IN THE MATTER OF THE TERMINATION OF THE PARENT-CHILD RELATIONSHIP OF: L.C., Minor Child, R.C., Father, Appellant-Respondent,
INDIANA DEPARTMENT OF CHILD SERVICES, Appellee-Petitioner
These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).
APPEAL FROM THE VANDERBURGH SUPERIOR COURT. The Honorable Brett J. Niemeier, Judge. Cause No. 82D01-1206-JT-70.
ATTORNEY FOR APPELLANT: JULIANNE L. FOX, Vanderburgh County Public Defender's Office, Evansville, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; ROBERT J. HENKE, Deputy Attorney General, Indianapolis, Indiana; CHRISTINE REDELMAN, Deputy Attorney General, Indianapolis, Indiana.
BROWN, Judge. ROBB, J., and BARNES, J., concur.
MEMORANDUM DECISION - NOT FOR PUBLICATION
R.C. (" Father" ) appeals the involuntary termination of his parental rights to his son, L.C. Father raises three issues, which we consolidate, revise, and restate as:
I. Whether the court abused its discretion in denying a motion to intervene filed by paternal grandmother; and
II. Whether the evidence is sufficient to support the trial court's judgment terminating his parental rights.
FACTS AND PROCEDURAL HISTORY
On July 17, 2011, B.P., a sibling of then one-year-old L.C., tested positive for amphetamine and methamphetamine at birth, and the mother of both children (" Mother" ) admitted that she used methamphetamine on several occasions during her pregnancy. The next day, the Department of Child Services (" DCS" ) received a report alleging that L.C. and B.P. were Children in Need of Services (" CHINS" ). At the time, L.C. was in the care of Father's mother (" Grandmother" ) in the State of Kentucky. Specifically, Mother indicated to DCS Family Case Manager (" FCM" ) Kelly Whitledge that L.C. had been " visiting with [Grandmother] in Bowling Green, Kentucky" and that he had been " going back and forth for a few weeks at a time between [Mother] and [Grandmother]." DCS Exhibit 2 at Preliminary Inquiry pp. 1-2. FCM Whitledge also spoke with Grandmother at this time, and Grandmother " reported that she has had [L.C.] since January 2011 and is pursuing custody and/or guardianship." Id. at 2. FCM Whitledge indicated in her Preliminary Inquiry that Grandmother refused to bring L.C. to Indiana and that she received no evidence that Grandmother had filed for custody or guardianship of him, and Grandmother brought L.C. to Indiana only after receiving a court order to do so.
On July 21, 2011, DCS filed a Verified Petition Alleging Child in Need of Services pertaining to L.C. (the " CHINS Petition" ). The CHINS Petition stated that Father had " not established paternity for the child and does not exercise consistent parenting time with the child" and that he has a criminal history and had been previously incarcerated due to possession of illegal drugs, and it noted that Father's address was " [u]nknown." DCS Exhibit 2 at CHINS Petition. That same day, the court held an initial/detention hearing at which Father was not present. Mother admitted to the CHINS allegations, and the court adjudicated L.C. a CHINS and ordered that L.C. be returned to the court's jurisdiction and placed with DCS. At the time of the hearing, Father had an active warrant and was avoiding arrest, and despite attempts DCS was unable to notify Father regarding the hearing through either Mother or Grandmother.
On July 27, 2011, the court placed L.C. in the custody of Grandmother and her husband over DCS's objection, and ordered drug tests for each of the home's occupants and that Father have no contact with L.C. until he appeared before the court. The next day, DCS appeared and requested that L.C.'s placement be changed to foster care because Grandmother's husband had tested positive for methamphetamine and had a criminal history and a daughter of Father who was living with Grandmother tested positive for marijuana. L.C. was placed with the same foster family who had been caring for B.P. On July 29, 2011, Father was arrested in Kentucky pursuant to the active warrant.
On August 17, 2011, the court entered its Order on initial/detention hearing authorizing L.C.'s removal and placement in foster care. The Predispositional Report filed by DCS on the same day indicated that Father had not appeared on the matter and that his whereabouts were still unknown. On August 24, 2011, the court held a dispositional hearing at which Mother appeared. On September 28, 2011, the court entered its dispositional order and noted that a Parental Participation Petition had been filed for Mother and that Father had not refused to sign the petition, but that he was incarcerated in Kentucky.
On April 19, 2012, Father appeared telephonically while in custody at another initial/detention hearing at which he waived his right to counsel and indicated that he wished to be present by phone for any future court dates. The court ordered that Father " take any classes if any are available and to immediately notify [his] case manager upon his release." Appellant's Appendix at 3. On April 30, 2012, the court entered its Order on Continued Initial Hearing stating that Father did not object to L.C.'s adjudication as a CHINS, and reaffirmed L.C.'s CHINS adjudication. The order also noted Father's request that Grandmother be considered for placement of L.C., and ordered DCS to consider such placement and inform the court of its recommendation. The order also set a permanency hearing for June 13, 2012. On June 12, 2012, DCS filed an Interstate Compact on the Placement of Children (" ICPC" ) Request to have child services representatives from the State of Kentucky evaluate Grandmother's home. DCS Exhibit 7.
On June 13, 2012, the court held a permanency hearing at which Father appeared telephonically and was appointed counsel. Father challenged the permanency report that had been filed by DCS. That same day, DCS filed its Petition to Terminate Parental Rights. On June 27, 2012, Mother signed a voluntary termination of her parental rights " per an agreement with the foster parents adopting." Transcript at 76.
On August 6, 2012, the Cabinet for Families and Children in Kentucky filed the Relative Home Evaluation (the " ICPC Evaluation" ) regarding Grandmother's home which recommended that L.C. not be placed with her. Specifically, the ICPC Evaluation states that Grandmother " had been declared 100% disabled and does not work outside of the home," notes that she has been diagnosed with diabetes, arthritis, seasonal allergies, hypertension, nerve damage, and has had a stroke, and is on various medications to deal with these medical conditions. DCS Exhibit 7. The report also notes that she has $49 per month left over after paying for rent and utilities, as well as $168 per month in food stamp benefits. The ICPC Evaluation recommended L.C. not be placed with Grandmother due to her health problems and lack of income, as well as the fact that L.C. " has a sibling with him in his current placement" and would be separated from his sibling if he were placed with Grandmother. Id.
On August 15, 2012, Grandmother filed a Motion to Intervene in both the CHINS and termination matters, and that same day DCS filed an Amended Petition to Terminate Parental Rights. On August 23, 2012, DCS filed objections to Grandmother's motions in both matters, arguing that Grandmother " failed to cooperate with [DCS] and [was] denied placement in Kentucky through ICPC," that at the initiation of the CHINS matter she refused to return L.C., that Father is incarcerated and will be incarcerated until at least 2015, that methamphetamine was recovered from Grandmother's vehicle which belonged to her husband, and that her " sole reason to request to intervene is to obtain placement after the termination for parental rights has been filed. [L.C.] is in a meth free pre-adoptive home. It is not in the best interests of [L.C.] for [Grandmother] to have placement. Therefore, she has no grounds to intervene as a party." DCS Exhibit 2 at Objection to Motion to Intervene. The court held a hearing that same day on Grandmother's motions to intervene in both matters, and denied the motions by entry on the chronological case summaries (" CCS" ), basing its rulings on the State of Kentucky's adverse ICPC Evaluation.
DCS filed its Second Amended Petition to Terminate Parental Rights (the " Termination Petition" ) on January 15, 2013, and on January 17, 2013, the court commenced a termination hearing at which Father appeared by telephone and by counsel. At the termination hearing, Father testified that he was forty years old, that he began using methamphetamine when he was twenty-five years old, and that he believed he was addicted to methamphetamine. He testified that he had four other children, including two that lived on their own, a fifteen-year-old who lives with Grandmother, and a four-year-old who lives with her mother in South Carolina. Father testified that he was incarcerated in Lexington, Kentucky, for manufacturing methamphetamine, that he was serving a twenty-five year sentence, and that he was eligible for parole as early as September of 2015 but that he was also attempting to have credit for time served on a federal criminal conviction applied to his sentence. He stated that prior to his most recent arrest, he was residing " where [he] could," but that he always could stay at his parents' home. Transcript at 9. When asked if L.C. had ever resided with him, Father responded that when he " picked [L.C.] up [he] took him to [Grandmother's] so she could take care of him." Id. at 12. Father also testified that he was serving time in prison in Indiana and then in Arkansas on a related conviction at the time of L.C.'s birth, that he received a phone call from Mother while in prison asking whether Father could care for L.C. because she could not, and that in November of 2010 Father picked up L.C. and transported him to Grandmother. He testified that between November 2010 and July 2011 L.C. resided with Grandmother but that he transported L.C. to Indiana on a few occasions for shots and to visit with Mother. He also testified that he was informed by his oldest son that DCS had taken L.C. from Grandmother on the day it occurred.
On March 22, 2013, the court again reconvened the termination hearing in which Robin Sitzman, who began as the FCM in this matter in November 2012, testified that L.C. appeared very comfortable, bonded with his foster family, and was bonded with B.P. FCM Sitzman testified that the foster family planned to adopt L.C. Mary Minnear, L.C.'s CASA, testified that L.C. was " really bonded" with his foster family and will stop playing to give one of them a hug, and she recommended that " it would be best for him to be adopted by the foster family" because they provide him " a very stable loving home and his brother is there." Id. at 95.
On June 19, 2013, the court issued its Finding of Facts and Conclusions of Law terminating the parental rights of Father (the " Termination Order" ). The Termination Order contained Findings of Fact consistent with the foregoing and found regarding Father's incarceration that his " minimum outdate is January 4, 2026. His maximum outdate is September 14, 2035." Appellant's Appendix at 15. The court also found that L.C. " needs stability and permanency" and that " [h]is present pre-adoptive home is meeting these needs and will be able to do so in the future. He is bonded to his current placement." Id. at 16. It also found that L.C. was bonded to B.P., ...