In re the Termination of the Parent-Child Relationship of L.R. (Minor Child), K.S. (Mother) v. Indiana Department of Child Services

FILED
Jul 14 2017, 8:43 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana

David E. Corey
Deputy Attorney General

Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the July 14, 2017
Parent-Child Relationship of Court of Appeals Case No.
L.R. (Minor Child), 90A02-1612-JT-2846
K.S. (Mother), Appeal from the Wells Circuit
Court
Appellant-Respondent,
The Honorable Kenton W.
v. Kiracofe, Judge
Trial Court Cause No.
Indiana Department of Child 90C01-1506-JT-19
Services,
Appellee-Petitioner

Vaidik, Chief Judge.

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 Case Summary
[1] Indiana Code section 31-35-2-4 authorizes the filing of a petition to terminate a

parent-child relationship when, among other things, the child has been removed

from the parent and has been under the supervision of the Department of Child

Services (DCS) for at least fifteen of the most recent twenty-two 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 (CHINS). Here, DCS

removed a child from her mother’s home and filed a CHINS petition in January

2014. When it became apparent that a CHINS fact-finding hearing would not

be held within the 120-day statutory limit, the parties agreed that DCS would

move to dismiss the petition and refile under a new cause number. DCS did so

in May 2014.

[2] Just over a year later, in June 2015, DCS filed a petition to terminate the

mother’s parental rights, alleging, in part, that the child had been removed from

the mother for at least fifteen months. The trial court eventually agreed to

terminate the mother’s rights, and the mother appeals. Her primary contention

is that the trial court should have calculated the period of removal starting with

the filing of the second CHINS action in May 2014 because the original CHINS

action was dismissed and should be disregarded. Under this view, the child had

been removed for less than thirteen months when DCS filed its termination

petition, rendering the petition premature under Section 31-35-2-4. But because

the mother did not object to the dismiss-and-refile procedure, and instead

specifically agreed to it, we cannot say that the trial court erred by treating the

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 two CHINS actions as one continuous proceeding that began in January 2014,

seventeen months before DCS filed its termination petition. We affirm the

decision of the trial court in this and all other respects.

Facts and Procedural History 1

[3] K.S. (“Mother”) and M.R. (“Father”) are the biological parents of L.R.

(“Child”), who was born in November 2008. On the night of January 1, 2014,

Mother and Child were sitting in the living room of their apartment in Markle

when they heard an explosion—Father had been cooking meth in an adjacent

bedroom and blew up his lab. There is evidence that Mother had gone to a

store that day, with Child in tow, to purchase meth ingredients. DCS removed

Child from Mother and Father and placed her in foster care; Child was later

placed with her maternal grandparents.2

[4] On January 3, DCS filed a petition alleging that Child was a CHINS. At an

initial/status hearing a few days later, the parties agreed to extend the statutory

deadline for holding a CHINS fact-finding hearing from sixty days to 120 days,

see Ind. Code § 31-34-11-1(a), and the trial court set the hearing for April 15.

1
Our review of this matter has been hindered by DCS’s failure to adhere to Indiana Appellate Rule
46(A)(6)(c), which requires that the relevant facts be recounted “in narrative form,” that is, in “the form of a
story.” Narrative, Webster’s Third New International Dictionary (1993). Compliance with this rule is
particularly important in termination-of-parental-rights cases, where the key issue is often the progress (or
lack thereof) made by a parent from the beginning of the case to the end.
2
In the summer of 2014, Father pled guilty to Class B felony dealing in methamphetamine and was
sentenced to serve fourteen years in prison. At the termination hearing, he testified that his earliest possible
release date would be in 2021.

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 On April 14, however, Father filed a motion to continue the hearing, stating

that the parties were “in negotiations regarding an admission[.]” Appellant’s

App. Vol. III p. 71. The motion indicated that Mother had no objection. The

trial court granted the motion and scheduled a status hearing for May 5, noting

that “the fact-finding hearing will be reset if needed.” Id. at 4. At the status

hearing, DCS “advise[d] the Court they will be dismissing this cause as they are

past the deadline date for scheduling a fact-finding hearing and will be

reopening this matter under another cause number.” Id. In a subsequent order,

the court explained:

The parties were unable to come to an agreement to settle the
fact-finding trial. So a further hearing date needs to be
scheduled.

The hearing is unable to be held in the One Hundred and Twenty
day time frame. So [DCS] will be asking to dismiss the current
[CHINS] Petition and will be re-filing and opening under a new
cause number. All parties acknowledge the necessity for this.

Id. at 80 (emphasis added); see also id. at 107 (“The parties, by counsel,

consented to the procedure for dismissing and re-filing this child in need of

services case.”).

[5] As agreed, DCS moved to dismiss its first CHINS petition on May 15, and on

May 30 it filed a new but virtually identical petition under a new cause

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 number.3 Mother and Father admitted the allegations in the new petition, and

the trial court issued a dispositional order that required them to, among other

things: enroll in and participate in any recommended program, obtain any

required assessments, keep all appointments, maintain suitable housing,

maintain a stable source of income, abstain from using alcohol or any illegal

drugs, complete a parenting assessment and all services recommended as a

result of the assessment, submit to random drug screens, and attend all

scheduled visitations with Child.

[6] While Mother showed flashes of improvement during the CHINS proceedings,

she made little meaningful progress toward reunification. During 2014 and the

first part of 2015, she did not maintain consistent contact with the family case

manager, who sometimes had to go out of her way to track Mother down;

Mother was twice referred to counseling that she failed to complete; she missed

appointments with her home-based case manager; she missed several scheduled

visitations with Child; she spent time socializing with friends when she could

have been with Child; she drank alcohol; she lived in as many as twenty

different places, including several motels; she had at least four different

boyfriends; and she had and lost four different jobs. Finally, on April 28, 2015,

and again a week later, she tested positive for synthetic cannabinoids after

smoking spice. On May 6, DCS filed a progress report in which it changed its

3
As discussed below, the trial court did not formally grant the motion to dismiss the first petition until
September 2015.

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 permanency plan from reunification to termination of Mother’s and Father’s

parental rights and adoption by relatives. The trial court approved the plan.

[7] On June 8, DCS filed its termination petition. In accordance with the

termination statute, Indiana Code section 31-35-2-4, DCS alleged that (1) Child

had been removed from Mother and Father and under DCS supervision for at

least fifteen of the most recent twenty-two months, (2) there is a reasonable

probability that the conditions that resulted in Child’s removal or the reasons

for placement outside the home will not be remedied and/or that the

continuation of the parent-child relationship poses a threat to Child’s well-

being, (3) termination is in the best interests of Child, and (4) there is a

satisfactory plan for the care and treatment of Child.

[8] After DCS indicated its intent to pursue termination, Mother stepped up her

efforts. Between June 2015 and the termination hearing on November 20,

2015, Mother began working full-time at a factory, complied with all services,

passed all of her drug screens, and began dating and then moved in with a

boyfriend who was supportive. Nonetheless, at the termination hearing, the

court-appointed guardian ad litem, Child’s counselor, and Mother’s own

mother all recommended termination. The guardian ad litem, who had been

involved in the case since the filing of the original CHINS petition, testified that

Mother had not given her “any sense that [the] stability will be maintained.”

Tr. p. 204.

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[9] The trial court took the termination matter under advisement, where it

remained for the next year. In the meantime, the CHINS case remained active

before the same judge. The chronological case summary for the CHINS case,

which Mother included in her appendix on appeal, indicates that in 2016, a

progress report was filed on April 8, a permanency hearing was held on April

14, another progress report was filed on October 17, and another permanency

hearing was held on October 20. See Appellant’s App. Vol. II pp. 101-03. In its

October 17 progress report, DCS explained that “[s]ince the termination trial,

[Mother] rarely keeps in contact with [the family case manager], occasionally

presents herself at the office for drug screens, and cancels, attempts to

reschedule, or reschedules several supervised visitations with her daughter.” Id.

at 210. The family case manager noted her concern that Mother “is not sincere

with her participation in services and has only been participating for appearance

matters and has manipulated service providers.” Id. The visitation supervisor

was “recommending the visits cease, due to lack of progress made by [Mother]

and [Child] has become more irritated with her mother the more the visits

continue.” Id. at 213. DCS indicated that it was “no longer going to be

providing services to this family” absent a court order and that it continued to

believe that termination and adoption were appropriate. Id. at 214-15. On

November 21, 2016, the trial court issued an order terminating Mother’s and

Father’s parental rights.

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[10] Mother now appeals.4

Discussion and Decision
[11] Mother challenges the termination of her parental rights on three alternative

grounds. First, she contends that DCS filed the termination petition

prematurely and that the trial court should have dismissed it on that basis

alone. Second, she asserts that the manner in which the CHINS and

termination cases were litigated deprived her of due process. Third, she argues

that the termination judgment is clearly erroneous in light of the progress she

made between the filing of the termination petition and the hearing on the

petition.

I. Timing of Petition
[12] Mother first argues that DCS filed its termination petition too soon. Under

Indiana Code section 31-35-2-4(b)(2)(A), DCS was required to allege and then

prove that, when it filed its termination petition, one of the following was 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

4
Father initially appealed the termination of his rights but then filed a motion to dismiss his appeal, which
this Court granted.

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 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[.]

DCS alleged only the third fact: that “[t]he child has been removed from the

parent and has been under the supervision of [DCS] for at least fifteen (15)

months of the most [recent] twenty two (22) months.” Appellant’s App. Vol. II

p. 36.5 Mother maintains that DCS failed to prove this allegation.

[13] Mother acknowledges that DCS removed Child and filed a CHINS petition in

January 2014—seventeen months before DCS filed its termination petition, in

June 2015—but she argues that the period of removal should not be calculated

starting with January 2014. Noting that the first CHINS matter was eventually

dismissed, and focusing on the phrase “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,” Mother contends that Child’s removal should be treated as

having begun on May 30, 2014—the day on which DCS filed its second CHINS

5
It is unclear why DCS chose not to allege that Child had been “removed from the parent for at least six (6)
months under a dispositional decree,” since it filed its termination petition on June 8, 2015, more than six
months after the trial court issued its dispositional decree (on November 3, 2014). In any event, DCS does
not rely on that provision on appeal, nor could it. See Matter of Bi.B., 69 N.E.3d 464, 469 (Ind. 2017) (holding
that DCS cannot rely on six-month provision where it was not alleged in termination petition).

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 petition. Mother’s position, in short, is that because DCS ultimately dismissed

the original CHINS action, the trial court should have proceeded as if that

action and the removal that accompanied it never happened. Under Mother’s

analysis, the period of removal was less than thirteen months (May 30, 2014, to

June 8, 2015), DCS therefore filed its termination petition prematurely, and the

trial court should have dismissed it.6

[14] We see two problems with Mother’s position. First, Section 31-35-2-

4(b)(2)(A)(iii) does not include any language supporting her contention that the

only CHINS action that can be considered in calculating the period of removal

is the one that is pending when the termination petition is filed. The provision

simply says that the period begins “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.”

Here, it is undisputed that Child was removed from the home in January 2014

as a result of being alleged to be a child in need of services.

[15] Second, there is no indication in the record that DCS moved to dismiss the first

CHINS petition because it lacked merit or to somehow game the system or

prejudice Mother. Rather, the record shows that the parties were “in

negotiations regarding an admission” in the first CHINS action and that the

dismissal and refiling were merely a means of addressing the 120-day deadline

6
Mother frames this issue as one of sufficiency of the evidence, but it is really a matter of interpreting Section
31-35-2-4(b)(2)(A)(iii). We see no indication that Mother raised this statutory-interpretation argument in the
trial court, but DCS does not contend that she waived it, so we will address it.

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 for holding a CHINS fact-finding hearing. See Appellant’s App. Vol. III pp. 4,

71. Most importantly, Mother did not object to the dismissal-and-refiling

procedure; to the contrary, she expressly acknowledged the need for it. Id. at

80; 107. Therefore, while there may be situations in which removal related to a

CHINS action that is later dismissed should not be counted when calculating

the period of removal under Section 31-35-2-4(b)(2)(A)(iii), this is not one of

them.

[16] The trial court did not err in concluding that Child had been removed from

Mother and under DCS supervision for at least fifteen months when DCS filed

its termination petition.

II. Due Process
[17] Mother also contends that even if the termination petition was timely, certain

“procedural irregularities” deprived her “of her right to due process” under the

Fourteenth Amendment to the United States Constitution. Appellant’s Br. pp.

25-26. DCS points out that Mother did not raise a due-process claim before the

trial court and asserts that Mother’s argument is therefore waived. Because

Mother does not deny that she failed to make her due-process claim in the trial

court, we agree with DCS that it is waived. See Hite v. Vanderburgh Cty. Office of

Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (“It is well

established that we may consider a party’s constitutional claim waived when it

is raised for the first time on appeal.”).

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[18] Waiver notwithstanding, Mother has not convinced us that she was deprived of

due process. Initially, she takes issue with the manner in which the dismissal

and refiling of the CHINS proceeding was handled. She notes that the trial

court did not rule on DCS’s motion to dismiss the first CHINS matter until

September 2015, sixteen months after DCS filed that motion (on May 15,

2014); that as a result of the trial court’s delay in dismissing the first CHINS

matter, it was still pending when the second CHINS matter was opened (on

May 30, 2014); and that DCS and the trial court erroneously continued making

filings in the first CHINS matter even after the second CHINS matter was

opened. Mother is correct that these were mistakes, and easily preventable ones

at that. However, we fail to see how they negatively impacted her. Mother

maintains that “[t]he filing of the second CHINS petition while the first was still

pending appeared to cause multiple referrals and confusion among service

providers” and that she “was held responsible for that confusion because it

resulted in Mother not completing the services as expected.” Appellant’s Br. p.

28. But the transcript pages she cites do not support the notion that her service

providers were confused as a result of the overlapping CHINS actions. Mother

also asserts that “new referrals meant making new arrangements, possibly with

new people, and that only made Mother’s compliance more difficult,” id., but

she does not cite any evidence in support of that claim.

[19] Mother also bases her due-process claim on the fact that the trial court did not

issue its termination decision until a year after the termination hearing. She

argues that “[g]iven her constitutional right to parent,” her ability to raise Child

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 “should have been based on evidence at the time of judgment, not a year

earlier.” Id. However, Mother has not given us any reason to think that she

would have fared any better based on “evidence at the time of judgment.” To

the contrary, the one piece of evidence she has given us—the October 17, 2016

progress report from the CHINS case—fully supports the trial court’s

termination decision. In the report, DCS made clear that Mother had not made

much, if any, progress, since the termination hearing, that her improvement

before the termination hearing seemed to have been for the sake of appearances,

that visitation was not going well, and that it still believed that termination and

adoption were in order. See Appellant’s App. Vol. II pp. 210-15.

[20] Mother has failed to establish that either the delay or the other procedural

irregularities deprived her of due process.

III. Mother’s Progress After Filing of Termination
Petition
[21] Finally, Mother asserts that the evidence presented by DCS does not justify the

termination of her parental rights. In reviewing a trial court’s decision to

terminate a parent’s rights, we will not reweigh the evidence or judge witness

credibility. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016). We consider only the

evidence and reasonable inferences that are most favorable to the judgment,

giving due regard to the trial court’s unique opportunity to judge the credibility

of the witnesses. Id. We will reverse the trial court’s judgment only if it is

clearly erroneous. Id.

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[22] Mother frames the issue as whether DCS presented sufficient evidence to

support the trial court’s conclusions that there is a reasonable probability that

the conditions that resulted in Child’s removal and placement outside the home

of the parents will not be remedied, see I.C. § 31-35-2-4(b)(2)(B)(i), and that

termination is in the best interests of Child, see id. at (b)(2)(C). Appellant’s Br.

pp. 29-39. However, her actual argument is much more narrow. She contends

that termination was improper in light of the fact that, at the time of the

termination hearing, she was in a relationship with a supportive boyfriend, she

had a steady place to live (with her boyfriend), she was employed full-time, her

drug screens were coming back clean, and she was compliant with all services.

[23] There is one very critical flaw in Mother’s argument. By her own admission,

this state of stability did not begin until after DCS changed the plan from

reunification to termination, and it had existed for only a few months at the

time of the termination hearing. She did not begin seeing her new boyfriend or

return to negative drug tests until June 2015; her compliance with home-based

services did not begin until July 2015; she did not start her new job until July or

August of 2015; and she did not move in with her boyfriend until September

2015, two months before the termination hearing. It is undisputed that the

relative stability between June and November of 2015 was preceded by

seventeen months of significant instability (from January 2014 through May

2015).

[24] Mother cites our decision in In re S.P.H., 806 N.E.2d 874 (Ind. Ct. App. 2004),

for the proposition that the trial court should have based its decision on “her

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 situation at the time of the termination of parental rights hearing.” Appellant’s

Reply Br. p. 5. It is true that in In re S.P.H. we said, as we have said in

countless other cases, that “[t]o determine whether conditions are likely to be

remedied, the trial court must examine [the parent’s] fitness to care for the

children as of the time of the termination hearing and take into account any

evidence of changed conditions.” 806 N.E.2d at 881. But Mother carefully

avoids what we said in the next sentence: that the trial court must also

“evaluate [the parent’s] patterns of conduct to determine whether there is a

substantial probability of future neglect or deprivation.” Id. Our Supreme

Court has since said the same thing. See, e.g., In re K.E., 39 N.E.3d 641, 647

(Ind. 2015) (“Changed conditions are balanced against habitual patterns of

conduct to determine whether there is a substantial probability of future

neglect.”).

[25] Here, Mother’s conduct during the seventeen months before June 2015 plainly

support the trial court’s decision to terminate her parental rights. She failed to

stay in touch with the family case manager and failed to fully participate in the

services she was offered, including counseling and home-based services. She

missed multiple scheduled visitations and passed up other opportunities to

spend time with Child. She drank alcohol and smoked spice. And she moved

nearly twenty times, had multiple boyfriends, and changed jobs several times.

While there is no question that things appeared to be more stable by the time of

the termination hearing, our trial courts have discretion to “weigh a parent’s

prior history more heavily than efforts made only shortly before termination.”

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 In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We cannot say that the trial court

abused that discretion in this case. In addition, the guardian ad litem, Child’s

counselor, and the maternal grandmother all testified that, even in light of

Mother’s pre-hearing improvements, termination remained appropriate. This

testimony weighs heavily in favor of the trial court’s best-interests

determination and its ultimate judgment.

[26] Mother has not convinced us that the trial court’s decision was clearly

erroneous.7

[27] Affirmed.

Bailey, J., and Robb, J., concur.

7
In addition to her broader argument about the changes she had made at the time of the termination hearing,
Mother specifically challenges sixteen of the trial court’s 133 findings of facts. DCS contends that even if
those sixteen findings are set aside, the remaining 117 findings are sufficient to support the judgment. Having
reviewed the unchallenged findings, we agree with DCS.

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