MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 17 2019, 8:41 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT J.L. ATTORNEYS FOR APPELLEE
Michael B. Troemel Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General
ATTORNEY FOR APPELLANT S.B. Katherine A. Cornelius
Deputy Attorney General
Steven Knecht
Indianapolis, Indiana
Vonderheide & Knecht, P.C.
Lafayette, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the May 17, 2019
Parent-Child Relationship of Court of Appeals Case No.
D.J.S.L. (Minor Child) and J.L. 18A-JT-2630
(Father) and S.B. (Mother) Appeal from the
J.L. (Father) and S.B. (Mother), Tippecanoe Superior Court
The Honorable
Appellants-Respondents,
Faith A. Graham, Judge
v. Trial Court Cause No.
79D03-1712-JT-132
Indiana Department of Child
Services,
Appellee-Plaintiff
Vaidik, Chief Judge.
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Case Summary
[1] J.L. (“Father”) and S.B. (“Mother”) (collectively, “Parents”) appeal the
termination of their parental rights to D.J.S.L. (“Child”). We affirm.
Facts and Procedural History
[2] The undisputed facts are set forth in the trial court’s order. 1 Child was born in
July 2009 and suffers from autism, delayed speech, and a sensory-processing
disorder. In May 2016, Parents and Child were living together in West
Lafayette when the Indiana Department of Child Services (DCS) received a
report alleging that Parents were using or manufacturing methamphetamine in
their house and that Child’s special needs were not being met. DCS workers
went to the house to investigate and spoke with Mother. Mother claimed that
she was not involved in manufacturing methamphetamine, that “the DEA
showed up due to [Father] buying pseudoephedrine and manufacturing
methamphetamine,” and that she was “working with the DEA to help locate
[Father].” DCS Ex. 1. Mother told DCS workers that she believed Father was
“hiding from the police somewhere up north.” Id. Child remained in Mother’s
care, and Family Case Manager (FCM) Casey Langston requested that Mother
and Child submit to hair-follicle tests. Mother took Child for a hair-follicle test
but did not submit to one herself. The result of Child’s hair-follicle test showed
1
Because neither Mother nor Father challenges the trial court’s findings of fact, we accept them as true. See
Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
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that Child was positive for methamphetamine use or exposure. FCM Langston
informed Mother of the positive result and required that Mother submit to a
hair-follicle test in order for Child to remain in her care. Mother agreed to be
tested but never actually completed a hair-follicle test.
[3] For the next two weeks, FCM Langston was unable to find Mother or Child.
On June 8, DCS obtained a court order to take custody of Child when he was
located. Two days later, FCM Langston spoke with Mother’s doctor, who said
that Mother called his office to let him know “that she is in the witness
protection program living with a sheriff in Louisiana.” Id. On June 15, DCS
obtained Mother’s address in Louisiana and arranged to take Child into
custody. Louisiana’s Department of Child and Family Services located Child,
placed him in foster care, and learned that a criminal investigation had been
opened due to Child being molested by one of Mother’s neighbors in Louisiana.
The neighbor, a registered sex offender, was arrested. On June 17, FCM
Langston traveled to Louisiana and brought Child back to Indiana. The next
day, he was placed in foster care.
[4] On June 20, DCS filed a petition alleging that Child was a child in need of
services (CHINS). Father’s whereabouts were unknown. In July, the court
authorized DCS to serve Father by publication. In September, the court held a
fact-finding hearing on the CHINS petition. Mother appeared by phone, and
Father did not appear. Following the hearing, the court adjudicated Child a
CHINS and issued a dispositional order requiring Parents to participate in
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reunification services. Child remained in foster care. Mother stayed in
Louisiana and intermittently participated in services there.
[5] In June 2017, Mother returned to Indiana and was referred to home-based case
management, individual therapy, and supervised visitation. When Mother
arrived in Indiana, she was homeless. Kaylynn Ranspach, a clinical therapist
with Wabash Valley, assessed Mother and diagnosed her with major depressive
disorder and generalized anxiety. Ranspach referred Mother to Jade Brack, a
therapist at Wabash Valley, for individual therapy. Brack saw Mother once on
July 17, 2017, and recommended that Mother attend biweekly counseling.
Mother failed to show for any additional appointments. Then, from October to
November, Mother was incarcerated for a previous charge, unrelated to the
CHINS case. After she was released, Mother did not secure her own housing
and stayed with friends in Lafayette and Attica.
[6] In December 2017, DCS filed a petition to terminate Parents’ parental rights to
Child. Father’s whereabouts were still unknown. However, DCS had received
information that Father was living in Natchitoches, Louisiana, and requested
permission to serve him by publication. The court granted DCS’s request, and
DCS published notice three times in the Natchitoches Times. The notice stated
that Father’s termination hearing was scheduled for March 1, 2018. See
Father’s App. Vol. II p. 22 (notice of Father’s termination hearing was
published on December 30, 2017; January 6, 2018; and January 13, 2018).
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[7] In January 2018, Mother began seeing Soledad Kardin-Smith, a therapist with
Lifeline, for individual therapy to help with anxiety and depression. Sometime
after Mother began attending therapy, she secured her own apartment in
Crawfordsville. The trial court held a fact-finding hearing on DCS’s
termination petition on March 1, the date indicated in the published notice. At
the hearing, the court emphasized that any evidence DCS wished to present
“regarding [Father] must be concluded today.” Tr. Vol. II p. 40. DCS called
FCM Shalonda Haskins, who testified that DCS attempted to find Father using
an investigator but that they were unable to locate him. FCM Haskins stated
that she contacted Father’s relatives, and none of his relatives had seen or
talked to him. FCM Haskins explained that because DCS did not have valid
contact information for Father, DCS served Father by publication in the
underlying CHINS case and in the termination proceeding. FCM Haskins said
that Father had not completed or engaged in any services and that he had not
visited Child since Child was removed from Parents’ care in June 2016. FCM
Haskins testified that she believed Father would be a threat to Child because
Father has “been accused of producing meth in a home where [Child] was
residing.” Id. at 69. FCM Haskins stated that termination of Father’s parental
rights is in Child’s best interests because Father “has not demonstrated the
ability to care for his son, to protect his son, to provide an environment that
would be safe for his son.” Id. at 70. FCM Haskins said that DCS’s plan is for
Child to be adopted. Due to time constraints, the fact-finding hearing was
continued to hear evidence regarding Mother.
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[8] The fact-finding hearing resumed on May 25, and Father appeared in the
custody of the Tippecanoe County Sheriff. Father had been arrested on May 15
and was in custody awaiting trial for criminal charges in Montgomery County.
See 54D01-1805-F6-1292. Father explained to the court that he had never
appeared at any hearing whatsoever. The court advised Father of his rights in a
termination proceeding, including the right to an attorney, and explained that
DCS had presented evidence against him on the first day of the fact-finding
hearing. Father then requested to be represented by an attorney. The court
explained:
[G]iven where we are in this stage the Court is considering
appointing perhaps a standby counsel to give you at least a little
bit of advice. . . . And the status of the circumstances related to
having already been served notice and . . . having heard the
testimony in your absence and default judgment potentially
entered with regard to your absence here, because we haven’t
heard from you at all in the CHINS case, so I don’t know what
your intention is. . . . So what I am inclined to do is perhaps
appoint[] counsel to at least give you a bit of advice about where
you stand legally and then see if that counsel has any particular
motions. . . . So, I’m happy to find an attorney to at least give
you a little bit of advice before we resume back with further
testimony. Is that [what] you’d like the Court to do?
Tr. Vol. II pp. 86-87. Father agreed, and the court appointed attorney Ladona
Sorenson as Father’s “standby counsel.” After conferring with Father for thirty
minutes, Attorney Sorenson told the court that Father’s understanding was that
his parental rights had been already terminated, which is why he had not
appeared before that day. Attorney Sorenson moved to continue the hearing so
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that she could review the case. DCS and Child’s Court Appointed Special
Advocate (CASA) objected to a continuance. After some discussion, Attorney
Sorenson told the court, “Your honor, my client has indicated that he wants me
to withdraw that request for a continuance and to just proceed today as
scheduled.” Id. at 92. The court asked Father if he wished to proceed that day,
and Father said yes. See id. at 93.
[9] The court then proceeded to hear evidence, and DCS called Erica Eades, a
case-manager from Arisings, which provided supervised visitation for Mother
and Child. Eades testified that in the last month Mother had started to turn
things around but her biggest concern is “making sure that [Mother] can
maintain housing long-term.” Id. at 138. Desiree Brown, one of Mother’s
other visitation providers, also testified that Mother had lived at five different
places since she began working with her. Dottis Rausch, Child’s CASA,
testified that Mother “has recently started engaging in services and taking more
action to address her mental health needs.” Id. at 187-88. However, CASA
Rausch stated that she recommended termination of parental rights and
adoption because Mother had not demonstrated long-term stability and had not
fully addressed her mental-health issues. CASA Rausch said that she had not
had any contact with Father. FCM Haskins also testified that termination of
Mother’s parental rights is in Child’s best interests. See id. at 239. Father
testified that he was still married to Mother and did not want to testify against
her. Father acknowledged that when he was living in Natchitoches, Louisiana,
he had received a notification that DCS had sent him some certified mail but
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said that he “never went and bothered to pick it up” from the post office. Id. at
199. Regarding his absence from the termination proceedings, Father said that
he did not appear because Mother told him that Child was in foster care and
that his parental rights had already been terminated. In September 2018, the
court issued its order terminating Parents’ parental rights.
[10] Father and Mother separately appeal.
Discussion and Decision
[11] Parents make two separate arguments on appeal. Father argues that the trial
court erred by not appointing him counsel, and Mother argues that the
termination of her parental rights is not in Child’s best interests.
I. Appointment of Counsel
[12] Father contends that the trial court erred by not appointing him counsel.
Specifically, he argues that “he should have been appointed a lawyer to
represent him, and not given a ‘standby lawyer’ to advise him ‘a little bit.’”
Father’s Br. p. 11.
[13] Indiana’s law governing juvenile-court procedures provides that “[a] parent is
entitled to representation by counsel in proceedings to terminate the parent-
child relationship.” Ind. Code § 31-32-2-5; see also Ind. Code § 31-32-4-1(2).
Because a parent has a fundamental liberty interest in the care and custody of
his or her child, we have held it is a due-process violation to remove a child
from an indigent parent “without affording that parent the right to assistance of
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court-appointed counsel.” In re C.J., 71 N.E.3d 436, 442 (Ind. Ct. App. 2017).
Therefore, a juvenile court has an obligation to appoint counsel to an indigent
parent unless that parent knowingly and voluntarily waives the right to counsel.
Ind. Code § 31-32-4-3(2).
[14] Here, once Father requested an attorney, the trial court located Attorney
Sorenson, who conferred with Father for thirty minutes and then requested a
continuance because she knew very little about the case and was not prepared
to proceed with the hearing that day. See Tr. Vol. II p. 89. After some
discussion regarding Father’s request for a continuance, Attorney Sorenson told
the court, “Your Honor, my client has indicated that he wants me to withdraw
that request for a continuance and to just proceed today as scheduled.” Id. at
92. The trial court then confirmed with Father that he did in fact want to
proceed that day. Father said yes. See id. at 93.
[15] Father’s withdrawal of his request for a continuance was fatal to his request for
counsel. That is, no attorney could have adequately represented him on the
spot or done anything more than what his “standby counsel” did. A
continuance would have been necessary to fulfill Father’s request for counsel.
Therefore, when Father withdrew his request for a continuance and told the
court that he wished to proceed with the termination fact-finding hearing that
day, he necessarily withdrew his request for “counsel” as opposed to “standby
counsel.” Accordingly, Father cannot now be heard to argue that the trial court
erred by failing to appoint “counsel.”
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II. Child’s Best Interests
[16] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.
2013). Rather, we consider only the evidence and reasonable inferences that
are most favorable to the judgment of the trial court. Id. When a trial court has
entered findings of fact and conclusions, we will not set aside the trial court’s
findings or judgment unless clearly erroneous. Id. To determine whether a
judgment terminating parental rights is clearly erroneous, we review whether
the evidence supports the trial court’s findings and whether the findings support
the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[17] A petition to terminate parental rights must allege, 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) that termination is in the best interests of the child; and
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(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court
finds that the allegations in a petition are true, the court shall terminate the
parent-child relationship. Ind. Code § 31-35-2-8(a).
[18] Mother only challenges the trial court’s conclusion that termination is in
Child’s best interests. To determine what is in child’s best interests, the trial
court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150,
1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must
subordinate the interests of the parent to those of the child. Id. We have
previously held that recommendations by both the DCS case manager and the
CASA to terminate parental rights, in addition to evidence that the conditions
resulting in removal will not be remedied, is clear and convincing evidence that
termination is in the best interests of the child. Id. at 1158-59.
[19] Mother contends that by the time of the fact-finding hearing, she had
“presented evidence of a clean, suitable home; the ability to pay her living
expenses; and excellent engagement in services.” Mother’s Br. pp. 18-19.
Mother states that it is not in Child’s best interests “to remove his mother from
his life.” Id. at 19. Mother, however, does not dispute the court’s conclusion
that the conditions that resulted in removal of Child will not be remedied
because she has not “demonstrated the ability or willingness to make lasting
changes from past behaviors.” Mother’s App. Vol. II p. 16 (emphasis added).
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While it is true that Mother recently started attending counseling and moved
into an apartment, the trial court found that “Mother’s recent engagement in
services does not overcome Mother’s historical pattern of failing to address
mental health and instability needs.” Mother’s App. Vol. II p. 15 (Finding 18).
Indeed, the trial court was well within its discretion to disregard the efforts
Mother made only shortly before termination and to weigh more heavily her
history of conduct before those efforts. See In re A.W., 62 N.E.3d 1267, 1273
(Ind. Ct. App. 2016) (“Trial courts have discretion to weigh a parent’s history
more heavily than efforts made shortly before termination, and the court may
find that a parent’s past behavior is the best predictor of future behavior.”).
Moreover, both FCM Haskins and CASA Rausch testified that termination of
Mother’s parental rights is in Child’s best interests. See Tr. Vol. II pp. 190, 239.
As such, the trial court did not err when it concluded that termination is in
Child’s best interests.
[20] Affirmed.
Kirsch, J., and Altice, J., concur.
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