In re: the Termination of J.O-E., JH.O-E., M.N. and A.N. (minor children) and Ar.N. (Father) and Me.N. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 19, 2017
• Docket: 02A04-1701-JT-143
• 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 court except for the purpose of establishing Jul 19 2017, 6:26 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR ATTORNEYS FOR APPELLEE APPELLANT/FATHER Curtis T. Hill, Jr. Gregory L. Fumarolo Attorney General of Indiana Fort Wayne, Indiana Robert J. Henke ATTORNEY FOR Deputy Attorney General APPELLANT/MOTHER Indianapolis, Indiana Timothy E. Stucky Stucky, Lauer & Young, LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re: the Termination of J.O-E., July 19, 2017 JH.O-E., M.N. and A.N. (minor Court of Appeals Case No. children) 02A04-1701-JT-143 and Appeal from the Allen Superior Court Ar.N. (Father) and Me.N. The Honorable Sherry A. Hartzler, (Mother), Judge Appellants-Respondents, The Honorable Lori K. Morgan, Magistrate v. Trial Court Cause Nos. 02D08-1512-JT-159 The Indiana Department of 02D08-1512-JT-160 Child Services,

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 1 of 13 Appellee-Petitioner. 02D08-1512-JT-161 02D08-1512-JT-162

Pyle, Judge.

Statement of the Case [1] Me.N. (“Mother”) and Ar.N. (“Father”) each appeal the termination of the

parent-child relationship with their children M.N. (“M.N.”) and A.N.

(“A.N.”). Mother also appeals the termination of the parent-child relationship

with her older children J.O-E. (“J.O-E.”) and JH.O-E (“JH.O-E”) Both parents

claim that there is insufficient evidence to support the terminations.

Specifically, both parents argue that the Department of Child Services (“DCS”)

failed to prove by clear and convincing evidence that: (1) there is a reasonable

probability that the conditions that resulted in the children’s removal or the

reasons for placement outside the home will not be remedied; (2) a continuation

of the parent-child relationship poses a threat to the children’s well-being; (3)

termination of the parent-child relationship is in the children’s best interests;

and (4) there is a satisfactory plan for the care and treatment of the children.

Concluding that there is sufficient evidence to support the termination of the

parent-child relationships, we affirm the trial court’s judgment.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 2 of 13 [2] We affirm.

Issue The sole issue for our review is whether there is sufficient evidence to support the terminations.

Facts [3] Mother is the parent of N.E., who was born in 2001; twins J.O-E. and JH.O-E,

who were born in 2002; M.N., who was born in 2005; and A.N., who was born

in 2014. Father is the parent of M.N. and A.N. 1 In September 2012, Mother

and Father entered into an informal adjustment with DCS, which required the

parents to maintain a clean and safe home and ensure their children’s school

attendance. When Mother and Father failed to follow the terms of the

adjustment, N.E., J.O-E., JH.O-E, and M.N. were adjudicated to be children in

need of services (“CHINS”) in April 2013. Both parents were court-ordered to

follow a parent participation plan that required them to: (1) maintain clean,

safe, and appropriate housing at all times; (2) obtain a family functioning

assessment and follow the recommendations; (3) enroll in Stop Child Abuse

and Neglect’s (“SCAN”) home-based services program, participate in all

sessions, and successfully complete the program; (4) enroll in individual

1 N.E.’s father lives in Mexico, and the father of J.O-E. and JH.O-E lives in Guatemala. Neither of these fathers is a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 3 of 13 counseling, attend all sessions, and successfully complete the program; and (5)

ensure the children attended school daily.2

[4] The children initially remained with their parents following the CHINS

adjudication. However, the children were removed from the home in May

2013 and returned to the home for a trial visit in June 2013. In December 2013,

the children were removed from the home again because of “educational

neglect and a dirty home.” (Tr. 139). Specifically, the children’s schools were

constantly calling DCS Family Case Manager Alisa Shank (“Case Manager

Shank”) to let her know that the children “had a very strong odor about

themselves and their belongings . . . and that’s when they were in school . . . .”

(Tr. 139). All of the children had excessive absences and tardiness. In addition,

the house had become uninhabitable. There was clutter throughout the house

as well as dog feces and clothes on the floor. Mother also had feral cats, which

sprayed on clothing and furniture and left a strong smell of ammonia. At one

point the police went to the home because the neighbors had complained that

the smell was so bad that they thought it was a meth house.

[5] Three years after the children were adjudicated to be CHINS, DCS filed

petitions to terminate the parent-child relationships in late December 2015 and

early January 2016. Testimony at the termination hearing revealed that the

parents had failed to comply with the court-ordered parent participation plans.

2 A.E. was born after the four oldest children were adjudicated to be CHINS. She was removed from the home and adjudicated to be a CHINS shortly after her birth in February 2014.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 4 of 13 First, Mother and Father had never been able to provide clean, safe, or

appropriate housing. Testimony from Case Manager Shank revealed that

Mother and Father had lived in three houses that had been condemned while

they were living in them. Mother and Father had eventually ended up living at

Father’s auto shop. At the time of the hearing, Father had sold the auto shop

and relocated to Georgia. Mother still lived in the Fort Wayne area but did not

have “independent housing.” (Tr. 214). In addition, although Mother and

Father participated in SCAN’s home-based services program, neither parent

was able to successfully complete the program. SCAN Family Coach Megan

Brendell (“SCAN Coach Brendell”) testified that Father stopped responding to

her texts and messages in February 2016, and Mother walked out of their last

appointment in June 2016.

[6] Dockside Therapist Steve Hanan (“Therapist Hanan”) met individually with

both Mother and Father. Therapist Hanan testified that Mother, who had been

diagnosed with bipolar disorder and borderline personality disorder, “never

attained . . . what we’d call success in any of her goals.” (Tr. 60). According to

Therapist Hanan, Mother, who “would always slip back into a chaotic

lifestyle,” had terminated therapy. (Tr. 60). Therapist Hanan further testified

that Father “left therapy at a very short duration.” (Tr. 70). SCAN Family

Coach Tonya King (“Family Coach King”), who supervised family visits

testified that the visits were chaotic. Mother spent most of her time with fifteen-

year-old N.E. and told the other children that N.E. was “her king.” (Tr. 99).

Mother also told the other children that N.E. was her favorite and that she

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 5 of 13 loved him the most. Family Coach King was concerned that during one of the

visits, Mother encouraged and praised N.E. for making racial slurs in front of

the other children.

[7] Case Manager Shank testified that she recommended terminating the parent-

child relationships because she “fear[ed] for [the] children going back into the

situation because it wasn’t rectified [. . .] it wasn’t ever going to be rectified.”

(Tr. 159). DCS Family Case Manager Erica Bashara (“Case Manager

Bashara”) also recommended terminating the parent-child relationships.

Specifically, Case Manager Bashara testified that DCS had filed the petition to

terminate the parental relationships because the “original situation which [had]

gotten [DCS] involved with this family had not been remedied [and] if anything

we’ve seen worse than what we started with.” (Tr. 184). Case Manager

Bashara further testified that termination was in the children’s best interests and

that the plan for the care and treatment for the children was adoption.

Guardian Ad Litem Mark Thoma (“GAL Thoma”) testified that he did not

believe it was appropriate to terminate the parental relationship between

Mother and N.E. because the mother and son shared a close bond. Specifically,

GAL Thoma did not believe that N.E. would consent to be adopted, and N.E.

had stated throughout the course of the proceedings that he planned to stay in

contact with Mother. On the other hand, GAL Thoma testified that

termination of the parent-child relationships was in the best interests of J.O-E.,

JH.O-E, M.N., and A.N.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 6 of 13 [8] Following the hearing, the trial court issued an order terminating the parental

relationships between Mother and J.O-E., JH.O-E, M.N., and A.N.3 Each

parent separately appeals the terminations.

Decision [9] The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment to the United States Constitution. In

re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

However, a trial court must subordinate the interests of the parents to those of

the child when evaluating the circumstances surrounding a termination. Id. at

1188. Termination of the parent-child relationship is proper where a child’s

emotional and physical development is threatened. Id. Although the right to

raise one’s own child should not be terminated solely because there is a better

home available for the child, parental rights may be terminated when a parent is

unable or unwilling to meet his or her parental responsibilities. Id.

[10] Before an involuntary termination of parental rights may occur, DCS is

required to allege and prove, among other things:

(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

3 The trial court did not terminate the parental relationship between Mother and N.E.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 7 of 13 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.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1230 (Ind. 2013).

[11] When reviewing a termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

628 (Ind. 2016). We consider only the evidence and any reasonable inferences

to be drawn therefrom that support the judgment and give due regard to the

trial court’s opportunity to judge the credibility of the witnesses firsthand.

K.T.K., 989 N.E.2d at 1229.

[12] When the trial court’s judgment contains specific findings of fact and

conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

N.E.3d at 628. First, we determine whether the evidence supports the findings,

and second, we determine whether the findings support the judgment. Id. We

will set aside a trial court’s judgment terminating a parent-child relationship

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 8 of 13 only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

record contains no facts or inferences to be drawn therefrom that support them.

In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). 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.

[13] Mother and Father both argue that DCS failed to prove by clear and convincing

evidence that: (1) there is a reasonable probability that the conditions that

resulted in the children’s removal or the reasons for placement outside the

home will not be remedied; and (2) a continuation of the parent-child

relationship poses a threat to the children’s well-being. However, we note that

INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore,

DCS is required to establish by clear and convincing evidence only one of the

three requirements of subsection (B). In re A.K., 924 N.E.3d 212, 220 (Ind. Ct.

App. 2010), trans. dismissed. We therefore discuss only whether there is a

reasonable probability that the conditions that resulted in the children’s removal

or the reasons for their placement outside the home will not be remedied.

[14] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 9 of 13 evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. The trial court may also consider services offered to the parent by

DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id.

[15] Here, our review of the evidence reveals that the children were removed from

Mother and Father because of “educational neglect and a dirty home.” (Tr.

139). Evidence at the termination hearing revealed that Mother and Father had

never been able to provide clean, safe, or appropriate housing. Specifically,

Case Manager Shank testified that during the course of the CHINS proceeding,

Mother and Father had lived in three houses that were condemned while they

were living in them. Mother and Father eventually ended up living in Father’s

auto shop. At the time of the hearing, Father had sold the auto shop and

relocated to Georgia. Mother remained in the Fort Wayne area but still did not

have “independent housing.” (Tr. 214). In addition, Case Manager Shank

testified that the situation that resulted in the children’s removal had not been

and would never be rectified. Case Manager Bashara testified that the “original

situation which [had] gotten [DCS] involved with this family had not been

remedied [and] if anything we’ve seen worse than what we started with.” (Tr.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 10 of 13 184). In addition, service providers such as SCAN Coach Brendell and

Therapist Hanan testified that Mother and Father had failed to successfully

complete their programs. This evidence supports the trial court’s conclusion

that there was a reasonable probability that the conditions that resulted in the

children’s removal would not be remedied. We find no error.

[16] Next, Mother and Father both argue that there is insufficient evidence that the

termination was in the children’s best interests. In determining whether

termination of parental rights is in the best interests of a child, the trial court is

required to look at the totality of the evidence. In re D.D., 804 N.E.2d 258, 267

(Ind. Ct. App. 2004), trans. denied. In so doing, the court must subordinate the

interests of the parents to those of the child involved. Id. Termination of the

parent-child relationship is proper where the child’s emotional and physical

development is threatened. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.

2002), trans. denied. “‘A 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 continuation of the parent-child relationship is

contrary to the child’s best interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct.

App. 2000) (quoting Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct.

App. 1992), trans. denied, superceded by rule on other grounds). Further, the

testimony of the service providers may support a finding that termination is in

the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798

N.E.2d 185, 203 (Ind. Ct. App. 2003).

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 11 of 13 [17] Here, our review of the evidence reveals that Mother and Father have

historically been unable to provide housing, stability, and supervision for their

children and were unable to provide the same at the time of the termination

hearing. In addition, Case Managers Shank and Bashara testified that

termination was in the children’s best interests. The testimony of these service

providers, as well as the other evidence previously discussed, supports the trial

court’s conclusion that termination was in the children’s best interests.

[18] Last, both parents argue that DCS does not have a satisfactory plan for the

children’s care and treatment. This Court has previously explained that the

plan for the care and treatment of the children need not be detailed, so long as it

offers a general sense of the direction in which the children will be going after

the parent-child relationships are terminated. In re L.B., 889 N.E.2d 326, 341

(Ind. Ct. App. 2008). Here, Case Manager Bashara testified the plan for the

care and treatment of the children was adoption. This is a satisfactory plan. See

In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

[19] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 12 of 13 [20] Affirmed.

May, J. and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A04-1701-JT-143 | July 19, 2017 Page 13 of 13