In re B.J., 49A04-0706-JV-313.

Citation879 N.E.2d 7
Decision Date14 January 2008
Docket NumberNo. 49A04-0706-JV-313.,49A04-0706-JV-313.
PartiesIn the Matter of the Involuntary Termination of Parent-Child Relationship of B.J., C.W., and S.W. Karma W. and Brandon J., Appellants-Defendants, v. Marion County Department of Child Services, Appellee, Child Advocates, Inc., Guardian ad Litem.
CourtCourt of Appeals of Indiana

Anna E. Onaitis, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant, Karma W.

Barry A. Chambers, Marion County Department of Child Services, Indianapolis, IN, Attorneys for Appellee.

Amy Karozos, Indianapolis, IN, Attorney for Appellant, Brandon J.

OPINION

MATHIAS, Judge.

Karma W. ("Mother") and Brandon J. ("Father") appeal the involuntary termination of their parental rights to their respective children in Marion Superior Court. We affirm.

Issues

Mother and Father raise several issues on appeal, which we consolidate and restate as:

I. Whether the Marion County Department of Child Services ("MCDCS") failed to provide Father with proper notice of the termination hearing in violation of Indiana Code section 31-35-2-6.5;

II. Whether the trial court abused its discretion in denying Father's counsel's motion to continue thereby depriving Father of his constitutional right to due process; and,

III. Whether the trial court's termination order was clearly erroneous.

Facts and Procedural History

Mother is the biological mother of her daughters C.W., S.W., and B.J. B.J. was born on January 24, 2006. B.J. tested positive for cocaine at birth. On February 7, 2006, the MCDCS filed a petition alleging B.J. and her two sisters were children in need of services ("CHINS"). The CHINS petition alleged that "the childrens' physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of a parent . . . and the children need care, treatment, or rehabilitation that [they] are not receiving and are unlikely to be provided . . . without the coercive intervention of the Court." Ex. Vol.1-Father, p. 3.1 The CHINS petition further indicated that Mother, who was the sole legal custodian of all three children, used cocaine, had tested positive for THC during her pregnancy, and had admitted to using marijuana during her pregnancy. The CHINS petition also stated that Father had not established paternity for B.J. "nor shown an ability or willingness to appropriately parent the children at any time." Id.2

On the same day the CHINS petition was filed, both Father and Mother admitted to the allegations of the CHINS petition and the children were made wards of the MDCDS. The cause was thereafter continued, Father was ordered to submit to DNA testing and a Dispositional Hearing was scheduled for March 3, 2006.

On March 3, 2006, the trial court entered its disposition order removing the children from Father's and Mother's care. The court also entered a participation decree wherein Father and Mother were ordered to complete certain services including parenting assessments and classes, drug and alcohol assessments, substance abuse treatment and home-based counseling. Both parents were also ordered to refrain from the use of non-prescription drugs and to submit to random drug screens, and Father was ordered to submit to paternity testing.

On January 3, 2007, the MCDCS filed a petition for involuntary termination of Father's and Mother's parental rights to their respective children. The termination hearing was held on May 17, 2007. Father did not appear, but was represented by counsel. On May 21, 2007, the trial court entered an order terminating Father's and Mother's parental rights. In so doing, the trial court made the following pertinent specific findings:

FINDINGS OF FACT

* * *

5. Mother and Father were to complete services and recommendations prior to reunification. Services included a parenting assessment with follow-up recommendations and intensive outpatient treatment. Mother and Father were to maintain weekly contact with their family case manager and visit the children.

6. Mother completed her assessment and successfully completed her parenting classes. She has maintained employment through a temporary agency for at least six months. Mother lives in a three[-]bedroom home with her mother and brother.

7. Visitation between Mother and the children was consistent until the Court suspended it on August 8, 2006 for missed visits. It was reinstated over four months later and Mother has only missed once since that time.

8. Mental health treatment for depression was recommended and the family case manager relayed this to Mother, with provider information, in July of 2006. The family case manager also included reminders to Mother in letters sent during the months of January and February, 2007.

8.[sic] Mother has failed to receive mental health counseling/treatment.

9. An intensive outpatient treatment referral was made to Community Addictions Services of Indiana, Inc. "CASI" . . . in March of 2006. Although Mother attended some sessions, she was unsuccessfully discharged. Another referral was made to CASI in the summer of 2006[,] but Mother failed to attend. A third referral to CASI was rejected by CASI as a result of Mother's previous lack of participation.

10. A final intensive outpatient program referral was made through Family Services Association in March of 2007. This program was for actual addicts and met three times per week. Prior to being discharged unsuccessfully, Mother missed thirteen of twenty[-]four sessions. She either arrived at the sessions late, or left early, approximately five times. Further, she only provided proof of minimal attendance of Narcotics Anonymous and Alcoholics Anonymous meetings.

11. Based on motivation, cooperation, participation, attitude and attendance, Mother received an average monthly report grade of "C" her first month and an "F" her second month.

* * *

13. Mother blames the MCDCS family case manager for lack of services. However, other than parenting classes, Mother was provided information and referrals to services many times and failed to follow through or complete them.

14. Being overwhelmed in addressing more than one problem at a time was another reason given by Mother as to why services have not been completed, and at this time she was concentrating on work and visitation. There is no indication that Mother will be able to complete services given her history of an inability to do so in the fourteen months since services were commenced.

15. Father was progressing in services in 2006. He completed his parenting assessment and parenting classes, and was participating in intensive outpatient substance abuse treatment through CASI.

16. Home[-]based counseling was started for Father. However, Father then failed to maintain contact with his counselor and home[-]based counseling was closed out as unsuccessful. Father also failed to complete intensive outpatient treatment.

17. Both Mother and the family case manager informed Father of the date and time of this termination trial. Father still failed to appear.

18. Father has an open warrant out for battery charges. Mother is the victim.

19. Father's ability to parent is unknown at this time. Employment, if any, is unknown and Father has not produced a lease to evidence proper housing.

20. Although Father was doing well in services at one time and still visits, he has fallen into a pattern that evidences an unwillingness to finish services and be reunified with his child.

* * *

24. All three children are progressing well and their separate medical and psychological needs are being met. The children do have contact with one another and there are no plans for this to change.

25. The Court concurs with the Guardian ad Litem's position that it is always best when children can be reunified with their parents. The Court further agrees with the Guardian ad Litem that too much time has passed in this case and services have not been completed.

26. It is in the children's best interests that they be given permanency and consistent caretakers throughout childhood.

Appellant App.-Father pp. 14-15. Father filed a motion to set aside judgment on June 5, 2007. Following a hearing held on June 13, 2007, the trial court issued its order denying Father's motion. This appeal ensued.

Standard of Review

Initially, we note our standard of review. This court has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind.Ct.App.2001). Thus, 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, 264 (Ind.Ct.App.2004), trans. denied. Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment. Id.

Here, the trial court made specific findings and conclusions thereon in its order terminating Father's and Mother's parental rights. Where the trial court enters specific findings and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake County Office of Family of 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.

In deference to the trial court's unique position to assess the evidence, we will set aside the trial court's 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. A finding is clearly erroneous when there are no facts or inferences drawn therefrom that support it. In re D.D., 804 N.E.2d at 264. A judgment is clearly erroneous only if the findings do not support the trial court's conclusions or the conclusions do not support the judgment thereon. Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.1996). Thus, if the evidence and inferences support the trial court's decision...

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