A.B. & T.B., Appellants-Defendants,
The Indiana Department of Child Services, Appellee-Plaintiff.
from the Tippecanoe Superior Court The Honorable Faith A.
Graham, Judge The Honorable Thomas K. Milligan, Special Judge
Trial Court Cause No. 79D03-1506-JT-46, 79D03-1506-JT-47
ATTORNEYS FOR APPELLANTS Michael B. Troemel Lafayette,
Indiana Braden J. Dean Logansport, Indiana.
ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of
Indiana Robert J. Henke Deputy Attorney General James D.
Boyer Deputy Attorney General Indianapolis, Indiana.
This appeal involves the involuntary termination of parental
rights with respect to two children, T.B. and R.K., who are
half-siblings. Mother and Father are the parents of T.B., and
R.K.'s father is deceased. Mother has been incarcerated
throughout the underlying CHINS and termination proceedings.
Father engaged in services for several months until his
overwhelming distrust and dislike for the Indiana Department
of Child Services (DCS) and service providers took over. From
that point on, Father angrily rebuffed any attempts by
providers to reengage him in services and ceased visiting
with the children.
On appeal, Father presents a purely procedural issue. He
contends that his parental rights with respect to T.B. were
terminated without due process of law because the trial court
terminated Father's telephonic participation during the
final hearing due to Father's angry outbursts. Mother, on
the other hand, challenges the trial court's findings and
conclusions supporting the termination.
& Procedural History
T.B. was born to Mother and Father on July 2, 2009. When T.B.
was six months old, Mother obtained a protective order
against Father. Thereafter, on January 11, 2011, Mother gave
birth to R.K., whose father passed away the following year.
Mother has a lengthy history of criminal convictions and drug
abuse. Unfortunately, this pattern continued after the birth
of her children. On August 6, 2012, Mother was arrested and
charged with Class B felony dealing in methamphetamine and
Class D felony possession of precursors. She bonded out of
jail shortly thereafter. Within six months of being out on
bond, two active methamphetamine labs were found in the home
she shared with her children. Mother was charged with Class B
felony dealing methamphetamine, Class D felony possession of
methamphetamine, and Class C felony neglect of a dependent.
She pled guilty as charged and, on June 11, 2013, was
sentenced to a total of fifteen years - ten executed and five
suspended to probation. With respect to the August 2012
charges, Mother pled guilty to the Class D felony and was
sentenced to two years in prison to be served consecutively
to the other sentence. Mother has been incarcerated since
February 4, 2013, and has not seen her children since.
Shortly after Mother's incarceration in February 2013,
T.B. and R.K. Were placed in Father's care. His two older
children H.B. (then age eleven) and C.B. (then age ten) were
placed in his care by their mother in the summer of 2013.
Father reached out to DCS in March or April of 2014 because
he was overwhelmed parenting the four children and struggling
to provide a safe and stable home. He was unable to control
the two older children, who were involved in truancy
mediation services at the time. Father also reported that he
was receiving food stamps, had no money for bus fare, and was
behind in rent.
DCS initially attempted to create a plan with Father to
provide services through a program of informal adjustment,
but Father refused. DCS then filed a CHINS petition regarding
the four children on April 16, 2014. Following a detention
hearing on May 9, 2014, the children were allowed to remain
in Father's care so long as a safety plan was developed
and Father did not allow anyone to care for the children
until approved by DCS.
On May 26, 2014, law enforcement executed a well-child check
at Father'shome. Father was not at home and had left the
two older children in charge. R.K. was observed with injuries
to his feet. The injuries had occurred about a week earlier
when C.B. was left to supervise and he placed the
three-year-old child into a scalding hot bath. R.K. sustained
second degree burns to his feet, yet Father failed to seek
medical attention or disclose the injuries to DCS. Upon
discovering the injuries, R.K. was immediately taken to the
emergency room and then transported by ambulance to Riley
Children's Hospital for treatment. As a result, all of
the children were removed from Father's home. R.K. and
T.B. were eventually placed together in foster care, and the
older children were placed with their maternal grandparents.
Following a fact-finding hearing on June 9, 2014, the
children were adjudicated CHINS. The trial court issued a
dispositional order and a detailed parental participation
decree after the dispositional hearing on July 2, 2014.
Father was ordered, among other things, to participate in
visitation, Fatherhood Engagement, and individual therapy. He
was also ordered to stay in contact with DCS, notify DCS of
changes in his address or employment, and maintain safe
housing. Mother, due to her continued incarceration, was
ordered to maintain contact with DCS and participate in
services offered during incarceration and provide
certificates of completion to DCS.
Father initially cooperated to some degree with service
providers. Supervised visitation went well, and Father
appeared able to care and provide for the children.
Relatively quickly, however, Father let his distrust of and
anger toward DCS take over. He rejected parenting advice from
service providers and refused to abide by the visitation
rules. Despite warnings, Father repeatedly discussed the case
with the children during visits and criticized or made
negative comments about DCS, the CASA, and/or the foster
parents. At times, Father would explode in anger when
redirected by visitation supervisors.
Eventually any interaction Father had with service providers,
even in court, ultimately led to him badmouthing DCS, the
system, the foster parents, and/or the CASA. Father also left
profanity-filled, threatening voicemail messages for the
Family Case Manager (FCM). Father did not like that T.B. and
R.K. were in foster care and wanted them to be placed with
relatives even when there were no suitable relatives
available. By March 2015, Father "overtly refused to
participate in services." Transcript at 143. He
was later evicted from his home and, thereafter, refused to
provide his new address to the court or DCS.
Although Mother was cooperative with DCS, there were limited
services available to her due to her incarceration, and she
was unable to visit with T.B. and R.K. Mother testified that
she completed several programs in prison, but she did not
provide certificates of completion to DCS. Service providers
also questioned whether she had obtained appropriate
substance abuse and mental health therapy.
On June 8, 2015, the trial court entered an order changing
the permanency plan to concurrent plans of reunification,
guardianship, and termination of parental rights. The
following day, DCS filed termination petitions with respect
to all four children. The final hearing was held on August 31
and November 6, 2015. At the onset of the second day of the
final hearing, DCS dismissed the termination petitions with
respect to C.B. and H.B. Accordingly, the termination hearing
proceeded with regard to T.B. and R.K., then ages six and
four respectively. On February 4, 2016, the trial court
entered its order terminating Mother's parental rights to
T.B. and R.K. and Father's parental rights to T.B. Mother
and Father now appeal. Additional facts will be provided
below as needed.
Father's Due Process Claim
Father raises a purely procedural issue on appeal. He claims
that the trial court deprived him of due process when it
terminated his telephonic participation during the second day
of the termination hearing. Father asserts that this denied
him of "the opportunity to not only submit evidence but