MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing May 31 2018, 9:09 am
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Jon P. McCarty Curtis T. Hill, Jr.
Covington, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Matter of the May 31, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: N.M., R.M., Jr., 18A-JT-91
L.M., and T.M. (Minor Children) Appeal from the Vermillion
Circuit Court
and The Honorable Bruce V. Stengel,
Judge
R.B. (Mother) and R.M. Trial Court Cause Nos.
(Father), 83C01-1703-JT-5
Appellants-Respondents, 83C01-1703-JT-6
83C01-1703-JT-7
v. 83C01-1703-JT-8
Court of Appeals of Indiana | Memorandum Decision 18A-JT-91 | May 31, 2018 Page 1 of 12
Indiana Department of Child
Services,
Appellee-Petitioner.
Bradford, Judge.
Case Summary
[1] R.B. (“Mother”) and R.M. (“Father”) (collectively, “Parents”) appeal the
juvenile court’s order terminating their parental rights to N.M.; R.M., Jr.; L.M.;
and T.M. (collectively, “the Children”). The Indiana Department of Child
Services (“DCS”) became involved in the Children’s lives after receiving reports
of drug use by Parents. The Children were subsequently determined to be
children in need of services (“CHINS”) and Parents were ordered to complete
certain services. Parents, however, failed to successfully complete the court-
ordered services.
[2] DCS filed a petition seeking the termination of Parents’ parental rights to the
Children on March 14, 2017. Following an evidentiary hearing, the juvenile
court issued an order granting DCS’s petition. On appeal, Parents contend that
DCS did not provide sufficient evidence to support the termination of their
parental rights. They also contend that the trial court’s order should be set
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aside because DCS failed to provide notice of the evidentiary hearing to a
necessary party. We affirm.
Facts and Procedural History
[3] N.M. was born on July 16, 2009; R.M., Jr., was born on August 13, 2010; L.M.
was born on May 21, 2012; and T.M. was born on July 10, 2014. It is
uncontested that Parents are the parents of N.M.; R.M., Jr.; and L.M. Parents
also presented evidence during the underlying CHINS and termination
proceedings indicating that Father is the biological father of T.M. However, on
appeal, Parents argue for the first time that Father is not the biological father of
T.M.
[4] On September 2, 2015, DCS received a report that Parents were using drugs.
Initially, DCS planned to enter into an informal adjustment with Parents.
Plans changed, however, after Parents both tested positive for
methamphetamine on October 2, 2015. The Children were removed from
Parents’ care on November 5, 2015, after Parents again both tested positive for
methamphetamine. On November 6, 2015, DCS filed petitions alleging that
the Children were CHINS. Parents admitted to the allegations set forth in the
CHINS petitions. They were subsequently ordered to participate in random
drug screens, therapy, and supervised visitation. Parents were also ordered to
complete and follow the recommendations of parenting assessments and to
avail themselves of all services available during any period of incarceration.
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Over the course of approximately the next eighteen months, Parents struggled
with sobriety and continued to test positive for drugs and alcohol.
[5] On March 14, 2017, DCS filed petitions seeking the termination of Parents’
parental rights to the Children. The juvenile court conducted an evidentiary
hearing on DCS’s petitions on September 8, 2017. During the evidentiary
hearing, DCS presented evidence indicating that Parents had not made
significant progress towards reunification and continued to struggle with
sobriety. DCS also presented evidence that (1) the Children were doing well in
their current foster placements, (2) termination of the Parents’ parental rights
was in the Children’s best interests, and (3) its plan was for the Children to be
adopted. For their part, Parents argued that they loved the Children and
wanted more time to improve their situations with the hopes of one day being
in the position to provide adequate care for the Children. On October 24, 2017,
the juvenile court issued an order terminating Parents’ parental rights to the
Children.
Discussion and Decision
[6] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).
However, although parental rights are of a constitutional dimension, the law
allows for the termination of those rights when parents are unable or unwilling
to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.
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App. 2001), trans. denied. Parental rights, therefore, are not absolute and must
be subordinated to the best interests of the children. Id. Termination of
parental rights is proper where the children’s emotional and physical
development is threatened. Id. The juvenile court need not wait until the
children are irreversibly harmed such that their physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id.
I. Sufficiency of the Evidence
[7] Parents contend that the evidence is insufficient to sustain the termination of
their parental rights to the Children. In reviewing termination proceedings on
appeal, this court will not reweigh the evidence or assess the credibility of the
witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d
874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the
juvenile court’s decision and reasonable inferences drawn therefrom. Id.
Where, as here, the juvenile court includes findings of fact and conclusions
thereon in its order terminating parental rights, our standard of review is two-
tiered. Id. First, we must determine whether the evidence supports the
findings, and, second, whether the findings support the legal conclusions. Id.
[8] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent-child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
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Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.
[9] Parents claim that DCS failed to present sufficient evidence to prove by clear
and convincing evidence that:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the
conditions that resulted in the child[ren]’s removal or
the reasons for placement outside the home of the
parents will not be remedied[; and]
(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child[ren].…
(C) termination is in the best interests of the child[ren.]
Ind. Code § 31-35-2-4(b)(2).1
A. Indiana Code Section 31-35-2-4(b)(2)(B)
[10] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive, the juvenile court need only find either that (1) the conditions
resulting in removal from or continued placement outside the parents’ home
will not be remedied, (2) the continuation of the parent-child relationship poses
a threat to the children, or (3) the children have been adjudicated CHINS on
1
Parents do not dispute that DCS presented sufficient evidence to support the first and fourth elements set
forth in Indiana Code section 31-35-2-4(b)(2).
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two separate occasions. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.
2003), trans. denied. Therefore, where the juvenile court determines one of the
above-mentioned factors has been proven and there is sufficient evidence in the
record supporting the juvenile court’s determination, it is not necessary for DCS
to prove, or for the juvenile court to find, either of the other two factors listed in
Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
[11] In its order terminating Parents’ parental rights to the Children, the trial court
found both that the conditions resulting in removal and continued placement
outside Parents’ home will not be remedied and that the continuation of the
parent-child relationship poses a threat to the Children. While Parents
challenge the sufficiency of the evidence to sustain the juvenile court’s
determination that the conditions leading to the Children’s removal from their
home would not be remedied, they do not raise any challenge to the juvenile
court’s determination that the continuation of the parent-child relationship also
posed a threat to the well-being of the Children. Therefore, juvenile court’s
order satisfies the requirements of Indiana Code section 31-35-2-4(b)(2)(B).
[12] Be that as it may, DCS presented ample evidence to support the trial court’s
ruling. The evidence shows that despite claims to the contrary, Parents have
continued to test positive for drugs and alcohol. Out of 125 offered drug
screens, Father tested positive for alcohol or controlled substances thirty-nine
times and was a “no show” forty-nine times. Tr. Vol. II, p. 94. Out of 262
offered drug screens, Mother tested positive for alcohol or controlled substances
fifty-three times and was a “no show” sixty-five times. Tr. Vol. II, p. 75.
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Although Mother has participated in multiple substance abuse treatment
programs, she has shown a pattern of relapse within a couple of weeks of
leaving the program. For his part, Father committed a burglary in a stated
attempt to go to jail because he “needed to be in a drug free environment.” Tr.
Vol. II, p. 174. Father pled guilty to this crime and at the time of the
evidentiary hearing, Father, who has an extensive criminal record, was
awaiting sentencing for his most recent conviction and was facing a term of up
to eight years of incarceration. Angela Bullock, the Children’s guardian ad
litem (“GAL”), questioned the wisdom of Father’s decision making, testifying
that “I’m not convinced that incarceration is a good plan to help your children
or your family, even for drug rehabilitation.” Tr. Vol. II, p. 185. In addition,
Parents both acknowledged that they were not in a position to care for the
Children as of the date of the evidentiary hearing and that they would require
more time before they were in a position to do so.
B. Indiana Code section 31-35-2-4(B)(2)(C)
[13] Parents also argue that DCS failed to establish by clear and convincing evidence
that termination of their parental rights is in the Children’s best interests. We
are mindful that in considering whether termination of parental rights is in the
best interests of a child, the juvenile court is required to look beyond the factors
identified by DCS and look to the totality of the evidence. McBride, 798 N.E.2d
at 203. In doing so, the juvenile court must subordinate the interests of the
parent to those of the child involved. Id. Furthermore, this court has
previously determined that the testimony of the case worker, GAL, or a court
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appointed special advocate (“CASA”) regarding the child’s need for
permanency supports a finding that termination is in the child’s best interests.
Id.; see also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
[14] Bullock testified that termination of the Parents’ parental rights was in the
Children’s best interests and additionally that it is in the Children’s best
interests to be placed in a permanent placement. Bullock further testified that
the Children “need to have a permanent placement and both parents have
somewhat testified today that they don’t have a plan right now for those
children today and maybe not next month or the next six months[.]” Tr. Vol.
II, pp. 184–85. In addition, DCS Family Case Manager Jennifer Hogan
testified that the Children were doing well in their current placements and that
the plan was for the Children to be adopted. Parents, on the other hand,
continued to struggle with stability and sobriety.
[15] The juvenile court did not have to wait until the Children were irreversibly
harmed such that their physical, mental, and social development was
permanently impaired before terminating Parents’ parental rights. See In re
C.M., 675 N.E.2d at 1140. DCS presented sufficient evidence to prove that
termination of Parents’ parental rights is in the Children’s best interests.
Parents’ claim to the contrary merely amounts to an invitation for this court to
reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
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II. Motion for Relief from Judgment
[16] Parents also contend that the trial court’s order should be set aside because a
necessary party was not given notice of the evidentiary hearing. In support,
Parents cite to Indiana Code section 31-35-2-6.5(c)(1) which provides that a
child’s parent “shall receive notice of a hearing” in proceedings related to the
termination of one’s parental rights. The term “parent” includes an alleged
father. Ind. Code § 31-9-2-88.
[17] The record reveals that approximately four days after initiating this appeal,
Parents filed a Trial Rule 60(B) motion seeking relief from the trial court’s
judgment. Trial Rule 60(B) provides that “on motion and upon such terms as
are just the court may relieve a party … from a judgment … for … any reason
justifying relief from the operation of the judgment….” It does not appear that
the trial court has ruled on Parents’ motion.2
[18] In seeking relief from the trial court’s judgment, Parents alleged for the first
time that DCS had failed to provide notice to a necessary party, i.e., the known
biological father of T.M. Parents included declarations made both by Mother
and Shane Smith, the alleged biological father of T.M., in their filing.
However, nothing in either declaration indicated that Smith had protected his
rights by establishing paternity or registering with Indiana’s Putative Father
2
The trial court’s inaction is likely explained by the fact that this court had assumed jurisdiction of the case
before the motion was filed.
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Registry. These declarations merely provided that Mother (1) believes that
Smith is T.M.’s biological father and (2) claims to have informed DCS of
Smith’s identity and alleged relationship with T.M. at the beginning of the
underlying CHINS proceeding. These declarations, however, were in direct
conflict with (1) Mother’s testimony during the evidentiary hearing that Father
is the biological father of all four of the Children and (2) evidence indicating
that Father’s paternity of T.M. was established by a paternity affidavit.
[19] DCS alleges that Parents cannot now argue that the trial court’s order should be
set aside because they invited the potential error by providing testimony and
other evidence indicating that Father was the biological father of all four
children. “[T]he ‘doctrine of invited error is grounded in estoppel,’ and forbids
a party to ‘take advantage of an error that [he] commits, invites, or which is the
natural consequence of [his] own neglect or misconduct.’” Brewington v. State, 7
N.E.3d 946, 975 (Ind. 2014) (quoting Wright v. State, 828 N.E.2d 904, 907 (Ind.
2005)) (first set of brackets added, second and third set in original). We agree
with DCS and conclude that since Parents invited the claimed error, they may
not take advantage of it.
[20] Additionally, we find it troubling that despite knowing of Smith’s identity and
alleged relationship to T.M., Parents stayed silent throughout the proceedings,
raising this issue only after the juvenile court ruled against them and they
initiated an appeal. Such behavior suggests an attempt by Parents to
manipulate the system. If we were to permit such behavior, the children
involved—all of whom require stability and finality—would undoubtedly suffer.
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[21] The judgment of the juvenile court is affirmed.
Baker, J., and Kirsch, J., concur.
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