MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 10 2016, 6:25 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven Knecht Gregory F. Zoeller Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Involuntary February 10, 2016 Termination of the Parent-Child Court of Appeals Case No. Relationship of: 79A02-1506-JT-678 A.C. (Minor Child), Appeal from the Tippecanoe Superior Court and The Honorable Faith A. Graham, S.S. (Mother) Judge Appellant-Respondent, Trial Court Cause No. 79D03-1502-JT-22 v.
Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 1 of 15 Mathias, Judge.
[1] S.S. (“Mother”) appeals the order of the Tippecanoe Superior Court
terminating her parental rights to her minor daughter. Mother presents one
issue, which we restate as whether the evidence was sufficient to support the
trial court’s termination order.
[2] We affirm.
Facts and Procedural History
[3] Mother has two children: an older son, B.S. (“Son”), who was born in August
2002, and a younger daughter, A.C. (“Daughter”), who was born in January
2010. S.S.’s ex-husband, C.S., is the father of Son, and Mother’s on-again/off-
again boyfriend, T.C., is the father of Daughter.
[4] Mother is developmentally delayed, as is Son. In October 2013, Son was
admitted to a behavioral health center for having command auditory
hallucinations that told Son to harm himself. Son has also been diagnosed with
Psychotic Disorder, Attention Deficit Hyperactivity Disorder, Impulse Control
Disorder, and Obstinate Defiant Disorder.
[5] On January 22, 2014, the Tippecanoe County Department of Child Services
(“DCS”) received a report that Mother was using inappropriate discipline, that
T.C. had a substance abuse problem, and that domestic violence was occurring
between Mother and T.C. During the subsequent DCS investigation, Mother
denied abusing the children and refused to sign a DCS safety plan, claiming
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 2 of 15 that she had signed such plans before in the past. Son told the investigators that
T.C. had smacked him in the mouth before and that Mother attempted to whip
him with a belt, but that he was able to avoid her attempts by moving out of the
way. Son further stated that Mother and T.C. frequently argued and that T.C.
had hit Mother in the past, causing her to have a black eye. Son stated that
when Mother and T.C. argued, he took his sister into the other room to avoid
being around the argument. He also told DCS that T.C. would sometimes get
so drunk that Mother would tell him to leave.
[6] On February 14, 2014, DCS received another report, this time alleging that Son
had bruises caused by Mother’s physical abuse. During the investigation of this
report, DCS personnel discovered bruising on Son’s leg, which he explained
was caused by Mother hitting him with a belt and other objects. Son explained
that Mother and T.C. had been fighting more frequently and that, on one
occasion, he attempted to intervene, resulting in T.C. smacking him in the face,
leaving a mark. Son also stated that Mother hit him on a daily basis because he
made Mother angry. Daughter confirmed Son’s report that Mother hit him with
a belt. Mother stated that she attempted to hit Son with a belt but claimed that
she was unable to actually hit him. Mother was unable to tell DCS personnel
what other forms of discipline might be more appropriate. She then reluctantly
signed the DCS safety plan.
[7] DCS filed a petition on February 27, 2014, alleging that Son and Daughter were
Children in Need of Services (“CHINS”), but did not remove the children from
Mother’s home at that time. In March 2014, Daughter revealed that, on more
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 3 of 15 than one occasion, Son had touched her genital area both above and
underneath her clothing and had attempted to touch her anus. Daughter also
reported that she had seen Son’s “privates.” Ex. Vol. 1, DCS Ex. 3, pp. 2, 15,
36. Daughter reported that, when she told Mother about Son touching her
inappropriately, Mother told Son to stop, but Son ignored Mother and
continued to do so. As a result, DCS petitioned the trial court to remove the
children from Mother’s care. During the CHINS proceedings, Mother had
trouble believing that Son might have molested Daughter. Mother stated that
she would not be able to supervise the children at all times or separate the
children and would even permit them to play together. On March 25, 2014, the
trial court granted the DCS’s request and removed the children from Mother’s
care. Son was eventually reunited with his father, and Daughter was placed in
relative foster care with her paternal aunt (“Aunt”).
[8] In the trial court’s May 16, 2014 dispositional order, the court ordered Mother
to: undergo a mental health assessment, a parenting assessment, and a domestic
violence assessment; take parenting skills classes; participate in home-based
case management; and participate in visitations with the children. By all
accounts, Mother attempted to cooperate with the services. However, due to
her mental health issues and limited cognitive abilities, DCS believed that
Mother’s parenting skills did not sufficiently improve to the point of being able
to properly care for Daughter.
[9] Mother has a history of depression, and told DCS she had been diagnosed with
dysthymia. She also had symptoms of generalized anxiety and trauma-related
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 4 of 15 anxiety, related to childhood abuse. Psychological examination of Mother
revealed that she scored lower than 98% of adults in cognitive abilities. Yet,
Mother either does not understand or lacks awareness of her limited abilities.
She also has an increased risk for anger management problems as a parent.
Mother also appears overly dependent on her boyfriend and feels “anxiously
helpless” when she is not involved with a man. She relates to her boyfriends in
a submissive, passive way and is easily manipulated.
[10] Mother was ultimately diagnosed with persistent depressive disorder,
generalized anxiety disorder, dependent personality disorder, and borderline
intellectual functioning. These intellectual problems likely accounted for
Mother’s difficulties with memory, focus, and learning and implementing the
information she received while participating in services. Although Mother
generally attended her service appointments, she took longer to complete them
because of sporadic attendance.
[11] One of the services offered to Mother to help with the initial plans for
reunification was to obtain stable housing and employment. However, Mother
was kicked out of the “Seeds of Hope” apartment for breaking rules, including
violating the curfew so that she could go see T.C. She then moved in with her
father but admitted to DCS that this was not a place where her children could
live. By the time of the termination hearing, Mother had housing, but the
utilities were in the name of a third party due to Mother’s existing debts to the
utility providers.
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 5 of 15 [12] Mother’s interactions with Daughter during visitations demonstrated a bond
between the two. However, Mother also was unable to provide proper
discipline and direction for Daughter and failed to use the parenting skills that
were taught to her. Mother made promises to the child she could not keep and
had to be redirected by service providers. She also, contrary to the rules, asked
her child about her placement in relative foster care. The limitations of
Mother’s parenting skills were also shown during visitation when Daughter
would walk away from her. Instead of going after Daughter, a service provider
had to intervene. At other times, Mother did not spontaneously interact with
Daughter and would not do so unless a case worker or Daughter initiated the
interaction. Also, “if left to her own devices and not pressed,” Mother had
periods of being “detached” from the children. Tr. p. 39. This was not due to a
lack of cooperation on Mother’s part but on her inability to construct positive
activities with the child. Although Mother did well in attending the visitations,
she would “go [] through the motions and do[] the bare minimum.” Tr. p. 33.
[13] The visitation supervisor who testified at the termination hearing explained
that, in her opinion, Mother lacked the ability to parent Daughter on a full-time
basis. If Daughter became upset, Mother would give in to the child’s demands.
Her relationship with Daughter was less of a parent-child relationship and more
of a peer-to-peer relationship. Mother’s limited cognitive abilities made it
difficult for her to provide her children with a structured learning environment.
Perhaps most concerning is that Mother had difficulty believing that Daughter
had been sexually molested by Son. The DCS case manager testified that
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 6 of 15 Mother had shown no commitment to making sure that the molestation did not
reoccur.
[14] When Daughter was first removed from Mother’s care, she had pronounced
behavioral issues. She would throw tantrums when she did not get her way. She
was also aggressive towards animals and, at the age of four, tragically squeezed
one of Aunt’s kittens to death. Daughter was eventually diagnosed with post-
traumatic stress disorder due to her experiences in Mother’s care. She was
clingy to her foster family and anxious around strangers. She had difficulty
sleeping and a fear of being left alone. She was prone to disassociation and
“emotional numbing,” and had an exaggerated startle response. Ex. Vol. 4,
DCS Ex. 18, pp. 35.
[15] She was overly sensitive to situations that reminded her of arguing or conflict,
and demonstrated a depressed mood, crying, and poor concentration. Her
therapist believed this was related to the domestic violence to which she was
exposed in Mother’s care. After initial visitations with Mother that included
Son, Daughter was observed engaging in inappropriate sexual behavior, e.g.,
using toys to rub her genital area.
[16] In contrast, Daughter was doing well in relative foster placement with her
Aunt. Aunt was cooperative with Daughter’s therapy and treatment. By the
time of the termination hearing, Daughter’s behavior had improved. She was
more consistent in following household rules, more open and talkative, and
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 7 of 15 would listen and obey when given directions. Daughter became close and
bonded to her Aunt and her family.
[17] After fifteen months of providing services to Mother, DCS decided that
Mother’s progress was stagnant. DCS then changed Child’s permanency plan
from reunification with Mother to termination of Mother’s parental rights and
adoption. Aunt desires to adopt Daughter.
[18] On February 18, 2015, DCS filed a petition to terminate Mother’s parental
rights to Daughter.1 The trial court held an evidentiary hearing on the
termination petition on May 15, 2015, and took the matter under advisement.
On May 21, 2015, the trial court entered an order terminating Mother’s
parental rights to daughter. Mother now appeals.
Termination of Parental Rights
[19] “The purpose of terminating parental rights is not to punish parents but to
protect their children. Although parental rights have a constitutional dimension,
the law allows for their termination when parties are unable or unwilling to
meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.
App. 2004) (citation omitted). Indeed, parental interests must be subordinated
to the child’s interests in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).
1 Son was placed in the care of his father, and DCS did not seek to terminate Mother’s parental rights to Son. Tr. p. 142.
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 8 of 15 [20] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental
rights must meet the following relevant requirements:
(2) The petition must allege: (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.
[21] Indiana Code section 4(b)(2)(B) is written in the disjunctive; therefore, the trial
court is required to find that only one prong of subsection 2(b)(2)(B) has been
established. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). DCS must
prove “each and every element” by clear and convincing evidence. G.Y., 904
N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear and convincing evidence need
not establish that the continued custody of the parent is wholly inadequate for
the child’s very survival. Bester v. Lake County Office of Family & Children, 839
N.E.2d 143, 148 (Ind. 2005). Rather, it is sufficient to show by clear and
convincing evidence that the child’s emotional development and physical
development are put at risk by the parent’s custody. Id. If the court finds that
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 9 of 15 the allegations in a petition are true, the court shall terminate the parent-child
relationship. Ind. Code § 31-35-2-8(a).
Standard of Review
[22] We have a highly deferential standard of review in cases involving the
termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.
2011). We neither reweigh the evidence nor assess witness credibility. Id.
Importantly, we consider only the evidence favorable to the trial court’s
judgment and the reasonable inferences to be drawn from this evidence. Id.
[23] Where, as here, the trial court enters findings of fact and conclusions of law in
its termination of parental rights,2 we apply a two-tiered standard of review.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013),
trans. denied. We first determine whether the evidence supports the findings; we
then determine whether the findings support the judgment. Id. Findings are
clearly erroneous only when the record contains no facts to support them either
directly or by inference. Id. If the evidence and inferences support the trial
court’s decision, we must affirm. Id. Likewise, we will set aside the trial court’s
judgment terminating a parent-child relationship only if it is “clearly
erroneous.” Id. In this context, “clear error” is that which “leaves us with a
2 Although trial courts are not statutorily required to enter findings of fact and conclusions of law when terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision, trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 10 of 15 definite and firm conviction that a mistake has been made.” Id. (quoting J.M. v.
Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App.
2004)).
[24] We further note that, when reviewing a judgment requiring proof by clear and
convincing evidence, we may not impose our own view as to whether the
evidence is clear and convincing. In re Guardianship of B.H., 770 N.E.2d 283,
288 (Ind. 2002). Instead, considering only the probative evidence and
reasonable inferences supporting the judgment and without weighing evidence
or assessing witness credibility, we must determine whether a reasonable trier of
fact could conclude that the judgment was established by clear and convincing
evidence. Id.
I. Conditions That Led to Removal
[25] Mother first claims that the DCS did not present sufficient evidence to support
the trial court’s determination that a reasonable probability exists that the
conditions which led to Daughter’s placement outside Mother’s home would
not be remedied.
[26] When making a determination as to whether a reasonable probability exists that
the conditions resulting in a child’s removal or continued placement outside of
a parent’s care will not be remedied, the trial court must judge a parent’s fitness
to care for her child at the time of the termination hearing while also taking into
consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-
57. The trial court is also required to consider the parent’s habitual patterns of
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 11 of 15 conduct in order to determine the probability of future neglect or deprivation of
the child. Id. at 1157. The trial court may consider evidence of a parent’s prior
history of neglect, failure to provide support, and lack of adequate housing and
employment. Id. The trial court may also consider the services offered to the
parent by DCS and the parent’s response to those services as evidence of
whether conditions will be remedied. Id. DCS is not required to provide
evidence ruling out all possibilities of change. Id. Instead, it needs to establish
only that a “reasonable probability” exists that the parent’s behavior will not
change. Id.
[27] Here, the CHINS proceedings were initiated because of Mother’s physical
abuse of Son and the domestic violence that was occurring in the home, and the
children were removed from Mother’s care when DCS received reports, later
substantiated, that Son was touching Daughter in a sexual manner. During the
subsequent investigation, Mother indicated that she would not keep the
children separated and would allow them to play together.
[28] DCS presented evidence that Mother suffers from a low cognitive ability and
responded very slowly and incompletely to the services provided to her. Even at
the time of the termination hearing, Mother had difficulty believing that
Daughter had been molested by Son. Her limited cognitive abilities and passive
personality made her at risk for entering into another abusive relationship.
Indeed, she was kicked out of one apartment for violating curfew to see T.C.,
who had previously given her a black eye. Although Mother notes that Son is
now in the care of his father, Mother’s parental rights to Son were not
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 12 of 15 terminated. Thus, the trial court could reasonably infer that Son and Daughter
would still interact.
[29] In short, under the present facts and circumstances, the trial court did not
clearly err when it concluded that a reasonable probability exists that the
conditions that led to Daughter’s removal from Mother’s home would not be
remedied. Mother’s arguments to the contrary are simply a request that we
reweigh the evidence and come to a conclusion different than that reached by
the trial court. This is not our role as an appellate court.
II. Continuation of Parent-Child Relationship
[30] Mother also attacks the trial court’s conclusion that a reasonable probability
exists that continuation of the parent-child relationship posed a threat to the
well-being of the child. As noted above, Section 4(b)(2)(B) is written in the
disjunctive and the trial court need find that only one prong of this subsection
has been established by clear and convincing evidence. In re A.K., 924 N.E.2d at
220. Because the trial court here properly found that a reasonable probability
exists that the conditions which led to Daughter’s removal from Mother’s home
would not be remedied, we need not address Mother’s claims regarding the
continuation of the parent-child relationship.
III. Best Interests of the Child
[31] Mother also challenges the trial court’s conclusion that termination of her
parental rights was in the best interests of Daughter. When determining what is
in the best interests of a child, the trial court must look beyond the factors
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 13 of 15 identified by the DCS and look to the totality of the evidence. A.D.S., 987
N.E.2d at 1158. In so doing, the court must subordinate the interests of the
parent to those of the child. Id. The court need not wait until the child is
irreversibly harmed before terminating the parent-child relationship. Id. A
recommendation by the case manager or child advocate to terminate parental
rights is sufficient to show by clear and convincing evidence that termination is
in the child’s best interests. Id. at 1158-59. Permanency is a central
consideration in determining the best interests of a child. Id. at 1159.
[32] Daughter was exposed to domestic violence and sexual molestation while in
Mother’s care, and Daughter had behavioral and emotional problems as a
result. Mother, although bonded with her child, did not possess the skills to
properly care for her and showed no significant improvement despite being
offered, and participating in, services for an extended period. In contrast,
Daughter appears to be doing much better in the care of Aunt, who directly
participates in Daughter’s therapy. The DCS case manager testified that, in her
opinion, it was in Daughter’s best interests for Mother’s parental rights to be
terminated. Accordingly, we cannot say that the trial court erred in concluding
that termination of Mother’s parental rights to Daughter was in the best
interests of Daughter.
Conclusion
[33] This is a tragic case. Mother and Daughter love each other and appear to be
bonded. We sympathize with Mother, who even DCS admits appeared to try to
the best of her limited abilities. However, the fact remains that, while in Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 14 of 15 Mother’s care, Daughter was exposed to domestic violence and sexual
molestation by her own brother. Mother was unwilling or incapable of
accepting that her son had molested Daughter. Despite her efforts, no
significant changes in Mother’s parenting abilities were apparent despite
fourteen months of services. Although a different trier of fact might have come
to a different conclusion, under our very deferential standard of review, we are
unable to say that the trial court’s decision to terminate Mother’s parental rights
to Daughter constitutes clear error.
[34] Affirmed.
Kirsch, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision No. 79A02-1506-JT-678 | February 10, 2016 Page 15 of 15