In re the Termination of the Parent Child Relationship of: K.E. (Minor Child), and A.C. (Mother) v. Indiana Department of Child Services

I
                                                                             FILED
                                                                         Jan 13 2021, 9:13 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Erik H. Carter                                              Theodore E. Rokita
Carter Legal Services LLC                                   Attorney General of Indiana
Noblesville, Indiana
                                                            Robert J. Henke
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In re the Termination of the                                January 13, 2021
Parent Child Relationship of:                               Court of Appeals Case No.
                                                            20A-JC-1348
K.E. (Minor Child), and
                                                            Appeal from the Henry Circuit
A.C. (Mother),                                              Court
Appellants-Respondents,                                     The Honorable Bob A. Witham,
                                                            Judge
        v.
                                                            Trial Court Cause No.
                                                            33C01-1711-JC-141
Indiana Department of Child
Services,
Appellee-Petitioner



May, Judge.




Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021                             Page 1 of 12
[1]   In this belated appeal, 1 A.C. (“Mother”) argues the trial court erred when it

      found she had voluntarily relinquished her parental rights to K.E. (“Child”)

      because the “Voluntary Relinquishment of Parental Rights Form” and the

      “Rights Advisement” form, (App. Vol. II at 22, 27), she signed did not include

      language required by Indiana Code section 31-35-1-12(9). We reverse and

      remand.



                              Facts and Procedural History
[2]   Child was born to Mother and J.E. (“Father”) 2 on February 5, 2013. On

      November 6, 2017, the Department of Child Services (“DCS”) received a report

      that Child and her older brother were victims of neglect because of drug use and

      domestic violence between Mother and other adults in the home. Mother

      denied all allegations, and DCS removed Child 3 from Mother’s home. On

      November 9, 2017, the trial court held an initial hearing on DCS’s petition to




      1
        Indiana Appellate Rule 9(A)(5) states that when a party does not file her appeal within the required time
      frame, “the right to appeal shall be forfeited.” In its brief, DCS contends Mother forfeited her right to appeal
      by untimely filing and, thus, we should not entertain her belated appeal. However, our Indiana Supreme
      Court has held that, “although a party forfeits its right to appeal based on an untimely filing of the Notice of
      Appeal, this untimely filing is not a jurisdictional defect depriving the appellate courts of authority to
      entertain the appeal.” In re Adoption of O.R.,16 N.E.3d 965, 971 (Ind. 2014). When a party forfeits its right to
      appeal, the “question is whether there are extraordinarily compelling reasons why this forfeited right should
      be restored.”

Id. We can think

of few rights more extraordinarily compelling than a parent’s Fourteenth
      Amendment right to establish a home and raise her children. We therefore reject DCS’s request that we
      dismiss Mother’s appeal.
      2
       It is unclear if Father lived with Mother at this time. The trial court terminated Father’s parental rights in a
      subsequent order and he does not participate in this appeal.
      3
       Child’s older brother is not included in the appealed order, and his status with DCS after the report of
      neglect is unclear.

      Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021                                 Page 2 of 12
      place Child outside of Mother’s home, and Mother did not attend. The trial

      court granted DCS’s request to place Child in relative care. 4

[3]   On November 17, 2017, DCS filed a petition alleging Child was a Child in

      Need of Services (“CHINS”), and the trial court held an initial hearing on the

      CHINS petition the same day. Mother did not attend the hearing, and it was

      continued until December 8, 2017. Mother appeared with counsel at the

      hearing on December 8, 2017. She denied Child was a CHINS and refused to

      submit to a drug screen. Over the course of the next six months, the trial court

      held a number of pretrial conferences and granted multiple continuances filed

      by both parties.

[4]   The trial court held a fact-finding hearing on the CHINS petition on June 4,

      2018. Mother appeared at the hearing with counsel and denied Child was a

      CHINS. After presentation of evidence, the trial court took the matter under

      advisement. On June 5, 2018, the trial court issued its order adjudicating Child

      as a CHINS. The trial court held a dispositional hearing on June 21, 2018, and

      entered its dispositional order on July 11, 2018, ordering Mother and Father to

      participate in certain services.

[5]   Over the next several months, the trial court held multiple review hearings. On

      October 31, 2018, the trial court granted DCS’s request that Child’s placement

      be changed to maternal cousin’s home, where Child has remained for the



      4
          The record before us does not indicate the relative with whom Child was initially placed.


      Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021                            Page 3 of 12
      entirety of these proceedings. On December 28, 2018, DCS filed a motion to

      change Child’s permanency plan from reunification to adoption. The trial court

      held a hearing on DCS’s request to change Child’s permanency plan on

      January 23, 2019. Mother attended that hearing with counsel, signed a

      voluntary relinquishment of parental rights form, and testified that she intended

      to voluntarily relinquish her parental rights to Child. In its order changing

      Child’s permanency plan to adoption or reunification with Father, the trial

      court found, in relevant part:

               9. Mother signed paperwork today voluntarily terminating her
               rights to the Child. She signed voluntary termination and
               advisement of rights paperwork.


               10. The court finds that Mother signed the voluntary termination
               paperwork and the advisement of rights paperwork of her own
               freewill and that she is stating [sic] today that she understood her
               rights and what she was signing.


      (App. Vol. II at 20) (formatting in original omitted).


[6]   On July 21, 2020, Mother filed a notice of appeal and a verified motion to

      accept belated notice of appeal. 5 We granted Mother’s motion and accepted her

      belated notice of appeal on July 31, 2020.




      5
       In the interim, the trial court terminated Father’s parental rights and Child’s adoption by maternal cousin
      was pending as of June 26, 2020.

      Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021                              Page 4 of 12
                                  Discussion and Decision
[7]   We review termination of parental rights with great deference. In re K.S., 

750 N.E.2d 832

, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

      the credibility of witnesses. In re D.D., 

804 N.E.2d 258

, 265 (Ind. Ct. App.

      2004), trans. denied. Instead, we consider only the evidence and reasonable

      inferences most favorable to the judgment.

Id. In deference to

the juvenile

      court’s unique position to assess the evidence, we will set aside a judgment

      terminating a parent-child relationship only if it is clearly erroneous. In re L.S.,

      

717 N.E.2d 204

, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 

534 U.S. 1161

(2002).

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

      protected by the Fourteenth Amendment of the United States Constitution.” In

      re M.B., 

666 N.E.2d 73

, 76 (Ind. Ct. App. 1996), trans. denied. To terminate a

      parent-child relationship in Indiana, DCS must allege and prove:

              (A)      that one (1) of the following is true:
                       (i)    The child has been removed from the parent for at
                              least six (6) months under a dispositional decree.
                       (ii)   A court has entered a finding under IC 31-34-21-5.6
                              that reasonable efforts for family preservation or
                              reunification are not required, including a
                              description of the court’s finding, the date of the
                              finding, and the manner in which the finding was
                              made.
                       (iii) The child has been removed from the parent and
                              has been under the supervision of a county office of
                              family and children or probation department for at
                              least fifteen (15) months of the most recent twenty-
                              two (22) months, beginning with the date the child

      Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021       Page 5 of 12
                              is removed from the home as a result of the child
                              being alleged to be a child in need of services or a
                              delinquent child;
              (B)      that one (1) of the following is true:
                       (i)    There is a reasonable probability that the conditions
                              that resulted in the child’s removal or the reasons
                              for placement 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 child in need of services;
              (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 § 31-35-2-4(b)(2). DCS must provide clear and convincing proof of

      these allegations. In re G.Y., 

904 N.E.2d 1257

, 1260-61 (Ind. 2009), reh’g denied.

      “[I]f the State fails to prove any one of these statutory elements, then it is not

      entitled to a judgment terminating parental rights.”

Id. at 1261.

Because

      parents have a constitutionally protected right to establish a home and raise

      their children, the State “must strictly comply with the statute terminating

      parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 

631 N.E.2d 16

, 18

      (Ind. Ct. App. 1994).

[9]   When, as here, a judgment contains specific findings of fact and conclusions

      thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

      Family & Children, 

839 N.E.2d 143

, 147 (Ind. 2005). We determine whether the

      evidence supports the findings and whether the findings support the judgment.

Id. “Findings are clearly

erroneous only when the record contains no facts to


      Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021        Page 6 of 12
       support them either directly or by inference.” Quillen v. Quillen, 

671 N.E.2d 98

,

       102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

       decision, we must affirm. In re 

L.S., 717 N.E.2d at 208

. Here, Mother

       challenges the trial court’s finding that she voluntarily relinquished her parental

       rights to Child and, in support, she alleges she did not receive all required

       advisements prior to doing so.

[10]   “Voluntary termination of parental rights severs all legal ties, including

       visitation rights, between parents and their children.” In re M.B., 

921 N.E.2d 494

, 498 (Ind. 2009). Pursuant to Indiana Code section 31-35-1-6, before

       allowing parents to consent to voluntary termination of their parental rights, the

       parents must have given their consent in writing before a legally authorized

       person, have been “advised in accordance with [Indiana Code section 31-35-1-

       12,]” and have been “advised that if they choose to appear in open court, the

       only issue before the court is whether their consent was voluntary.” Indiana

       Code section 31-35-1-12 requires that parents considering voluntary

       relinquishment of their parental rights 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
               incompetent;


               (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
       Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021           Page 7 of 12
                 (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 child in need of
        services;


        (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
                 child in need of services and removed from their custody
                 following the adjudication; or


                 (B) a parent has been convicted and imprisoned for an
                 offense listed in IC 31-35-3-4 (or has been convicted and
                 imprisoned for an offense listed in IC 31-6-5-4.2(a) before
                 its repeal), the child has been removed from the custody of

Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021            Page 8 of 12
                        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 may
               appear at the hearing and allege that the consent was not
               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.


       Here, the parties do not dispute that the Voluntary Relinquishment of Parental

       Rights Form that Mother signed lacked an advisement pursuant to Indiana

       Code section 31-35-1-12(9). “[A] statutory requirement—even one that seems

       minor or technical—is still a requirement . . . [and] where that requirement

       protects the fundamental rights of parents, it takes on particular importance.”

       Matter of Bi.B., 

69 N.E.3d 464

, 469 (Ind. 2017).


[11]   In Matter of D.C., 

149 N.E.3d 1222

(Ind. Ct. App. 2020), reh’g denied, we

       addressed whether termination of a mother’s parental rights was proper when

       there was no evidence she received the required statutory advisement under


       Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021           Page 9 of 12
       Indiana Code section 31-35-1-12(9).

Id. at 1234.

As is the case here, the

       consent form DCS provided to the mother did not include an advisement under

       Indiana Code section 31-35-1-12(9).

Id. at 1233.

The mother in Matter of D.C.

       did not attend the hearing during which her voluntary relinquishment of her

       parental rights was discussed, but her attorney indicated she had received all

       advisements.

Id. Nevertheless, on appeal,

we reversed the mother’s

       relinquishment of her parental rights because:


               Ultimately, termination by written consent is proper only if
               Indiana Code Section 31-35-1-6(a) has been satisfied. Neal v.
               DeKalb Cty. Div. of Family & Children, 

796 N.E.2d 280

, 285 (Ind.
               2003). Here, however, the record does not support a required
               finding under Indiana Code Section 31-35-1-6(a)(2)(A) (requiring
               a finding that a parent was “advised in accordance with section
               12”).

Id. at 1234.

[12]   DCS attempts to distinguish the facts in Matter of D.C. from those before us by

       pointing out that the mother in Matter of D.C. was not present during the

       hearing at which the voluntary relinquishment of her parental rights was

       discussed, while Mother testified regarding her voluntary relinquishment.

       Additionally, DCS argues, without citation to authority, that the timing of the

       relinquishment is important - the mother in Matter of D.C. did not voluntarily

       relinquish her rights until DCS had filed a petition to terminate her parental

       rights, while in the case before us, Mother voluntarily relinquished her parental

       rights during the CHINS proceeding. Relatedly, DCS contends, again with no


       Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021    Page 10 of 12
       citation to authority, that an advisement under Indiana Code section 31-35-1-

       12(9) would have been premature because “there was no pre-adoptive parent(s)

       with whom [Mother] could have made an agreement or from whom she could

       have received a promise.” (Br. of Appellee at 22.) These distinctions are of no

       consequence because, regardless of Mother’s participation in the hearing or the

       timing of her voluntary relinquishment, the plain language of Indiana Code

       section 31-35-1-6(a) requires that parents agreeing to voluntarily relinquish their

       parental rights must be “advised in accordance with section 12 of this chapter.”

[13]   DCS concedes Mother was not advised in accordance with Indiana Code

       section 31-35-1-12(9), and thus her voluntary relinquishment was invalid.

       Accordingly, the trial court erred in finding Mother had voluntarily

       relinquished her parental rights to Child, and we reverse and remand. (See Br.

       of Appellee at 20 (“If the absence of the advisement alone is dispositive, then

       DCS concedes that, as in D.C., reversal and remand is appropriate to determine

       whether Mother was advised of the required advisements under Indiana Code

       section 31-35-1-12.”).)



                                                 Conclusion
[14]   Because Mother did not receive the advisement required under Indiana Code

       section 31-35-1-12(9), we reverse the voluntary relinquishment of her parental

       rights to Child and remand for further fact-finding to determine whether

       Mother received an advisement under Indiana Code section 31-35-1-12(9).



       Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021     Page 11 of 12
[15]   Reversed and remanded.

       Kirsch, J., and Bradford, C.J., concur.




       Court of Appeals of Indiana | Opinion 20A-JC-1348 | January 13, 2021   Page 12 of 12

Add comment

By

Recent Posts

Recent Comments