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In re Involuntary Termination of Parent-Child Relationship of D.H.

Court of Appeals of Indiana

February 1, 2019

In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.H., K.H., and E.H. (Minor Children)
The Indiana Department of Child Services, Appellee-Petitioner. and L.H. (Mother), Appellant-Respondent,

          Appeal from the Adams Circuit Court The Honorable Chad E. Kukelhan, Judge Trial Court Cause Nos. 01C01-1801-JT-6 01C01-1801-JT-7 01C01-1801-JT-8

          ATTORNEY FOR APPELLANT Cara Schaefer Wieneke WIENEKE LAW OFFICE, LLC Brooklyn, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

          Bailey, Judge.

         Case Summary

         [¶1] L.H. ("Mother") appeals[1] the trial court's order involuntarily terminating her parental rights to D.H., born October 16, 2006, K.H., born August 24, 2010, and E.H., born May 22, 2014 (collectively, "Children"). The only issue Mother raises on appeal is whether the mishandling of her case by the Indiana Department of Child Services ("DCS") denied her due process.

         [¶2] We reverse and remand with instructions.

         Facts and Procedural History[2]

         [¶3] Mother and Father (collectively, "Parents") had a fourteen-year-long relationship during which Father repeatedly physically abused Mother, often in the presence of their three children. During the relationship, Mother left Father several times, obtained protective orders against Father, and divorced and remarried Father.

         [¶4] In 2012, DCS filed a Child in Need of Services ("CHINS") case because Father was manufacturing methamphetamine in the home, and Mother had tested positive for marijuana and amphetamine. Father was convicted of, and incarcerated for, manufacturing methamphetamine. Mother successfully reunited with D.H. and K.H.[3] and the CHINS case was closed. However, when Father was released from prison in August of 2013, he moved back in with Mother, and the domestic violence continued-often in Children's presence.

         [¶5] In June of 2016, police called DCS to Parents' home due to concerns about the condition of the house. Parents agreed to submit to drug screens and they each tested positive for illegal substances. DCS removed Children from the home and filed a CHINS action. Parents subsequently admitted Children were CHINS, and, in a dispositional decree dated August 2, 2016, the court ordered that they engage in services, including visiting Children, maintaining safe housing, ceasing drug and alcohol use and domestic violence, and engaging in home-based case management, substance abuse assessments and treatment, random drug screens, and counseling through the Center for Non-Violence. Ex. at 83-87.

         [¶6] DCS Family Case Manager ("FCM") Laurie Hoffacker ("FCM Hoffacker") was the FCM from June until the beginning of August of 2016. From approximately August 2016 through June 2017, FCM Mark Buchanan ("FCM Buchanan") was assigned to the CHINS case.[4] Id. at 106-07. In September of 2016, after Father again physically abused Mother, DCS referred Mother for individual counseling with Megan Ayers ["Ayers"], a therapist at Lifeline. Ayres began supervising visits with Children in September 2016 and began individual therapy, including addressing domestic violence, with Mother in December 2016. At some point between October 2016 and January 2017, Mother and Father ceased living together. [5]

         [¶7] In a court order on the October 11, 2016, periodic case review, the court noted that DCS recommended that Parents have "therapeutic supervised visitation due to allegations of domestic violence," and "continue to pursue individual therapy, marriage counseling[, ] and substance abuse services." Ex. at 32. In a court order on the January 11, 2017, periodic case review, the court found that Mother had obtained employment and was participating in addictions services, homebased casework, and "finding better housing," but noted that Mother had "failed 4 of 11 [drug] screens from October 31, 2016 through December 27, 2016." Id. at 29. The court also found that DCS had recommended that Father complete "batterers' intervention." Id.

         [¶8] In January 2017, Father entered Shepard's House, a residential drug treatment facility. In a court order on the April 12, 2017, periodic case review, the court found that both Parents were complying with the case plans but had not yet "enhanced [their] ability to fulfill [their] parental obligations." Id. at 39. However, the court found that Mother was "cooperating with DCS[, ]…ha[d] acquired full-time employment and maintained housing that can accommodate her and her child(ren)[, and] … ha[d] participated in addictions services and home based casework." Id. DCS recommended that Father participate in additional services, including "batterer's intervention," and that Mother "continue in individual therapy and marriage counseling after completing substance abuse services and follow all recommendations." Id.

         [¶9] In a June 22, 2017, "Order on Permanency Plan and Order Approving Trial Home Visit to Begin on July 10, 2017 with Father, "[6] the trial court found that Mother had "participated in addiction services and home based casework[, and] … acquired full-time employment and maintained housing that can accommodate her and her children." Id. at 35. The court also found that Father had obtained employment and housing and had completed the addiction program at Shepard's House, but-on advice of counsel-had refused to engage in the DCS-recommended "Batterer's Intervention Program" on the grounds that it "may incriminate him." Id. The trial court ordered a permanency plan of reunification and ordered an unsupervised trial home visit with Children at Father's home and ordered that "[v]isitation with the children and their mother is to be worked out between the parties." Id. at 37.

         [¶10] From approximately July 2017 through September 2017, FCM David Meyers ("FCM Meyers") was the FCM assigned to the CHINS case.[7] Tr. at 106-07. In approximately August of 2017, during Mother's visitation with Children during the time of the unsupervised trial home visit at Father's house, Father again physically abused Mother in Children's presence.

         [¶11] On approximately September 26, 2017, K.H. informed Mother that Father had sexually abused K.H. "a couple of days before." [8] Id. at 20. On September 27, DCS interviewed K.H. regarding sexual abuse allegations, but K.H. did not disclose any such allegations. In the order on the September 29 periodic case review, the trial court found that Father's trial home visit with Children "failed due to allegations of sexual abuse." Ex. at 42. The court found that Mother was "complying with the child[ren]'s case plan[s]" but Father was not. Id. The court further found that Mother was cooperating with DCS, participating in "home based casework" and addiction services, "passed all of her drug screens," and assisted in correcting safety hazards in her home. Id. The trial court noted that Mother was participating in supervised visitation with Children but Father had had no visitation with Children since the trial home visit ended. The trial court found that "[a]dditional services are not recommended for the child[ren] or the child[ren]'s parents at this time," but ordered that previously ordered services pursuant to the dispositional decree remained in effect. Id. at 42, 43.

         [¶12] In October of 2017, FCM Naika Esperance ("FCM Esperance") was assigned to the CHINS case.[9] At the end of October, FCM Shonna Leas ("FCM Leas") was assigned to the CHINS case. The only prior family case manager with whom FCM Leas "brief[ly]" spoke about the case was FCM Esperance. Tr. at 107. FCM Leas reviewed "most" of the CHINS file upon taking over responsibility for the case. Id. FCM Leas was unaware of what services Mother had completed and what services Mother was still required to complete. Id. at 107-110.

         [¶13] In November of 2017, DCS again interviewed K.H. regarding the allegations of sexual abuse. At that time, K.H. stated that Father had sexually abused her. DCS referred K.H. to Lifeline for trauma-focused therapy.

         [¶14] In December of 2017, Mother allowed Father to stay in Mother's house for four days because Father had lost his housing. Father again physically abused Mother, causing her to be hospitalized. Father was arrested, charged with aggravated battery, and incarcerated on December 16.[10] Ex. at 54. An order was issued prohibiting Father from contacting Mother.[11] Soon thereafter, Mother reported the domestic violence incident to FCM Leas and gave FCM Leas "some background on her past abuse history with [Father]." Tr. at 109. FCM Leas and Mother also discussed K.H.'s allegations that Father sexually abused K.H., and Mother stated to FCM Leas that she "can't believe that it happened." Id.

         [¶15] On January 16, 2018, DCS filed its petition for involuntary termination of the parent-children relationships. The reasons DCS sought termination of Parents' rights were: (1) Mother did not believe Father had sexually abused K.H.; (2) there had been continued domestic violence throughout the course of Parents' relationship; (3) Father was unavailable due to incarceration; and (4) substance abuse issues still existed with both parents. Ex. at 58. At the March 15, 2018 permanency hearing, Father was still incarcerated for aggravated battery against Mother, and he was also under investigation on allegations of sexually abusing K.H. Mother was not present at the hearing-although her counsel was present-because she thought the hearing was on a different date. FCM Leas testified[12] that "the issues that were present at the time of removal in 2016 are still present today and have not been remedied." Id. at 59. The Guardian ad Litem ("GAL") concurred with DCS that the permanency plan should be termination of parental rights.

         [¶16] In a permanency order dated April 9, 2018, the trial court found, based on the testimony of one of K.H.'s therapists, that "it would be a setback in [K.H.'s] therapy if [she] were to see either parent." Id. at 57. The court found that K.H. associates both Parents with trauma relating to domestic violence, and "she would regress in therapy if there were any type of contact." Id. The court found that FCM Leas "has also discussed the current case with [Mother]. [Mother] does not believe [the] sexual abuse allegations that [K.H.] has made against her father." Id. at 58. The court found that there is "an allegation that [K.H.] told [Mother] about the sexual abuse before this and [Mother] did nothing about it." Id. at 59. The court ordered no visitation for either Parent and approved a permanency plan of termination of parental rights and adoption.

         [¶17] At the May 19, 2018, hearing on the termination petition, the trial court noted that Father had voluntarily relinquished his parental rights to Children in an earlier proceeding. Tr. at 4. Mother testified that she had housing that could accommodate Children. Regarding K.H.'s allegations of sexual abuse, Mother testified that she "never would have thought [Father] would have ever done anything like that[, ]" but "after reading [K.H.'s] reports, I don't have any doubt." Id. at 21.

         [¶18] Regarding Mother's cooperation and compliance with the case plan, Ayres testified that Mother began participating in individual therapy with her in December of 2016, to address domestic violence. Mother did well and progressed in therapy until she began missing appointments in March or April of 2017, after Father left Shepard's House. Id. at 53-54, 59. At that time, Ayres discontinued Mother's therapy due to the missed appointments. Id. at 55. Ayres testified that Mother needed to engage in a trauma narrative, but they did not have time to do so before services were cancelled. Id. at 53, 56. Ayres did not consider Mother to have successfully completed therapy, although she testified that, when Father was released from Shepard House, "there were no other services to provide [Mother] besides what were in place to help her break away from [Father]." Id. at 56, 68.

         [¶19] FCM Leas testified that Mother had five different FCMs during the pendency of the CHINS and termination proceedings. When she took over the case at the beginning of November of 2017, FCM Leas reviewed "most" of the case file. Id. at 107. FCM Lease did not speak to any other FCM about the case other than a brief conversation with FCM Esperance, who had only been assigned to the case for the previous month. Id. FCM Leas believed Mother had services in place at the time she took over the case, but she was not sure. FCM Leas was "not sure" whether Mother participated in programming at the Center for Nonviolence. Id. at 108. FCM Leas asked someone in her office to follow up with Park Center regarding Mother's drug abuse treatment, but she "never heard anything back from Park Center." Id. FCM Leas thought Mother was getting drug screens through Park Center, but she did not remember whether she had seen the results of those drug screens. Id. The last two times FCM Leas spoke with Mother she asked Mother to come in for drug screening, and, each time, Mother did so, and her drug screens were negative. Id. at 115. FCM Leas did not ask Mother to do any other drug screens and did not recall the date Mother had last failed a drug screen.[13] Id. at 115, 118.

         [¶20] Although Mother asked FCM Leas in December of 2017 "what she needed to do to get the kids, to get supervised or at least supervised visitation, "[14] FCM Leas did not refer Mother to any services, nor did she encourage Mother to seek any services. Id. at 109, 117. Mother and FCM Leas "talked about getting together with the [Guardian ad Litem] and all the attorneys to try and figure out what needed to be done[, b]ut that meeting didn't ever happen … due to people's schedules and stuff." Id. at 109-110. A meeting that was scheduled for April 2018 did not happen because Mother reported that she was unable to get there due to car trouble. Id. at 123. That meeting was not rescheduled. Id.

         [¶21] Mother and FCM Leas spoke several more times and each time Mother sought information about what she needed to do to get supervised visitation and/or reunification with Children. Mother stated that she had already completed the services to which she had been referred, and FCM Leas instructed Mother to bring her documentation that services had been completed so that they "could figure out some other services that would be beneficial for her." Id. at 110. In March or the beginning of April 2018, FCM Leas and Mother "were trying to set up a date … for [Mother] to come in" to "figure out what services" Mother needed, "[be]cause [FMC Leas] was [not] going to make [Mother] do the exact same services if she'd had [sic] already completed them." Id. at 110, 120. FCM Leas testified that ...

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