A.Z. v. Marion County Office, Indiana Department of Child Services
Docket: No. 49A05-0902-JV-73
Court: Indiana Court of Appeals; August 4, 2009; Indiana; State Appellate Court
Father appeals the termination of his parental rights to his child, HL, arguing he was denied due process and that the Department of Child Services (DCS) did not prove that termination was in HL's best interests. HL was born on June 30, 2006, while Father was incarcerated. After HL was hospitalized for pneumonia and diagnosed with cystic fibrosis, DCS filed a Child in Need of Services (CHINS) petition on June 11, 2007, citing Mother's inadequate care. The juvenile court found HL to be a CHINS and ordered Father to establish paternity, which he did. He was also required to complete parenting and substance abuse assessments. Mother consented to the termination of her rights, while Father remained incarcerated and unable to fulfill required services. DCS filed a petition to terminate Father's rights on August 27, 2008, and the court held a hearing on December 22, 2008, resulting in the termination order on January 12, 2009.
In his appeal, Father argues he was not given a chance to be heard during the termination hearing and lacked access to services needed to form a relationship with HL. The court emphasizes that due process in such cases involves balancing the parent's substantial interest in their child against the State's compelling interest in child welfare. Despite his incarceration, Father was provided legal representation throughout the proceedings. The court ultimately affirms the termination of his parental rights.
During the termination pre-trial hearing on November 17, 2008, the juvenile court informed Father’s attorney that he could appear telephonically, provided that arrangements were made with the facility. However, there is no evidence that Father requested this option; instead, he sought a continuance to discuss potential post-adoption visitation with his child, HL, which was denied. Father did not demonstrate that he was deprived of a meaningful opportunity to be heard, as he did not take advantage of the options available to him.
Father also expressed dissatisfaction with DCS caseworker Michelle Anesu for not contacting him after he wrote to her, and he claimed he could not participate in services due to being incarcerated in jails that did not offer such services. While DCS is required to make reasonable efforts to preserve families during CHINS proceedings, Father failed to show that DCS did not fulfill this obligation. Although the DCS did not actively promote his relationship with HL, the lack of services was attributed to Father’s incarceration, and he did not provide evidence of specific requests for visitation or services. Anesu noted Father had been incarcerated in multiple counties, which did not provide reunification services.
Father was sentenced to four years for Forgery and Theft and an additional two years for Residential Entry, limiting DCS’s ability to offer services or assess his needs. The inability to provide services in these circumstances does not constitute a denial of due process.
Regarding the sufficiency of evidence for terminating parental rights, the court will not overturn the trial court's judgment unless it is clearly erroneous. The court does not reweigh evidence or assess witness credibility, focusing only on evidence supporting the judgment. Under Indiana law, parental rights may be terminated if the parents are unable or unwilling to fulfill their responsibilities, with the aim of protecting the children rather than punishing the parents. The DCS must prove specific elements by clear and convincing evidence as outlined in Indiana Code Section 31-35-2-4(b).
Termination of a parent-child relationship may be justified if certain criteria are met: (A) the child has been removed from the parent under specific conditions, such as being under a dispositional decree for at least six months, a court finding that family preservation efforts are unnecessary, or being under the supervision of a county office for at least 15 months within a 22-month period; (B) there is a reasonable probability that the issues leading to the child's removal will not be remedied, or that continuing the relationship poses a risk to the child's well-being; (C) termination serves the child's best interests; and (D) there is a satisfactory care plan for the child. The trial court must prioritize the child's interests over the parent's when considering termination.
The father challenges the trial court's decision regarding the best interests of the child, arguing for the importance of L. knowing her biological father. He references a case where the Indiana Supreme Court overturned the termination of a mother’s parental rights due to her proactive efforts while incarcerated. However, unlike that case, the father has not demonstrated any ability to provide a stable home or take steps toward rehabilitation, education, or employment. Evidence shows that H.L. requires specialized medical care and supervision, including isolation from public contact and specific medical treatments for her condition, further complicating the father's ability to meet her needs.
H.L. requires ongoing care from both a pulmonologist and a gastroenterologist, and there is no indication that the Father has sought help to understand or address H.L.'s extensive medical needs. H.L.'s guardian ad litem, Millicent Hall, reported positive observations during her visit to H.L.'s foster home, stating H.L. was thriving. Hall emphasized that the foster mother is effectively managing H.L.'s numerous medical procedures, particularly in maintaining lung health. The Department of Child Services (DCS) presented compelling evidence supporting the conclusion that terminating the Father’s parental rights was in H.L.'s best interests. The court affirmed the termination, finding no violation of the Father's due process rights. Additionally, the decision regarding an incarcerated parent's attendance at termination hearings is left to the trial court's discretion. The court noted that a failure to provide services does not invalidate a termination order under Indiana law, as established in prior case law.
