In the Matter of the Termination of the Parent-Child Relationship of G.M. (Child) and M.M. (Mother) & K.C. (Father); M.M. (Mother), and K.C. (Father), Appellants-Respondents,
The Indiana Department of Child Services, Appellee-Petitioner
from the Huntington Circuit Court The Honorable Thomas Hakes,
Judge Juvenile Court Cause No. 35C01-1603-JT-13
ATTORNEY FOR APPELLANT, FATHER Kimberly A. Jackson
Indianapolis, Indiana ATTORNEY FOR APPELLANT, MOTHER Cara
Schaefer Wieneke Special Asst. to the State Public Defender
Wieneke Law Office, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Robert J. Henke David E. Corey Deputy Attorneys
General Indianapolis, Indiana
M.M. ("Mother") and K.C. ("Father")
(collectively, "Parents") appeal the involuntary
termination of their parental rights to G.M.
("Child"). Mother challenges a number of the
juvenile court's findings and argues the Department of
Child Services ("DCS") did not present sufficient
evidence the conditions under which Child was removed would
not be remedied and termination was in the best interests of
Child. Father makes similar arguments, but we find
dispositive his argument the juvenile court could not
terminate his rights when it had never issued a dispositional
decree as to Father. We affirm in part, reverse in part, and
and Procedural History
Child was born to Mother on December 10, 2014. Child was born
with a heart condition requiring specialized care. On
December 12, 2014, DCS removed Child under the juvenile
court's emergency order because Mother admitted using
unprescribed painkillers and heroin during pregnancy.
Father refused a drug screen and
reported to DCS he was unable to care for Child because
"he is on probation for rape and is not permitted to be
around children unsupervised." (DCS Ex. 3.) On December
16, 2014, DCS filed a petition alleging Child was a Child in
Need of Services (CHINS) based on Mother's drug use,
Child's drug withdrawal at birth, and Father's
inability to care for Child.
Father was incarcerated all but a three-month period during
these proceedings. He was arrested shortly after Child's
birth for an alleged probation violation based on his testing
positive for morphine and Percocet. In March 2015, the State
filed another petition to revoke his probation, alleging
Father tested positive for morphine. Father's probation
was revoked in May 2015, and he was ordered to serve the
remainder of his suspended sentence for rape and burglary.
The juvenile court held an initial hearing on the CHINS
petition on August 4, 2015, and Father admitted Child was a
CHINS. After Father's admission, the juvenile court held
a fact finding hearing as to the allegations involving Mother
and ultimately adjudicated Child a CHINS. The juvenile court
held a disposition hearing on September 4, 2015, and ordered:
2. Mother shall participate in a substance abuse evaluation,
as well as ongoing substance abuse treatment.
3. Mother shall attend visitation with the child as long as
she maintains clean drug screens.
4. Mother shall submit to random drug screens.
5. Mother shall participate in home based services.
6. Mother and [sic] shall comply with all recommendations of
DCS as outlined in paragraph IV of DCS' Predispositional
Report filed September 1, 2015.
7. Father may participate in services as he is able while
incarcerated. Father's dispositional hearing will not
occur until his release from incarceration.
(DCS Ex. 11.)
Mother did not participate in services or visit with Child
consistently. She tested positive for illegal substances four
times during the pendency of these proceedings. She did not
attend Child's medical appointments, despite being
advised of when they were. Mother was incarcerated at the
time of the final termination hearing. Father participated in
some parenting-related services while incarcerated.
On December 17, 2015, the juvenile court, on DCS request,
changed Child's permanency plan from reunification to
adoption based on Mother's noncompliance with services
and positive drug screens. On March 7, 2016, DCS filed a
petition to terminate Parents' rights to Child. On July
14, 2016, the juvenile court held a hearing on the matter and
entered an order terminating Parents' rights to Child on
August 12, 2016.
We review termination of parental rights with great
deference. In re K.S., 750 N.E.2d
832, 836 (Ind.Ct.App. 2001). We will not reweigh evidence or
judge the credibility of witnesses. In re D.D., 804
N.E.2d 258, 265 (Ind.Ct.App. 2004), trans. denied.
Instead, we consider only the evidence and reasonable
inferences most favorable to the judgment. Id. In
deference to the juvenile court's unique position to
assess the evidence, we will set aside a judgment terminating
a parent-child relationship only if it is clearly erroneous.
In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App. 1999),
trans. denied, cert. denied 534 U.S. 1161
"The traditional right of parents to establish a home
and raise their children is protected by the Fourteenth
Amendment of the United States Constitution." In re
M.B., 666 N.E.2d 73, 76 (Ind.Ct.App. 1996), trans.
denied. A juvenile court must subordinate the interests
of the parents to those of the child, however, when
evaluating the circumstances surrounding a termination.
In re K.S., 750 N.E.2d at 837. The right to raise
one's own child should not be terminated solely because
there is a better home available for the child, id.,
but parental rights may be terminated when a parent is unable
or unwilling to meet his or her parental responsibilities.
Id. at 836.
To terminate a parent-child relationship in Indiana, DCS must
allege and prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification
are not required, including a description of the court's
finding, the date of the finding, and the manner in which the
finding was made.
(iii) The child has been removed from the parent and has been
under the supervision of a county office of family and
children or probation department for at least fifteen (15)
months of the most recent twenty-two (22) months, beginning
with the date the child is removed from the home as a result
of the ...