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In re Involuntary Termination of the Parent-Child Relationship of K.L.

Court of Appeals of Indiana

December 10, 2019

In re the Involuntary Termination of the Parent-Child Relationship of: K.L. and K.J.L. (Minor Children),
Indiana Department of Child Services, Appellee-Petitioner, and B.L. (Mother) Appellant-Respondent,

          Appeal from the Tippecanoe Superior Court The Honorable Faith Graham, Judge Trial Court Cause Nos. 79D03-1802-JT-25 79D03-1802-JT-26

          ATTORNEY FOR APPELLANT Steven Knecht Vonderheide & Knecht, P.C. Lafayette, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] The Indiana Department of Child Services ("DCS") filed petitions to terminate the parental rights of B.L. ("Mother") to two of her children, Ko. and Ki.[1] One witness testified on the first day of the termination hearing and then the hearing was continued. Prior to any witnesses taking the stand on the second day of the termination hearing, Mother made a motion for separation of witnesses. The juvenile court denied the motion as untimely and the remaining witnesses testified in the presence of each other. The juvenile court ultimately issued an order terminating Mother's parental rights to both children. Mother now appeals, raising the sole issue of whether she is entitled to a new trial because the juvenile court erred in denying her motion for separation of witnesses. The State concedes the juvenile court erred and further concedes prejudice is presumed in such situation, but argues the error was harmless. Concluding there is overwhelming evidence supporting the juvenile court's order terminating Mother's parental rights to Ko. and Ki. such that Mother's substantial rights were not affected by the juvenile court's error, we affirm.

         Facts and Procedural History

         [¶2] Ko. was born in November 2011 and Ki. was born in April 2013. No legal father has been established for either child.[2] Mother also has a third child, H., who was born in 2016 and is not subject to these proceedings.

         [¶3] Mother has been diagnosed with and prescribed medication for bipolar disorder. She also has a history of using illegal substances. In mid- to late-2013, Mother became overwhelmed caring for Ko. and Ki. and asked her sister, Natasha Foster, to care for them. For approximately nine months after placing her children with Foster, Mother did not have any contact with them. Ki. has continued to reside with Foster since 2013. In late 2014, however, Foster also became overwhelmed caring for her own two children plus Mother's two children, and Kayla and Derrick Mitchell took over the care of Ko. Mother and Foster had known Kayla since childhood. In 2016, the Mitchells filed a petition to establish guardianship over Ko. but the guardianship proceedings were postponed when these proceedings began.

         [¶4] On October 29, 2016, DCS received a report that Mother had attempted to commit suicide by overdosing on heroin while H. was in her care. Ko. and Ki. were legally removed from Mother's care on November 1, 2016, but Ki. remained with Foster in relative placement and Ko. with the Mitchells in kinship placement. The children were adjudicated Children in Need of Services ("CHINS") in January 2017.[3]

         [¶5] From November 2016 to July 2017, Mother had four supervised visits and two therapeutic visits with the children. The supervised visits occurred before Mother was incarcerated in January 2017; thereafter, visits were suspended while Mother was incarcerated and then in rehab. When Mother was in a position to resume visitation, Ko. and Ki. exhibited anxiety about the possibility of returning to Mother's care and expressed that they wanted to stay where they were. They had two therapeutic visits in July 2017, but Ki. refused to attend the third scheduled visit. Mother cancelled the next scheduled visit and then declined to schedule any further visits because she did not trust the visitation supervisor. Mother's last contact with the children was in July of 2017.

         [¶6] When DCS became involved with the family in late 2016, Mother had recently begun participating in services with the Assertive Community Treatment ("ACT") Team at Wabash Valley Alliance, which is "an intensive outpatient treatment program provided to people with serious mental health issues [and] some co-occurring disorder like addiction." Transcript, Volume 2 at 38-39. DCS recommended that Mother continue that treatment and submit to random drug screens. Mother received case management services, individual therapy, and medication management through the ACT Team. However, Mother was "not really engaged in treatment." Id. at 44. She did not regularly attend individual therapy and did not work with her case manager. She was also not compliant with requests for drug screens; between January 2017 and January 2018, Mother was a no show for screens twenty-two times and submitted several dilute screens.[4] Also throughout the proceedings, Mother was not regularly taking medication prescribed to address her bipolar disorder and anxiety and did not have her own housing or stable employment.

         [¶7] On February 14, 2018, DCS filed petitions to terminate Mother's parental rights to Ko. and Ki. The termination fact-finding hearing was scheduled to begin on May 4. On that date, concerns over service of the termination petitions on the children's fathers prompted the court to set the hearing over until May 9. On May 9, the juvenile court granted DCS's motion to dismiss the termination petitions as to the fathers and, as Mother had failed to appear, agreed to initiate the termination hearing for Mother, allow DCS to "put on enough evidence to secure venue and jurisdiction[, ]" and continue the matter. Id. at 19.[5] Sally Messmer, a case manager with the Tippecanoe County office of DCS, testified that she was familiar with the children, both of whom were under the age of eighteen; she was familiar with the underlying CHINS case that was filed in Tippecanoe County in October of 2016; and the permanency plan in the CHINS case had changed from reunification to adoption. Id. at 20-22. Messmer did not testify to any details of the case.

         [¶8] Also in May, Mother admitted to her case manager that she had used methamphetamine. Mother lost her housing and stayed "quite a few different places" after that. Id. at 174. And finally, the ACT Team discharged Mother due to her lack of engagement and the fact that there ...

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