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In re Termination of Parent-Child Relationship of G.M.

Court of Appeals of Indiana

March 13, 2017

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,
v.
The Indiana Department of Child Services, Appellee-Petitioner

         Appeal 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

          May, Judge.

         [¶1] 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 remand.

         Facts and Procedural History

         [¶2] 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[1] 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.

         [¶3] 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.

         [¶4] 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.)

         [¶5] 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.

         [¶6] 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.

         Discussion and Decision

         [¶7] 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 (2002).

         [¶8] "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.

         [¶9] 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 ...

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