Termination order affirmed at COA

IL file photo

The Court of Appeals of Indiana has affirmed the termination of the parental rights of two parents with severe substance abuse issues, finding the issues that led to termination wouldn’t be remedied in the near future.

M.L. and L.L. are the biological parents of N.L. and A.L. In October 2021, the Indiana Department of Child Services became involved with the parents and children after the parents checked themselves into Indiana University Health for a heroin detox.

Two days later, DCS removed the children on an emergency basis and placed them with their maternal great-grandmother. DCS petitioned for the children to be children in need of services, alleging the parents had a history of heroin abuse, used in the presence of the children, were evicted from their home and were admitted into the hospital due to suspected overdoses.

The Lawrence Circuit Court adjudicated the children as CHINS and entered a dispositional decree ordering the parents to participate in services, including random drug screens, supervised visitation, home-based casework, Fatherhood Engagement, substance abuse evaluation and all recommended services, and recovery coaching.

The children have remained outside the parents care since their removal in October 2021.

The parents attended all child and family team meetings and visited the children but failed to address their substance abuse issues. Both parents have “severe opiate addictions.”

While L.L was recommended for outpatient treatment at Valle Vista, she did not follow up and instead tested positive for fentanyl in February 2023 and was using within one week of the termination-of-parental-rights hearing.

L.L. did not always submit to drug screens during the CHINS proceeding and had 309 missed calls for screening. When she did participate in the screenings, she consistently tested positive for fentanyl and other drugs, including cocaine.

M.L. was directed to start substance abuse treatment, and while he made the appointment at IU Health, he missed it and rescheduled. He tested positive for fentanyl in February 2023. He also didn’t submit to drug screens consistently and missed 246 calls for screening.

Throughout the proceedings, the parents experienced housing instability and relied on M.L.’s mother for financial support.

At the time of the termination hearing, the children had been living with their grandmother for over a year. The grandmother and N.L. attended counseling services together to learn communication skills. The children are comfortable in her care, and she has bonded with them.

A.L.’s only therapeutic need is speech therapy.

The grandmother wanted to pursue adoption of the children. She wrote a letter listing the pros and cons to adoption and guardianship and discussed her decision of wanting to pursue adoption.

In November 2022, DCS petitioned for termination of the parents’ parental rights to the children.

At the hearing, the children’s court-appointed special advocate opined that adoption was in the best interests of the children because it appeared that waiting for the parents’ sobriety would take years. Family case manager Vicki Strunk also testified that she supported the plan of adoption.

Both the mother and father’s counsel requested that the trial court take judicial notice of the letter the grandmother wrote, but it refused.

The trial court concluded that terminating the parents’ rights to the children was in their best interests, prompting the instant appeal.

The first issue brought to the court on appeal was whether the trial court abused its discretion when it denied the parents’ evidentiary requests.

Both the parents and DCS argued that the trial court abused its discretion by sustaining DCS’s objection to L.L.’s attempt to refresh another family case manager’s recollection of the letter.

“Although we find that the trial court abused its discretion by refusing to allow Mother to refresh FCM (Jennifer) Pace’s recollection with Grandmother’s letter, we conclude that the refusal does not amount to a reversible error as the evidence sought to be admitted — that FCM Pace may have advised Grandmother that Parents could terminate a guardianship — was cumulative of Grandmother’s earlier testimony,” Judge Patricia Riley wrote.

L.L. also argued that the trial court abused its discretion when it denied Father’s request to take judicial notice of the letter.

“As Mother merely offered the document to aid in this court’s review and the document was not proffered to fill evidentiary gaps in the trial record, we granted Mother’s motion and took judicial notice of Grandmother’s letter,” Riley wrote. “Accordingly, Mother’s claim of error is now moot.”

L.L. further argued that the trial court abused its discretion when it refused her request to recall the grandmother to the stand after she had been released by the trial court.

But “(b)y the time FCM Pace testified as to the existence of the letter, the record established that discovery had been completed, the letter had been filed in the CHINS case well before Grandmother’s testimony, and Grandmother had been subject to two rounds of cross-examination by Parents’ respective counsel about her decision to pursue adoption in lieu of guardianship,” Riley wrote.

Further, the mother argued that the trial court’s refusal to allow her to recall the grandmother to the stand and question her about her understanding of guardianship proceedings resulted in a denial of her due process rights to cross-examine witnesses.

“However, while Mother raised an evidentiary claim about recalling Grandmother as a witness, Mother never raised this concern as a due process claim before the trial court,” Riley wrote. “As she now raised her due process argument for the first time on appeal, her argument is waived for our review.”

Lastly, the appellate court looked at whether the trial court’s order to terminate parents’ parental rights was clearly erroneous.

The appellate court affirmed the trial court’s termination.

“We remind Parents that we evaluate the trial court’s order to terminate parental rights in the light of the best interests of Children — not the best interests of Parents,” Riley concluded. “The evidence overwhelmingly reflects that Parents failed to avail themselves of the opportunities and services offered by DCS to reunite with Children and made no progress nor commitment during the proceedings of the case.”

Judges Terry Crone and Paul Mathias concurred in In the Termination of the Parent-Child Relationship of: A.L. and N.L. (Minor Children) And M.L. (Father) and L.L. (Mother) v. Indiana Department of Child Services, 23A-JT-1076.