A Marion County mother has failed to convince the Indiana Court of Appeals that her parental rights over her 13-year-old daughter should be reinstated.
Mother J.M. appealed after her parental rights to C.L. were terminated in January 2020.
C.L. and her three siblings had been removed from J.M.’s care in 2017 due to the mother’s drug use and were adjudicated as children in need of services. J.M. was ordered to participate in various therapy and treatment programs and was given supervised visitation with her children.
In the fall of 2017, J.M. asked for a temporary in-home trial with C.L., but her request was denied. She then failed to attend permanency hearings in January and April 2018, then again in February and June 2019. Meanwhile, C.L. was moved from homes with her family to foster homes.
The Marion Superior Court changed C.L.’s permanency plan from reunification to adoption in June 2019, and the Indiana Department of Child Services followed with a petition to terminate J.M.’s parental rights. J.M. did not attend an October 2019 hearing, but she did attend a factfinding hearing in December and asked for more time to complete substance abuse treatment. That request was denied.
Another factfinding hearing was scheduled for Jan. 6, 2020, and J.M. was given notice on Dec. 13, 2019. However, she failed to attend the January hearing, and her counsel orally requested a continuance due to transportation issues. The trial court denied the continuance and issued an ordering terminating J.M.’s parental rights.
In appealing that decision, J.M. first argued that her due process rights were violated when her continuance motion was denied. But noting that her counsel did not raise a procedural due process concern when requesting the continuance, Judge Terry Crone wrote for the Court of Appeals in a memorandum decision that J.M. “did not provide the trial court ‘a bona fide opportunity to pass upon the merits’ of her claim before seeking an opinion on appeal. … Thus, she has waived the issue for our consideration.”
In a footnote, Crone pointed to J.M.’s alternate argument that the termination statute is unconstitutional on its face because it doesn’t include a provision requiring DCS to provide services or requiring the trial court to grant a continuance if a parent cannot attend a factfinding hearing. That issue was also waived, Crone wrote, but waiver notwithstanding, J.M.’s argument would not succeed.
“… (W)e note that DCS did refer (and re-refer) Mother for services,” Crone wrote. “… Moreover, with respect to Mother’s claim regarding a continuance to ensure a parent’s physical attendance, we note that termination by definition becomes the permanency plan only when the parent has failed to meet his or her obligations with respect to appearing for and progressing in court-ordered services, visitation, and the like. Here, Mother failed to attend six hearings and has no proverbial leg to stand on when it comes to arguing that she must be afforded another continuance before her parental rights may be terminated.”
J.M. also raised a substantive due process claim based on allegations that DCS personnel “engaged in a pattern of callousness and dereliction of duty … .” She based her argument on In re T.W., 135 N.E.3d 607 (Ind. Ct. App. 2019), trans. denied (2020), but the COA found that case distinguishable.
“Here, the service providers did not engage in a pattern of dereliction of duty; rather, they referred and re-referred Mother for court-ordered services, only to have her fail to complete them each time,” Crone wrote. “… We simply do not find in the record a pattern of callous disregard or dereliction of duty, as Mother suggests.”
J.M. also failed in her challenge to the sufficiency of the evidence supporting termination, in which she claimed the state did not prove a reasonable probability that the reasons for C.L.’s removal would not be remedied or that removal was in C.L.’s best interests.
“… (T)he record confirms Mother’s lack of progress in services, her poor attendance at visitation, and the sometimes negative effect that her conversations had on Child when she did visit her. The record also shows that Mother’s prevailing course of conduct was either to avoid services or to participate sporadically, which resulted in those services either being placed on hold or discharged and sometimes re-referred,” Crone wrote. “Her challenges to these findings are invitations to reweigh evidence and reassess credibility, which we may not do. In short, Mother did not avail herself of the many services aimed at improving her life as an individual and as a parent.”
Similarly as to C.L.’s best interests, Crone wrote, “The record shows that the foster family has given Child security within a new family while, at the same time, strongly supporting Child’s need to spend time visiting her biological siblings and that Child’s schoolwork and behavior have improved commensurately.
“… The totality of the circumstances reflects a thirteen-year-old girl in dire need of the stability and security that has eluded her for most her life and a mother who lacks the ability to provide them even for herself, let alone for her child,” the judge concluded. “The trial court did not clearly err in concluded that termination is in Child’s best interests. Accordingly, we affirm.”