The Involuntary Termination of the Parent-Child Relationship of C.B-G. v. Ind. Dep't of Child Servs.

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In re the Involuntary Termination of the Parent-Child Relationship of C.B-G. and M.B-G. (Minor Children) and J.G-T. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner and Kids' Voice of Indiana, Appellee-Guardian Ad Litem

No. 23A-JT-2824

Court of Appeals of Indiana

August 21, 2024

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Marion Superior Court Trial Court Cause Nos 49D14-2202-JT-1499, -1502, The Honorable Marcia J. Harper Magistrate.

ATTORNEY FOR APPELLANT Casey Farrington Marion County Public Defender Agency Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES Theodore E. Rokita Indiana Attorney General, Marjorie Lawyer-Smith Indianapolis, Indiana.

Bradford and Tavitas, Judges concur.

MEMORANDUM DECISION

CRONE, JUDGE.

Case Summary

[¶1] J.G-T. (Mother) appeals the trial court's order involuntarily terminating her parental relationship with her minor children, C.B-G. (born in 2011) and M.B-G. (born in 2012) (collectively the Children). Finding no reversible error, we affirm.

Facts and Procedural History

[¶2] Mother and the Children, who are Honduran citizens, became undocumented immigrants and moved to Indiana in May 2014. Not long thereafter, the Department of Child Services (DCS) filed a petition alleging that, due to physical abuse of C.B-G. by Mother, the Children were children in need of services (CHINS). DCS removed the Children from approximately September 2014 through June 2016. Meanwhile, Mother received reunification services, including therapy and education regarding what constituted abuse and neglect in the United States versus in other countries. Mother completed services, and that CHINS case was closed.

[¶3] Sometime after the first CHINS case and prior to August 2020, Mother became upset and, "on purpose," placed a hot iron on C.B-G.'s leg, leaving a significant scar from the burn. Tr. Vol. 2 at 93, 116; Ex. Vol. 1 at 82. One day in August 2020, Mother "hit [M.B-G.] with a hanger and thr[ew him] down the stairs." Tr. Vol. 2 at 113; Ex. Vol. 1 at 83-87. The next morning, the Children ran away. They walked "a long way" to their babysitter's home and asked the sitter to call the police. Tr. Vol. 2 at 115. DCS removed the Children, and Mother was arrested. When then-nine-year-old C.B-G. was asked why she ran away with her then-seven-year-old brother, she stated that she "was tired of" the two of them "getting hit all the time" by Mother. Id. at 115-16. DCS filed a CHINS petition alleging neglect and serious endangerment of the Children's physical or mental health.^[1]

[¶4] On August 24, 2020, the State charged Mother under cause number 49D21-2008-F3-26475 with:

battery with serious bodily injury against a child under 14 years old as a level 3 felony, 2 counts of battery against a person under 14 years of age as level 5 felonies, 1 count of Neglect of a Dependent with bodily injury as a Level 5 felony, and 3 counts of Neglect of a Dependent as Level 6 felonies.

Appealed Order at 3. A no-contact order was issued between Mother and the Children. Mother was jailed in Marion County and remained there for more than a year.

[¶5] In December 2020, Mother entered an admission that the Children "are CHINS because family needs assistance to provide a safe and appropriate environment free from conflict and violence and to address family's therapeutic needs. Therefore, coercive intervention of the Court is necessary." Ex. Vol. 1 at 53. At the time, Mother was represented by counsel and had Spanish interpreter services. Id. at 50. In its factfinding order, the trial court adjudicated Children as CHINS, required Mother "to contact DCS within 72 hours of her release from incarceration[,]" acknowledged the active no-contact order between Mother and the Children, and authorized "supervised parenting time for [Mother] upon the lifting or modification of the no contact order and as recommended by the child and family team." Id. at 53. The trial court's order did not specify services for Mother while she was in jail, and, because of the pandemic, services were not being provided in jail. Tr. Vol. 2 at 50, 54, 60-61. The initial permanency plan was reunification.

[¶6] In October 2021, Mother posted bond. When she posted bond, she knew that she would be deported but erroneously believed that the Children would accompany her. Id. at 38. In November 2021, Mother was deported to Honduras, where she remains.^[2] An outstanding warrant still exists for Mother's felony battery and neglect charges. The Children, who were not deported, have been in foster care since their removal. Mother has not seen the Children in person since her arrest.

[¶7] In a February 2022 order, the trial court changed the Children's permanency plan from reunification to adoption. Ex. Vol. 1 at 127. The order indicated that the Children were placed together in a pre-adoptive foster home and doing well, that Mother had been deported and had not been in contact with her counsel, and that father's whereabouts were unknown. Thereafter, DCS filed a petition to involuntarily terminate Mother's parental relationship with the Children.

[¶8] In the spring of 2023, a factfinding hearing occurred. During the four-day hearing, Mother appeared virtually and by counsel and with the assistance of an interpreter. In October 2023, the trial court issued a sixteen-page order terminating Mother's parental rights. She appeals.

Discussion and Decision

[¶9] We recognize that "a parent's interest in the care custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" In re R.S., 56 N.E.3d 625, 628 (Ind. 2016) (quoting Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005)). "[A]lthough parental rights are of a constitutional dimension, the law provides for the termination of these rights when the parents are unable or unwilling to meet their parental responsibilities." In re A.P., 882 N.E.2d 799, 805 (Ind.Ct.App. 2008). Involuntary termination of parental rights is the most extreme sanction a court can impose, and therefore "termination is intended as a last resort, available only when all other reasonable efforts have failed." Id.

[¶10] "We have long had a highly deferential standard of review in cases involving the termination of parental rights." In re C.A., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014).

In considering whether the termination of parental rights is appropriate, we do not reweigh the evidence or judge witness credibility. We consider only the evidence and any reasonable inferences therefrom that support the judgment, and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Where a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. [Ind. Trial Rule 52(A)]. In evaluating whether the trial court's decision to terminate parental rights is clearly erroneous, we review the trial court's judgment to determine whether the evidence clearly and convincingly supports the findings and the findings clearly and convincingly support the judgment.

In re K.T.K., 989 N.E.2d 1225, 1229-30 (Ind. 2013) (citations and quotation marks omitted). In addition, we note that unchallenged findings of fact are accepted as true by this Court. In re S.S., 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019). As such, if the unchallenged findings clearly and convincingly support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059 (Ind.Ct.App. 2015), trans. denied; T.B. v. Ind. Dep't of Child Servs., 971 N.E.2d 104, 110 (Ind.Ct.App. 2012), trans. denied.

[¶11] A petition to terminate a parent-child relationship must allege, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the wellbeing of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2).^[3] DCS must prove each element by "clear and convincing evidence." R.S., 56 N.E.3d at 629; Ind. Code § 31-37-14-2. If the trial court finds that the allegations in the petition are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

Section 1 - Mother has not demonstrated fundamental error regarding her due process argument that DCS failed to make reasonable efforts to reunify her with the Children.

[¶12] Mother contends that she has a constitutional substantive due process right to raise the Children. She argues that although the original permanency plan was reunification, DCS offered her no services, diagnosis, or treatment in furtherance of that goal. Mother asserts that DCS's failures violated due process during the CHINS case, created a risk of the erroneous filing of the termination petition, and constituted fundamental error.

[¶13] It is well established "that a party on appeal may waive a constitutional claim." McBride v. Monroe Cnty Off. of Fam. &Child., 798 N.E.2d 185, 194 (Ind.Ct.App. 2003); see, e.g., In re K.S., 750 N.E.2d 832, 834 n.1 (Ind.Ct.App. 2001) (determining that mother...