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In re The Termination of Parent-Child Relationship of L.R.

Court of Appeals of Indiana

July 14, 2017

In re the Termination of the Parent-Child Relationship of L.R. (Minor Child),
Indiana Department of Child Services, Appellee-Petitioner K.S. (Mother), Appellant-Respondent,

         Appeal from the Wells Circuit Court Trial Court Cause No. 90C01-1506-JT-19 The Honorable Kenton W. Kiracofe, Judge

          Attorney for Appellant Kimberly A. Jackson Indianapolis, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr., Attorney General of Indiana David E. Corey Deputy, Attorney General Robert J. Henke Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] Indiana Code section 31-35-2-4 authorizes the filing of a petition to terminate a parent-child relationship when, among other things, the child has been removed from the parent and has been under the supervision of the Department of Child Services (DCS) for at least fifteen of the most recent twenty-two months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services (CHINS). Here, DCS removed a child from her mother's home and filed a CHINS petition in January 2014. When it became apparent that a CHINS fact-finding hearing would not be held within the 120-day statutory limit, the parties agreed that DCS would move to dismiss the petition and refile under a new cause number. DCS did so in May 2014.

         [¶2] Just over a year later, in June 2015, DCS filed a petition to terminate the mother's parental rights, alleging, in part, that the child had been removed from the mother for at least fifteen months. The trial court eventually agreed to terminate the mother's rights, and the mother appeals. Her primary contention is that the trial court should have calculated the period of removal starting with the filing of the second CHINS action in May 2014 because the original CHINS action was dismissed and should be disregarded. Under this view, the child had been removed for less than thirteen months when DCS filed its termination petition, rendering the petition premature under Section 31-35-2-4. But because the mother did not object to the dismiss-and-refile procedure, and instead specifically agreed to it, we cannot say that the trial court erred by treating the two CHINS actions as one continuous proceeding that began in January 2014, seventeen months before DCS filed its termination petition. We affirm the decision of the trial court in this and all other respects.

         Facts and Procedural History[1]

         [¶3] K.S. ("Mother") and M.R. ("Father") are the biological parents of L.R. ("Child"), who was born in November 2008. On the night of January 1, 2014, Mother and Child were sitting in the living room of their apartment in Markle when they heard an explosion-Father had been cooking meth in an adjacent bedroom and blew up his lab. There is evidence that Mother had gone to a store that day, with Child in tow, to purchase meth ingredients. DCS removed Child from Mother and Father and placed her in foster care; Child was later placed with her maternal grandparents.[2]

         [¶4] On January 3, DCS filed a petition alleging that Child was a CHINS. At an initial/status hearing a few days later, the parties agreed to extend the statutory deadline for holding a CHINS fact-finding hearing from sixty days to 120 days, see Ind. Code § 31-34-11-1(a), and the trial court set the hearing for April 15. On April 14, however, Father filed a motion to continue the hearing, stating that the parties were "in negotiations regarding an admission[.]" Appellant's App. Vol. III p. 71. The motion indicated that Mother had no objection. The trial court granted the motion and scheduled a status hearing for May 5, noting that "the fact-finding hearing will be reset if needed." Id. at 4. At the status hearing, DCS "advise[d] the Court they will be dismissing this cause as they are past the deadline date for scheduling a fact-finding hearing and will be reopening this matter under another cause number." Id. In a subsequent order, the court explained:

The parties were unable to come to an agreement to settle the fact-finding trial. So a further hearing date needs to be scheduled.
The hearing is unable to be held in the One Hundred and Twenty day time frame. So [DCS] will be asking to dismiss the current [CHINS] Petition and will be re-filing and opening under a new cause number. All parties acknowledge the necessity for this.

Id. at 80 (emphasis added); see also id. at 107 ("The parties, by counsel, consented to the procedure for dismissing and re-filing this child in need of services case.").

         [¶5] As agreed, DCS moved to dismiss its first CHINS petition on May 15, and on May 30 it filed a new but virtually identical petition under a new cause number.[3] Mother and Father admitted the allegations in the new petition, and the trial court issued a dispositional order that required them to, among other things: enroll in and participate in any recommended program, obtain any required assessments, keep all appointments, maintain suitable housing, maintain a stable source of income, abstain from using alcohol or any illegal drugs, complete a parenting assessment and all services recommended as a result of the assessment, submit to random drug screens, and attend all scheduled visitations with Child.

         [¶6] While Mother showed ¶ashes of improvement during the CHINS proceedings, she made little meaningful progress toward reunification. During 2014 and the first part of 2015, she did not maintain consistent contact with the family case manager, who sometimes had to go out of her way to track Mother down; Mother was twice referred to counseling that she failed to complete; she missed appointments with her home-based case manager; she missed several scheduled visitations with Child; she spent time socializing with friends when she could have been with Child; she drank alcohol; she lived in as many as twenty different places, including several motels; she had at least four different boyfriends; and she had and lost four different jobs. Finally, on April 28, 2015, and again a week later, she tested positive for synthetic cannabinoids after smoking spice. On May 6, DCS filed a progress report in which it changed its permanency plan from reunification to termination of Mother's and Father's parental rights and adoption by relatives. The trial court approved the plan.

         [¶7] On June 8, DCS filed its termination petition. In accordance with the termination statute, Indiana Code section 31-35-2-4, DCS alleged that (1) Child had been removed from Mother and Father and under DCS supervision for at least fifteen of the most recent twenty-two months, (2) there is a reasonable probability that the conditions that resulted in Child's removal or the reasons for placement outside the home will not be remedied and/or that the continuation of the parent-child relationship poses a threat to ...

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