Termination: K.P. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 09 2020, 8:30 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Brad J. Weber Curtis T. Hill, Jr. Decatur, Indiana Attorney General of Indiana Cara S. Wieneke Robert J. Henke Wieneke Law Office, LLC Deputy Attorney General Brooklyn, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Termination of the September 9, 2020 Parent-Child Relationship of: Court of Appeals Case No. 20A-JT-652 L.P., S.P., S.W., and S.W. Appeal from the Adams Circuit K.P. (Mother), Court Appellant-Respondent, The Honorable Chad E. Kukelhan, Judge v. Trial Court Cause No. 01C01-1909-JT-24, 01C01-1909- Indiana Department of Child JT-25, 01C01-1909-JT-26, & Services, 01C01-1909-JT-27 Appellee-Petitioner.

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STATEMENT OF THE CASE [1] Appellant-Respondent, K.P. (Mother), appeals the trial court’s Order

terminating her parental rights to her minor children, Sh.W., Sa.W., S.P. and

L.P. (collectively, Children). [2] We affirm.

ISSUE [3] Mother presents the court with one issue, which we restate as: Whether the

Department of Child Services (DCS) violated her due process rights by failing

to make adequate efforts to reunify her with Children before seeking

termination of her parental rights.

FACTS AND PROCEDURAL HISTORY [4] Mother is the biological mother of twin girls Sh.W. and Sa.W, born April 27,

2011, S.P., born July 23, 2015, and L.P., born September 7, 2016. 1 S.P. and

L.P. resided with Mother in Decatur, Indiana, while the twins lived with their

father until he died in a car crash in February 2018. Thereafter, Mother had

physical custody of all four Children. [5] Mother has an extended history of drug abuse which began when she was

introduced to drugs at the age of six by a relative who was sexually molesting

11 The twins’ father is deceased. The fathers of S.P. and L.P. do not participate in this appeal.

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her. 2 Mother accumulated seven convictions for drug possession and two

convictions for syringe possession before entering the Adams Superior Court

Drug Court on December 21, 2017. On January 11, 2018, the State filed its first

notice that Mother had violated the terms of her Drug Court placement.

Between January 11, 2018, and April 2018, the State filed at least five

additional notices of Drug Court violation against Mother. [6] On April 3, 2018, DCS removed Children from Mother’s care when she was

incarcerated due to violating the terms of her Drug Court placement by testing

positive for fentanyl and other opiates. As a sanction, the Drug Court provided

Mother with a choice between serving time in jail or attending in-patient

substance abuse treatment. Mother chose substance abuse treatment, which

was paid for by DCS, and entered treatment at a facility in Indianapolis in May

2018. The twins were placed in a home together with their step-mother, where

they have resided ever since. By July 2018, S.P. and L.P. were placed together

in a foster home, where they have resided ever since. [7] On April 4, 2018, DCS filed a petition alleging that Children were children in

need of services (CHINS). On April 20, 2018, Mother admitted that Children

were CHINS due to her inability to provide and care for them due to her

incarceration. Following these admissions, the trial court ordered Mother to

participate in any assessments and programs recommended by the family case

2 In contravention of the appellate rules, Mother has included details of her involuntary introduction to drugs that do not appear in the record. See Ind. Appellate Rules 46(A)(6)(a) and 22(C).

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manager (FCM) or other service providers, maintain safe and stable housing,

maintain a legal and stable source of income, refrain from the use of illegal

controlled substances, and to refrain from using prescription medication except

when and how validly prescribed. The permanency plan for Children was

reunification with Mother. [8] Mother had weekly supervised parenting time with Children as she worked

through the later phases of her in-patient substance abuse treatment. Mother

completed treatment in October 2018, and she moved back to Decatur as

required to complete her Drug Court placement. Mother participated in bi-

weekly therapy and case management services through Drug Court. In

November 2018, DCS FCM Desirae Miller (FCM Miller) met with Mother’s

Drug Court case manager Kelly Sickafoose (DCCM Sickafoose) to discuss

additional case management services to address Mother’s housing issues.

DCCM Sickafoose was confident that Mother could address her housing issues

through her current Drug Court services, so no DCS-provided services were

added. Also in November, DCS began the process of adding supervised

parenting time, which involved coordinating two transports for Children, the

twins’ school schedule, and Mother’s work schedule. Mother was frustrated

with the amount of parenting time she was able to exercise, but from October

2018 to March 2019, Mother was compliant with her DCS and Drug Court

services. [9] On March 20, 2019, Mother tested positive for fentanyl, which she blamed on

accidental exposure. DCS allowed Mother to exercise supervised parenting in

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Children’s maternal grandparents’ home, and, although the frequency of her

parenting time was never increased, the length of her parenting time increased

to five or six hours at a time. Mother did not exhibit a strong parental bond

with Children during her parenting time, often allowing Children to watch

television and play with electronic devices. Supervisors observed that

Children’s grandparents often interacted more with Children than Mother

during parenting time. On one occasion, Mother chose to take a nap with S.P.

and L.P during a parenting time session, leaving the twins unattended and not

exercising her parenting time to the fullest. [10] On May 14, 2019, Mother and L.P.’s father were found by law enforcement

sleeping in a car. Narcotics, cocaine, and a syringe were also found in the car.

Mother was arrested and charged with multiple drug and paraphernalia

possession offenses. Mother continued to use illegal drugs in jail and was

transported to the hospital on May 28, 2019, and treated for a drug overdose.

Mother had three positive drug screens while in custody awaiting the

disposition of her new charges. Mother eventually pleaded guilty to possession

of a narcotic drug and possession of cocaine. Mother was unsuccessfully

discharged from Drug Court on June 25, 2019. [11] On July 15, 2019, after a hearing, Children’s permanency plan was changed

from reunification to termination of parental rights and adoption. On

September 11, 2019, DCS filed its petition seeking the termination of Mother’s

parental rights. On January 28, 2020, the trial court held a hearing on DCS’s

petition. Mother had received a sanction from Drug Court and had been

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sentenced on her most recent convictions. Her earliest expected release date

was April 2022. Mother confirmed in her testimony that she had worked on

stabilizing her housing and employment with her Drug Court contacts and that

they had helped her to address those issues. [12] FCM Miller testified that part of DCS’s efforts to increase Mother’s parenting

time was to identify and qualify other people to supervise her time with

Children. Mother identified two candidates, who returned their paperwork for

background checks shortly before Mother was arrested on May 14, 2019. FCM

Miller also testified that DCS has a program to provide financial assistance

once a parent has located a home but that it does not have a separate program

to assist a parent in locating an appropriate home. FCM Miller related that

after DCCM Sickafoose had provided all the assistance on housing she was able

to offer through Drug Court’s resources, FCM Miller referred Mother to home-

based services to address her housing issues, and it was finally arranged that

Mother would receive services to address her housing issues through her

therapist. [13] Children were thriving and were well-bonded in their respective pre-adoptive

homes. The twins had been treated for anxiety and depression and had

experienced substantial improvement when parenting time with Mother ceased

in May 2019 after she was incarcerated. FCM Miller and Children’s guardian

ad litem both opined that it was in Children’s best interests to have Mother’s

parental rights terminated and that they be adopted by their current placements.

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On February 24, 2020, the trial court entered its detailed Order terminating

Mother’s parental rights to Children. [14] Mother now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION I. Waiver

[15] Mother argues that her due process rights were violated by the termination of

her parental rights to Children. As a threshold issue, we address the State’s

argument that Mother waived her due process claim by failing to raise it to the

trial court. Our supreme court has recognized that failure to raise even a

constitutionally-based due process claim at trial may result in waiver of the

issue for appeal. In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016). However, in

cases such as the one before us that implicate a parent’s substantive and

procedural due process rights to raise their children, we have the discretion to

review claims that were not raised below. See Matter of D.H., 119 N.E.3d 578,

586 (Ind. Ct. App. 2019) (electing to decide the case on the merits despite

Mother’s waiver of her due process claims), trans. denied. Mother acknowledges

that she did not raise this claim before the trial court. “[O]ne of the most

valued relationships in our culture” is that between a parent and his or her

child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. Indeed, “[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 (2000)). Given the importance of the interests at

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stake, we elect to address the merits of Mother’s claim, despite her waiver. See

D.H., 119 N.E.3d at 586.

II. Due Process

[16] The Fourteenth Amendment to the United States Constitution provides that

“no person shall be deprived of life, liberty, or property without due process of

law.” U.S. Const. Amend. XIV. This Fourteenth Amendment right extends to

termination proceedings, and, when the State seeks to terminate parental rights,

it is required to do so in a manner consistent with a parent’s due process rights.

In re G.P., 4 N.E.3d 1158, 1165 (Ind. 2014). Due process has never been

precisely defined, but the cornerstone of the right is that of fundamental

fairness. In re C.G., 954 N.E.2d 910, 917 (Ind. 2011). In determining the nature

of the process due in any given procedure, we balance three factors: (1) the

private interests affected by the proceeding; (2) the governmental interest in

supporting the use of the challenged procedure; and (3) the risk of error created

by the State’s chosen procedure. D.H., 119 N.E.3d at 588. Because the private

and governmental interests in a CHINS or termination case are both

substantial, we focus on the risk of error created by the State’s and the trial

court’s actions. C.G., 954 N.E.2d at 917-18. [17] Mother argues that her “substantive due process right to raise her children and

her procedural due process right to fair CHINS and termination proceedings

were violated in this case.” (Appellant’s Br. p. 11). Mother more specifically

contends that the State failed to make reasonable efforts to reunify her with

Children by failing to assist her with finding suitable housing and failing to

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provide her with additional parenting time. As to her contention regarding

assistance with housing, Mother asserts that “DCS claimed it had no

programming to assist Mother in finding suitable housing.” (Appellant’s Br. p.

13-14). While it is true that FCM Miller testified at the termination hearing that

DCS had no separate program to assist in locating housing, there is ample

evidence in the record that DCS had services as part of its home-based

counseling that it offered to Mother and that Mother received assistance

through Drug Court and through her therapist. Therefore, we conclude that

Mother’s due process rights were not violated by any failure of DCS to provide

her with assistance in locating suitable housing. [18] Regarding the provision of additional parenting time, Mother argues that,

despite remaining sober for “nearly a year” and complying with the

requirements of her services, she “was never allowed to progress toward

reunification with her children.” (Appellant’s Br. p. 13). Mother participated

in an in-patient substance abuse treatment from May 2018 until mid-October

2018. An order on a periodic case review hearing held October 15, 2018, noted

that “Mother is continuing to participate in services but will need to

demonstrate the ability to maintain sobriety.” (Exh. Vol., p. 29). In November

2018, DCS began the process of adding parenting time sessions but experienced

difficulties in scheduling additional sessions in part because of differing

schedules for Children’s transport providers, school, and Mother’s work.

Despite Mother testing positive for fentanyl in March 2019, DCS moved

Mother’s parenting time into her mother’s home and eventually increased the

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duration of parenting time to five or six hours. In order to address Mother’s

desire for additional parenting-time sessions, DCS also worked with Mother to

identify additional people to supervise her sessions with Children, a process that

had only just been completed before Mother was arrested on May 14, 2019, on

drug and drug paraphernalia charges. [19] Therefore, DCS allowed Mother to make progress toward reunification through

the moving of her sessions into her mother’s home and an increase in duration

of parenting-time sessions, and Mother’s ability to make further progress was

cut short by her own actions leading to her arrest and incarceration. DCS’s

gradual increase in parenting time had a low “risk of error” and was reasonable,

fair, and warranted given that Mother had a long history of serious drug abuse

and she had only been out of supervised substance abuse treatment for

approximately one month before DCS began addressing her desire for

additional parenting time. C.G., 954 N.E.2d at 917-18. [20] Mother directs our attention to our decision in In re T.W., 135 N.E.3d 607, 615

(Ind. Ct. App. 2019), trans. denied, in which we reversed a trial court’s

termination of parental rights order and held that “for a parent’s due process

rights to be protected in the context of termination proceedings, DCS must have

made reasonable efforts to preserve and/or reunify the family unit in the

CHINS case[.]” T.W. entailed a FCM failing to make promised referrals for the

father, the father being provided misinformation by the prosecutor’s office

regarding establishing paternity which sidelined his application, the FCM

mistakenly sending drug screen information to the father at an outdated

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address, and the FCM failing to inform the father that his first supervised

parenting time session had been cancelled. Id. at 609-11. However, T.W. is

factually distinguishable in that there are no irregularities of that type or

magnitude present in this case. In addition, Mother essentially alleges that

DCS failed to provide her with services, and “failure to provide services does

not serve as a basis on which to directly attack a termination order as contrary

to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). In short, we

find no infringement on Mother’s right to due process as a result of DCS’s, and

by extension, the trial court’s, actions.

CONCLUSION [21] Based on the foregoing, we conclude that Mother’s right to due process was not

violated by DCS’s provision of services. [22] Affirmed. [23] May, J. and Altice, J. concur

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