Termination the Parent-Child Relationship S.L. v. Ind. Dep't of Child Servs.

• Decision Date: 05 November 2013
• Docket Number: No. 85A02–1304–JT–308.,85A02–1304–JT–308.
• Citation: 997 N.E.2d 1114
• Court: Indiana Appellate Court
• Parties: In the Matter of the Termination of the Parent–Child Relationship of S.L. & D.L. (Minor Children) and K.M., (Mother) & D.L., (Father), Appellants/Respondents, v. The INDIANA DEPARTMENT OF CHILD SERVICES, Appellee/Petitioner.

997 N.E.2d 1114

In the Matter of the Termination of the Parent–Child Relationship of S.L. & D.L. (Minor Children)andK.M., (Mother) & D.L., (Father), Appellants/Respondents,

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

No. 85A02–1304–JT–308.

Court of Appeals of Indiana.

Nov. 5, 2013.

Benjamin D.R. Vanderpool, Vanderpool Law Firm, P.C., Warsaw, IN, Attorney for Appellants.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Christine Redelman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

In late 2011 and early 2012, a trial court held three hearings to determine whether K.M.'s (“Mother”) and D.L.'s (“Father”) parental rights to their son and daughter should be terminated. The State presented its evidence at the first two hearings, and Mother presented her evidence at the third hearing. Father was incarcerated in federal prison and federal authorities would not allow him to attend the hearings or participate by phone. The parties agreed that Father would receive a transcript of the State's evidence against him (the first two hearings) and he would have two months to respond through counsel. After receiving the transcript of the State's evidence, Father chose not to respond or present additional evidence.

The trial court ultimately terminated Mother's and Father's parental rights. On appeal, Mother and Father challenge the sufficiency of the trial court's findings. They also challenge the court's conclusion that the conditions resulting in the children's removal from their care will not be remedied. We conclude that the trial court's findings of fact are sufficient and the evidence warrants termination in this case. Father also argues, belatedly, that his due-process rights were violated because he was not permitted to attend the hearings and was not given a transcript of the third hearing, at which Mother presented her evidence. But Father makes this due-process argument for the first time on appeal; thus, this argument is waived. Waiver aside, Father agreed to this procedure and was ably represented by counsel throughout the proceedings. Father fails to establish how he was prejudiced—much of Mother's evidence overlapped with the State's evidence, and Father received a transcript of the State's evidence. And he makes no argument that the outcome would have been different had he also received a transcript of the third hearing, at which Mother presented her evidence. We affirm.

Facts and Procedural History

In early 2011, Mother took four-year-old D.L. and three-year-old S.L. to a Wabash County Department of Child Services (“WCDCS”) office. She told WCDCS employees that she could not care for the children and that in frustration, she had struck D.L. in the face. WCDCS took custody of the children and filed a petition alleging that they were children in need of services (“CHINS”).

Mother admitted the CHINS allegations. At a separate hearing, Father also admitted the allegations. At the time, Father, who had been convicted of child molesting, was incarcerated.¹ He was released at the end of January 2011. To facilitate reunification with the children, Mother and Father were ordered not to use drugs and to participate in a variety of services, including substance-abuse assessments, random drug screens, individual counseling, parenting assessments, and other home-based services. The parents were also ordered to participate in supervised parenting time with the children.

Father was sent back to prison shortly after his release for violating the terms of his parole. While he was incarcerated, Mother obtained a protective order against him based on allegations of past domestic violence. Mother also claimed that Father had sexually molested the parties' older daughter K.H., and Mother said she worried that he might molest S.L. or D.L. Based on these allegations and Father's child-molesting conviction, WCDCS filed a motion to suspend Father's parenting time. The trial court granted the motion.

Mother's participation in services was sporadic and ultimately unsuccessful. Several times, Mother tested positive for marijuana, methamphetamine, and synthetic drugs. Mother failed to complete individual counseling, home-based services, and the required parenting assessment. She also failed to attend supervised parenting time regularly. WCDCS filed a petition to terminate Mother's and Father's parental rights.

Father was released from prison again in February 2012. One month later he was arrested at Mother's home for violating the protective order and failing to register as a sex offender. He was incarcerated for the duration of the termination proceedings.

The trial court heard evidence on the termination petition over two days in August and September 2012 and a third day in February 2013. WCDCS requested that Father be transported to court for the hearings or allowed to participate by phone, but those requests were denied by federal authorities.² Before the first hearing, WCDCS, Mother, Mother's counsel, and Father's counsel met with the trial court to discuss alternate ways in which Father could participate. The parties ultimately agreed that WCDCS would present its evidence at the first and second hearings, and the trial court would then have a transcript prepared and sent to Father, who would have two months to review the transcript and communicate with counsel. Mother would present her evidence at the third hearing.

At the first two hearings, WCDCS presented evidence regarding the parents' troublesome relationship and their failure to complete services. Specifically, Mother continued to be involved with Father despite his child-molesting conviction and her belief that he had molested one of their children.³ She referred to him as a “sick, sick man” who “has a problem masturbating to children.” Tr. p. 93, 147. Mother also failed to successfully complete court-ordered services and used drugs, particularly marijuana, throughout the termination proceedings, despite being ordered not to do so. According to Mother, marijuana was a “friend, family member, a way of life.” Id. at 59. When asked if she would stop smoking marijuana, Mother said she did not know. Id. at 152.

Father made a similar lack of progress toward reunification. He completed a parenting assessment, but no other services. Service providers testified that they could not work with Father due to his repeated incarceration. When Father received the transcript of the evidence presented by WCDCS, he indicated that he did not intend to “present any additional evidence in opposition to what had been previously testified to at the hearing[s].” Id. at 161.

Mother's circumstances had changed by the third hearing. She was incarcerated on drug-related charges and awaiting trial, but she was able to attend the hearing. She told the court that she had participated in some drug-related services in prison and now understood that she could not smoke marijuana. Mother again referred to Father as a threat to children, but when asked if she would cut ties with Father in the future, she gave conflicting answers. Id. at 186–97. She asked the trial court to “hold off” on terminating her parental rights. Id. at 180.

In March 2013, the trial court terminated Mother's and Father's parental rights. Appellants' App. p. 21–24. Mother and Father now appeal.

Discussion and Decision

On appeal, Father argues that his due-process rights were violated because he was not permitted to attend the termination hearings and was not given a transcript of the third hearing, at which Mother presented her evidence. Jointly, Mother and Father challenge the sufficiency of the trial court's findings and the court's conclusion that the conditions resulting in the children's removal will not be remedied.

I. Due Process

Father argues that his due-process rights were violated because he was not permitted to attend the termination hearings and was not given a transcript of the third hearing, at which Mother presented her evidence. But Father did not challenge this procedure at the trial level; instead, he raises his due-process argument for the first time on appeal.

The State must satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution when it seeks to terminate the parent-child relationship. Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind.Ct.App.2006) (citation omitted), trans. denied. Due process in parental-rights cases involves the balancing of three factors: (1) the private interests affected by the proceeding; (2) the risk of error created by the State's chosen procedure; and (3) the countervailing government interest supporting the use of the challenged procedure. In re C.G., 954 N.E.2d 910, 917 (Ind.2011) (citing A.P. v. Porter Cnty. Office of Family & Children, 734 N.E.2d 1107, 1112 (Ind.Ct.App.2000), reh'g denied, trans. denied.). The private interest affected by the proceeding is substantial—a parent's interest in the care, custody, and control of his or her child. Id. (citation omitted). And the State's interest in protecting the welfare of a child is also substantial. Id. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS's actions and the trial court's actions. Id.

Any procedural irregularities in a CHINS proceeding may be of such significance that they deprive a parent of procedural due process with respect to the termination of his or her parental rights. A.P., 734 N.E.2d at 1112–13. Nevertheless, a parent may waive a due-process claim in a CHINS or termination proceeding by raising that claim for the first time on appeal. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 194–95 (Ind.Ct.App.2003); see also In re K.S., 750 N.E.2d 832, 834 n. 1 (Ind.Ct.App.2001) (by raising issue for first time on appeal, mother waived...