FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
PAMELA BUCHANAN RICHARD B. PORTER
Zionsville, Indiana Lebanon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF )
L.V.N., L.A.N., AND D.N. )
__________________________________________)
)
LYNDA NEWBY, Mother, )
)
Appellant-Respondent, )
)
vs. ) No. 06A05-0308-JV-399
)
BOONE COUNTY DIVISION OF FAMILY )
AND CHILDREN, )
)
Appellee-Petitioner. )
APPEAL FROM THE BOONE JUVENILE CIRCUIT COURT
The Honorable Steve David, Judge
Cause No. 06C01-0208-JT-371
November 25, 2003
OPINION - FOR PUBLICATION
BROOK, Chief Judge
Case Summary
Appellant-respondent Lynda Newby appeals the involuntary termination
of her parental rights to L.V.N., L.A.N., and D.N. We affirm.
Issues
Newby raises two issues on appeal, which we restate as follows:
I. Whether Newby was denied her fundamental right to due process;
and
II. Whether there was sufficient evidence to support the termination
of Newby’s parental rights to her three children.
Facts and Procedural History
On January 12, 2001, following an emergency detention hearing,
Newby’s newborn child, L.V.N., was temporarily removed from her care
because he tested positive for cocaine. L.V.N. was placed with his
maternal grandmother, Rosetta Harlow. On March 12, 2001, the trial court
issued an order, relating back to a dispositional hearing conducted on
February 7, 2001, adjudicating L.V.N. to be a child in need of services
(“CHINS”). During the dispositional hearing, the trial court ordered Newby
to follow the recommendations of the Boone County Division of Family and
Children (“BCDFC”) as they related to drug usage to accomplish the goal of
reunification. Newby was also offered a variety of family services
including the following: (1) home-based services from Home Team Advantage;
(2) an intensive outpatient drug/alcohol program with Meridian Health
Group; (3) the WIC program; (4) a visiting nurse; and (5) random drug
screens.
On March 21, 2001, L.V.N. was reunited with his parents. By that
time, Newby had remarried L.V.N.’s father and both Newby and her husband
had clean drug tests. However, by the first week of April, both parents
failed to submit to required drug screens.
On December 26, 2001, the trial court adjudicated Newby’s other two
minor children, L.A.N., and D.N., to be CHINS. Newby was in the Marion
County Jail at the time of the dispositional hearing, but was represented
by counsel. During the next several months, Newby continued to be in and
out of jail, but did participate in the jail’s drug program. However,
following her release from jail on May 7, 2002, Newby tested positive for
cocaine on May 22, 2002. Newby subsequently disappeared, and her
whereabouts were unknown to the BCDFC for several months. Newby also
failed to comply with the trial court’s order to submit to weekly drug
screens on multiple occasions.
On August 19, 2002, the BCDFC filed its petition seeking the
involuntary termination of Newby’s parent-child relationship with all three
children. On August 26, 2002, the trial court ordered the initial hearing
on the termination petition to be held on September 4, 2002. In its order,
the trial court directed BCDFC to provide Newby with a copy of the
termination petition as well as the trial court’s order setting a hearing
date.
Although it believed Newby to be somewhere in Indianapolis, Indiana,
BCDFC was unable to locate Newby’s address or whereabouts; consequently, on
September 19, 2002, BCDFC filed a petition with the court requesting that
summons be made by publication pursuant to Indiana Trial Rule 4.13. On
September 25, 2002, the trial court granted BCDFC’s motion for summons by
publication and rescheduled the initial hearing for November 13, 2002.
The initial hearing on termination commenced on November 13, 2002.
Newby appeared by video link from the Boone County Jail. During the
initial hearing, the trial court reviewed the termination petition,
outlined the consequences of termination to Newby, advised Newby of her
rights under Indiana Code Sections 31-32-2-3 and -5 and determined that
Newby denied the allegations contained in the termination petition. In its
subsequent order, dated November 27, 2002, the trial court scheduled a
factfinding hearing to be held on January 15, 2003. On December 19, 2002,
following a telephone conference with several parties, including Newby’s
attorney and a BCDFC family case manager, the factfinding hearing was
rescheduled for January 22, 2003.
The fact-finding hearing commenced on January 22, 2003; however, the
presentation of evidence was not completed. The factfinding hearing was
thereafter reconvened on several subsequent days until finally completed on
February 26, 2003. Newby appeared in person at the factfinding hearing and
was represented by counsel. On March 24, 2003, the trial court entered its
judgment terminating the parent-child relationship of Newby with L.V.N.,
L.A.N., and D.N. This appeal ensued.
Discussion and Decision
I. Due Process
Newby first contends that she was denied her fundamental right to due
process during the termination hearing. Specifically, Newby asserts that
the trial court failed to conduct the termination hearing in a timely
manner in violation of Indiana Code Section 31-35-2-6 and that this error
“constituted a procedural irregularity which substantially increased the
risk of error with respect to the termination of parental rights in that
[Newby] was deprived some degree of notice as to what conduct on her part
could lead to the termination of those rights.” Appellant’s Br. at 11. We
find this argument unpersuasive.
When the State seeks to terminate the parent-child relationship, it
must do so in a manner that meets the requirements of the due process
clause. J.T. v. Marion County Offices of Family and Children, 740 N.E.2d
1261, 1264 (Ind. Ct. App. 2000), trans. denied. Although due process has
never been precisely defined, the phrase embodies a requirement of
“fundamental fairness.” Id. Our legislature has enacted an interlocking
statutory scheme governing CHINS proceedings and the involuntary
termination of parental rights proceedings. A.P. v. Porter County Office
of Family and Children, 734 N.E.2d 1107, 1112 (Ind. Ct. App. 2000), trans.
denied. This statutory scheme is designed to protect the rights of parents
in raising their children while allowing the State to effect its legitimate
interest in protecting children from harm. Id. The CHINS and involuntary
termination statutes are not independent of each other. Id. Indiana Code
Section 31-35-2-2 clearly states that although termination proceedings are
distinct from CHINS proceedings, an involuntary proceeding is “governed by
the procedures prescribed by” the CHINS statutes contained in Indiana Code
Article 31-34. Id.
Contrary to Newby’s assertions on appeal, Indiana law does not
mandate that a hearing be held within ninety days after a termination
petition is filed. In fact, Indiana law does not impose any specific time
requirement for the setting of an initial hearing or factfinding hearing
unless a party specifically requests a hearing. See Ind. Code § 31-35-2-6;
see also Ind. Code §§ 31-34-10-2, -8, -9, and 11-1, -2. Only after a party
specifically requests a hearing does a ninety-day deadline for the
commencement of a hearing become applicable. Ind. Code § 31-35-2-6.
The record reveals that BCDFC filed its petition for the involuntary
termination of Newby’s parental rights on August 19, 2002. However,
BCDFC’s petition did not contain a request for a hearing. Likewise, Newby
did not request a hearing. Thus, Indiana Code Section 31-35-2-6 was
inapplicable. The trial court, however, on its own initiative and in
accordance with Indiana Code section 31-34-10-2, ordered an initial hearing
to be held on September 4, 2002. The initial hearing eventually commenced
on November 13, 2002.[1]
While it is true that procedural irregularities in a proceeding may
be of such import that they deprive a parent of procedural due process with
respect to the termination of his or her paternal rights, see A.P., 734
N.E.2d at 1112-13, we find no such procedural irregularity here. As stated
earlier, the ninety-day time limit contained in Indiana Code Section 31-35-
2-6 was not applicable under the facts of this case. Additionally, the
record reveals that at the initial hearing, the trial court reviewed the
termination petition, outlined the consequences of termination to Newby,
advised Newby of her rights under Indiana Code Sections 31-32-2-3 and -5,
and determined that Newby denied the allegations contained in the
termination petition. The trial court thereafter set a date for the fact-
finding hearing. Thus, the trial court did exactly what it should, as
prescribed by Indiana Code Sections 31-34-10-4 to -6, and 31-34-11-1. We
further note that Newby attended the initial hearing, via video link from
the Boone County Jail, and was represented by counsel at the factfinding
hearings.
Based on the foregoing, we cannot conclude that Newby’s due process
rights were violated. Newby simply does not provide, nor do we find, any
evidence of a lack of “fundamental fairness” in the proceedings below.
Additionally, Newby has failed to provide any cogent argument or point to
any evidence in the record supporting her claim that she was denied some
degree of notice as to what conduct on her part could lead to termination
of her parental rights. To the contrary, the record reveals, and the trial
court’s termination order reflects, that prior to the termination
proceedings, the trial court repeatedly advised Newby that she must refrain
from drug use and follow BCDFC’s recommendations in order to be reunified
with her children. We therefore find no error.[2]
II. Sufficiency of Evidence
Newby next asserts that there was insufficient evidence to support
the trial court’s decision to terminate her parental rights. Newby argues
that there was “overwhelming” evidence at trial that the conditions that
existed at the time of the filing of the termination petition had changed.
Specifically, she states that the evidence shows that she made a decision
to change her life a month before the termination petition was filed and
began working as a confidential informant to assist law enforcement
officers capture drug dealers. She also claims that she became drug-free,
was under the supervised and continued care of physicians, had established
a stable residence, and was employed at the time of the fact-finding
hearing. Newby therefore concludes that the trial court’s determination
that the conditions that led to the removal of her children would probably
not be remedied was not supported by the evidence and that its order
terminating her parental rights must be reversed.
The Fourteenth Amendment of the United States Constitution protects
the traditional rights of parents to establish a home and raise their
children. Matter of M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. Although parental rights are of a constitutional dimension, the
law allows for the termination of those rights when parents are unable or
unwilling to meet their responsibilities as parents. Egly v. Blackford
County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992). This
includes situations not only where the child is in immediate danger of
losing his life, but also where the child’s emotional and physical
development is threatened. Id. The trial court need not wait until the
child is irreversibly harmed such that his physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. In re N.B., 731 N.E.2d 492, 494 (Ind. Ct. App. 2000), trans.
denied. When determining an appropriate disposition of a petition to
terminate parental rights, the rights of a parent are subordinated to the
child’s best interests. See Ind. Code § 31-35-2-4; see also Wardship of
J.C. v. Allen County Office of Family and Children, 646 N.E.2d 693 (Ind.
Ct. App. 1995), trans. denied.
In deference to the trial court’s unique position to assess the
evidence, we set aside the 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. Thus, we do not reweigh evidence or determine
credibility of witnesses, but consider only the evidence that supports the
judgment and the reasonable inferences to be drawn from the evidence.
Egly, 592 N.E.2d at 1235.
To effect the involuntary termination of a parent-child relationship,
BCDFC was required to prove the following elements with regard to L.V.N.,
L.A.N., and D.N.:
(A) the children had been removed from the parent for at least six (6)
months under a dispositional decree;
(B) there was a reasonable probability that:
(i) the conditions that resulted in the children’s removal or
the reasons for placement outside the home of the parents will
not be remedied; or
(ii) the continuation of the parent-child relationship poses a
threat to the well-being of the children;
(C) termination is in the best interests of the children; and
(D) there is a satisfactory plan for the care and treatment of the
children.
See Ind. Code § 31-35-2-4(b)(2) and -8; see also Matter of M.B., 666 N.E.2d
at 76. The statute is written in the disjunctive. Thus, it requires the
trial court to find only one of the two requirements of subparagraph (B) by
clear and convincing evidence. See In re L.S., 717 N.E.2d at 209. The
trial court found that the continuation of the parent-child relationship
posed a threat to the well-being of the children. Standing alone, this
finding satisfied the requirements of subparagraph (B). However, there is
also sufficient evidence to support the trial court’s determination that a
reasonable probability existed that the conditions resulting in the removal
of the children were unlikely to be remedied.
To determine whether the conditions that resulted in the child’s
removal will be remedied, the trial court must look to the parent’s fitness
at the time of the termination proceeding. In re N.B., 492 N.E.2d at 494.
In addition, the court must look at the patterns of conduct in which the
parent has engaged to determine if future changes are likely to occur. Id.
When making its determination, the trial court can reasonably consider the
services offered to the parent and the parent’s response to those services.
Id.
BCDFC presented evidence from several witnesses that demonstrated
Newby had made little progress in correcting her problems. BCDFC
investigator/caseworker Kamilla Aeschliman’s testimony made clear that from
the time BCDFC became involved in the case, Newby repeatedly failed to
attend scheduled case conferences and hearings, regularly refused to
participate in court-ordered drug screens, was in and out of jail several
times, and completely severed contact with BCDFC for months at a time.
Aeschliman further testified that she had multiple conversations wherein
Newby stated she would, “get it together” and requested BCDFC services.
Tr. at 136. However, Aeschliman stated that Newby never followed through
with her promises.
BCDFC caseworker Mason Cooper’s testimony echoed Aeschliman’s account
of Newby’s relationship with BCDFC. Cooper testified that since the time
of BCDFC’s initial involvement in January, 2001, Newby had refused to
participate in forty-two court ordered drug tests and had eight drug
screens with positive or diluted results. Cooper further testified that
BCDFC’s recommendation to terminate Newby’s parental rights to L.V.N.,
L.A.N., and D.N. was based on its ongoing concerns regarding Newby’s
continued drug use, her failure to cooperate and maintain regular contact
with the BCDFC, her failure to have a positive role in the children’s lives
since the BCDFC became involved in January of 2001, and her failure to
successfully complete any drug or alcohol program.
Joe Plewa, Executive Director of Meridian Health Group, also
testified at the fact-finding hearing. Plewa, who administered the drug
treatment program at the Boone County jail, had an opportunity to assess
and counsel Newby on several occasions during her various periods of
incarceration. Plewa testified that during his formal assessment, he
learned that Newby had participated in several different drug treatment
programs including: (1) a forty-five-day stay at Richmond State Hospital,
(2) “detox” programs at Fairbanks and St. Vincent’s Hospitals, and (3)
another program while in jail prior to his involvement with her case. Tr.
at 442. Plewa further testified that, in his experience, Newby had been
unable to stop using cocaine for any period longer than a few months. He
also stated that Newby had developed a treatment cycle where, while she was
in a program in a structured environment, she was able to begin the
recovery process. However, when Newby was back in the community and out of
the structured environment, she would relapse. Based on his treatment of
Newby and his experience with chronic relapse, Plewa opined that in order
to break this cycle, Newby would need approximately two years in a
residential treatment program. He further testified that Newby’s addiction
was a chronic, progressive illness, and that without such a treatment
program, her future was bleak. The record further reveals that Newby
admitted she had used cocaine as recently as October of 2002, and that she
had not had a drug screen since December 27, 2002. In addition, at the
time of the factfinding hearing, Newby was not participating in any drug
rehabilitation program and had pending charges in Boone County for perjury.
Based on our standard of review, we cannot say that the trial court’s
decision was clearly erroneous. Given Newby’s unfortunate reoccurring
behavior, the BCDFC sufficiently established by clear and convincing
evidence that as of the time of the fact-finding hearing, there was no
reasonable probability that the circumstances that led to the children’s
removal from Newby’s care would be remedied. Newby’s arguments to the
contrary simply constitute an invitation to reweigh the evidence, and this
we may not do.
Affirmed.
BAKER, J., and SHARPNACK, J., concur.
-----------------------
[1] The record reveals that the commencement of the initial hearing
was delayed, at least in part, because BCDFC was unable to determine
Newby’s whereabouts after diligent efforts. Service of notice was
eventually accomplished via publication.
[2] In light of our holding that Newby’s constitutional right to due
process was not violated, her argument that said violation was exacerbated
because of her alleged diminished mental capacity is moot.
