A.B. & T.B. v. The Indiana Deaprtment of Child Services

FILED
Sep 26 2016, 9:40 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Michael B. Troemel Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana

Braden J. Dean Robert J. Henke
Logansport, Indiana Deputy Attorney General

James D. Boyer
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

A.B. & T.B., September 26, 2016
Appellants-Defendants, Court of Appeals Case No.
79A05-1602-JT-354
v. Appeal from the Tippecanoe
Superior Court
The Indiana Department of The Honorable Faith A. Graham,
Child Services, Judge
Appellee-Plaintiff. The Honorable Thomas K.
Milligan, Special Judge
Trial Court Cause No.
79D03-1506-JT-46, 79D03-1506-
JT-47

Altice, Judge.

Case Summary

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[1] This appeal involves the involuntary termination of parental rights with respect

to two children, T.B. and R.K., who are half-siblings. Mother and Father are

the parents of T.B., and R.K.’s father is deceased. Mother has been

incarcerated throughout the underlying CHINS and termination proceedings.

Father engaged in services for several months until his overwhelming distrust

and dislike for the Indiana Department of Child Services (DCS) and service

providers took over. From that point on, Father angrily rebuffed any attempts

by providers to reengage him in services and ceased visiting with the children.

[2] On appeal, Father presents a purely procedural issue. He contends that his

parental rights with respect to T.B. were terminated without due process of law

because the trial court terminated Father’s telephonic participation during the

final hearing due to Father’s angry outbursts. Mother, on the other hand,

challenges the trial court’s findings and conclusions supporting the termination.

[3] We affirm.

Facts & Procedural History

[4] T.B. was born to Mother and Father on July 2, 2009. When T.B. was six

months old, Mother obtained a protective order against Father. Thereafter, on

January 11, 2011, Mother gave birth to R.K., whose father passed away the

following year.

[5] Mother has a lengthy history of criminal convictions and drug abuse.

Unfortunately, this pattern continued after the birth of her children. On August

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 6, 2012, Mother was arrested and charged with Class B felony dealing in

methamphetamine and Class D felony possession of precursors. She bonded

out of jail shortly thereafter. Within six months of being out on bond, two

active methamphetamine labs were found in the home she shared with her

children. Mother was charged with Class B felony dealing methamphetamine,

Class D felony possession of methamphetamine, and Class C felony neglect of a

dependent. She pled guilty as charged and, on June 11, 2013, was sentenced to

a total of fifteen years – ten executed and five suspended to probation. With

respect to the August 2012 charges, Mother pled guilty to the Class D felony

and was sentenced to two years in prison to be served consecutively to the other

sentence. Mother has been incarcerated since February 4, 2013, and has not

seen her children since.

[6] Shortly after Mother’s incarceration in February 2013, T.B. and R.K. were

placed in Father’s care. His two older children H.B. (then age eleven) and C.B.

(then age ten) were placed in his care by their mother in the summer of 2013.

[7] Father reached out to DCS in March or April of 2014 because he was

overwhelmed parenting the four children and struggling to provide a safe and

stable home. He was unable to control the two older children, who were

involved in truancy mediation services at the time. Father also reported that he

was receiving food stamps, had no money for bus fare, and was behind in rent.

[8] DCS initially attempted to create a plan with Father to provide services through

a program of informal adjustment, but Father refused. DCS then filed a

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 CHINS petition regarding the four children on April 16, 2014. Following a

detention hearing on May 9, 2014, the children were allowed to remain in

Father’s care so long as a safety plan was developed and Father did not allow

anyone to care for the children until approved by DCS.

[9] On May 26, 2014, law enforcement executed a well-child check at Father’s

home. Father was not at home and had left the two older children in charge.

R.K. was observed with injuries to his feet. The injuries had occurred about a

week earlier when C.B. was left to supervise and he placed the three-year-old

child into a scalding hot bath. R.K. sustained second degree burns to his feet,

yet Father failed to seek medical attention or disclose the injuries to DCS.

Upon discovering the injuries, R.K. was immediately taken to the emergency

room and then transported by ambulance to Riley Children’s Hospital for

treatment. As a result, all of the children were removed from Father’s home.

R.K. and T.B. were eventually placed together in foster care, and the older

children were placed with their maternal grandparents.

[10] Following a fact-finding hearing on June 9, 2014, the children were adjudicated

CHINS. The trial court issued a dispositional order and a detailed parental

participation decree after the dispositional hearing on July 2, 2014. Father was

ordered, among other things, to participate in visitation, Fatherhood

Engagement, and individual therapy. He was also ordered to stay in contact

with DCS, notify DCS of changes in his address or employment, and maintain

safe housing. Mother, due to her continued incarceration, was ordered to

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 maintain contact with DCS and participate in services offered during

incarceration and provide certificates of completion to DCS.

[11] Father initially cooperated to some degree with service providers. Supervised

visitation went well, and Father appeared able to care and provide for the

children. Relatively quickly, however, Father let his distrust of and anger

toward DCS take over. He rejected parenting advice from service providers and

refused to abide by the visitation rules. Despite warnings, Father repeatedly

discussed the case with the children during visits and criticized or made

negative comments about DCS, the CASA, and/or the foster parents. At times,

Father would explode in anger when redirected by visitation supervisors.

[12] Eventually any interaction Father had with service providers, even in court,

ultimately led to him badmouthing DCS, the system, the foster parents, and/or

the CASA. Father also left profanity-filled, threatening voicemail messages for

the Family Case Manager (FCM). Father did not like that T.B. and R.K. were

in foster care and wanted them to be placed with relatives even when there were

no suitable relatives available. By March 2015, Father “overtly refused to

participate in services.” Transcript at 143. He was later evicted from his home

and, thereafter, refused to provide his new address to the court or DCS.

[13] Although Mother was cooperative with DCS, there were limited services

available to her due to her incarceration, and she was unable to visit with T.B.

and R.K. Mother testified that she completed several programs in prison, but

she did not provide certificates of completion to DCS. Service providers also

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 questioned whether she had obtained appropriate substance abuse and mental

health therapy.

[14] On June 8, 2015, the trial court entered an order changing the permanency plan

to concurrent plans of reunification, guardianship, and termination of parental

rights. The following day, DCS filed termination petitions with respect to all

four children. The final hearing was held on August 31 and November 6, 2015.

At the onset of the second day of the final hearing, DCS dismissed the

termination petitions with respect to C.B. and H.B.1 Accordingly, the

termination hearing proceeded with regard to T.B. and R.K., then ages six and

four respectively. On February 4, 2016, the trial court entered its order

terminating Mother’s parental rights to T.B. and R.K. and Father’s parental

rights to T.B. Mother and Father now appeal. Additional facts will be

provided below as needed.

Discussion & Decision

1. Father’s Due Process Claim

[15] Father raises a purely procedural issue on appeal. He claims that the trial court

deprived him of due process when it terminated his telephonic participation

during the second day of the termination hearing. Father asserts that this

1
The parties had reached an agreement. The maternal grandparents were to become C.B.’s legal guardians.
H.B., on the other hand, was then in psychiatric placement and DCS indicated that because it did not have a
viable, long-term plan for her care and treatment, it would not be in her best interest to proceed with
termination.

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 denied him of “the opportunity to not only submit evidence but to present any

opposition at all.” Father’s Appellant’s Brief at 9.

[16] During the two days of the termination hearing, Father was represented by

counsel. Although he lived locally, Father obtained permission from the trial

court to appear telephonically at the hearing. Father proceeded to take

advantage of the trial court’s leniency in this regard. On the first day of the

hearing, Father interrupted the trial court, the attorneys, and the witnesses on

numerous occasions. The court warned Father that if he continued, he would

be hung up on. Despite this warning, Father persisted. At the conclusion of the

first day of the hearing, when Father again sought to interject, the trial court

expressly directed Father to work through his attorney.

[17] On the second and final day of the hearing, Father continued his disruptive

behavior over the telephone. At one point Father interrupted the proceedings

to call the DCS liars and threaten, with regard to his vile voicemail messages,

“you’re going to get plenty more, I’m not done with you yet.” Transcript at 72.

The trial court warned, “[Father], this is Judge Milligan, one more outburst like

that and I’m going to hang up on you. You’re not going to participate in this

proceeding if you continue to talk like that and if you continue to interrupt

other people.” Id. Father indicated that he understood, and he behaved himself

during the testimony of the next witness.

[18] Father was then called as a witness by DCS. Shortly into his testimony, Father

referred to DCS as “terrorists” and stated “you people are sneaky”. Id. at 104.

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The trial court eventually cautioned him to “just answer” the questions being

asked. Id. at 106. After a few more questions and general unresponsiveness

from Father, the following colloquy occurred between Father and DCS’s

counsel:

Q. Do you have a good clue of how long it’s been since you’ve
seen your children?

A. Oh man it’s been like a damn year ago.

Q. Okay.

A. When was the last time you seen your kids?

Q. I apologize sir but I’m not supposed to answer, only to ask
questions. Have you been participating with – when is the last
time you participated in Fatherhood Engagement, do you know
approximately how long?

A. No I have no clue, because I’m in a state of rage, I cannot
remember those dates, so I’m sorry.

Q. Have you stayed in regular contact with [DCS]?

A. No I refuse to, because you’re liars.

Q. When you say refuse to don’t you in fact call the DCS case
manager fairly regularly?

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 A. I’m not telling anybody…yes I contact you and send you
emails of hatred about how I’m going to kick your f*cking a**
when I get you out on the street.

Q. Okay well I was asking about - -

A. You don’t give a sh*t - -

Q. I was asking about the case manager sir, not about myself.
Do you communicate regularly with [the FCM]?

A. No I do no communicate, I leave messages of hatred and
how I want to mash your f*cking face in with my foot - -

Id. at 107-08. The trial court then quickly put an end to Father’s rant by

disconnecting the telephone line as previously warned.

[19] In response to an objection lodged by Father’s counsel, DCS proposed that

Father be allowed to participate in person. The court responded:

No. And I respect the due process, I respect the ability and the
right of a person to be in court and participate, but the Court’s no
longer going to allow the disruption that’s happening. And the
disrespect to the Court, to Counsel, to the parties. And so the
objection is overruled.

Id. at 110. After a brief recess, Father’s counsel indicated that he met with

Father just outside the courthouse to discuss the possibility of appearing in

person. Father rejected the idea.

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[20] Counsel continued to represent Father throughout the hearing. After the

testimony of three witnesses, the hearing was recessed for lunch. Counsel

spoke with Father during this time. When the hearing reconvened, counsel

informed the court that Father had “cooled down” and would like “permission

to present his case by telephone”. Id. at 207. The court denied the request but

indicated that it would permit Father to appear in person. Counsel relayed this

information to Father, who again refused to appear in person. As a result,

Father was unable to present testimony in his case in chief.

[21] As set forth above, Father argues that he was deprived of due process when the

court terminated his telephonic participation on the second day of the hearing.

On the contrary, the court initially extended Father a courtesy by allowing him

– a local litigant – to appear telephonically rather than in person. The court

aptly withdrew this privilege upon Father’s relentless abuse of it. See Vaughn v.

State, 971 N.E.2d 63, 70 (Ind. 2012) (“a trial court judge also has the

responsibility of managing the proceedings so proper order exists in the

courtroom”); Stellwag v. State, 854 N.E.2d 64, 68 (Ind. Ct. App. 2006) (“A trial

judge must be given latitude to run the courtroom and maintain discipline and

control of the trial.”). Father asserts that this resulted in an inability to present

his case. The record, however, establishes that the court indicated it would

permit Father to testify in person. Father inexplicably rejected this offer and,

thus, chose not to testify.

[22] The fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner. See In re C.G., 954 N.E.2d 910,

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 917 (Ind. 2011). It is evident that Father was given this opportunity. His

ultimate absence from the hearing was the result of his own disruptive actions

and his decision not to appear in person despite a clear ability to do so. The

trial court did nothing to deny Father due process.

2. Mother’s Sufficiency Claim

[23] Mother’s appeal focuses on the sufficiency of the evidence presented by DCS.

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.

[24] The trial court entered findings in its order terminating parental rights. When

the trial court enters specific findings of fact and conclusions thereon, 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). A judgment is clearly erroneous only if

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 the findings do not support the court’s conclusions or the conclusions do not

support the judgment thereon. Id.

[25] 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.

[26] When DCS seeks to involuntarily terminate a parent’s parental rights, it must

allege and prove 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.

(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services[.]

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 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. I.C. § 31-35-2-4(b)(2)(C).

[27] Mother first challenges the trial court’s finding that I.C. § 31-35-2-4(b)(2)(B)(i)

had been satisfied—i.e., that DCS had established by clear and convincing

evidence a reasonable probability that the conditions resulting in T.B. and

R.K.’s removal and placement outside her care will not be remedied. She

argues that the reason for removal will be remedied once she is released from

prison “somewhere between seven and nineteen months from the date of the

TPR trial.” Mother’s Appellant’s Brief at 5.

[28] In making a determination in this regard, the trial court must judge a parent’s

fitness to care for her children 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. Office of Family &

Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

[29] It is not at all clear that Mother’s release date was imminent at the time of the

termination hearing, which concluded in November 2015. Mother testified that

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 her projected release date was June 2017 – nineteen months later – but could be

as early as June 2016 if she earned all of the time cuts she was “working on.”

Transcript at 82. At the final hearing, however, the record indicates that the

DOC website reflected a projected release date in July 2018 – almost three years

after the hearing.

[30] In addition to ambiguity regarding Mother’s release date, the record establishes

that she will be on probation for five years following her release. Mother does

not have a good track record on probation, having violated multiple times in the

past. More importantly, we observe that her extensive criminal history spans

her adult life, both pre- and post-motherhood.2 Cf. In re G.Y., 904 N.E.2d at

1262 (“all of Mother’s criminal history consists of offenses that were committed

before G.Y.’s conception….After that time and for the first 20 months of his

2
[1] The trial court detailed that history in its order:

In June of 2001 in Madison County Mother was charged with and later plead [sic] guilty to
Child Exploitation, Vicarious Sexual Gratification, and Sexual misconduct with a Minor;
Mother was to serve nine (9) months in the [DOC] with twenty-seven (27) Months suspended.
In June of 2005 in Cass County Mother was charged with and later plead [sic] guilty to Theft.
Mother received a suspended sentence, violated her probation and was required to execute her
suspended time. In August of 2005 in Madison County, Mother was charged with and later
entered a guilty plea to Battery Bodily Injury [sic] and received a suspended sentence and
violated her probation. In January of 2006 Mother was charged with and later plead [sic] guilty
to Battery on a Police Officer and received a suspended sentence of 365 days incarceration and
violated her probation. In September of 2005 Mother was charged with and later plead [sic]
guilty to Public Intoxication and served fifteen (15) days in jail on a probation violation. In July
of 2007 in Cass County, Mother was charged with and later plead [sic] guilty to Possession of
Cocaine or Narcotic Drug, Possession of Paraphernalia and was sentenced to 1.5 years
incarceration. In August of 2012 Mother was charged with Dealing Meth-Manufacture;
Possession of Reagents/precursors with Intent to Manufacture a Controlled Substance. Mother
entered a guilty plea to [the possession charge] and was sentenced to two (2) years in the
[DOC]. In February of 2013 Mother was charged with Dealing Methamphetamine, Possession
of Methamphetamine and Neglect of a Dependent. Mother entered guilty plea as to all three (3)
counts and was sentenced to [an aggregate term of fifteen years].
Appendix at 15.

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 life, the record gives no indication that Mother was anything but a fit parent”).

Mother committed her most serious crimes after giving birth to her children,

and she placed them in danger by raising them in a home with active meth labs.

[31] Mother claims that she has made strides in prison and engaged in services. The

trial court found in this regard that Mother “has not participated in any

programs in the [DOC] which the Court finds would be useful and helpful and

appropriate to her in assisting her in providing a safe, suitable home for the

children.” Appendix at 15. At first blush this finding appears heavy handed, as

the evidence indicated that Mother did complete some services while

incarcerated. Precisely what services, however, is not clear. Mother testified to

a laundry list of services she had completed (i.e., a problem solving course,

GED, a building trades program, anger management classes, and a substance

abuse course), but she failed to provide certificates of completion for any of

these. The CASA questioned whether Mother had completed “the right

services that will prevent her from doing it again when she gets out, what

caused her to be incarcerated in the first place.” Transcript at 262. Further, the

FCM testified that there was no indication that Mother had completed

individual therapy to address her substance-abuse and mental-health issues.3

3
Mother acknowledged this and indicated that the Mom’s Against Meth course that she took was “a peer
community resource course” that had no doctor or certified licensed therapist in charge and provided no
aftercare. Transcript at 297.

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[32] Even if the finding that Mother failed to participate in any programs that would

assist in providing a safe, suitable home for the children was erroneous, in light

of Mother’s history of substance abuse, criminal convictions, continued

incarceration, and lack of individual therapy, we conclude that the error was

not so serious that it affected the trial court’s ultimate decision. See In re A.C.B.,

598 N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming the termination of parental

rights despite an erroneous finding because the error was “not of such

magnitude that it calls into question the court’s conclusion”).

[33] We do not doubt that Mother has a strong desire to raise her children. In this

vein, she cooperated with DCS and attempted to better herself while in prison.

But she has been in prison for the majority of T.B. and R.K.’s lives and will

continue to be for some time. Moreover, she has yet to adequately address her

substance-abuse issues, which appear to be at the root of her criminal behavior.

In light of Mother’s extensive criminal history, including past violations of

probation and bond, it is evident that Mother will have an uphill battle upon

her release from prison.

[34] The record amply supports the trial court’s conclusion that “Mother is in no

position to care for the children and it is beyond reason for the children to have

to wait for Mother to demonstrate an ability or willingness to meet their needs.”

Appendix at 17. Accordingly, the court’s conclusion that there is a reasonable

probability that the conditions resulting in T.B. and R.K.’s removal and

continued placement outside Mother’s care will not be remedied is not clearly

erroneous.

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[35] Mother also makes a brief argument regarding the best interests of the children.

Essentially, she argues that there is a benefit to the children of giving her “one

more chance” since her sentence is “almost served.” Mother’s Appellant’s Brief at

11. As discussed above, however, the evidence does not support her claim that

she is almost done serving her twelve-year sentence. At the time of the final

hearing, Mother had been incarcerated and had not seen her children for nearly

three years and it could be another two to three years before she is released to

probation.

[36] Both the CASA and the FCM discussed the need for permanency and stability

and testified that termination of Mother’s parental rights is in the best interests

of the children. See In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (“the

recommendations of the case manager and court-appointed advocate to

terminate parental rights, in addition to evidence that the conditions resulting in

removal will not be remedied, is sufficient to show by clear and convincing

evidence that termination is in the child’s best interests”). DCS sufficiently

established that termination was in T.B. and R.K.’s best interests.

[37] Judgment affirmed.

[38] Bradford, J. and Pyle, J., concur.

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