K.T. v. Ind. Dep't of Child Servs. (In re O.G.)

• Decision Date: 21 October 2020
• Docket Number: Court of Appeals Case No. 20A-JT-271
• Citation: 159 N.E.3d 36
• Parties: IN RE the Termination of the Parent-Child Relationship of: O.G. II (Minor Child) and K.T. (Mother) K.T. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner
• Court: Indiana Appellate Court

159 N.E.3d 36

IN RE the Termination of the Parent-Child Relationship of: O.G. II (Minor Child)andK.T. (Mother)K.T. (Mother), Appellant-Respondent,

v.Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals Case No. 20A-JT-271

Court of Appeals of Indiana.

FILED October 21, 2020

Attorney for Appellant: Megan Shipley, Marion County Public Defender Agency, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Robert J. Henke, Deputy Attorney General, Indianapolis, Indiana

Vaidik, Judge.

Case Summary

[1] In 2016, the trial court terminated the parent-child relationship between K.T. ("Mother") and O.G. II ("Child"). We reversed, noting the significant improvements Mother had made since the Department of Child Services (DCS) became involved. On remand, Mother's stability continued. However, DCS made only minimal efforts to reunite Mother and Child, and Child largely refused to interact with Mother, having grown close with his foster family over the years. As a result, DCS again petitioned to have Mother's rights terminated, and the trial court again granted DCS's petition. And again, we reverse. While we fully acknowledge that leaving his foster family and reunifying with Mother will be very difficult for Child, a child's resistance to reunification is simply not a legitimate reason to terminate the rights of a willing and able natural parent. We remand this matter to the trial court with instructions to accomplish a prompt reunification of Mother and Child.

Facts and Procedural History

CHINS Proceedings and First Termination (2011-2016)

[2] The facts that follow are taken largely from our opinion reversing the first termination of rights. See In re O.G. , 65 N.E.3d 1080 (Ind. Ct. App. 2016), trans. denied . Mother and O.G. ("Father") (collectively "Parents") are the biological parents of Child, born in April 2011.¹ In May 2011, DCS removed Child from Parents and placed him in foster care after receiving a report that Child had been left with a family friend who could not contact Mother. The following month, the trial court adjudicated Child to be a Child in Need of Services (CHINS) after Mother admitted there was a history of domestic violence between her and Father, that she tested positive for recent marijuana use, and that Father had pending criminal charges.

[3] Following the 2011 CHINS adjudication, Mother worked toward reunification with Child and made significant progress. She ended her romantic relationship with Father in 2012. She obtained safe, stable housing and maintained employment. She completed a 26-week domestic-violence course and was successfully discharged from home-based case management. She sought a mental-health evaluation and participated in treatment for anxiety and depression. She made positive progress in her home-based therapy. No concerns were ever identified regarding Mother's parenting abilities. Mother has two younger children, neither of whom have been removed or investigated by DCS. Mother visited Child consistently until the Court terminated visits in 2015. These visits were "always positive," with Mother and Child being "comfortable" together and having a "secure attachment." Tr. Vol. V p. 68.

[4] Despite Mother's progress, DCS consistently hindered any reunification efforts. In August 2012, Child—who was sixteen months old—was placed in Mother's care for a trial period. DCS removed Child in November, incorrectly alleging Mother had broken a no-contact order by allowing Father to visit Child. Child was placed back in Mother's care by court order a week later but was removed for the final time and placed back in foster care in May 2013 by DCS after Mother—following the DCS safety plan given to her—called the police after Father broke into her residence and assaulted her.

[5] In June 2014, DCS moved Child from his foster home and into the home of C.L. and A.L., a pre-adoptive foster family. That same month, the trial court changed the permanency plan to adoption. Soon after, the foster parents reported that Child exhibited poor behavior after his visits with Mother, including screaming, throwing objects, and worsening bathroom behavior, although the FCM continued to report that Child was happy during the visits. In July, DCS filed a petition to terminate Parents' rights. Shortly thereafter, the foster family filed a petition to adopt Child in the Marion County probate court. In February 2015, DCS moved to dismiss the termination case (for reasons not clear in the record), which the trial court granted. However, the adoption case remained pending.

[6] The trial court suspended Mother's parenting time in March 2015. In May 2015, DCS filed another termination petition. The termination hearing was held over three days in January and February 2016. On April 28, 2016, the trial court issued an order terminating Parents' rights. Father filed a notice of appeal on May 17. The next day, May 18, an "Adoption Summary Addendum" that had been prepared by a DCS case manager on May 9 was filed in the adoption case. The document indicated—correctly as of May 9 but incorrectly as of May 18—that there was no appeal pending. It also said that DCS consented to and recommended the adoption of five-year-old Child by his foster parents. Immediately after receiving the DCS document, the adoption court set the adoption hearing for June 10. On May 24, Mother filed her own notice of appeal in the termination case. Nonetheless, the adoption hearing went forward as scheduled on June 10. The same day, the adoption court issued an order granting the adoption and approving a name change for Child. Child was told he was adopted, and the foster family held an adoption party for him.

[7] On June 16, the foster parents moved to set aside the adoption order, given the termination appeal. They indicated that their attorney had contacted DCS on May 31 to inform DCS of the June 10 adoption hearing and was not made aware of the termination appeal. They said that they did not learn about the appeal until June 15. The adoption court granted the motion, and the adoption case was put on hold. However, Child was not told that the adoption had been set aside until almost a year later.

[8] In December 2016, this Court reversed the termination of parental rights, holding there was insufficient evidence supporting the termination. See In re O.G. , 65 N.E.3d 1080. Regarding Mother, we noted that any reasons for Child's removal and continued placement outside the home—domestic violence, drug use, instability, and concerning mental health—had been addressed and improved by Mother. In fact, "Mother did precisely what DCS had hoped for—she learned and benefitted from the services they provided her." Id. at 1091. As such, there was no clear and convincing evidence that these issues could not be remedied. Furthermore, the record was entirely devoid of evidence that the parent-child relationship was a threat to Child's well-being. "The evidence in the record [was] unanimous" that Mother and Child had a "strong bond" and Mother showed good parenting abilities until her parenting time was suspended in March 2015. Id. at 1094. We noted that the decision to deny Mother's parenting time despite her substantial progress was "DCS setting her up for failure[.]" Id. at 1094. While acknowledging the hardship Child had been through and his need for stability, we stated "that need cannot trump a parent's fundamental constitutional right to parent her child; nor can it trump the substantial bond that still existed between Mother and Child." Id. Therefore, we could not say that the evidence supported the termination of Mother's rights.

Second Termination Proceedings (2016-present)

[9] Following our 2016 opinion, no substantial progress toward reunification was made by DCS. The permanency plan was changed to reunification in February 2017. At this point, Mother had not seen Child in almost two years, yet her repeated requests for parenting time were denied—and would continue to be denied for all of 2017. The Child and Family Team—consisting primarily of the FCM, Child's service providers, the guardian ad litem, the foster parents, and Mother—instead planned for Child to begin therapy with DCS therapist Kristy Walters, with the stated goal of "rebuilding a relationship with [Mother]." Tr. Vol. III. p. 45. This therapy continued for almost a year, with little progress made toward reunification. The bulk of Walters's therapy sessions focused on teaching Child "coping skills." Id. at 48. Walters reported Child seemed "avoidant" and "unsure" when discussing Mother and his biological family. Id. at 47. After therapy began, the foster family reported that Child was exhibiting behavioral issues, including physical aggression, emotional outbursts, and increased agitation.

[10] As early as May 2017, the trial court ordered the parties to prepare Child for parenting time "after the next hearing" and to generate a specific plan as to how the parenting time would occur, and ordered DCS and Walters to provide Mother with regular updates on Child. Ex. Vol. I p. 241. However, Walters continued to not recommend parenting time—despite knowing DCS was waiting on her approval and instructions on how to proceed—and did not provide Mother with regular updates. Furthermore, the Child and Family Team failed to generate a specific plan regarding parenting time, as they were waiting on Walters's recommendation. The trial court reiterated the order for a parenting-time plan in August 2017, but again no plan was created. That month—six months after the plan changed to reunification—Walters showed Child pre-recorded videos of Mother. When Child did not react positively toward this progression, Walters ceased all attempts of communication between Mother and Child.

[11] In October 2017, the Child and Family Team began "getting frustrated with [Walters's]" lack of progress and sought other opinions. Tr. Vol. IV p. 231. Dr. Laura McIntire evaluated...