                                                                       FILED
                                                                  May 07 2020, 7:12 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT J.A.                                ATTORNEYS FOR APPELLEE
Leanna Weissmann                                           Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                      Attorney General of Indiana
ATTORNEY FOR APPELLANT M.A.                                Robert J. Henke
                                                           Deputy Attorney General
Jennifer A. Joas
                                                           Indianapolis, Indiana
Madison, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary                           May 7, 2020
Termination of the Parent-Child                            Court of Appeals Case No.
Relationship of: F.A., L.A.,                               19A-JT-2570
D.A., P.A., & Z.A. (Minor                                  Appeal from the Ripley Circuit
Children)                                                  Court
J.A. (Mother) and M.A.                                     The Honorable Ryan King, Judge
(Father),                                                  Trial Court Cause Nos.
Appellants,                                                69C01-1905-JT-16
                                                           69C01-1905-JT-17
        v.                                                 69C01-1905-JT-18
                                                           69C01-1905-JT-19
                                                           69C01-1905-JT-20
Indiana Department of Child
Services,
Appellee.



Brown, Judge.

Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020                            Page 1 of 11
[1]   J.A. (“Mother”) and M.A. (“Father,” and together with Mother, “Parents”)

      appeal the involuntary termination of their parental rights to their children

      F.A., L.A., D.A., P.A., and Z.A. (the “Children”). We reverse and remand.


                                       Facts and Procedural History

[2]   F.A. was born in 2008, L.A. was born in 2009, D.A. was born in 2012, P.A.

      was born in 2013, and Z.A. was born in 2014. On September 8, 2016, the

      Department of Child Services (“DCS”) received a report that De.A., 1 F.A., and

      L.A. had excessive absences from school, and a home visit revealed sanitary

      concerns in the home, and DCS later filed petitions alleging the Children were

      children in need of services (“CHINS”). On September 29, 2016, the court

      entered an order finding the Children were CHINS based on Parents’

      admissions regarding the condition of the home and De.A., F.A., and L.A.

      missing seventy-five percent of the school days in session that year. The court

      issued a dispositional order requiring Parents to, among other things,

      participate in any recommended programs, permit family case managers and

      service providers to make announced and unannounced visits to the home,

      ensure the Children attend school, and maintain suitable and safe housing with

      adequate bedding and supplies of food. D.A., P.A., and Z.A. were removed

      from the home on or about December 1, 2016, and approved to be placed back




      1
       Parents are also the parents of De.A., who was born in November 2006, and A.A., who was born in 2003.
      De.A. and A.A. were placed with their maternal grandmother and not subject to the termination order from
      which this appeal arises.

      Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020                              Page 2 of 11
      in the home on December 29, 2016, after DCS indicated the home was free of

      safety concerns. An order file-stamped March 1, 2017, approved the removal of

      the Children from the home and stated the home was unsafe and unsuitable for

      children. A progress report in July 2017 stated Parents had attended all

      scheduled visitations and required individual counseling. The report also noted

      DCS was seeking assistance from a clinical resource consultant to seek partial

      hospitalization for Mother to stabilize and establish self-care. The court entered

      an order in January 2018 stating Parents complied with the Children’s case

      plan, attended counseling, and maintained a safe home environment; Father

      was working on positive coping skills; and there were still some issues with

      Valle Vista and the hospitalization program but DCS was working with

      Mother.


[3]   The Children were returned to Parents in stages in 2018. In particular, in

      February 2018 the court granted DCS’s motion for approval of a trial home

      visit for F.A. and L.A. which stated a family case manager observed the home

      to be free of safety concerns, Parents had made significant strides in

      maintaining a safe home environment for children, they would continue to

      participate in counseling, and Mother would continue to participate in home-

      based services. An order in April 2018 stated P.A. had been approved for a trial

      home visit and D.A. and Z.A. had been approved for overnight stays on the

      weekends. An order in September 2018 stated Parents had complied with the

      Children’s case plan, attended required counseling, visited the Children,

      cooperated with DCS, and enhanced their ability to fulfill their parental


      Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020          Page 3 of 11
      obligations. The order also stated that Father attended therapy every two to

      three weeks, and there were times when the home needed items picked up,

      dishes washed, and trash taken out, and Mother then complied with the request

      to remedy the situation. In October 2018, the court approved a trial home visit

      for Z.A. D.A. began a trial home visit in November 2018. According to the

      court, all of the Children had been returned to the home by November 7, 2018.


[4]   A progress report dated November 28, 2018, stated the Children appeared to be

      happy and adjusted to living at home, the permanency plan was reunification,

      the projected date for the Children’s permanency was March 15, 2019, and

      DCS was requesting case closure for F.A., L.A., and P.A. On January 9, 2019,

      DCS filed a notice of addendum stating that it was requesting case closure for

      all of the Children.


[5]   On January 24, 2019, Mother had an altercation with her twelve-year-old

      daughter De.A. Mother yelled, struck De.A. with a towel, told her to “shut

      up,” used derogatory language, took De.A.’s school device from her, and said

      “I’ve f---ing had it,” “I’m going to knock you out,” “I will pop you if I hear it

      again,” and “no electronics, period.” Transcript Volume II at 124, 127, 129-

      132. De.A. received a couple of cuts on her fingers during the struggle over a

      school device. The following day, the court terminated the home placement.




      Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020           Page 4 of 11
[6]   According to a family case manager, DCS filed a petition to terminate parental

      rights on February 5, 2019, but the petition was dismissed. 2 The court

      approved a change in the permanency plan to adoption on April 30, 2019. On

      May 1, 2019, DCS filed a petition to terminate the parental rights of Parents as

      to the Children, and the court held a hearing in August 2019. Mary Smith

      testified she worked for Ireland Home Based Services, was assigned to Parents,

      and worked with Mother on parent aide services, budgeting, obtaining her

      license, organizing the home, and establishing a routine for the children. She

      indicated Mother was appropriate with the children, that she visited the house

      twice a week for four months and once a week for two months and that, when

      she closed her services near the end of August 2018, the home was clean and

      organized. Mother’s counsel argued DCS had asked for case closure, all of the

      Children were home, DCS was relying solely on the altercation between

      Mother and De.A., it provided no services to address the altercation, “[w]e

      have new conditions here with no services provided,” and Parents “did not

      have enough time to demonstrate that they couldn’t remedy any physical or

      emotional abuse issues that the department felt they had and for the reasons of

      that removal on January 25th of 2019.” Transcript Volume IV at 136.


[7]   On October 2, 2019, the court terminated Parents’ parental rights as to the

      Children. The court found Parents did not demonstrate an ability to provide




      2
       When asked why the petition was dismissed, the family case manager testified “I think there was something
      with the legal side of it.” Transcript Volume III at 169.

      Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020                               Page 5 of 11
      adequate care or supervision, did not show the capability to provide a home

      that is safe, clean and habitable, and were evicted from the home after the

      Children’s final removal and were living in separate apartments. It found

      Father had not shown the ability to protect the Children from domestic violence

      or that he would be able to take care of five children while working a full-time

      job that does not pay enough for him to adequately support them or pay for day

      care. The court concluded there is a reasonable probability the conditions that

      resulted in the Children’s removal will not be remedied and the continuation of

      the parent-child relationship poses a threat to the Children’s well-being and

      termination of parental rights is in the Children’s best interests.


                                                    Discussion

[8]   Mother argues that Parents regained custody of all the Children by November

      2018, DCS requested the court to close the CHINS case on January 9, 2019,

      and she had an altercation with her daughter on January 24, 2019, which

      resulted in DCS initiating the termination proceeding and giving Parents no

      time to correct the behavior prompting the termination petition. She argues she

      was deprived of due process due to DCS’s decision to terminate her rights based

      on a dispute with her daughter without offering her services to remedy the

      issue. She argues it is inherently unfair to sever her parent-child bond with

      De.A.’s five siblings based on the isolated incident. Father also argues DCS

      filed its termination petition before offering services to address Mother’s

      altercation with De.A. and deprived him of due process. He argues the isolated

      altercation altered the trajectory of the entire case from case closure to

      Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020              Page 6 of 11
       termination of parental rights as to five of De.A.’s siblings within a matter of

       days. He contends there were no safety concerns before the incident and there

       was insufficient evidence to support parental termination.


[9]    DCS contends that, “[w]hile the incident [between Mother and De.A.] may

       have been the proverbial ‘straw that broke the camel’s back,’ the evidence

       indicates that numerous and intensive reasonable efforts were provided Parents

       to reunify, but they failed or refused to benefit from the same.” Appellee’s Brief

       at 23. It argues that, even assuming it violated its obligation to provide

       domestic violence services, “this arguably does not amount to a due process

       violation” and Parents received reunification services but regressed and failed to

       demonstrate long-term improvements. Id. at 39.


[10]   The trial court entered findings and conclusions. We determine whether the

       evidence clearly and convincingly supports the findings and whether the

       findings clearly and convincingly support the judgment. K.T.K. v. Ind. Dep’t of

       Child Servs., Dearborn Cty. Office, 989 N.E.2d 1225, 1230 (Ind. 2013).


[11]   The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution. Id.;

       In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App. 2011). Although parental rights

       are of a constitutional dimension, the rights may be terminated where parents

       are unable or unwilling to meet their parental responsibilities. In re D.B., 942

       N.E.2d at 871. Before parental rights may be involuntarily terminated, the

       State is required to prove, among other things, that termination is in the best


       Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020              Page 7 of 11
       interests of the child and that there is a reasonable probability the conditions

       that resulted in the child’s removal or placement outside the home will not be

       remedied, the continuation of the parent-child relationship poses a threat to the

       well-being of the child, or the child has on two separate occasions been

       adjudicated a CHINS. See id. at 871-872 (citing Ind. Code § 31-35-2-4(b)(2)).


[12]   As a matter of statutory elements, it has been established that DCS is not

       required to provide parents with services prior to seeking termination of the

       parent-child relationship. In re T.W., 135 N.E.3d 607, 612 (Ind. Ct. App. 2019),

       trans. denied. However, parents facing termination proceedings are afforded due

       process protections. Id. We have discretion to address such due process claims

       even where the issue is not raised below. Id. (citations omitted). CHINS and

       termination of parental rights proceedings “are deeply and obviously

       intertwined to the extent that an error in the former may flow into and infect

       the latter,” and procedural irregularities in a CHINS proceeding may deprive a

       parent of due process with respect to the termination of his or her parental

       rights. Id. (citing In re D.H., 119 N.E.3d 578, 588 (Ind. Ct. App. 2019), aff’d in

       relevant part on reh’g, trans. denied). DCS’s policy manual provides directions

       regarding the provision of services and states DCS “will provide family services

       to all children and families with an open case,” “will make appropriate service

       referrals,” and “will reassess the strengths and needs of the child and family

       throughout the life of the case and will adjust services, if necessary, to meet




       Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020            Page 8 of 11
       identified needs.” Matter of D.H., 119 N.E.3d at 589 (citing Indiana Department

       of Child Services Child Welfare Policy Manual, Ch. 5, Sec. 10). 3


[13]   In addition to due process protections, we note the State’s burden of proof for

       establishing the elements of the termination statute in termination cases is one

       of “clear and convincing evidence.” In re D.B., 942 N.E.2d at 872; Ind. Code §

       31-37-14-2. If the State fails to prove any of the elements, then it is not entitled

       to a judgment terminating parental rights. In re D.B., 942 N.E.2d at 872. The

       court must judge a parent’s fitness to care for his or her child at the time of the

       termination hearing, taking into consideration evidence of changed conditions.

       In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). Due to the permanent

       effect of termination, the court must evaluate the parent’s habitual patterns of

       conduct to determine the probability of future neglect or deprivation of the child

       and may consider a parent’s prior criminal history, drug and alcohol abuse,

       history of neglect, lack of adequate housing and employment, and the services

       offered by DCS to the parent and the parent’s response to those services. Id.


[14]   “The involuntary termination of parental rights is the most extreme sanction a

       court can impose on a parent because termination severs all rights of a parent to

       his or her children.” In re I.A., 934 N.E.2d 1127, 1136 (Ind. 2010) (citation

       omitted). “Therefore, termination is intended as a last resort, available only

       when all other reasonable efforts have failed.” Id. (holding “[w]e are not




       3
         The Indiana Department of Child Services Child Welfare Policy Manual is now found at
       https://www.in.gov/dcs/2536.htm [https://perma.cc/BJ4M-8AYC] (last visited April 27, 2020).

       Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020                           Page 9 of 11
       convinced that all other reasonable efforts have been employed in this case to

       unite this father and son” and “we see little harm in extending the CHINS

       wardship until such time as [the father] has a chance to prove himself a fit

       parent for his child”); In re T.W., 135 N.E.3d at 618 (finding DCS did not make

       reasonable efforts to preserve the parent-child relationship).


[15]   The record reveals the CHINS proceedings began in 2016 due to the home’s

       condition and school attendance. Upon DCS’s recommendation, the Children

       were returned to the home in stages during 2018, and by November 7, 2018, all

       the Children were placed with Parents in the home. The November 28, 2018

       report indicated the Children appeared to be happy and adjusted to living at

       home, Parents had maintained a good home environment, the permanency

       plan was reunification, and the projected date for the Children’s permanency

       with Parents was March 15, 2019. On January 9, 2019, DCS requested case

       closure for all the Children. Then, on January 24, 2019, there was an

       altercation between Mother and De.A., and DCS abruptly changed course. We

       do not deny the seriousness of the altercation. Nevertheless, DCS does not

       assert that it kept the CHINS proceedings open in order to reassess the needs of

       the Children and Parents in light of the altercation and to adjust services to

       meet the identified needs. Instead, it moved immediately to terminate Parents’

       parental rights as to the five Children, filing termination petitions on February

       5, 2019 and May 1, 2019. We are mindful that termination of parental rights is

       the most extreme sanction and “intended as a last resort, available only when

       all other reasonable efforts have failed.” In re I.A., 934 N.E.2d at 1136; see also


       Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020           Page 10 of 11
       In re T.W., 135 N.E.3d at 618 (reviewing the circumstances in totality in

       concluding DCS did not make reasonable efforts to reunify the father and

       child). We cannot conclude, in totality and under the circumstances, that DCS

       made all reasonable efforts to reunify Parents with the Children following the

       altercation with De.A. In light of DCS’s actions following the altercation and

       its burden of proof, we reverse the trial court’s order and remand for

       reinstatement of the CHINS cases and reassessment consistent with this

       opinion. See Matter of D.H., 119 N.E.3d at 591 (remanding for reinstatement of

       the CHINS cases, a reexamination of the requirements for reunification, and a

       revised dispositional order).


[16]   Reversed and remanded.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JT-2570 | May 7, 2020          Page 11 of 11
