Court of Appeals of Indiana | Memorandum Decision 49A05

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### MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),

this Memorandum Decision shall not be

regarded as precedent or cited before any

court except for the purpose of establishing

the defense of res judicata, collateral

estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT

Danielle L. Gregory

Indianapolis, Indiana A TTORNEYS FOR A PPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Marjorie Newell

Deputy Attorneys General

Indianapolis, Indiana



### I N T H E



# COURT OF APPEALS OF INDIANA

In the Termination of the parent

Child Relationship of:

J.W. and D.C. (Minor Children),

And

J.W. (Father),

Appellant

- Respondent,

v.



### Indiana Department of Child

Services,

Appellee

- Petitioner. January 24, 2017

Court of Appeals Case No. 49A05

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Appeal from the Marion Superior

Court

The Honorable Marilyn Moores,

Judge

The Honorable Larry Bradley,

Magistrate

Trial Court Cause No.

49D09

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- 233 & 49D09

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- 234Court of Appeals of Indiana | Memorandum Decision 49A05

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### STATEMENT OF THE CASE

[1] Appellant

- Respondent, J.W. (Father), appeals the trial court’s termination of

his parental rights to his minor children, J.W. II and D.C. (the Children).

[2] We affirm.



### ISSUE

[3] Father raises one issue on appeal, which we restate as follows: Whether the

trial court erred by involuntarily terminating Father’s parental rights to the

Children in light of his indication that he wished to consent to the Children’s

adoption.



### FACTS AND PROCEDURAL HISTORY

[4] Father and S.C. (Mother) 1 are the biological parents of J.W. II, born on

February 10, 2011; and D.C., born on October 8, 2013. On September 24,

2012, the Marion County office of Department of Child Services (DCS)

received a report alleging the medical neglect of J.W. II. In particular, the

report indicated that J.W. II was being treated for seizures at the emergency

room at Riley Hospital for Children in Indianapolis, Marion County, Indiana.

J.W. II was diagnosed with seizures when he was three weeks old, and since

1 Mother’s parental rights to the Children were previously terminated, but she is not a party to this appeal.

Facts pertaining to Mother are included where appropriate.Court of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 3 of 15 that time, there had been serious concerns about the fact that Mother repeatedly

failed to follow through with medical appointments to ensure that J.W. II

received his necessary medication. The report to DCS indicated that J.W. II’s

physician was worried that Mother would fail to properly care for his medical

needs upon discharge. That day, DCS spoke with Mother, who admitted that

J.W. II had not taken his seizure medication since February of 2012 because

“their Medicaid was ‘called off.’” (DCS Exh. 1). Mother claimed to be

unaware of the fact that she missed multiple neurology appointments for J.W.

II. Father was also present at the Riley Hospital emergency room and, even

though Father was living in the same house as Mother and J.W. II, he informed

DCS that he had no knowledge that J.W. II had ever been diagnosed with

seizures, that he was not receiving his medication, or that he had missed any

appointments because Mother “takes care of that.” (DCS Exh. 1). Father

explained that he is not home during the week because of his employment and

is therefore unable to help Mother with caring for J.W. II. Upon further

investigation, DCS also discovered that there was a cockroach infestation in the

family’s home and that the rent was past due. Mother admitted to consuming

Hydrocodone without a prescription, and both Father and Mother tested

positive for marijuana.

[5] On September 26, 2012, DCS filed a petition alleging that J.W. II was a child in

need of services (CHINS) because Father and Mother “have failed to provide

the child with a safe and appropriate living environment with necessary medical

care/treatment and free from substance abuse.” (DCS Exh. 1). DCSCourt of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 4 of 15 elaborated that Mother had failed to address J.W. II’s medical issues, tested

positive for marijuana, and lacked stable housing. As to Father, DCS

contended that he had failed to demonstrate an “ability and willingness to

appropriately care for [J.W. II]” and that he “is unable to ensure [J.W. II’s]

safety and well being while in the care and custody of [Mother].” (DCS Exh.

1). The same day, the trial court held an initial hearing. Because Father and

Mother both requested attorneys, the trial court entered a denial to the

allegations contained in the CHINS petition on the parents’ behalf. The trial

court ordered that J.W. II would remain in his parents’ care “contingent upon

[Father and Mother] participating in Homebuilders, substance abuse

assessment and following any recommendations and random drug screens.”

(DCS Exh. 2).

[6] On October 3, 2012, the trial court held another hearing, during which Mother

admitted to the amended allegations of the CHINS petition, and Father waived

a fact

- finding hearing. Accordingly, the trial court adjudicated J.W. II as a

CHINS. On October 31, 2012, the trial court conducted a disposi tional hearing

and subsequently issued a dispositional order. The trial court ordered J.W. II

to remain placed in Mother’s custody and further ordered both Father and

Mother to participate in services pursuant to the Parental Participation Order.

In relevant part, the Parental Participation Order directed the parents to enroll

and participate in any programs recommended by DCS; ensure that J.W. II is

properly clothed, fed, and supervised; establish Father’s paternity to J.W. II;Court of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 5 of 15 engage in home

- based counseling; and submit to random drug and alcohol

screens.

[7] At some point, Father and Mother ceased living together, and both struggled to

comply with their case plans. Specifically, Father regularly failed to appear for

drug screens, and on other occasions, he tested positive for THC (marijuana),

Oxycodone, 2 and opiates. On May 23, 2013, J.W. II was removed from

Mother’s custody due to her lack of suitable housing. Despite Father’s general

non

- compliance with his DCS services, J.W. II was placed in his care.

However, on July 18, 2013, J.W. II was removed from Father’s custody based

on Father’s failure to appear at multiple drug screens, as well as a positive drug

screen. On July 24, 2013, Father offered employment

- related justifications for

his missed drug screens, and the trial court ordered the return of J.W. II to his

care.

[8] On October 11, 2013, DCS filed a petition alleging that three

- day

- old D.C. was

a CHINS. In particular, DCS alleged that Mother had “failed to provide [D.C.]

with a safe and appropriate living environment free from substance abuse.”

(DCS Exh. 10). In addition to Mother’s non

- compliance with her case plan in

J.W. II’s case, DCS cited Father’s marijuana

- positive drug screens and lack of

consistency in submitting to drug screens, as well as his failure “to demonstrate

the ability and willingness to appropriately parent [D.C.].” (DCS Exh. 10). On

2 There is some indication that Father, for at least some period of time, had a prescription for Oxycodone.Court of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 6 of 15 December 11, 2013, the trial court adjudicated D.C. as a CHINS based on

Mother’s admission to the allegations in the CHINS petition. Because Father

was not present during the initial hearing, the matter was continued as to him.

[9] On December 18, 2013, D.C. was removed from Mother’s care due to the poor

condition of Mother’s home, and he was placed in foster care. The next day,

J.W. II was removed from Father’s care because Father refused to participate in

services, tested positive for methamphetamine, and threatened J.W. II’s

babysitter with a knife. J.W. II was placed in the care of relatives. In October

of 2014, D.C. was transferred to the same home as J.W. II.

[10] In April of 2014, Father’s paternity to D.C. was established. On April 23, 2014,

Father waived his right to a fact

- finding hearing, and the trial court maintained

D.C.’s adjudication as a CHINS. Following a dispositional hearing on the

same day, Father was ordered to engage in home

- based counseling; complete a

substance abuse assessment and successfully complete all treatment

recommendations; submit to random drug screens; and participate in home

based case management services. Father did not comply. As of July of 2014,

Father had been discharged from his home

- based services twice due to his non

compliance. At the time, Father was continuing to test positive for illegal

drugs, including opiates, Hydrocodone, Amphetamine, and Methamphetamine,

and he never completed drug education or treatment.

Father also lacked stable housing. In fact, DCS was unaware of Father’s

whereabouts and was concerned that he might be homeless. In addition, Father

had not made himself available for visits with the Children for several months.Court of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 7 of 15 [11] On October 29, 2014, the trial court changed the Children’s permanency plan

from reunification with the parents to adoption, and on March 22, 2016, DCS

filed a verified petition for the involuntary termination of Father’s parental

rights to the Children. On April 1, 2016, the trial court held an initial hearing

on DCS’ termination petition. Father advised the court that he wished to sign

consents for the Children to be adopted; however, DCS indicated that it could

not accept such consents because Father was not represented by counsel.

Accordingly, the trial court appointed a public defender “to represent Father to

help facilitate consents.” (Appellant’s App. Vol. II, p. 39). The trial court also

appointed a guardian ad litem (GAL) to represent the interests of the Children.

[12] On April 15, 2016, the trial court held a pre

- trial hearing. Although Father’s

appointed counsel was present, Father “fail[ed] to appear after having said he

wanted to sign adoption consents at the last hearing. [Father’s counsel]

request[ed] another pre

- trial hearing and indicate[d] he [would] try to get Father

in to his office for effectuating rights.” (Appellant’s App. Vol. II, p. 49).

Accordingly, the trial court scheduled another pre

- trial hearing for April 29,

2016, at which Father, again, failed to appear. As such, Father’s counsel

requested a third pre

- trial hearing in order for Father to appear in court and sign

adoption consents. Instead, on June 29, 2016, the trial court conducted an

evidentiary hearing on DCS’ termination petition. Once again, Father did not

attend, and by that point, he had not seen the Children in more than a year.

During the hearing, the DCS case worker testified that it would be in the best

interests of the Children for Father’s rights to be terminated. The GALCourt of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 8 of 15 submitted an affidavit to the court echoing DCS’ opinion. On June 30, 2016,

the trial court issued its Order, terminating Father’s parental rights to the

Children.

[13] Father now appeals. Additional facts will be provided as necessary.



### DISCUSSION AND DECISION

I. Standard of Review

[14] Father challenges the involuntary termination of his parental rights. “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 G.Y.

, 904 N.E.2d

1257, 1259 (Ind. 2009) (quoting Troxel v. Granville

, 530 U.S. 57, 65 (2000)).

Accordingly, the Fourteenth Amendment to the United States Constitution

safeguards “the traditional right of parents to establish a home and raise their

children.” Id. Nevertheless, “parental rights are not absolute and must be

subordinated to the child’s interests.” S.L. v. Ind. Dep’t of Child Servs.

, 997

N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (internal quotation marks omitted)

(quoting In re I.A.

, 934 N.E.2d 1127, 1132 (Ind. 2010)). Thus, parental rights

may be terminated if the “parents are unable or unwilling to meet their parental

responsibilities.” In re G.Y.

, 904 N.E.2d at 1259

- 60. It is important to

acknowledge that the termination of a parent’s rights is “an extreme measure

and should only be utilized as a last resort when all other reasonable efforts to

protect the integrity of the natural relationship between parent and child haveCourt of Appeals of Indiana | Memorandum Decision 49A05

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, 39 N.E.3d 641, 646 (Ind. 2015)

(internal quotation marks omitted).

[15] When reviewing the termination of a parent’s rights on appeal, our court

neither reweighs evidence nor assesses the credibility of witnesses. In re G.Y.

,

904 N.E.2d at 1260. Instead, we will “consider only the evidence and

reasonable inferences that are most favorable to the judgment.” Id.

Furthermore, because the trial court issued specific findings of fact and

conclusions thereon in granting DCS’ petition to terminate Father’s rights, we

must engage in the two

- fold standard of review set forth in Indiana Trial Rule

52(A): “[f]irst, we determine whether the evidence supports the findings, and

second we determine whether the findings support the judgment.” Id. We

“shall not set aside the findings or judgment unless clearly erroneous, and due

regard shall be given to the opportunity of the trial court to judge the credibility

of the witnesses.” Ind. Trial Rule 52(A). We will find clear error only “if the

findings do not support the trial court’s conclusions or the conclusions do not

support the judgment.” In re G.Y.

, 904 N.E.2d at 1260 (quoting Bester v. Lake

Cnty. Office of Family & Children

, 839 N.E.2d 143, 147 (Ind. 2005)).

II. Voluntary Termination of Parental Rights

[16] In general, in order to terminate a parent’s rights, DCS must prove, in relevant

part, that the child has been removed from the home for a specific period of

time, and

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

(i) There is a reasonable probability that the conditions thatCourt of Appeals of Indiana | Memorandum Decision 49A05

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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 well

- being of

the child.

(iii) The child has, on two (2) separate occasions, been

adjudicated a [CHINS].

(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

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- 2

- 4(b)(2). DCS is required to prove each of these elements by

clear and convincing evidence. In re G.Y.

, 904 N.E.2d at 1260. However, in

addition to the court’s authority to sever a parent’s rights to his children,

Indiana statutes also provide that a parent may voluntarily consent to the

termination of the parent

- child relationship. See I.C. ch. 31

- 35

- 1. In such a

case, DCS is relieved of its burden to prove by clear and convincing evidence”

the elements set forth in Indiana Code 31

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- 2

- 4(b)(2). In re M.R.

, 728 N.E.2d

204, 209 (Ind. Ct. App. 2000), trans. denied

.

[17] In this case, Father raises no challenge to the sufficiency of DCS’ evidence

regarding any of the factors set forth in Indiana Code section 31

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- 2

- 4(b)(2),

nor does Father challenge any of the trial court’s factual findings or legal

conclusions. Rather, Father’s sole claim on appeal is that the trial court

erroneously entered an involuntary termination order based on the fact that

Father was willing to consent to the termination. According to Father, “an

involuntary termination has the impact of reducing Father’s chances of

receiving reasonable effort[s] to reunify or preserve his family if he ever findsCourt of Appeals of Indiana | Memorandum Decision 49A05

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- 1663 | January 24, 2017 Page 11 of 15 himself in the position of having children who are adjudicated CHINS in the

future.” (Appellant’s Br. p. 15). See I.C. § 31

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- 5.6(b)(4) (providing that

DCS is not required to undertake reasonable efforts to reunify a family if “[t]he

parental rights of a parent with respect to a biological or adoptive sibling of a

[CHINS] have been involuntarily terminated by a court”). Based on this

“potential to affect Father and his future children[,]” Father requests that we

vacate the involuntary termination order in lieu of a voluntary termination.

(Appellant’s Br. p. 16). We, however, find that Father missed his opportunity

to consent to a voluntary termination, and the trial court committed no error by

entering an involuntary termination order.

[18] Indiana Code section 31

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- 1

- 4(a) provides that, “[i]f requested by the

parents[,]” DCS may file a verified petition “for the voluntary termination of

the parent

- child relationship.” This petition must allege, in part, that the

parents “knowingly and voluntarily consent to the termination of the parent

child relationship”; that termination is in the child’s best interest; and that there

is a satisfactory plan for the child’s care and treatment. I.C. § 31

- 35

- 1

- 4(b)(2).

Here, notwithstanding that Father and DCS, at some point, had discussed

Father’s desire to sign consents for the Children’s adoption, DCS filed a

petition for the involuntary termination of Father’s rights. 3 Nevertheless, we

look to Indiana Code section 31

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- 1

- 6(a)

- (b), which states:

3 At some point, Father had signed consents for the Children’s adoption, but that specific placement fell

through. Thereafter, Father informed DCS that he would be willing to re

- sign consents based on the fact thatCourt of Appeals of Indiana | Memorandum Decision 49A05

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. . . , the parents must give their

consent in open court unless the court makes findings of fact

upon the record that:

(1) the parents gave their consent in writing before a person

authorized by law to take acknowledgments; and

(2) the parents were:

(A) advised in accordance with section 12 of this chapter; and

(B) advised that if they choose to appear in open court, the

only issue before the court is whether their consent was

voluntary.

I.C. § 31

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- 1

- 6(a). According to Father, the fact that he expressed his desire to

sign adoption consents during the initial hearing should have been sufficient for

the trial court to enter a voluntary termination order. We disagree.

[19] “[T]ermination proceedings pursuant to a parent’s consent remain subject to the

safeguards outlined in the statutes governing voluntary termination of parental

rights.” In re M.R.

, 728 N.E.2d at 208. Thus, not only must the parent give

consent in open court, but the trial court must “further assure the voluntariness

of the consent.” Id. Specifically, “[b]efore consent may be given in court, the

court must advise the parents of: (1) their constitutional and other legal rights;

and (2) the consequences of their actions under section 12 of this chapter.” I.C.

§ 31

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- 1

- 8. Section 12 of the voluntary termination chapter stipulates that

. . . the parents must be advised that:

(1) their consent is permanent and cannot be revoked or set aside

unless it was obtained by fraud or duress or unless the parent is

he was unable to care for the Children and was still abusing drugs. It is unclear whether these discussions

concerning Father’s consent occurred before or after DCS filed the involuntary termination petition.Court of Appeals of Indiana | Memorandum Decision 49A05

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(2) when the court terminates the parent

- child relationship:

(A) all rights, powers, privileges, immunities, duties, and

obligations, including any rights to custody, control, parenting

time, or support pertaining to the relationship, are permanently

terminated; and

(B) their consent to the child’s adoption is not required;

(3) the parents have a right to the:

(A) care;

(B) custody; and

(C) control;

of their child as long as the parents fulfill their parental

obligations;

(4) the parents have a right to a judicial determination of any

alleged failure to fulfill their parental obligations in a proceeding

to adjudicate their child a delinquent child or a [CHINS];

(5) the parents have a right to assistance in fulfilling their parental

obligations after a court has determined that the parents are not

doing so;

(6) proceedings to terminate the parent

- child relationship against

the will of the parents can be initiated only after:

(A) the child has been adjudicated a delinquent child or a

[CHINS] and removed from their custody following the

adjudication; or

(B) a parent has been convicted and imprisoned for an offense

listed in [Indiana Code section] 31

- 35

- 3

- 4 (or has been convicted

and imprisoned for an offense listed in [Indiana Code section] 31

-

6

- 5

- 4.2(a) before its repeal), the child has been removed from the

custody of the parents under a dispositional decree, and the child

has been removed from the custody of the parents for six (6)

months under a court order;

(7) the parents are entitled to representation by counsel, provided

by the state if necessary, throughout any proceedings to terminate

the parent

- child relationship against the will of the parents;

(8) the parents will receive notice of the hearing, unless notice is

waived under section 5(b) of this chapter, at which the court will

decide if their consent was voluntary, and the parents mayCourt of Appeals of Indiana | Memorandum Decision 49A05

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voluntary; and

(9) the parents’ consent cannot be based upon a promise

regarding the child’s adoption or contact of any type with the

child after the parents voluntarily relinquish their parental rights

of the child after entry of an order under this chapter terminating

the parent

- child relationship.

I.C. § 31

- 35

- 1

- 12.

[20] There is no dispute that the trial court did not administer these warnings to

Father at the time Father first declared his desire to consent in open court, and

Father never offered any indication that his “consent was given with full

knowledge of [his] constitutional and other legal rights.” In re M.R.

, 728 N.E.2d

at 209. Rather, at the initial hearing, the trial court appropriately appointed

counsel to represent Father in order to ensure that Father fully

understood the gravity of his rights prior to consenting to the termination. See,

e.g.

, I.C. § 31

- 32

- 4

- 3(a) (requiring the trial court to appoint counsel for an

unrepresented parent in a termination proceeding “at the initial hearing or at

any earlier time” unless the parent waives his right to counsel). Thereafter,

despite multiple opportunities to appear in court and affirm that he was

willfully consenting to the termination with full knowledge of his rights, Father

failed to appear. As such, we find that he waived his opportunity to voluntarily

consent, and the trial court appropriately proceeded with the involuntary

termination.Court of Appeals of Indiana | Memorandum Decision 49A05

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### CONCLUSION

[21] Based on the foregoing, we conclude that the trial court did not err in

terminating Father’s parental rights to the Children.

[22] Affirmed.

[23] Crone, J. and Altice, J. concur