In Re: Termination of the Parent-Child Relationship of: J.C., K.C., and I.W., (Children) and C.W., (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 11, 2017
• Docket: 16A01-1612-JT-2787
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2017, 6:52 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Curtis T. Hill, Jr. Lawrenceburg, Indiana Attorney General of Indiana

David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: Termination of the May 11, 2017 Parent-Child Relationship of: Court of Appeals Case No. 16A01-1612-JT-2787 J.C., K.C., and I.W., (Children) Appeal from the Decatur Circuit Court and, The Honorable Timothy Day, Judge C.W., (Mother) Trial Court Cause No. 16C01-1603-JT-108 Appellant-Respondent, 16C01-1603-JT-109 16C01-1603-JT-110 v.

The Indiana Department of Child Services,

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 1 of 11 Appellee-Petitioner.

Barnes, Judge.

Case Summary [1] C.W. (“Mother”) appeals the termination of her parental rights to her children

J.C., K.C., and I.W. We affirm.

Issue [2] The sole issue is whether there is sufficient evidence to support the termination

of Mother’s parental rights.

Facts [3] J.C. was born in 2002, K.C. in 2003, and I.W. in 2006. In July 2012, the

Decatur County Office of the Department of Child Services (“DCS”) received a

report that Mother and the children had been living in a vacant shed in a trailer

park. The children were being fed by neighbors because they had no food, and

they ran around the trailer park at all hours without supervision. The children

told DCS caseworkers that they had been staying with J.C., their father

(“Father”); at the time, Father had a protective order against him for Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 2 of 11 threatening to kill the children. The children also reported witnessing Mother

and Father crushing pills and snorting them. The children were removed from

Mother’s care and found to be children in need of services (“CHINS”) shortly

thereafter. They remained in foster care continuously since that time.

[4] Mother had a fourth child, F.W., who was born in March 2013, and who also

was found to be a CHINS a few months after birth. DCS filed a petition to

terminate Mother’s rights to F.W., which was granted in January 2015 and

affirmed by this court. We observed:

During the CHINS proceedings, Mother barely maintained contact with her family case manager; she has not maintained suitable or stable housing; she has not consistently visited with Child; she did not follow through on recommended individual therapy, including additional substance abuse evaluation; she refused all but three drug screens; and she failed two out of the three drug screens. In short, Mother has been more non- compliant with the court’s orders than compliant.

In re F.W., No. 16A01-1506-JT-766 (Ind. Ct. App. Dec. 22, 2015).

[5] The evidence with respect to J.C., K.C., and I.W. is similar. Mother apparently

did participate in DCS services while she was pregnant with F.W. and

remained sober for a few months. Once she gave birth to F.W., however, her

stability decreased. She became homeless in May 2013, had positive drug

screens for THC, and stopped participating in services. In June 2013, DCS

shared the results of a psychological examination with Mother and requested

that she begin receiving mental health services, but she did not follow through

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 3 of 11 on that request. Mother suffers from delusions and has a volatile temper. In

October 2013, DCS suspended Mother’s supervised visitation with the children

because it was too traumatic for them. Specifically, she frequently missed

scheduled visitations. When visitations did occur, Mother often became upset

and blamed the children, especially J.C., for the family being involved with

DCS, causing the children to feel guilty. She also told the children delusional

untruths about being able to get a house soon, falsely getting their hopes up that

things were improving. During one visitation, Mother became so angry that the

visitation supervisor ended the visit, but Mother attempted to grab F.W. out of

his arms and chased his car down the street as he drove away with the children.

Visitation never was restored with J.C., K.C., and I.W.

[6] Mother had no communication with her DCS case manager between June 2013

and October 2014, when a new case manager located her living with Father.

Mother underwent a drug screen in October 2014, which was negative, one in

November 2014 that was positive for marijuana, and one in December 2014

that was positive for marijuana and unprescribed oxycodone. After the last

drug screen, Mother became confrontational and refused to participate in any

more screens until she could see the children, to which DCS did not agree.

Shortly thereafter, Mother called her caseworker and said she wanted to

voluntarily terminate her parental rights because of her and the children’s

mental health, but she later changed her mind. Between October 2014 and

April 2015, the caseworker repeatedly attempted to persuade Mother to

participate in services such as mental health counseling, but Mother did not do

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 4 of 11 so. She claimed she was independently receiving mental health treatment from

another facility, but DCS was unable to confirm this.

[7] The last contact Mother had with DCS was in April 2015. DCS was unable to

locate her thereafter, despite employing an investigator to help look for her.

DCS received information that Mother had moved to Florida, but it was unable

to confirm or deny those reports.

[8] The children have had mental health struggles of their own for which they were

receiving services through DCS. J.C. has attempted suicide several times, has

spent considerable time in a residential facility, and displays problems with

impulse control, aggressiveness, and inappropriate sexual behaviors. I.W. also

has had suicidal ideations, as well as aggressiveness and lack of impulse control.

K.C. has engaged in self-harm and spent a short period in a residential facility

due to suicidal ideations. K.C. in particular tended to idealize Mother; she also

“doesn’t like stability” and was not concerned about having been frequently

homeless while in Mother’s care. Tr. p. 59. K.C. also expressed that she did

not want to be adopted, which seemed to be based in part on Mother making

negative comments to her about adoption. The children’s progress in mental

health treatment has been inconsistent.

[9] On March 18, 2016, DCS filed a petition to terminate the parental rights of

Mother and Father to J.C., K.C., and I.W. Father subsequently consented to

the termination of his parental rights. The trial court held a hearing on the

petition on September 12, 2016; Mother did not appear, after DCS was

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 5 of 11 compelled to provide notice of the hearing by publication only. The current

DCS caseworker and the children’s court-appointed special advocate both

testified the termination of Mother’s parental rights was in the children’s best

interests, so they could be adopted. Although none of the children were in a

pre-adoptive home at the time of the hearing, the caseworker explained that

there are more opportunities to find adoptive homes for children after parental

rights have been terminated. After the hearing, the trial court orally ordered

termination of Mother’s parental rights, which was subsequently reduced to

written findings and conclusions. Mother now appeals.

Analysis [10] Mother challenges the sufficiency of the evidence supporting termination of her

parental rights. The Fourteenth Amendment to the United States Constitution

protects the traditional right of parents to establish a home and raise their

children. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in

the care, custody, and control of his or her children is ‘perhaps the oldest of the

fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,

120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the

most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of

course, that parental interests are not absolute and must be subordinated to the

child’s interests when determining the proper disposition of a petition to

terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 6 of 11 the parents are unable or unwilling to meet their parental responsibilities.’” Id.

(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).

[11] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. Id. We consider only the evidence and

reasonable inferences that are most favorable to the judgment. Id. We must

also give “due regard” to the trial court’s unique opportunity to judge the

credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial

court entered findings of fact and conclusions thereon in granting DCS’s

petition to terminate Mother’s parental rights. When reviewing findings of fact

and conclusions thereon entered in a case involving a termination of parental

rights, we apply a two-tiered standard of review. First, we determine whether

the evidence supports the findings, and second, we determine whether the

findings support the judgment. Id. We will set aside the trial court’s judgment

only if it is clearly erroneous. Id. A judgment is clearly erroneous if the

findings do not support the trial court’s conclusions or the conclusions do not

support the judgment. Id.

[12] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

the court shall terminate the parent-child relationship.” Indiana Code Section

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

involving a child in need of services must allege, in part:

(B) that one (1) of the following is true:

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 7 of 11 (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.

DCS must establish these allegations by clear and convincing evidence. Egly v.

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

[13] Mother’s sole argument is that there is insufficient evidence termination is in

the children’s best interests. She relies upon In re A.B., 888 N.E.2d 231 (Ind. Ct.

App. 2008), trans. denied, in which this court reversed a termination of parental

rights based solely on the recommendation of the guardian ad litem and DCS

caseworker that it was in the child’s best interests to be adopted by her foster

mother. We observed, “A parent’s right to his or her children may not be

terminated solely because a better place to live exists elsewhere.” A.B., 888

N.E.2d at 239. In that case, the child was removed from the parents based on

one incident of possible medical neglect, but the parents thereafter complied

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 8 of 11 with all court orders and DCS services, always had negative drugs screens and

regular non-problematic visitation, and the parents were improving their

economic and residential circumstances.

[14] Here, by contrast, Mother was almost entirely non-compliant with services for

over three years prior to the termination hearing, despite a clear need for such

services. Her visitation was permanently suspended in October 2013 because it

was too emotionally traumatic for the children, due to Mother’s erratic

behavior. Two of the only three drugs screens Mother consented to were

positive for illicit substances. There was no improvement in Mother’s

economic or residential circumstances, continuing a long-standing pattern of

instability and/or homelessness. In fact, Mother’s whereabouts for the nearly

one-and-a-half years before the termination hearing were unknown. This case

bears little similarity to A.B.

[15] In determining the best interests of a child, courts must look beyond the factors

identified by DCS and consider the totality of the evidence. In re A.S., 17

N.E.3d 994, 1005 (Ind. Ct. App. 2014), trans. denied. The interests of the parent

must be subordinated to those of the child. Id. “The court need not wait until a

child is irreversibly harmed before terminating the parent-child relationship.”

Id. Testimony by caseworkers and court-appointed advocates recommending

termination, combined with evidence that the conditions resulting in a child’s

removal will not be remedied, is sufficient to show by clear and convincing

evidence that termination is in the child’s best interests. Id. “Permanency is a

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 9 of 11 central consideration in determining the best interests of a child.” In re G.Y.,

904 N.E.2d 1257, 1265 (Ind. 2009).

[16] Mother does not dispute that there is sufficient evidence the conditions leading

to the children’s removal from her care will not be remedied. Indeed, the

evidence on that point is overwhelming, given Mother’s continued instability

and failure to participate in any services for years. Both the current DCS

caseworker and the CASA opined that it was best for the children if Mother’s

parental rights were terminated so they could have a better chance at adoption

and permanency. This is sufficient evidence that termination was in the

children’s best interests.

[17] We acknowledge Mother’s argument that K.C. expressed a desire not to be

adopted and that she preferred instability over stability. She suggests it will be

difficult to find adoptive homes for the children and, therefore, it would not be

harmful to continue their placement in foster care indefinitely. As for K.C.’s

comments, they are a sad reflection of her early, unstable upbringing and a

continuing desire to please Mother. A teenager’s stated preference for

instability after a difficult early childhood caused by his or her parents should

not be a deciding factor in a termination of parental rights case. And, even if it

does prove difficult to find permanent adoptive homes for the children, their

chances for adoption are improved following termination of Mother’s parental

rights. In sum, there is clear and convincing evidence that termination of

Mother’s parental rights is in the children’s best interests.

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 10 of 11 Conclusion [18] There is sufficient evidence to support the termination of Mother’s parental

rights. We affirm.

[19] Affirmed.

Baker, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 16A01-1612-JT-2787| May 11, 2017 Page 11 of 11