B.A. v. Ind. Dep't of Child Servs. (In re C.A.)

• Decision Date: 12 August 2014
• Docket Number: No. 55A04–1401–JT–37.,55A04–1401–JT–37.
• Citation: 15 N.E.3d 85
• Parties: In re the Termination of the Parent–Child Relationship of C.A., L.A., and M.A. (Minor Children) and B.A. (Mother) and J.A. (Father), Appellants–Respondents, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee–Petitioner.
• Court: Indiana Appellate Court

15 N.E.3d 85

In re the Termination of the Parent–Child Relationship of C.A., L.A., and M.A. (Minor Children) and B.A. (Mother) and J.A. (Father), Appellants–Respondents

v.The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee–Petitioner.

No. 55A04–1401–JT–37.

Court of Appeals of Indiana.

Aug. 12, 2014.

Pamela Siddons, Siddons Law Office LLC, Mooresville, IN, Attorney for Appellant B.A.

Glen E. Koch II, Boren, Oliver & Coffey, LLP, Martinsville, IN, Attorney for Appellant J.A.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, David E. Corey, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE

, Judge.

Case Summary

B.A. (“Mother”) and J.A. (“Father”) appeal the trial court's termination of their parental rights to their three children, C.A., L.A., and M.A. Both parents challenge the sufficiency of the evidence supporting the termination order. Mother also argues that her due process rights were violated because she neither was given nor signed a case plan. Finding the evidence sufficient as to both parents and no due process violation, we affirm.

Facts and Procedural History

Mother and Father were married and had three children: daughters C.A. and M.A., born in May 2004 and June 2005, and son L.A., born in December 2007. From October 2011 through January 2012, Father sold methamphetamine to a confidential informant. During some of the exchanges, Mother and the children were present. On February 29, 2012, the State charged the parents with various drug and child neglect offenses, and they were subsequently arrested and incarcerated. The Department of Child Services (“DCS”) learned of the arrest and placed the children in foster care. The next day, DCS filed a petition alleging that the children were Children in Need of Services (“CHINS”) because of the parents' arrest and incarceration. The parents denied the petition.

At the initial hearing on March 14, 2012, the trial court adjudicated the children as CHINS upon the parents' admission that they were unable to care for them. In the trial court's April 2012 dispositional decree, the parents were ordered to, among other things, contact the DCS family case manager (“FCM”) on a weekly basis; enroll in programs recommended by DCS; maintain suitable, safe, and stable housing; maintain a legal and stable source of income; not use any illegal controlled substance; ensure that the children are engaged in counseling; complete a substance abuse assessment; submit to random drug screens; and provide the children with a safe and secure environment.

In July 2012, Mother pled guilty to class D felony neglect of a dependent. She was sentenced to an executed term and probation but was released based on time served. In October 2012, Father was convicted of class B felony dealing in methamphetamine. He was sentenced to fourteen years, with ten years executed and four years of probation.

On October 24, 2012, a review hearing was held in the CHINS proceeding. At the hearing, the trial court heard evidence that following Mother's release from jail in July 2012, she secured employment at Grandview Nursing Home. Additionally, Mother was attending required therapy sessions and classes, and the parents were having regular contact with the children. Although Father's contact was constrained because of his incarceration, Mother was having regular visits with the children. According to the trial court: “Overall the progress of the case at this time seemed to be going well towards the goal of reunification.” Mother's App. at 15.

At an October 22, 2012 team meeting,¹ the participants learned that Mother was living with a convicted felon who had prior DCS contacts. Mother was informed that she could not live with this person if she intended on seeing the children at the residence they shared. Mother became angry and told the team that she was entitled to a life. Also in October 2012, Father was transferred from the Morgan County Jail to the Department of Correction (“DOC”) and no longer received services from DCS.

At a December 17, 2012 team meeting, the participants learned that Mother had lost her job and that she was not willing to look for another unless her counselor drove her. Additionally, Mother was to begin unsupervised visitation with the children but expressed anxiety over being unsupervised with them. Nevertheless, during the few partially supervised visits that Mother had with the children, they began to “trust” her again and felt safe. Id. at 16.

On January 4, 2013, Mother was arrested for a probation violation. On January 8, 2013, DCS filed notice regarding Mother's failed drug test for her use of amphetamine and methamphetamine. Mother's probation was revoked, and she was released sometime around the end of April 2013.

The court-appointed special advocate (“CASA”) filed a report stating that after November 1, 2012, Mother had missed approximately one-third of her scheduled visits with the children. The report also stated that there was no progress toward reunification. Likewise, DCS stated that the parents had made no progress since November 2012.

At the May 22, 2013 permanency hearing, the CASA informed the trial court that C.A. was having trouble with her peers, foster parents, and siblings. C.A. expressed anger at Mother for telling her that she would never use drugs again and stated that she fears going home. M.A. and L.A. were doing well in foster care, and M.A. stated that she wished to remain there. M.A. had written letters to Father and was processing issues of Mother returning to jail. Similarly, L.A. was working through fears involving his parents' incarceration. Overall, following Mother's arrest for violating probation, the children did not trust Mother and did not feel safe with her.

While Mother was in jail for violating her probation, she continued services and was completing the assignments given to her. After Mother's release, she continued to attend counseling, remained drug free, and was searching for employment.

Father was also working hard from prison but felt helpless because of his incarceration. Notwithstanding this fact, Father had indicated that he might be released later in the year and wanted the opportunity to prove himself as a parent. Father was involved in the purposeful incarceration program, which permits time reductions. If Father had successfully completed the program, he could have been released as early as November 2013. According to Father, however, he was “kicked out” of the program because he wrote a letter to his sister that Mother read and interpreted as being threatening to her and her boyfriend. Tr. at 156.

On June 3, 2013, the trial court issued a permanency order in which it found that Father, if “released later this year,” should be given a chance to reunite with the children. DCS Ex. 10. The trial court further found that Mother had stabilized and was “trying to right her ways.” Id. Nevertheless, the trial court observed that “little to nothing ha[d] improved since [the case] began” and approved concurrent permanency plans of reunification and adoption. Id.

On July 23, 2013, DCS filed termination petitions as to all three children, and the trial court appointed a CASA in each case. On October 7, 2013, a review hearing was held in the CHINS proceeding and an initial hearing was held in the termination proceeding. During the review hearing, it was shown that Mother was no longer employed by the nursing home, where she had previously worked, and that she had not been visiting with the children. During the termination portion of the hearing, Father stated that his release date is March 5, 2017, and that he had lost his “credit time.” Tr. at 20

. The parents denied the allegations in the petitions to terminate their parental rights. The factfinding hearing was set for December 16,2013.

At the start of the hearing, Father's counsel raised the issue that DCS had neglected to file a report, which was a problem because there was to be a review hearing in the CHINS proceeding before the factfinding hearing in the termination proceeding. Father's counsel objected, and Mother's counsel concurred, arguing that if DCS was going to continue the review hearing because it had not filed its report, then the factfinding hearing should be reset as well. Father's counsel maintained that he needed to review what was in that report. The trial court concluded that the testimony that was in the report would be elicited at the hearing and that the witness list had been the same during the entire proceeding. Consequently, the court denied Father's request to postpone the hearing.

Regarding Mother, evidence was introduced that at first, DCS had referred her to services to address parenting issues and substance abuse. As time passed, and Mother no longer abused drugs, the services focused on parenting skills, life skills, budgeting, and transportation. Mother met with her service provider but did not follow up. By the time of the termination hearing, Mother was not meeting the provider because she had moved too far away.

Through probation, Mother completed an intensive outpatient program and another substance abuse program. DCS referred Mother to individual therapy, but she did not complete it. When Mother's therapist changed, she said that she did not want to continue therapy. Further, Mother did not follow through with housing, budgeting, or transportation. Mother appeared to be moving toward reunification in December 2012, but she began missing visits with the children and violated probation by testing positive for drugs. This relapse had a negative impact on the children, who were just starting to trust Mother again.

As to Father, he had remained incarcerated since his initial March 2012 arrest. During Father's incarceration in the Morgan County Jail, he had participated in individual counseling and had good evaluations. However, Father was transferred to the DOC in October 2012, and DCS did not refer services.² Father testified that...