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A.B. v. Indiana Department of Child Services

Court of Appeals of Indiana

September 26, 2016

A.B. & T.B., Appellants-Defendants,
The Indiana Department of Child Services, Appellee-Plaintiff.

         Appeal 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.

          Altice, Judge.

         Case Summary

         [¶1] 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.

         [¶2] 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.

         [¶3] We affirm.

         Facts & Procedural History

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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.

         [¶14] 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.[1] 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.

         Discussion & Decision

         1. Father's Due Process Claim

         [¶15] 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 ...

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