme Court

has long recognized that, in “seeking termination of parental rights,” the DCS
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has no obligation “to plead and prove that services have been offered to the

parent to assist in fulfilling parental obligations.” S.E.S. v. Grant Cnty. Dep’t of

Welfare, 594 N.E.2d 447, 448 (Ind. 1992). Likewise, we have stated on several

occasions that, although “[t]he DCS is generally required to make reasonable

efforts to preserve and reunify families during the CHINS proceedings,” that

requirement under our CHINS statutes “is not a requisite element of our

parental rights termination statute, and a failure to provide services does not

serve as a basis on which to directly attack a termination order as contrary to

law.” A.Z. v. Ind. Dep’t of Child Servs. (In re H.L.), 915 N.E.2d 145, 148 & n.3

(Ind. Ct. App. 2009) (emphasis added) (citing I.C. § 31-34-21-5.5); see also Elkins

v. Marion Cnty. Office of Family & Children (In re E.E.), 736 N.E.2d 791, 796 (Ind.

Ct. App. 2000) (“even a complete failure to provide services would not serve to

negate a necessary element of the termination statute and require reversal.”);

Stone v. Daviess Cnty. Div. of Children & Family Servs., 656 N.E.2d 824, 830 (Ind.

Ct. App. 1995) (“under Indiana law, even a complete failure to provide services

cannot serve as a basis to attack the termination of parental rights.”), trans.

denied. The Parents’ argument on appeal amounts to a request to make the

providing of services by the DCS a basis on which to directly attack a

termination order, contrary to our case law, and reads into our termination

statutes a provision that our legislature has not saw fit to include.3

3
We note that this argument is the only argument made by the DCS on appeal that is actually responsive to
the Parents’ arguments on appeal. We also note that this argument first appears on page twenty-two of the
DCS’s twenty-four page brief.

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[13] Moreover, the Parents were not without a remedy. Indiana Code Section 31-

35-2-4.5(d)(2) allows parents to move to dismiss the petition to terminate the

parent-child relationship when:

(A) IC 31-34-21-5.6 is not applicable to the child;[4]

(B) the department or the probation department has not provided
family services to the child, parent, or family of the child in
accordance with a currently effective case plan prepared under IC
31-34-15 or IC 31-37-19-1.5 or a permanency plan or
dispositional decree approved under IC 31-34 or IC 31-37, for the
purpose of permitting and facilitating safe return of the child to
the child’s home; and

(C) the period for completion of the program of family services,
as specified in the current case plan, permanency plan, or decree,
has not expired.

See In re E.E., 736 N.E.2d at 796. The Parents do not suggest they filed a

motion pursuant to that statute here.

[14] Further, insofar as the Parents’ argument is, in essence, that they would have

been able to remedy the conditions that resulted in the removal of the Children

had they been given more time and/or opportunity, that argument is within the

scope of Indiana Code Section 31-35-2-4(b)(2)(B), and it was within the trial

court’s purview to credit or not credit the Parents’ argument accordingly.

While the Parents do not challenge the court’s findings and conclusions under

4
This statute enumerates exceptions to the requirement that the DCS must make reasonable efforts to
preserve and reunify families during CHINS proceedings. See In re E.E., 736 N.E.2d at 796.

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 Indiana Code Section 31-35-2-4(b)(2)(B), we note that the court found that

Mother and Father had repeatedly failed to cooperate with, attend, or make

progress in the parenting aid services, visitation, and drug screens when those

programs had been made available to them. And the evidence supports the

court’s findings.

[15] In sum, we cannot say that the trial court’s finding that the DCS satisfied its

burden to show that the Children had been removed from the Parents for fifteen

of the twenty-two months immediately prior to the termination hearing is

contrary to law or otherwise clearly erroneous. As such, we affirm the court’s

termination of Parents’ parental rights.

[16] Affirmed.

Mathias, J., and Bradford, J. concur.

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