T.H. v. Ind. Dep't of Child Servs. (In re R.H.)

• Decision Date: 19 May 2016
• Docket Number: No. 49A04–1509–JC–1402.,49A04–1509–JC–1402.
• Citation: 55 N.E.3d 304
• Parties: In re the Matter of R.H. (Minor Child) Child in Need of Services and T.H. (Mother), Appellant–Respondent, v. The Indiana Department of Child Services, Appellee–Petitioner.
• Court: Indiana Appellate Court

55 N.E.3d 304

In re the Matter of R.H. (Minor Child) Child in Need of ServicesandT.H. (Mother), Appellant–Respondent

v.The Indiana Department of Child Services, Appellee–Petitioner.

No. 49A04–1509–JC–1402.

Court of Appeals of Indiana.

May 19, 2016.

Danielle L. Gregory, Indianapolis, IN, Attorney for Appellant.

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

Case Summary and Issue

ROBB

, Judge.

[1] R.H. was adjudicated a child in need of services (“CHINS”) shortly after her birth. During the CHINS proceedings, the Marion County Department of Child Services (“DCS”) filed a motion seeking an order that reasonable efforts to reunify R.H. and T.H. (“Mother”) were not required. The juvenile court issued such an order on August 17, 2015, and thereafter held a permanency hearing on September 15, 2015, and changed the permanency plan for R.H. from reunification to adoption. Mother appeals the no reasonable efforts order, raising one issue for our review: whether the juvenile court's order finding that reasonable efforts to reunify the family are not required violated her rights under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“RA Section 504”). Concluding the juvenile court did not violate Mother's rights in finding DCS was not required to make reasonable reunification efforts, we affirm.

Facts and Procedural History

[2] Mother gave birth to R.H., her eleventh child, on November 2, 2014.¹ None of Mother's children are in her custody. Her parental rights to two of her children were involuntarily terminated in 2006 and 2007, respectively, and at least three of her children were adopted by others. At the time of R.H.'s birth, a CHINS proceeding was in progress with regard to two of Mother's other children. Mother had no permanent residence, instead residing in various motels with her mother and step-father, and she had not been employed since 2007.

[3] DCS took R.H. into custody immediately after her birth and filed a petition alleging R.H. was a CHINS five days later. Following a joint initial and detention hearing, the juvenile court determined that “it is contrary to [R.H.'s] welfare to remain [in] the care [of Mother]” and that “reasonable efforts have been made to prevent or eliminate the need for removal based on the numerous services offered [to Mother] in other cases....” Transcript at 8. The juvenile court therefore ordered R.H.'s continued placement in foster care with supervised parenting time between Mother and R.H. DCS recommended Mother complete clinical and parenting assessments and cooperate in home-based case management and therapy. Mother began weekly therapy and supervised visits in late 2014 or early 2015.

[4] The juvenile court held a fact-finding hearing on April 21, 2015, at which Mother did not appear. DCS stated at the beginning of the fact-finding hearing that it intended to file a motion seeking a reasonable efforts exception. Several DCS service providers testified, including family case managers Ashley Butler–Panter and Alice Mann, and Mother's therapist and visitation supervisor, Tammy Bush. Mother had completed the parenting assessment with Bush, although Bush testified she “didn't really get a lot of information out of the assessment” due to Mother's inability to focus and answer questions. Id. at 49. Mother was also participating in therapy with Bush, but Bush felt that although continued therapy might help Mother function better in her own life, it would not assist Mother in learning to take care of her children. Bush described Mother as “very loving towards [R.H.]” during visitation, but expressed concerns about Mother's lack of awareness of safety issues (such as needing to be reminded at each visit to use the belt on the changing table when changing R.H.'s diapers), her inability to multitask (such as managing R.H. while also handling diapers and wipes), and her difficulty judging things such as when and how much R.H. needs to eat. Id. at 53–54. Ultimately, Bush did not feel continued services would lead to reunification:

[S]he's been involved with DCS for a very long time and ... you guys have offered her multiple services over the years that haven't been successful because she's chosen not to follow through and she feels that she can do it herself. In some ways she's very street wise. In some ways, she's very innocent. But the bottom line is she's homeless. She has no money. She has no job. She doesn't want to apply for SSI. She doesn't want our help with her case work. She doesn't want our help with finding a job or filing for SSI.

Id. at 71. At the conclusion of the hearing, the juvenile court adjudicated R.H. a CHINS.

[5] On May 7, 2015, DCS filed a Motion for No Reasonable Efforts Exception. The motion alleged the parent-child relationship between Mother and two of R.H.'s half-siblings had been involuntarily terminated, two of Mother's children had been placed in the custody of their fathers, and six of Mother's children had been adopted. The motion requested the juvenile court find that reasonable efforts to reunify Mother with R.H. were not required pursuant to Indiana Code section 31–34–21–5.6(b)(4) and (5)

. The juvenile court held a hearing on the motion over two days in June 2015 and a third day in August 2015. Bush testified much as she had at the fact-finding hearing that although Mother was “very loving and very kind” during visitations with R.H., she has to be reminded of the same things every week, such as using the belt on the changing table and feeding R.H. appropriately. Id. at 96. “She tries really hard but it is just her knowledge and her skills aren't good enough to parent safely on her own.” Id. at 97. Although Mother had been briefly employed during these proceedings, by the final day of the hearing, she was no longer employed, she was still moving from place to place, and it remained difficult for service providers and case workers to reach her on any given day. Bush did not believe, whether services continued for six months or a year, that Mother would ever have the skills and judgment to care for R.H. At the conclusion of the hearing, the juvenile court took the matter under advisement and set a hearing for September that would either be a dispositional hearing or a permanency hearing depending on the court's ruling on DCS's motion for a reasonable efforts exception.

[6] On August 17, 2015, the juvenile court entered an order granting DCS's motion, finding that reasonable efforts to reunify Mother and R.H. are not required because

Mother has been repeatedly offered services with regard to [R.H.] and with regard to her older children. Services have repeatedly closed unsuccessfully because of Mother's lack of participation or inability to make progress. Additionally, Mother has cognitive limitations that inhibit her ability to make progress in the therapy she has recently participated in. Mother has been homeless for at least two and a half years and has been unemployed since 2007 until recent employment at McDonald's. Mother is no longer employed and her housing continues to be unstable. Mother has resisted the efforts of service providers to assist her with locating housing and applying for disability.

Appendix of Appellee at 4. The juvenile court suspended Mother's parenting time and set a permanency hearing for September 15, 2015.

[7] Following the permanency hearing, the juvenile court issued an order changing the permanency plan from reunification to adoption. Mother filed a notice of appeal the same day.

Discussion and Decision

I. Appealable Order

[8] The sole issue raised by Mother on appeal is whether the juvenile court erred in granting DCS a reasonable efforts exception. DCS asserts that Mother's appeal is premature and should be dismissed because there is not yet a dispositional order.

[9] A CHINS proceeding is initiated when DCS requests the juvenile court authorize the filing of a petition alleging the child is a CHINS. Ind.Code § 31–34–9–1

. The juvenile court must authorize the filing of a petition if it finds probable cause to believe the child is a CHINS. Ind.Code § 31–34–9–2. Unless the parents admit the allegations of the petition, the juvenile court must hold a fact-finding hearing within sixty days. Ind.Code § 31–34–11–1. If the court finds that a child is a CHINS, it must enter judgment accordingly, order a predisposition report, and schedule a dispositional hearing. Ind.Code § 31–34–11–2. The dispositional hearing is to be held within thirty days of finding the child is a CHINS. Ind.Code § 31–34–19–1(a). At the dispositional hearing, the court must consider the alternatives for the child's care, treatment, rehabilitation, or placement and the necessity, nature, and extent of the parent's participation. Id. The juvenile court must enter written findings and conclusions in its dispositional decree and may, among other things, order supervision of the child by DCS, place the child in another home, award wardship of the child to DCS, or order the child's parents to complete family services recommended by DCS. Ind.Code §§ 31–34–19–10 ; 31–34–20–1. Periodic review and permanency hearings must be conducted. Ind.Code §§ 31–34–21–2 (review hearings at least every six months); 31–34–21–7 (permanency hearings at least every twelve months). Ordinarily, DCS is required to make reasonable efforts during the CHINS proceedings to preserve or reunify the family. Ind.Code § 31–34–21–5.5. At any phase of a CHINS proceeding, however, the juvenile court may make a finding that reasonable efforts to reunify a child with her parent are not required. Ind.Code § 31–34–21–5.6.

[10] We have held that the dispositional decree is the final appealable order from a CHINS proceeding because it finally determines the rights of the parties. In re J.V., 875 N.E.2d 395, 399 (Ind.Ct.App.2007)

, trans. denied. All the other proceedings...