In re the Termination of the Parent-Child Relationship of: C.M. and R.M. (Minor Children), and R.M. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Feb 16 2018, 9:06 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Carlos I. Carrillo Curtis T. Hill, Jr. Greenwood, Indiana Attorney General of Indiana

Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the February 16, 2018 Parent-Child Relationship of: Court of Appeals Case No. 79A02-1708-JT-2024 C.M. and R.M. (Minor Children), Appeal from the Tippecanoe Superior Court and The Honorable Faith A. Graham, R.M. (Father), Judge Appellant-Respondent, Trial Court Cause Nos. 79D03-1702-JT-15 v. 79D03-1702-JT-16

The Indiana Department of Child Services, Appellee-Petitioner.

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Barnes, Judge.

Case Summary [1] R.M. (“Father”) appeals the termination of his parental rights to his children,

C.M. and R.M. (collectively, “Children”). We affirm.

Issues [2] Father raises three issues, which we restate as:

I. whether the evidence is sufficient to support the termination of his parental rights;

II. whether the trial court abused its discretion by denying Mother’s motion to continue; and

III. whether DCS filed its petition to terminate parental rights too early.

Facts [3] Father and S.M. (“Mother”) had two children, C.M., who was born in

December 2009, and R.M., who was born in November 2013. In March 2014,

the Department of Child Services (“DCS”) filed a petition alleging that the

Children were children in need of services (“CHINS”) due to Father and

Mother’s heroin and marijuana usage and because R.M. tested positive for

cocaine and marijuana. The trial court found that the Children were CHINS,

and they were placed in foster care. In October 2015, the Children were

returned to Father’s care, and the CHINS case was closed. At that time,

Mother was incarcerated for a burglary charge.

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-JT-2024 | February 16, 2018 Page 2 of 17 [4] In December 2015, Father snorted spice while he was in his van in an alley with

the Children. C.M. saw him put a brownish-green substance up his nose.

Father then had a seizure, and C.M. had to obtain help at a nearby gas station.

R.M. told investigators that “Daddy is dead.” Ex. Vol. I p. 36. Father was

arrested for resisting law enforcement and neglect of a dependent. The

Children were again placed in foster care, and DCS filed a second CHINS

petition. In February 2016, Father tested positive for amphetamine,

buprenorphine, norbuprenorphine, morphine, and marijuana. A week later, he

tested positive for buprenorphine and norbuprenorphine. After a fact-finding

hearing, the trial court again found that the Children were CHINS. The trial

court ordered Father to participate in visitation, participate in home-based case

management and follow all recommendations, follow all recommendations of a

previous substance abuse assessment, participate in an intensive outpatient

program (“IOP”) and follow all recommendations, participate in individual

therapy and follow all recommendations, and submit to random drug screens. [5] In May 2016, DCS filed a rule to show cause. At a hearing, Father admitted

that he had failed to maintain contact with DCS, failed to attend a visitation,

and failed to participate in any services ordered by the trial court. The trial

court found Father to be in contempt but suspended his sentence as long as

Father was compliant with all court orders. Father eventually began

participating in services in August 2016. [6] On October 26, 2016, the trial court held a permanency hearing. At that time,

the trial court ordered Father to participate in a sexual abuse assessment due to

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sexualized behaviors exhibited by C.M., a parenting assessment, and a relapse

prevention or aftercare program after he finished the IOP. The trial court also

ordered Father to have no contact with Mother. At that permanency hearing,

the trial court noted: “Court shall not authorize DCS to file a Petition to

Terminate Parental Rights for a period of ninety (90) days from today’s

hearing.” Ex. Vol. I p. 13. [7] The trial court held another permanency hearing on November 14, 2016. The

trial court found that the objectives of the dispositional decree had not been

accomplished and ordered Father to participate in the same services that it had

ordered in October 2016. The trial court again noted: “Court shall not

authorize DCS to file a Petition to Terminate Parental Rights for a period of

ninety (90) days from today’s hearing.” Id. at 11. [8] At a permanency hearing on January 30, 2017, the trial court approved a

permanency plan of initiation of proceedings for termination of the parent-child

relationship. On February 8, 2017, DCS filed a petition to terminate Father’s

and Mother’s parental rights to the Children. [9] A hearing on the petition was held in May 2017. At the start of the hearing,

Mother requested that the hearing be continued to give her time to be released

from jail and start services. Father joined in the motion, but the trial court

denied it. The trial court entered findings of fact and conclusions thereon

granting DCS’s petition to terminate the parental rights of both Father and

Mother. Regarding Father, the trial court found:

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18. Father was himself a victim of verbal, physical, and sexual abuse during his childhood. Father was expelled from high school and later obtained a GED. Father is currently employed at Subaru through a temporary agency although he failed to provide copies of paystubs until recently. Father does not have a valid driver’s license.

19. Father completed a Pre-Trial Diversion Agreement for Theft (Class D Felony) in February 2011. Father was convicted of Conversion (Class A Misdemeanor) on November 5, 2014. Father reports other criminal history involving marijuana-related arrests, theft, and illegal possession of a handgun.

20. Father has an extensive history of substance use. Father completed an intake assessment at Wabash Valley Alliance on August 9, 2016. Father acknowledged a heroin/opiate addiction and was referred for a substance abuse evaluation. Father completed a substance abuse evaluation on August 10, 2016. Father was diagnosed with Opioid Dependence and Cannabis Abuse. Prior attempts at substance abuse treatment were unsuccessful.

21. During the first CHINS case, Father did not complete outpatient substance abuse treatment but instead participated in suboxone replacement treatment. During the second CHINS case, Father participated in an intensive outpatient treatment program (IOP) and a support group but failed to attend 12 Step meetings. Father commenced IOP on September 2, 2016 and completed on December 9, 2016. During treatment, Father identified triggers and developed coping skills to address known triggers. Father has continued to regularly attend a weekly social support group at Court of Appeals of Indiana | Memorandum Decision 79A02-1708-JT-2024 | February 16, 2018 Page 5 of 17

Wabash Valley Alliance. Father also participated in counseling to address unhealthy relationships and boundaries with some progress.

22. During the second CHINS case, Father tested positive for the presence of drugs on 02/11/2016 (buprenorphine/amphetamine/morphine/marijuana) and 02/18/2016 (buprenorphine). During IOP, drug screens were collected once or twice per month with negative results. Father failed to submit to all drug screens requested including as recently as 02/13/2017 and 03/16/2017.

23. Father was found in contempt on May 16, 2016 for failure to maintain contact with DCS, failure to participate in services ordered, and failure to attend all scheduled visits. A Writ of Body Attachment was issued for Father’s failure to appear at hearing on February 8, 2017 and later recalled when Father appeared at a subsequent hearing.

24. Although Father has consistently attended visits, the level of supervision has remained fully supervised. Father currently visits every Sunday from 11:00AM to 3:00PM. Father is affectionate and bonded with the children. Father’s interactions with the children are appropriate.

25. At the onset of the second CHINS case, Father was “couch surfing” in unsuitable residences. Father obtained a one (1) bedroom apartment in which he has resided for approximately one (1) year. However, the residence is not suitable for the children for more than short visits. Although a bug infestation was eventually remedied, the cleanliness of the home still does not

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meet minimum standards at times. There are no beds for the children or the Father with the exception of a single stained mattress that should be discarded. There is not always an adequate food supply. The locking mechanism on the door does not work and is a safety hazard.

26. Despite participation in case management services, Father had difficulty maintaining a budget to meet his own expenses let alone the added cost of two (2) children. Father often utilized funds on unnecessary items leaving him unable to pay bills on time. Father was never able to purchase adequate furnishings for the home.

Appellant’s App. Vol. II pp. 72-73. Father now appeals.1

Analysis I. Sufficiency of the Evidence

[10] Father challenges the termination of his parental rights to the Children. The

Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. In re

I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,

custody, and control of his or her children is ‘perhaps the oldest of the

fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

1 Mother does not appeal the trial court’s order.

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most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of

course, that parental interests are not absolute and must be subordinated to the

child’s interests when determining the proper disposition of a petition to

terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

the parents are unable or unwilling to meet their parental responsibilities.’” Id.

(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied). [11] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. Id. We consider only the evidence and

reasonable inferences that are most favorable to the judgment. Id. We must

also give “due regard” to the trial court’s unique opportunity to judge the

credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

court entered findings of fact and conclusions thereon in granting DCS’s

petition to terminate Father’s parental rights, as required by Indiana Code

Section 31-35-2-8(c). When reviewing findings of fact and conclusions thereon

entered in a case involving a termination of parental rights, we apply a two-

tiered standard of review. First, we determine whether the evidence supports

the findings, and second, we determine whether the findings support the

judgment. Id. We will set aside the trial court’s judgment only if it is clearly

erroneous. Id. A judgment is clearly erroneous if the findings do not support

the trial court’s conclusions or the conclusions do not support the judgment. Id. [12] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

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the court shall terminate the parent-child relationship.” Indiana Code Section

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

involving a child in need of services must allege, in part:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

DCS must establish these allegations by clear and convincing evidence. Egly v.

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

A. Changed Conditions

[13] Father challenges the trial court’s finding of a reasonable probability that the

conditions resulting in the Children’s removal or the reasons for placement

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outside Father’s home will not be remedied.2 In making this determination, the

trial court must judge a parent’s fitness to care for his or her child at the time of

the termination hearing and take into consideration evidence of changed

conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

The trial court must also “evaluate the parent’s habitual patterns of conduct to

determine the probability of future neglect or deprivation of the child.” Id. [14] On this issue, the trial court concluded:

There is a reasonable probability the conditions that resulted in the removal of the children from the home or the reasons for continued placement outside the home will not be remedied. Neither parent has demonstrated the ability or willingness to make lasting changes from past behaviors. There is no reasonable probability that either parent will be able to maintain stability to care and provide adequately for the children.

Appellant’s App. Vol. II p. 73.

2 Father also argues that the trial court’s conclusion that the continuation of the parent-child relationship poses a threat to the well-being of the Children is clearly erroneous. Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. Subsection (b)(2)(B)(iii) is inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing evidence a reasonable probability that either: (1) the conditions that resulted in the Children’s removal or the reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to the well-being of the Children. The trial court found a reasonable probability that the conditions that resulted in the Children’s removal and continued placement outside Father’s home would not be remedied, and there is sufficient evidence in the record to support the trial court’s conclusion. Thus, we need not determine whether there was a reasonable probability that the continuation of the parent-child relationship poses a threat to the Children’s well-being. See, e.g., Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 79A02-1708-JT-2024 | February 16, 2018 Page 10 of 17 [15] On appeal, Father argues that he did not receive adequate services in the first

CHINS case and that he “actively engaged” in proper services in the second

CHINS case. Appellant’s Br. p. 33. According to Father, he has not had a

positive drug screen since February 2016, and substance abuse is no longer an

issue. Father contends that he has made improvements in therapy, that he had

a stable job and home, and that he was working on his financial stability. [16] The Children were initially removed from Father and Mother in March 2014

due to Mother and Father’s drug usage. Although that CHINS case was

eventually closed in October 2015 and the Children were placed with Father,

Father soon relapsed. In December 2015, Father snorted spice in a vehicle with

the Children and had a seizure. Six-year-old C.M. had to get help for Father,

R.M. feared Father was dead, and the Children were removed again. Father

had a positive drug screen in February 2016, testing positive for amphetamine,

buprenorphine, norbuprenorphine, morphine, and marijuana. A week later, he

tested positive for buprenorphine and norbuprenorphine. Although Father

claims that he last used illegal drugs in March 2016, Mother testified that

Father was using drugs between April and June 2016. As of October 2016,

DCS reported to the trial court that Father had been notified to submit to drug

screening thirty-two times and that he had submitted only seven screens. [17] Although Father was ordered to complete services, he failed to do so and was

found in contempt in May 2016. He waited until August 2016 to begin

participation in the services. Father completed a substance abuse assessment in

August 2016 and then began an IOP, which he completed in December 2016.

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However, Father missed drug screens on February 13, 2017, and March 16,

2017. He began home-based counseling in October 2017. The cleanliness of

Father’s home was “kind of like a roller coaster,” meaning that sometimes it

was acceptable but most of the time it was “below standards.” Tr. Vol. II p. 59.

He began individual therapy in November 2016 and had been making progress.

Father was continuing to work on his unhealthy relationships. Father’s current

residence was not suitable for the Children, and he continued to struggle to

resolve legal issues that resulted in the loss of his driver’s license. Although

Father was working, he continued to have financial difficulties. Father had

been visiting with the Children consistently but never progressed beyond

supervised visitations. [18] We acknowledge that Father made some progress late in the CHINS

proceedings. However, DCS properly notes that, “after almost three years of

services Father had not reached a point where relapse was unlikely, had not

obtained adequate housing or maintained the housing he had, and Father

continued to make poor financial choices which would perpetuate the risk the

Children’s needs would not be met.” Appellee’s Br. p. 25. Father cannot

simply miss drug tests and claim that he has been drug free since March 2016.

The risk for relapse is significant, and we cannot say that the trial court’s

finding regarding the reasonable probability the conditions that resulted in the

removal of the children from the home or the reasons for continued placement

outside the home will not be remedied is clearly erroneous.

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B. Best Interests

[19] Father challenges the trial court’s finding that termination of his parental rights

is in the Children’s best interests. In determining what is in the best interests of

a child, the trial court is required to look at the totality of the evidence. D.D.,

804 N.E.2d at 267. In doing so, the trial court must subordinate the interests of

the parents to those of the child involved. Id. [20] Father argues that he had been consistently visiting with the Children, showed

appropriate parenting skills, was bonded with the Children, and had made

significant improvements through services. We also acknowledge that the

Children are bonded with Father. C.M.’s therapist testified that C.M. misses

her parents and worries about them. The therapist testified, however, that it

was in C.M.’s best interest to be in a safe environment away from drug usage.

DCS presented evidence that both the family case manager and the CASA

believed that Father had not made enough progress during the CHINS

proceedings. For many months during the second CHINS proceeding, Father

failed to participate in services, was actively using drugs, and made no progress

whatsoever. Late in the CHINS proceeding, Father began participating, but

given his late participation and missed drug screens, it is unclear that Father’s

progress will be permanent. The trial court found that termination of Father’s

parental rights was in the Children’s best interests, and under these

circumstances, we cannot say that the finding is clearly erroneous.

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II. Continuance

[21] Father argues that the trial court abused its discretion by denying Mother’s

motion for a continuance of the termination hearing. A trial court’s decision to

grant or deny a motion to continue is subject to abuse of discretion review. In re

K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). “‘An abuse of discretion may be

found in the denial of a motion for a continuance when the moving party has

shown good cause for granting the motion,’ but ‘no abuse of discretion will be

found when the moving party has not demonstrated that he or she was

prejudiced by the denial.’” Id. at 244 (quoting Rowlett v. Vanderburgh Cnty. Office

of Family & Children, 841 N.E.2d 615, 619 (Ind. Ct. App. 2006), trans. denied). [22] At the May 2017 hearing, Mother requested a continuance, and Father joined

in the motion. Mother testified that she expected to be released from jail by

July 2017. She requested the continuance so that she could be released from

jail and start services. Mother does not appeal the termination of her parental

rights, and Father has not demonstrated how he was prejudiced by the denial of

Mother’s motion. Under these circumstances, we cannot say that the trial court

abused its discretion.

III. Filing of Petition to Terminate Parental Rights

[23] Father also argues that DCS’s filing of the petition to termination Father and

Mother’s parental rights was untimely. Father relies on trial court orders from

October 26, 2016, and November 14, 2016. On October 26, 2016, the trial

court held a permanency hearing. At that time, the trial court noted: “Court

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shall not authorize DCS to file a Petition to Terminate Parental Rights for a

period of ninety (90) days from today’s hearing.” Ex. Vol. I p. 13. The trial

court held another permanency hearing on November 14, 2016, and similarly

noted: “Court shall not authorize DCS to file a Petition to Terminate Parental

Rights for a period of ninety (90) days from today’s hearing.” Id. at 11. At the

next permanency hearing on January 30, 2017, the trial court approved a

permanency plan of initiation of proceedings for termination of the parent-child

relationship. On February 8, 2017, DCS filed a petition to terminate Father’s

and Mother’s parental rights to the Children. [24] The February 8, 2017 filing was eighty-six days after the November 14, 2106

hearing. Consequently, Father argues that DCS filed the petition to terminate

his parental rights too early. According to Father, the trial court “lacked

jurisdiction to grant said petition.” Appellant’s Br. p. 40. [25] Our supreme court has “clarified ‘the nature of jurisdiction in Indiana trial

courts’ and held that the concept of ‘jurisdiction over a particular case’ has been

abolished.” Brown v. Lunsford, 63 N.E.3d 1057, 1060 (Ind. Ct. App. 2016)

(quoting R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 457 (Ind.

2012)). “Attorneys and judges alike frequently characterize a claim of

procedural error as one of jurisdictional dimension. The fact that a trial court

may have erred along the course of adjudicating a dispute does not mean it

lacked jurisdiction.” Id. (quoting K.S. v. State, 849 N.E.2d 538, 541 (Ind.

2006)).

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To act in a given case, a trial court must possess both subject matter jurisdiction and personal jurisdiction. Subject matter jurisdiction exists when the Indiana Constitution or a statute grants the court the power to hear and decide cases of the general class to which any particular proceeding belongs. Personal jurisdiction exists when a defendant both has sufficient minimum contacts within the state to justify a court subjecting the defendant to its control, and has received proper notice of a suit against him in that court.

R.L. Turner Corp., 963 N.E.2d at 457 (citing K.S., 849 N.E.2d at 538, 540). [26] Father’s claim does not implicate subject matter jurisdiction or personal

jurisdiction. Rather, this is a claim of procedural error, which is subject to

waiver. K.S., 849 N.E.2d at 542. Father did not raise this objection with the

trial court, and it is waived. [27] Further, we note DCS argues on appeal that it does not need permission of the

trial court to file a petition for termination of parental rights, and Father cites no

authority for the proposition that DCS does need such permission. Father’s

argument is also waived for failure to make a cogent argument. See Ind.

Appellate Rule 46(A)(8)(a).

Conclusion [28] The evidence is sufficient to support the termination of Father’s parental rights

to the Children. The trial court did not abuse its discretion by denying

Mother’s motion to continue, and Father has waived his argument that DCS’s

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filing of the petition to terminate Father’s parental rights was premature. We

affirm. [29] Affirmed.

Najam, J., and Mathias, J., concur.

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