MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 30 2018, 8:35 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT, C.B. ATTORNEYS FOR APPELLEE Steven J. Halbert Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Katherine A. Cornelius ATTORNEY FOR APPELLANT, H.B. Deputy Attorney General Danielle Sheff Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re: The Matter of the April 30, 2018 Involuntary Termination of the Court of Appeals Case No. Parent-Child Relationship of J.B. 49A05-1711-JT-2602 and A.H. Minor Children, Appeal from the Marion Superior Court C.B. (Father), The Honorable Marilyn Moores, H.B. (Mother), Judge Appellants-Respondents, The Honorable Larry Bradley, Magistrate v. Trial Court Cause No. 49D09-1608-JT-1015 Indiana Department of Child 49D09-1608-JT-1016 Services,
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 1 of 17 Appellee-Petitioner.
And,
Child Advocates, Inc.
Appellee-Guardian ad Litem.
Barnes, Judge.
Case Summary [1] H.B. (“Mother”) and C.B. (“Father”) appeal the termination of their parental
rights to their children. We affirm.
Issue [2] The restated issue before us is whether there is sufficient evidence to support the
termination of Mother’s and Father’s parental rights.
Facts [3] Mother is the mother of K.J., born in 2000, J.B., born in 2005, and A.H., born
in 2007. Father is the father of J.B. only. Mother had no contact with Father
after J.B.’s conception until 2011, when J.B. began asking who his father was.
Mother located Father on Facebook. Six weeks after reestablishing contact,
Mother and Father married.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 2 of 17 [4] In 2012, the Marion County Office of the Department of Child Services
(“DCS”) filed a petition alleging that K.J., J.B., and A.H. were children in need
of services (“CHINS”) because the apartment where the family was living was
uninhabitable and they had no lease to live there legally. There was no running
water in the apartment, and the family was using the kitchen sink as a urinal
and defecating into a hole in the floor. DCS dismissed this CHINS petition a
few months later when Mother moved into a Salvation Army shelter with the
children.
[5] After briefly living in the shelter, the family moved in with Mother’s
grandparents in Danville. Both grandparents had died by August 2014, and the
family thereafter moved into a rental house in Indianapolis with Mother’s aunt.
Five or six months later, the family was facing eviction because the aunt had
moved out and Mother and Father could not afford the rent on their own.
[6] Additionally, in 2013, Father started being frequently abusive, mentally and
physically, to Mother. Although Father never directly harmed the children,
they did sometimes witness the abuse. In 2013, Father was convicted of Class
A misdemeanor domestic battery. He violated probation for this offense when
he failed to complete domestic violence counseling.
[7] On May 12, 2015, DCS filed a CHINS petition, alleging not only that the
family was about to be evicted, but also that the house in which they were living
was uninhabitable anyway. Specifically, the home lacked running water and
electricity, it was cluttered with trash and debris, it smelled like dog feces and
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 3 of 17 rotting food, and there was vomit on the floor and bedding. On June 10, 2015,
Mother and Father admitted that the children were CHINS. A.H. was placed
with Mother’s friend and J.B. was placed in foster care. K.J. eventually was
placed in a boarding school in Pennsylvania.
[8] Mother was referred to service providers to assist her with maintaining
employment and appropriate housing. From the fall of 2015 to January 2016,
Mother lived with various friends and relatives or was homeless. In January
2016, Mother temporarily lived at a domestic violence shelter. She left the
shelter and moved into a motel but again had periods of homelessness—
sleeping in parks or abandoned buildings. By April 2016, Mother was able to
obtain an apartment, although it turned out to be bug-infested and in a high-
crime area.
[9] Mother and Father continued living together until September 2016, although
frequent domestic violence incidents continued to occur. Mother did not
always report these incidents to police. However, on September 22, 2016,
Father was charged with several acts of violence against Mother. In December
2016, Father pled guilty to Level 6 felony strangulation and to being an habitual
offender.
[10] In October 2016, Mother was evicted from her apartment; she claims the
eviction was due to damage Father had caused to the apartment during the
incident leading to his arrest and conviction. Thereafter, Mother returned to
living with friends or in motels, with periods of homelessness. At the beginning
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 4 of 17 of August 2017, Mother informed her DCS caseworker that she still did not
have housing. However, later that month Mother produced a lease for a house
purportedly executed on August 1, 2017. The property was actually being
rented by Mother’s mother, supposedly under a rent-to-own arrangement with
the property owner, thus making Mother a sublessee. The home did not have a
kitchen.
[11] Mother’s employment during the CHINS proceedings was sporadic. She
worked for approximately two months at Hardee’s in 2015 and quit due to
transportation issues. She worked for approximately six months at a retirement
center in 2016, but she did not make enough there to pay all her bills and feed
herself. She worked for a few weeks at a Taco Bell in March 2017 and
thereafter began working again at Hardee’s, where she continued to be
employed in August 2017. At that time she also was working part-time for a
special events company.
[12] Mother also has a history of mental illness, particularly severe depression and
self-harming. She was ordered to undergo a psychological exam at the outset of
the CHINS proceedings, but she did not complete one until May 2017, because
she did not think she needed one and because Father told her that he was her
“therapist.” Tr. Vol. II p. 117. Mother was hospitalized in Spring 2017 after a
stranger called 911 to report overhearing her saying she wanted to commit
suicide. She thereafter was prescribed two antidepressants and began
counseling. However, by July 2017, Mother had stopped taking the medication
and was no longer attending counseling.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 5 of 17 [13] Although Mother appeared to be bonded with her children and generally
behaved appropriately during supervised visitation, that visitation was
suspended in February 2016 after an incident in which Mother became angry
during a visit and began throwing things. Visits were resumed in December
2016 but again suspended in March 2017 due to a large number of missed visits.
Also, one of Mother’s counselors stopped meeting in private with Mother after
Mother said during a phone call that she was going to need to murder
somebody in order to visit her children.
[14] Father never completed a domestic violence program, either through his
criminal cases or through DCS referral. He objected to one of Mother’s
counselors because he was a man and claimed the counselor was giving Mother
gifts. Father’s plea agreement to strangulation provided for a year of probation
and two years on community corrections. However, the community
corrections placement was revoked in March 2017, resulting in approximately
six months of incarceration. As with Mother, his housing and employment
were unstable and inconsistent throughout the CHINS proceedings. He did not
maintain consistent contact or visitation with J.B., and Father and J.B. did not
appear to have a close bond.
[15] In August 2016, DCS began proceedings to terminate Mother’s parental rights
to A.H. and J.B. and Father’s parental rights to J.B. 1 The trial court held fact-
1 DCS did not seek termination of Mother’s parental rights as to K.J. The parental rights of A.H.’s father were terminated in a separate proceeding, and he is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 6 of 17 finding hearings on June 6 and August 23, 2017. Father did not appear at the
June hearing. Mother testified at that hearing that she had sought advice from
Legal Aid about divorcing Father and was told that she should wait until after
the termination proceedings were over to pursue such an action.2 At the August
hearing, Father denied having ever battered Mother, despite his convictions for
doing just that, which were the result of guilty pleas. He also testified at that
hearing that he anticipated being released from jail in twenty-six days and that
he planned to work thereafter through his probation department. He also said
that he planned to live with relatives after his release but there were no details
regarding the nature of that housing.
[16] DCS presented evidence that A.H. and J.B. were currently living in separate,
pre-adoptive foster homes. The children were bonded with their foster parents
and the other children in those homes; the foster homes were stable and safe
and the foster parents were providing for the children’s medical and educational
needs. The foster parents also facilitated sibling visitation between A.H. and
J.B.
On October 17, 2017, the trial court entered its order terminating Mother’s and
Father’s parental rights. The trial court found, among other things:
29. There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by their mother. For over
2 A counselor recalled that cost was the barrier to Mother’s moving forward with a divorce.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 7 of 17 two years [Mother] has been offered services designed to remedy conditions including mental health and instability issues but has been unable or unwilling to benefit and progress toward reunification.
30. There is a reasonable probability that the continuation of the parent-child relationship between the children and their mother poses a threat to the children’s well-being as it would be a barrier to moving the children forward to permanency.
*****
44. There is a reasonable probability that the conditions that resulted in [J.B.’s] removal and continued placement outside the home will not be remedied by his father. [Father] has been unable or unwilling to address issues of instability, drug abuse, criminal activity, and domestic violence in the two years [J.B.’s] CHINS case has been pending.
45. Continuation of the parent-child relationship between [J.B.] and his father poses a threat to [J.B.’s] wellbeing in that it would pose as a barrier to obtaining permanency for him in the home where he has bonded.
App. Vol. II pp. 32-33. Mother and Father now appeal.
Analysis [17] Mother and Father both challenge the sufficiency of the evidence supporting
termination of their 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
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 8 of 17 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 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 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). Courts need not wait until a child is irreversibly influenced
by a deficient lifestyle such that his or her physical, mental, and social growth is
permanently impaired before terminating the parent-child relationship. Castro
v. State Office of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct. App. 2006),
trans. denied. “Rather, when the evidence shows that the emotional and
physical development of a child in need of services is threatened, termination of
the parent-child relationship is appropriate.” Id.
[18] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re I.A., 934 N.E.2d at 1132. 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
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 9 of 17 thereon in granting DCS’s petition to terminate Father and Mother’s parental
rights, as required by Indiana Code Section 31-35-2-8(c). See In re N.G., 61
N.E.3d 1263, 1265 (Ind. Ct. App. 2016). 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. In re I.A., 934 N.E.2d at 1132. 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.
[19] 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:
(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.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 10 of 17 (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).
[20] Both Mother and Father contend there is insufficient evidence that there is a
reasonable probability the conditions leading to the children’s removal from
their care would not be remedied.3 In order to prove this element, DCS must
establish (1) what conditions led to DCS placing and retaining the children in
foster care; and (2) whether there is a reasonable probability that those
conditions will not be remedied. In re I.A., 934 N.E.2d at 1134. When
analyzing this issue, courts may consider not only the basis for the initial
removal of the children, but also reasons for the continued placement of the
children outside the home thereafter. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct.
App. 2005), trans. denied. Courts must judge a parent’s fitness to care for his or
her child at the time of the termination hearing, taking into consideration
3 Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only one of the requirements of subsection (B). We conclude there is sufficient evidence of a reasonable probability that the conditions resulting in the children’s removal from Mother and Father’s care would not be remedied, and we need not address whether there is sufficient evidence that continuation of the parent- child relationship posed a threat to A.H. and J.B. See A.D.S., 987 N.E.2d at 1158 n.6.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 11 of 17 evidence of changed circumstances. A.D.S. v. Indiana Dep’t of Child Servs., 987
N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The parent’s habitual
patterns of conduct should be evaluated to determine the probability of future
neglect or deprivation of the child. Id. Factors to consider include a parent’s
prior criminal history, drug and alcohol abuse, history of neglect, failure to
provide support, and lack of adequate housing and employment. Id. Courts
also may consider services offered to the parent by DCS and the parent’s
responses to those services. Id. DCS is not required to prove a parent has no
possibility of changing; it need only establish a reasonable probability that no
change will occur. Id.
[21] Here, it is plain that the primary reason for the children’s removal and
continued placement outside Mother and Father’s care was their substantial
instability with respect to housing and finances. The home where the children
were living when DCS became involved in May 2015 was squalid. This was
not the first time DCS had discovered the children living in such a residence,
given the short-lived 2012 CHINS case. During the two years of these CHINS
proccedings, Mother and Father, together or separately, did not at any time
obtain sufficiently stable housing that would have allowed an attempt to place
the children back into their care, despite assistance from DCS service providers.
The longest period of housing stability for the parties was from April to October
2016—although the apartment they were renting was bug-infested and by
Mother’s own admission located in a dangerous, crime-ridden neighborhood.
This living arrangement came to an end when Father damaged the apartment
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 12 of 17 during another of his violent outbursts, leading to Father’s arrest, conviction,
and eventual incarceration for violating the terms of his community corrections
placement. Although this damage apparently was one reason for Mother’s
subsequent eviction, she also was behind on rent at that time. Before and after
this six-month period, the parties had no stable residence, frequently were
homeless—or in Father’s case, incarcerated.
[22] Like the trial court, we also cannot place much stock in Mother’s purported
subleasing of a property her mother was leasing, evidence of which appeared
only at the final hearing in this matter.4 The circumstances surrounding that
lease are suspect. Although the lease supposedly was effective August 1, 2017,
Mother’s DCS caseworker recalled that Mother had said at the beginning of
that month that she was still trying to acquire housing. The home was not
inspected by DCS for its adequacy for children—probably because they were
unaware of it until the last hearing. Mother admitted that it did not yet have a
kitchen, though claimed one would be put in. She also stated on cross-
examination when pressed about the lease, “I just got that from my mom when
she was trying to help me out.” Tr. Vol. III p. 13. Given these circumstances,
the purported lease is of little consequence in comparison to Mother’s habitual
pattern of conduct with respect to her housing. In sum, there is clear and
4 Curiously, Father points to Mother’s sublease as evidence that termination of his parental rights is not required; Father had nothing to do with the sublease and, in fact, all the evidence indicated that Mother was not interested in resuming her relationship with him when he was released from incarceration. In other words, even if Mother had stable housing—which she did not—it would be irrelevant to whether Father had stable housing—which he did not.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 13 of 17 convincing evidence that severe housing and financial instability had led to the
children’s removal from Mother and Father’s care and there was a reasonable
probability those conditions would not be remedied. 5
[23] Mother contends that her failure to lead a stable life during much of the CHINS
proceedings was caused in large part by Father’s controlling and violent
behavior, from which she was attempting to extricate herself. We agree that
courts must be careful not to “blame the victim” in situations such as this, as we
recognized in In re O.G., 65 N.E.3d 1080 (Ind. Ct. App. 2016), trans. denied.
There, we reversed a termination of parental rights where it based largely on
domestic violence between the mother and father, but the two had not been in a
relationship for the two-and-a-half years preceding the termination hearing and
the mother was complying with DCS requirements to address the domestic
violence. Moreover, in O.G., the mother’s housing situation had been adequate
and stable for the sixteen months preceding the termination hearing. Also,
while the mother had some mental health concerns, the record indicated that
she was addressing those concerns through medication and attending therapy.
[24] Here, Mother remained with Father until he was incarcerated for assaulting her
in the fall of 2016. Perhaps more importantly, unlike the mother in O.G.,
5 We recognize that DCS and courts may not make value judgments about a parent’s “transient” lifestyle where there is no evidence of how it would or did harm the children, and parental rights should not be terminated simply because a parent does not have his or her own residence. See Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 151 (Ind. 2005). The evidence here goes far beyond the parents being merely “transient” or not having their own residence; this transience was extreme and it led to the children on at least two occasions living in deplorable conditions and at risk of outright homelessness.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 14 of 17 Mother’s housing situation was highly unstable for the entirety of the CHINS
proceedings. Also, there is evidence Mother suffered from severe mental health
problems that she was failing to adequately address, as demonstrated by her
hospitalization in the spring of 2017—after which she only briefly took
prescribed medication and stopped attending therapy well before the therapist
thought she was ready to do so.
[25] Even if we were to assume that most or all of Mother’s problems are related to
Father’s violence, the ultimate consideration here is the welfare of her children.
To that extent, Mother’s situation could be compared to that of a mentally ill or
disabled parent. It is well-settled that a parent’s mental illness or disability
cannot, standing alone, support the termination of parental rights. See In re
V.A., 51 N.E.3d 1140, 1147 (Ind. 2016). However, if such illness or disability
causes a parent to be unable and unwilling to develop the skills necessary to
fulfill his or her legal obligations as a parent, parental rights may be terminated.
Id. at 1148 (citing R.G. v. Marion County Office of Family & Children, 647 N.E.2d
326, 330 (Ind. Ct. App. 1995), trans. denied). Here, whatever the root cause of
Mother’s instability, it still existed at the time of the termination hearing and it
would have posed a clear and present danger to the welfare of the children if
they were to be returned to her care.
[26] Mother also asserts that DCS failed to prove that termination of her parental
rights was in the children’s best interests, noting the evidence that she was
bonded with the children and generally had positive interactions with them and
could, at times anyway, be cooperative with DCS and its service providers. “A
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 15 of 17 parent’s historical inability to provide adequate housing, stability and
supervision coupled with a current inability to provide the same will support a
finding that termination of the parent-child relationship is in the child’s best
interests.” Castro, 842 N.E.2d at 374. The testimony of a child’s guardian ad
litem or special advocate or professional caseworkers also can be evidence that
termination is in a child’s best interests. McBride v. Monroe County Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). Both factors are
present here: Mother and Father’s past and present inability to provide
adequate housing and stability, along with testimony from the CASA and the
DCS case manager opining that termination was in the children’s best interests.
[27] Mother and Father suggest that DCS lacked an adequate plan for the children’s
future. We disagree. A satisfactory plan as required for termination of parental
rights need not be detailed, as long as it offers a general sense of the direction in
which the children will be going after termination. In re J.C., 994 N.E.2d 278,
290 (Ind. Ct. App. 2013). The plan here gave more than a “general sense,” as
DCS indicated that A.H. and J.B. would be adopted by their current foster
parents. The children were well-adjusted and well-taken care of in those
homes. Mother contends she and Father had concerns about J.B.’s treatment in
foster care; considering this claim, however, would require us to reweigh the
evidence and discount the testimony strongly in favor of the foster parents,
which we cannot do. The parents’ alleged concerns about K.J.’s treatment also
are irrelevant, given that he was not a party to the termination proceedings. As
for A.H. and J.B. not being adopted together, the parents cite no authority that
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 16 of 17 would require such a plan. In any event, the foster parents have facilitated
continued visitations between the half-siblings. There is sufficient evidence
DCS had a satisfactory plan for the children following termination of Mother’s
and Father’s parental rights.
Conclusion [28] There is sufficient evidence to support the termination of Mother’s and Father’s
parental rights to their children. We affirm.
[29] Affirmed.
Vaidik, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1711-JT-2602 | April 30, 2018 Page 17 of 17