MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 03 2018, 10:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Steven J. Halbert Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Patricia C. McMath
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary December 3, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of T.M. (Minor 18A-JT-694
Child) Appeal from the Marion Superior
and Court
The Honorable Gary Chavers,
T.S. (Mother) and W.M. Judge Pro Tempore
(Father),
The Honorable Scott B. Stowers,
Appellants-Respondents, Magistrate
v. Trial Court Cause No.
49D09-1612-JT-1244
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bailey, Judge.
Case Summary
[1] T.S. (“Mother”) and W.M. (“Father”) appeal the trial court judgment
terminating their parental rights to their child, T.M. (“Child”).
[2] We affirm.
Issues
[3] The parties raise the following issues on appeal:
I. Whether the termination of their parental rights must be
reversed because the trial court failed to complete the
termination hearing within 180 days of the date the
termination petition was filed.
II. Whether the trial court clearly erred when it terminated
Father’s1 parental rights to Child.
Facts and Procedural History
[4] Child was born on August 2, 2015. On September 3, 2015, the Indiana
Department of Child Services (“DCS”) filed a petition alleging Child was a
Child in Need of Services (“CHINS”) because Mother and Father had
1
Mother appeals only the failure to complete a hearing within 180 days of the termination of parental rights
petition; she does not otherwise challenge the termination of her parental rights.
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substance abuse issues, mental health issues, and unstable housing. Father
admitted to the CHINS allegation that he “has mental health concerns that are
in need of treatment,” and Mother waived her right to a fact-finding hearing.
Appellant’s App. at 23. The trial court adjudicated Child to be a CHINS on
September 17.
[5] On October 15, the trial court held a dispositional hearing at which Child was
removed from her parents’ care, and Mother and Father were ordered to engage
in home-based therapy, parenting assessments, psychological evaluations, and
random drug screenings. DCS also referred Father to home-based case
management services. Parents were authorized to have supervised parenting
time. On January 14, 2016, the dispositional decree was modified and both
parents were ordered to participate in domestic violence services. Home-based
services were subsequently closed due to the lack of the parents’ participation.
Services to Mother were re-referred five to six times due to lack of
communication and lack of stable housing. Father was also inconsistent in his
participation in services. Father had housing, but not housing appropriate for
Child.
[6] On December 23, 2015, Father’s parenting time was suspended, and, on
January 14, 2016, it was reinstated under the condition that Father resume
taking his medication. On March 3, 2016, Father’s parenting time was
suspended again until such time as his then-existing arrest warrant was cleared.
In approximately December of 2016, Father was incarcerated in Illinois, and,
pursuant to Indiana Evidence Rule 201, we take judicial notice that his
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projected parole date is March 27, 2020.
https://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last
visited November 14, 2018).
[7] On December 16, 2016, DCS filed a petition to terminate both parents’ rights to
Child (“TPR petition”) and the court held an initial hearing. The court held a
pretrial hearing on the TPR petition on February 24, 2017, at which both
parents appeared by counsel. At that hearing, “[t]he parties agree[d] to set this
matter for trial,” and the court set the trial for June 20, 2017, with no objection
from either parent. Appellant’s App. at 19. On May 5, new counsel entered an
appearance for Father and did not object to the hearing set for June 20.
[8] On June 19, 2017, Mother and Father filed a joint motion to convert the fact-
finding hearing scheduled for June 20, 2017, to a pretrial conference because
Father had not been served with a Ten Day Notice of Hearing, and, because
Father had been recently moved to a new correctional facility, his counsel could
not confirm Father’s availability for trial. On June 20, the trial court granted
the motion and, with both parties’ counsel present in court, set the trial for
September 20, 2017. Neither counsel for Mother or Father moved to dismiss
the TPR petition.
[9] On September 20, 2017, Mother and Father appeared by counsel for trial.
Mother moved to continue the trial because she had recently been placed in a
rehabilitation program in Evansville. Father joined in the motion because he
wanted DCS to consider placement of Child with paternal Grandmother. The
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trial court granted the motion to continue and set the trial for November 1,
2017, without objection or motion to terminate the TPR petition. On October
30, 2017, Mother filed a Motion to Dismiss pursuant to Indiana Code Section
31-35-2-6, arguing the TPR petition should be dismissed because the fact-
finding hearing was not completed within 180 days of the petition being filed.
The trial court denied the motion on October 31.
[10] The trial on the TPR petition was held on November 1, 2017, and January 2,
2018. On March 6, 2018, the trial court granted the TPR petition and found in
relevant part as follows:
***
21. Michael Johnson of Inspired Transformation was
[Father’s] Home-Based Case Worker and also facilitated
supervised parenting time in June 2016 until [Father’s]
incarceration in late 2016.
22. During the time that Mr. Johnson was working with
[Father], Father had housing, but not housing appropriate for the
child.
23. [Father] began a Domestic Violence Assessment.
However, he stopped attending after a couple of sessions and he
failed to complete this service.
24. Mr. Johnson observed an altercation between [Father] and
[Mother] which began as an argument and soon escalated to a
scuffle or fight inside of a motor home.
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25. [Father] missed approximately nine visits with the child
during Mr. Johnson’s time on the case. At no point did [Father]
ever progress to unsupervised parenting time.
***
32. Regina Barnett-Johnson, then of Capital City, provided
Home Based Therapy and supervised parenting time for
[Mother], and later became Mother’s Home Based Case
Manager, since January or February 2016.
***
34. During one parenting time session with Ms. Barnett-
Johnson, [Mother] and [Father] got into a fight in the presence of
the child.
***
40. The child is placed in a preadoptive foster home where she
is bonded and doing well. She has her own room and refers to
the foster mother as “mom.” She has been in this placement for
approximately two years.
41. In September 2017, [Mother’s home-based therapist] drove
[Mother] to Evansville[,] Indiana to a “detox” facility. It was a
30 day program. However, after 4 days, [Mother] notified FCM
Wilson that she would be unable to stay in Evansville and she left
that facility.
42. The child had been removed from her parents’ care and
custody under a dispositional decree for at least six (6) months
prior to this termination petition being filed on December [16],
2016.
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43. There is a reasonable probability that the conditions that
resulted in the child’s removal and continued placement outside
of the home will not be remedied by her parents. [Mother] and
[Father] have had well over two years to put forth an effort and
have not done so. After extensive referrals, [Mother] is still
unable to parent the child effectively. Her parenting skills are not
sufficient to care for the child. She has been unable to address
her substance abuse issues despite being offered many services[,]
including a 30 day detox stay in Evansville[,] Indiana. [Father] is
presently incarcerated and has not participated in services. He
has no housing, stability[,] or employment upon his release. Nor
did he have stable and appropriate housing prior to his
incarceration. Prior to his incarceration, [Father] was
inconsistent in participation in services.
44. Continuation of the parent-child relationship poses a threat
to the child’s well being in that it would serve as a barrier to
obtaining permanency for her through an adoption when her
parents are unable to do so. [Mother’s] ability to parent and her
ability to make safe decisions has not been demonstrated.
Neither parent has made meaningful progress in over two years
and neither parent is capable of meeting the child’s needs.
45. Termination is in the child’s best interests. Termination
would allow her to be adopted into a safe and permanent home
where her needs will be safely met.
46. There [exists] a satisfactory plan for the future care and
treatment of the child, that being adoption.
47. The Guardian ad Litem agrees with the permanency plan
of adoption as being in [Child’s] best interests.
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IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED that the parent-child relationship between [Child]
and [Mother] and [Father] is hereby terminated.
Appellant’s App. at 24-26. This appeal ensued.
Discussion and Decision
Timing of Fact-Finding Hearing
[11] Mother and Father challenge the trial court’s denial of the motion to dismiss
the TPR petition for untimeliness of the fact-finding hearing. Indiana Code
Section 31-35-2-6 states:
(a) Except when a hearing is required after June 30, 1999, under
section 4.5 of this chapter, the person filing the petition shall
request the court to set the petition for a hearing. Whenever a
hearing is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than ninety (90)
days after a petition is filed under this chapter; and
(2) complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under this
chapter.
(b) If a hearing is not held within the time set forth in subsection
(a), upon filing a motion with the court by a party, the court shall
dismiss the petition to terminate the parent-child relationship
without prejudice.
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[12] Here, the fact-finding hearing was not completed within 180 days—i.e., by June
14, 2017—after the filing of the TPR petition. Rather, it was completed on
January 2, 2018, 381 days after the petition was filed, and the parents contend
that they are entitled to dismissal on that basis. However, the parents have
waived this argument because, at the February 24, 2017, pre-trial hearing, they
acquiesced to a hearing date of June 20, 2017, i.e., six days past the 180-day
deadline. At that time, neither parent filed a motion to dismiss the TPR
petition for failure to set a timely fact-finding hearing; in fact, neither parent
expressed any disagreement at all with the date of the fact-finding hearing.
Moreover, the parents subsequently filed motions to continue the hearing date
even further. Therefore, the parents acquiesced to the fact-finding hearing date
and thereby waived their right to challenge that date. See C.G.G. v. Ind. Dep’t of
Child Servs. (In re N.C.), 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (holding
Father waived his right to challenge the setting of the TPR fact-finding hearing
date when he had initially agreed to a date beyond the 180-day deadline).
Termination of Father’s Parental Rights
Standard of Review
[13] Father maintains that the trial court’s order terminating his parental rights was
clearly erroneous. We begin our review of this issue by acknowledging that
“[t]he traditional right of parents to 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
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interests of the parents to those of the child when evaluating the circumstances
surrounding a termination. Schultz v. Porter Cty. 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.
[14] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove, among other things:
(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) [and] that termination is in the best interests of the child . . . .
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Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements
of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.
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).
[15] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Office 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 Cty. Office of Family & Children (In re L.S.), 717 N.E.2d 204, 208
(Ind. Ct. App. 1999). trans. denied.
[16] Here, in terminating Father’s parental rights, the trial court entered specific
findings. When a trial court’s judgment contains special findings and
conclusions, we apply a two-tiered standard of review. Bester v. Lake Cty. 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
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and inferences support the trial court’s decision, we must affirm. In re L.S., 717
N.E.2d at 208.
[17] Father contends that the trial court erred when it concluded that he will not
likely remedy the conditions that resulted in Child’s removal and that the
continuation of the parent-child relationship poses a threat to the well-being of
Child.2 Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the
disjunctive, we only address whether the trial court erred in concluding that
continuation of the parent-child relationship poses a threat to Child.
Continuation of the Parent-Child Relationship
[18] Father maintains that the trial court’s conclusion that continuation of the
parent-child relationship would pose a threat to Child is not supported by the
evidence. However, Father’s argument on this point is simply a request that we
reweigh the evidence, which we cannot do. In re D.D., 804 N.E.2d at 265.
Instead, we must determine whether the evidence most favorable to the
judgment supports the trial court’s conclusion. Id.; Quillen, 671 N.E.2d at 102.
We hold that it does.
[19] The trial court’s conclusion is supported by the following evidence. At the time
Child was removed from the home, both parents had substance abuse issues,
mental health issues, and unstable housing. Appellant’s App. at 24. At no
2
Father does not challenge the conclusion that termination is in the best interests of Child.
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point during the pendency of the CHINS or TPR actions or at the time of the
TPR hearing did Father have housing that was appropriate for Child. In fact, at
the time of the TPR hearing, Father was incarcerated, with his first chance for
parole being over two years later. Also during the pendency of the CHINS
action, Mother and Father engaged in domestic violence in the presence of
Child, prompting the trial court to order Father to participate in domestic
violence services. Although Father began those services, he stopped attending
after a couple of sessions and failed to complete them. Father also failed to
complete other ordered services, such as home-based services. Father missed
approximately nine visits with Child before he was incarcerated, and Father
never progressed to unsupervised visitation. Moreover, Father has no housing
or employment arranged after he is released from incarceration. And the
Guardian ad Litem agreed that Child’s adoption was in her best interest. All of
this evidence clearly supports the trial court’s conclusion that continuation of
the Father-Child relationship would pose a threat to Child.
[20] A trial court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that her physical, mental, and social growth is permanently
impaired before terminating the parent-child relationship. Shupperd v. Miami
Cty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). When the evidence shows that the emotional and physical development
of a child in need of services is threatened, as it does here, termination of the
parent-child relationship is appropriate. Id.
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Conclusion
[21] Mother and Father have waived their right to challenge the timeliness of the
TPR hearing by acquiescing to a hearing date beyond the 180-day deadline
contemplated in Indiana Code Section 31-35-2-6. And the trial court’s
conclusion that continuation of the Father-Child relationship would pose a
threat to Child was supported by the evidence.
[22] Affirmed.
Bradford, J., and Brown, J., concur.
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