MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Nov 13 2019, 10:46 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jarvis E. Newman III                                     Curtis T. Hill, Jr.
Newman and Newman LLC                                    Attorney General of Indiana
Albion, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of:                                        November 13, 2019
K.H. (Child Alleged to be in                             Court of Appeals Case No.
Need of Services) and R.H.                               19A-JC-913
(Mother);                                                Appeal from the Noble Superior
R.H. (Mother),                                           Court
                                                         The Honorable Steven C. Hagen,
Appellant-Respondent,
                                                         Judge
        v.                                               Trial Court Cause No.
                                                         57D02-1705-JC-42
The Indiana Department of
Child Services,
Appellee-Petitioner



May, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019                Page 1 of 12
[1]   R.H. (“Mother”) appeals the trial court’s order terminating the Department of

      Child Service’s (“DCS”) wardship over her daughter, K.H. (“Child”). She

      argues the trial court violated her right to due process when it did not rule on

      two pending motions prior to terminating the wardship. We affirm.



                            Facts and Procedural History
[2]   Child was born to Mother on September 19, 2014. Mother did not notify J.C.

      (“Father”) that he was the father of Child. Mother and Child lived with

      maternal grandparents. On May 18, 2017, Child was in the car with Mother

      when police initiated a traffic stop. Police found methamphetamine,

      marijuana, and paraphernalia in the car. Officers arrested Mother. Following

      her arrest, DCS requested that Mother complete a drug screen, which was

      positive for amphetamine, methamphetamine, and THC. Mother could not

      provide an appropriate caregiver for Child, so DCS removed Child from

      Mother’s care at that time.


[3]   On May 19, 2017, DCS filed a petition alleging Child was a Child in Need of

      Services (“CHINS”) based on Mother’s drug use, arrest, and inability to

      provide an appropriate caregiver for Child. On June 6, 2017, DCS filed a

      predispositional report with the trial court, indicating DCS was trying to locate

      Father, the man Mother reported as the Child’s father. DCS also made

      recommendations regarding services for Mother should Child be adjudicated a

      CHINS.



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 2 of 12
[4]   On June 15, 2017, Mother1 admitted Child was a CHINS and the trial court

      immediately held a dispositional hearing. On July 2, 2017, the trial court

      ordered Mother to refrain from using illegal substances; provide random drug

      screens; complete psychiatric, parenting, and substance abuse assessments; and

      follow all recommendations from the assessments based on DCS’s requested

      services from the June 6 predispositional report. On August 7, 2017, the trial

      court entered a separate parental participation order that listed the same service

      requirements.


[5]   On October 6, 2017, DCS filed a progress report with the trial court indicating

      it had located Father and DNA testing completed in September confirmed

      Child’s paternity. The report also indicated Mother had thus far been non-

      compliant with services and had tested positive for illegal substances on

      multiple occasions. On October 10, 2017, Father entered an appearance in the

      CHINS matter and admitted Child was a CHINS. On November 14, 2017,

      DCS filed a predispositional report as to Father. On December 7, 2017, the

      trial court entered its dispositional order as to Father based on DCS’s

      recommendations and ordered Father to complete services including meeting

      with the Family Case Manager, keeping all appointments with the service

      providers, and visiting Child. The trial court granted Father an extended

      visitation with Child from December 7 through 10, 2017.




      1
          While the exact date is unclear, Mother was released from jail prior to the June 15, 2017, hearing.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019                     Page 3 of 12
[6]   On December 13, 2017, Father filed a motion to modify Child’s placement and

      requested Child be placed with him. He alleged he was the “non-offending”

      parent and Child’s current placement with maternal grandmother was

      inappropriate because Mother also resided with maternal grandmother and

      continued to use drugs. (Appellee’s App. Vol. II at 62.) Father indicated he

      had filed a Petition to Establish Paternity and Custody of Child in another court

      and had not been accused of any wrongdoing in the current CHINS case.


[7]   On December 19, 2017, Mother’s therapist filed a report with the trial court

      indicating Mother had been diagnosed with PTSD; cannabis use disorder, mild;

      amphetamine-type substance disorder, mild; and other circumstances related to

      child neglect. Mother’s therapist reported Mother told her that Mother’s

      substance abuse began at age nine, and Mother was actively working on

      overcoming her addiction. Mother’s therapist had also observed Father’s

      visitation with Child and expressed no concerns. On December 21, 2017, the

      trial court held a hearing 2 on the matter and the same day entered an order

      granting Father’s request to have Child placed with him, to commence on

      December 30, 2017. The order provided Mother would be allowed supervised

      visitation through DCS and maternal grandparents would be allowed

      unsupervised visitation with Child “upon the express condition that [Mother]

      not be present during any portion of said visitation.” (Id. at 64.)




      2
          The record does not include a transcript of this hearing.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 4 of 12
[8]   On January 12, 2018, the trial court issued a Nunc Pro Tunc Order amending

      its December 21 order, allowing maternal grandparents “liberal reasonable

      unsupervised visitation (as determined by DCS) with Child upon the express

      condition that [Mother] not be present during any portion of said visitation.”

      (Id. at 65.) On January 23, 2018, Father filed a motion to terminate or restrict

      grandparent visitation. On February 1, 2018, maternal grandparents filed a

      motion to intervene in the CHINS proceedings. The trial court set a hearing on

      February 8, 2018, to discuss these matters.


[9]   On February 2, 2018, Mother filed a motion to reunify or show cause why

      reunification should not occur. Mother alleged she had been denied visitation

      with Child on five dates because of weather conditions, scheduling errors, and

      difficulty with transportation; Father has “not been conducive to fostering the

      relationship between Mother and child and DCS has taken no action[,]” (id. at

      67-8); Father “tried to prevent grandparent’s [sic] from having visitation[,]” (id.

      at 68); Father “has been leaving the child with his mother for the three day

      period and two day period in which he works[,]” (id.); paternal grandmother

      will not allow Mother to speak with Child when Child is in paternal

      grandmother’s care because paternal grandmother cannot allow video calls on

      her phone and does not have cellular signal to allow regular calls; Child had

      complained her “bottom hurt[,]” (id.); the parties disagreed regarding how to

      potty train Child; and Child “pleads with Mom that she doesn’t want to go

      back to Dad’s house saying she wants to go home and be with Mom.” (Id. at




      Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 5 of 12
       69.) The trial court added Mother’s motion to the items to be discussed during

       the February 8 hearing.


[10]   On February 6, 2018, Mother filed a motion to correct error, asking the trial

       court to either: (1) vacate and dismiss the CHINS proceeding, or (2) restore the

       June 22, 2017, dispositional decree or have a new evidentiary hearing regarding

       Child’s placement with maternal grandparents. Mother argued one of those

       actions was required because:


               1. The CHINS judgment was erroneous as no determination of
               serious endangerment or impairment was made.


               2. The current placement judgment is not supported by the
               evidence contained in the record.


               3. The current placement judgment is against the weight of the
               evidence presented to the Court.


               4. The current placement judgment is a modification of the
               Mother’s dispositional order which order was made contrary to
               her procedural due process rights.


       (Id. at 71-2.) Mother also filed a memorandum of law in support of her motion

       to correct error.


[11]   On February 8, 2018, the trial court held a hearing and denied maternal

       grandparents’ motion to intervene. On February 28, 2018, the trial court

       denied Mother’s motion to correct error. The trial court set a review hearing for

       March 15, 2018, and an evidentiary hearing on all pending motions for April

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 6 of 12
       12, 2018. On March 15, 2018, the trial court held the review hearing. During

       the March 15 hearing, the trial court noted that the paternity court would likely

       deal with Child’s custody during a hearing in May and “it’s just a question then

       of cleaning up after the end of it all.” (Tr. Vol. II at 43.) The trial court then

       vacated the April 12 hearing and set a hearing for August 30, 2018. On April

       11, the trial court issued an order finding DCS, Child, and Father had complied

       with Child’s case plan and that Child’s placement with Father was appropriate.

       However, Mother had only partially complied with Child’s case plan, had

       tested positive for illegal drugs during the reporting period, and had not

       benefitted from services. Services were to continue and Child was to remain

       with Father.


[12]   On April 2, 2018, Mother filed a notice of appeal which was subsequently

       dismissed with prejudice. 3 On April 12, Mother filed a motion to reconsider the

       trial court’s order of April 11, which dealt with the issues presented at the

       March 15 hearing. In her motion to reconsider, Mother alleged “numerous

       factual errors and insufficient findings” including that one of Mother’s attorneys

       was not named in the order; one of the DCS attorneys was improperly

       included; Father’s name was misspelled; the number of times Mother tested




       3
         On June 25, 2018, Mother filed her appellant’s brief challenging her admission to the CHINS allegations
       and Child’s subsequent placement with Father. On August 13, 2018, DCS filed a motion to dismiss Mother’s
       appeal as untimely. On September 14, 2018, this court dismissed Mother’s appeal with prejudice. On
       October 22, 2018, Mother filed a petition for rehearing, which this court denied on November 27, 2018.
       Mother then filed a petition to transfer to the Indiana Supreme Court on December 27, 2018, which our
       Indiana Supreme Court denied on February 28, 2019.

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019             Page 7 of 12
       positive for drugs during the reporting period was incorrect; Mother’s

       participation in certain services was not reported; and generally, Father’s

       compliance with the case plan was overemphasized and Mother’s progress was

       ignored.


[13]   On May 29, 2018, the paternity court awarded Father physical and legal

       custody of Child to be effective upon the CHINS court’s approval or the

       dismissal of the CHINS proceedings. See In re Paternity of K.H., 116 N.E.3d

       504, 509 (Ind. Ct. App. 2018), trans. denied. On June 7, 2018, DCS filed a

       motion to terminate the CHINS wardship because Father had been granted

       physical and legal custody of Child in the paternity case. On August 17, 2018,

       DCS filed a motion for a permanency hearing. The trial court scheduled the

       hearing for August 30, 2018. Mother filed a motion to stay hearing on August

       27, 2018, and the court noted in the Chronological Case Summary that it would

       consider that motion at its August 30 hearing.


[14]   The trial court held a hearing on August 30, 2018, and denied DCS’s motion

       for a permanency hearing because Mother’s appeal of the trial court’s CHINS

       order had yet to be decided. On September 19, 2018, DCS again filed a motion

       to terminate its wardship of Child because our court dismissed Mother’s appeal

       of the CHINS adjudication with prejudice on September 14, 2018. Mother filed

       an objection to the termination of DCS’s wardship. On November 28, the trial

       court held a hearing and took the matter under advisement. On November 29,

       Mother filed another objection to the termination of DCS’s wardship, arguing



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 8 of 12
       that she was in the process 4 of appealing the paternity order and that the

       outcome of that appeal could affect the CHINS proceedings. We issued an

       opinion on Mother’s appeal of the paternity order on December 13, 2018, and

       our Indiana Supreme Court denied transfer on February 28, 2019.


[15]   On March 21, 2019, the trial court held a hearing on DCS’s motion to

       terminate wardship of Child. DCS argued the reasons for removal had been

       remedied because “reunification with a parent has occurred. The child is safe

       with father, that occurred through a custodial modification out of the custodial

       court[.]” (Tr. Vol. II at 48.) Father agreed with DCS and noted Child had been

       in his care for over a year. The Court Appointed Special Advocate indicated

       Child was “doing great” in Father’s care. (Id. at 51.) Mother argued there were

       “factual issues that need to be determined” and “there are pending motions on

       the case . . . [specifically] a motions [sic] to reunify [and] a motion to correct the

       record[.]” (Id. at 52.) DCS maintained Mother’s arguments were an attempt at

       a “second bite of the apple” and the issues Mother contended were still pending

       “were addressed at the appellate level.” (Id. at 54.) The same day, the trial

       court issued an order terminating DCS’s wardship over Child because

       “[p]ermanency for the Child has been achieved through Reunification with

       Father. The Indiana Supreme Court has denied appellant’s (Mother) petition to

       transfer.” (Appellant’s App. at 19.)




       4
           Mother filed a notice of appeal of the paternity order on August 1, 2018.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 9 of 12
                                  Discussion and Decision
[16]   The U.S. Constitution protects the relationship between parent and child. Troxel

       v. Granville, 530 U.S. 57, 66 (2000); see also Matter of Joseph, 416 N.E.2d 857, 860

       (Ind. Ct. App. 1981). The Due Process Clause of the Fourteenth Amendment

       protects the fundamental right of parents to direct the care, custody, and control

       of their children. Troxel, 530 U.S. at 66. However, this right is not unlimited,

       and the State has the authority under its parens patriae power to intervene when

       necessary to protect children within its borders. In re T.H., 856 N.E.2d 1247,

       1250 (Ind. Ct. App. 2006). We have consistently held a parent’s rights must be

       subordinated to the best interests of the child. In re A.A.C., 682 N.E.2d 542, 544

       (Ind. Ct. App. 1997).


[17]   Mother argues the trial court violated her right to due process when it

       terminated DCS’s wardship of Child before ruling on two pending motions.

       She argues that, because the trial court did not rule on those motions or hold

       hearings thereon, she did not have an “opportunity to show that she is a good

       candidate for reunification with her child[.]” (Br. of Appellant at 6.)


[18]   In a proceeding involving parental rights, parents have certain due process

       rights that essentially require those proceedings be fundamentally fair. E.P. v.

       Marion Cty. Ofc. of Family & Children, 653 N.E.2d 1026, 1031 (Ind. Ct. App.

       1995). When we determine if a parent’s due process rights have been violated,

       we balance three factors: “1) the private interests affected by the proceeding, (2)

       the risk of error created by the State's chosen procedure, and (3) the


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 10 of 12
       countervailing governmental interest supporting use of the challenged

       procedure.” A.P. v. Porter Cty. Ofc. of Family & Children, 734 N.E.2d 1107 (Ind.

       Ct. App. 2000), reh’g denied. Ultimately, the resulting balance of those factors

       must provide “the opportunity to be heard at a meaningful time and in a

       meaningful manner.” In re G.P., 4 N.E.3d 1158, 1166 (Ind. 2014).


[19]   We agree that Mother’s interest in maintaining a relationship with her Child is

       substantial, though we note that the termination of DCS wardship does not

       terminate Mother’s rights to Child – instead, it requires that she abide by the

       parenting time guidelines as set forth by the paternity court in its custody order.

       We also agree that the governmental interest here – the protection of Child – is

       substantial. Thus, we turn to the risk of error of the action.


[20]   This CHINS case has been pending for over two years. Child has been placed

       with Father for most of that time. Two courts – the CHINS court and the

       paternity court – have considered the fitness of each parent to care for Child

       over a series of multiple hearings. Mother has consistently tested positive for

       illegal substances and has not participated in the services required by the

       CHINS depositional order. The motions to be ruled on – one contesting

       Child’s placement with Father and the other requesting certain changes in an

       order that is no longer appealable – are moot considering the fact that the focus

       of the CHINS inquiry – Child – is no longer in need of the coercive intervention

       of the court. See, e.g, M.S. v. Indiana Dept. of Child Services, 999 N.E.2d 1036,

       1041 (Ind. Ct. App. 2013) (affirming dismissal of DCS wardship when mother



       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 11 of 12
       was “ill-equipped” to care for Child and continued placement with father

       satisfied all concerns set forth in CHINS petition).


[21]   Based on these facts, we conclude the risk associated with the termination of

       DCS’s wardship of Child is low because Mother had multiple opportunities in

       two different courts to be heard regarding her fitness to care for Child and she

       appealed rulings by those courts in two separate appellate proceedings, one

       which was dismissed as untimely and the other which was affirmed. Both

       appeals were also denied transfer by our Indiana Supreme Court. As such,

       Mother’s due process rights were not violated.



                                               Conclusion
[22]   The trial court did not violate Mother’s due process rights when it terminated

       DCS’s wardship of Child prior to ruling on two pending motions concerning

       issues that had already been litigated before the trial court. Accordingly, we

       affirm.


[23]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-913 | November 13, 2019   Page 12 of 12
