T.J. v. Ind. Dep't of Child Servs. (In re D.C.)

Decision Date10 June 2020
Docket NumberCourt of Appeals Case No. 19A-JT-2832
Citation149 N.E.3d 1222
Parties In the MATTER OF the Involuntary Termination of the Parent-Child Relationship of D.C., Jr. (Minor Child) T.J. (Mother) and D.C. (Father), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioner.
CourtIndiana Appellate Court

Attorney for Appellant T.J.: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana

Attorney for Appellant D.C.: Kimberly A. Jackson, Indianapolis, Indiana

Attorneys for Appellee: Robert J. Henke, David E. Corey, Deputy Attorneys General, Indianapolis, Indiana

Bailey, Judge.

Case Summary

[1] D.C. ("Father") and T.J. ("Mother") appeal the order terminating their parental rights to D.C., Jr. ("Child"). Father alleges that the Putnam County Department of Child Services ("DCS") failed to present sufficient evidence to support the termination of his parental rights. Having identified sufficient evidence as to Father, we affirm the termination of his parental rights. With respect to Mother, the termination of her parental rights was predicated on Mother's written consent. As to her consent, there is no dispute that Mother received eight out of nine statutory advisements before she signed a consent form. However, there is equivocal evidence about whether Mother received the ninth advisement, which specifies that consent cannot be based upon promises regarding adoption or post-termination contact. Mother argues that she is entitled to reversal because there is inadequate evidence of consent. We agree that reversal is appropriate, and we remand with instructions for further fact-finding regarding whether Mother received the ninth statutory advisement.

Facts and Procedural History

[2] Child was born to Mother and Father on December 22, 2013. In December 2017, DCS filed a petition alleging that Child was a Child in Need of Services ("CHINS") due to neglect. Specifically, DCS alleged that it received a report that Mother was using methamphetamine in the home. DCS alleged that it contacted Mother, who submitted to a drug screen, and that Mother tested positive for methamphetamine. DCS alleged that Mother was on probation for a methamphetamine-related offense. DCS further alleged that Father was incarcerated and that it was unable to locate a suitable kinship placement. DCS ultimately removed Child from Mother's care and placed Child in foster care.

[3] An initial hearing was held on December 21, 2017, at which Mother and Father admitted to the CHINS allegations. The court adjudicated Child a CHINS, ordered that Child remain in foster care, and scheduled separate dispositional hearings for Mother and Father. DCS filed a Pre-Dispositional Report in which it recommended that the permanency plan for Child be reunification with services for Mother and Father. Following a dispositional hearing as to Father, the trial court entered a dispositional order on May 23, 2018. Therein, the trial court ordered Father to contact the Family Case Manager ("FCM") weekly. The court further ordered that "[i]f a program or programs is/are recommended by the [FCM] or other service provider," Father must "enroll in that program [in] a reasonable time, not to exceed thirty (30) days and participate in the program as scheduled by that program without delay or missed appointments. If required to obtain an assessment, [Father must] arrange to complete that assessment within thirty (30) days." Ex. Vol. 3 at 57. The court also ordered Father to—among other things—(1) keep all appointments with service providers; (2) refrain from using illegal substances; (3) submit to random drug screens; (4) complete a substance-abuse assessment and successfully complete all treatment recommendations; (5) attend all scheduled visitations with Child and comply with all visitation rules and procedures; (6) secure and maintain a stable source of income; and (7) maintain safe and stable housing.

[4] In the ensuing months, Child remained in foster care with supervised visits. On February 18, 2019, the trial court found that Mother and Father had not been fully compliant with the case plan. The trial court entered an order changing the permanency plan to reunification with a concurrent plan of adoption.

[5] On March 14, 2019, DCS filed a petition to terminate Mother's and Father's parental rights. A fact-finding hearing commenced on May 23, 2019, and concluded on August 27, 2019. Mother was not present at the August 2019 hearing, at which the court received a signed form titled "Voluntary Relinquishment of Parental Rights." App. Vol. 2 at 84. Mother's counsel said that he met with Mother and "went over the rights and obligations and what she – the results of voluntary termination with her prior to signing it. And she did sign the voluntary termination in front of me and acknowledged her signature in front of the court reporter ...." Tr. Vol. 2 at 29. The court then inquired about Mother's absence. Mother's counsel said that Mother was not present because she "became physically ill after she signed it." Id. The court then orally granted DCS's request to terminate Mother's parental rights, noting that it would "show ... that she signed the voluntary relinquishment of her rights with her attorney, and her attorney is present here today and had an opportunity to speak with her." Id. at 32. Fact-finding resumed as to Father.

[6] At the fact-finding hearing, there was evidence that Father pleaded guilty to committing Level 6 felony Auto Theft in 2016 and received a 545-day sentence that was fully suspended to probation. On December 13, 2017—around the time Child was removed from Mother's care—Father admitted to violating the conditions of his probation. Specifically, Father admitted that he (1) committed Class A misdemeanor Driving While Suspended; (2) failed to timely contact his probation officer when he was charged with that offense; (3) failed to report to five scheduled probation appointments; (4) was dishonest with his probation officer about using illegal drugs; and (5) submitted urine screens that tested positive for illegal drugs in February, March, and April of 2017. As to the drug screens, two of the screens tested positive for amphetamine, methamphetamine, and marijuana—the third drug screen tested positive for marijuana. Father's probation was revoked and he was ordered to serve 180 days in jail.

[7] Father was released from jail in early 2018. FCM David Fissell ("FCM Fissell") testified that Father participated in a substance-abuse assessment at Cummins on March 6, 2018. That assessment did not result in treatment recommendations for Father. There was evidence that Father subsequently tested positive for methamphetamine in May 2018, "so the case manager at the time pursued services with Cummins." Tr. Vol. 2 at 67. FCM Fissell testified that Father "became non-compliant with services and was discharged" from Cummins. Id. At some point before October 2018, the FCM at the time referred Father for an intake with a different service provider, Hamilton Center, "to see if there were barriers regarding not only the substance uses but also ... stability, home stability, coping skills, if he has had past trauma." Id.

[8] In the fall of 2018, Father was charged with Class A misdemeanor Theft, reportedly committed on October 12, 2018. Father was incarcerated from November 15, 2018, until January 7, 2019. He later pleaded guilty to the October 2018 Theft and to a count of Class B misdemeanor Possession of Marijuana concerning conduct in August 2017. For the Theft, Father was sentenced to one year in jail, with the sentence fully suspended to probation.

[9] When Father was released in January 2019, he contacted the FCM assigned at the time and "said he wanted to get started back up in the services." Id. at 57. The FCM explained that Father needed to go to Hamilton Center to complete the intake. Father went to Hamilton Center around January 17, 2019, and was told that the referral had expired. The FCM then put in a new referral.

[10] Father had positive drug screens throughout the proceedings. On May 1, 2018, Father tested positive for amphetamine and methamphetamine. On July 16, 2018, Father tested positive for THC. On July 30, 2018, and again on August 2, 2018, Father tested positive for amphetamine, methamphetamine, and THC. On October 15, 2018, Father testified positive for buprenorphine. On May 23, 2019, Father "tested positive for marijuana." Tr. Vol. 2 at 75. On July 14, 2019, Father declined to submit to a drug screen. At the time, he did not explain why, he "just shook his head that he wouldn't screen ...." Id. at 72.

[11] There was evidence that Father was inconsistent in attending supervised visits. After cancellations and no-shows from Father and Mother, in February 2019 the service provider began requiring the parents to confirm visits in advance. For the next two months, Father failed to contact the service provider to set up a visit. Father also missed a visit in the week prior to the August 2019 fact-finding hearing. At no point did Father progress to unsupervised visits.

[12] FCM Fissell agreed that it was a "common theme" that Father would express interest in participating in services but would ultimately not follow through. Id. at 71. When asked about services, Father said that he participated in the Cummins intake and "was ordered to take another one for whatever reason, which [he] had not got[ten] around to doing." Id. at 36. Father said, "I just haven't got[ten] to it." Id. at 104. He testified as follows: "I don't see the need to do[ ] something two and three and four times. Nothing really has changed that much that would significantly change what I need in my life." Id. at 105.

[13] On September 25, 2019, the court entered a written order terminating Mother's and Father's parental rights. The court entered certain findings as to Mother:

Upon the presentation and admission into evidence of a
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