MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 08 2017, 6:56 am court except for the purpose of establishing 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 APPELLANT ATTORNEYS FOR APPELLEE Laura M. Longstreet Curtis T. Hill, Jr. Longstreet Law, LLC Attorney General of Indiana South Bend, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the September 8, 2017 Parent-Child Relationship of Court of Appeals Case No. N.G. (Minor Child) 71A03-1703-JT-668 and Appeal from the St. Joseph Probate Court N.R.G. (Mother), The Honorable James N. Fox, Appellant-Respondent, Judge
v. Trial Court Cause No. 71J01-1407-JT-111
Indiana Department of Child Services, Appellee-Petitioner.
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 1 of 22 [1] The St. Joseph Probate Court entered an order terminating the parental rights
of N.R.G. (“Mother”) to her minor daughter N.G. (“Daughter”). Mother
appeals and presents four issues, which we consolidate and restate as the
following two: (1) whether the trial court abused its discretion in the admission
of certain evidence; and (2) whether the Indiana Department of Child Services
(“DCS”) presented evidence sufficient to support the trial court’s decision to
terminate Mother’s parental rights.
[2] We affirm.
Facts and Procedural History [3] Daughter was born in July 2008 to Mother and D.G.W. (“Father”).1 Mother
and Father also had an older son, D.W. (“Brother”), born in 1997. On January
16, 2013, DCS received a report that Father had gotten drunk and had a
physical altercation with Brother, punching the then-sixteen-year-old in the face
several times, causing his nose and lip to bleed. When the boy attempted to
defend himself, Father placed him in a chokehold. Father also pushed over a
television set to try to hit his son. The following morning, Father claimed not to
remember the fight. Daughter was at home at the time of the fight, but Mother
was at work.
[4] On January 17, 2016, DCS substantiated the report and placed the children
with relatives pending a detention hearing, which was held that same day. The
1 Father voluntarily terminated his parental rights to Daughter and does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 2 of 22 trial court authorized removing the children from the parents’ home and placed
them with a paternal aunt (“Aunt”). DCS then filed a petition that Brother and
Daughter were children in need of services (“CHINS”). The parents
subsequently admitted to the material allegations of the CHINS petition.
[5] The trial court held a dispositional hearing on February 6, 2013, and issued a
dispositional decree ordering Mother to: (1) allow the family case manager or
other service providers to make announced or unannounced visits to the home
of the children, including entrance to the home to ensure the safety of the
children; (2) visit with the child on a regular basis as outlined by DCS; (3) keep
all appointments with any service provider, DCS, or CASA [i.e., court
appointed special advocate for the children], or good cause shall be given to the
service provider and the family case manager for the missed appointment; (4)
successfully complete parenting classes; (5) obtain and maintain a legal and
regular source of income; (6) obtain and maintain adequate housing; and (7)
maintain consistent contact with DCS and inform DCS of any changes in
address or phone number within forty-eight hours in writing. Mother was later
ordered to also participate in both individual and family therapy.
[6] During one of Daughter’s therapy sessions, she disclosed that Brother was
“sex[t]ing” her. Tr. p. 94. When asked if Brother’s actions occurred during
Daughter’s placement with Aunt, Daughter responded that Aunt “would never
let that happen,” indicating that the actions occurred prior to the children’s
removal from the parents’ home. Id. at 100. DCS was informed of these
allegations and removed Brother from Aunt’s home. During subsequent
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 3 of 22 therapy, Daughter stated that Brother held her down and performed some
sexual acts, ejaculating on her. Daughter’s therapist believed that, based on
Daughter’s descriptions of Brother’s acts, that there had been vaginal
penetration. Also based on Daughter’s statements, it appeared that Brother’s
sexual abuse happened on several occasions over a significant period of time.
Brother initially denied Daughter’s allegations, but after being placed in a
residential treatment facility, admitted to sexually molesting his sister. Brother
was alleged to be a delinquent child as a result of these allegations.
[7] When DCS confronted Mother with the allegations of sexual abuse, she had a
noted lack of expression. She did not say much, but did occasionally cry. The
family case manager suspected that some of Mother’s unusual behavior was
due to intimidation by Father. Daughter’s CASA stated that Mother felt herself,
not Daughter, to be the victim, and felt betrayed by her son. Still, Mother was
resistant to admit that her son had abused Daughter.
[8] After her removal from the home of her parents, DCS noted several concerns
regarding Daughter’s behavior. She had delayed speech, irregular eating habits,
and was “emotionally d[y]sregulated,”2 meaning that the smallest things might
“set her off” emotionally. Tr. pp. 17. “She could go from perfectly happy to
screaming in the matter of moments when something would trigger her. She’d
have complete meltdowns . . . where she [was] hiding under things and crying.”
2 “Emotion dysregulation is the inability to flexibly respond to and manage emotions.” Ryan W. Carpenter and Timothy J. Trull, Components of Emotion Dysregulation in Borderline Personality Disorder: A Review, Current Psychiatry Reports. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3973423/
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 4 of 22 Id. at 16–17. Daughter also had difficulties with personal boundaries. She
would go up to strangers and ask for hugs and approach people she did not
know.
[9] In September 2013, Daughter began to undergo therapy with Kaylie Bruinsma
(“Bruinsma”), a licensed clinical social worker. Bruinsma also met with Mother
to work with her and prepare her for an “apology session” in which she would
apologize to Daughter for failing to keep her safe from the abuse by Brother.
Although the first apology session went well, as Daughter gave more detailed
descriptions of the abuse by Brother, Mother had trouble. She told Daughter
not to talk about the abuse and to only talk about positive subjects, which was
contrary to the whole point of the therapy. When Mother’s attitude did not
change, the joint family therapy with Daughter and Mother was canceled.
[10] In the meantime, Aunt was not following through with the training she had
received from DCS. Daughter had reverted in her behavior, becoming
emotionally distraught, stealing food at night, and generally causing “havoc” at
Aunt’s home. Tr. p. 108. Therefore, in October 2014, Daughter was removed
from Aunt’s care and placed in a pre-adoptive foster home.
[11] When Daughter was first placed with her non-relative foster parents, the scope
of her problems was apparent. Although the child was already six years old, she
did not know how to use silverware and ate with her fingers, she did not know
how to properly brush her teeth, and was unable to properly wipe herself after
using the bathroom. She still displayed a lack of proper boundaries,
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 5 of 22 approaching and hugging random strangers. In her foster parents’ home,
Daughter was afraid that her Brother or Mother would come to get her at night.
To calm her fears, her foster parents had to lock her bedroom window and
secure it with a dowel rod so that it could not be opened from the outside.
Daughter would ask the foster parents to check the window multiple times
before she felt safe that it was properly locked.
[12] In early 2015, therapist Bruinsma tried to restart family therapy with Daughter
and Mother. Although Bruinsma met with Mother several times, Mother was
never able to properly apologize to Daughter. Mother could generally
apologize, but struggled when confronted with the specifics of Brother’s abuse
of Daughter.
[13] Despite being ordered by the court to maintain communication with DCS,
Mother failed to do so. Mother did, however, participate in individual and
family therapy. During her therapy, it was discovered that Mother suffers from
post-traumatic stress disorder (“PTSD”) as a result of being the victim of sexual
abuse as a child herself. Mother’s therapist also suspected that Mother had
some sort of learning disability. Mother initially did well in individual therapy,
and by July 2013, DCS recommended that she move on to family therapy. But
from October 2013 through December 2013, Mother did not participate in
therapy at all.
[14] Moreover, when Mother did attend therapy, her progress was slow. Mother’s
therapist, Barbara Hernly (“Hernly”), explained that Mother would say that she
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 6 of 22 understood something, but was then not able to retain this information and was
unable to repeat the information at the next session. DCS believed that Mother
had made insufficient progress over the course of the CHINS case. On January
15, 2014, the trial court held a permanency hearing and determined that Mother
had not maintained consistent contact with DCS as ordered and had not
participated in therapy since December of 2013.
[15] Mother was also referred to a service provider for parenting therapy and
training. Still, Mother struggled. She was unable to retain what she learned
during the parenting classes and unable to apply what she had learned to her
visitation with Daughter. The family case manager testified that although she
could not say that Mother actually failed the parenting classes, she never did
well enough to move past anything other than supervised visitation. The
visitations were then moved to a different service provider. The visitations
remained chaotic, and Daughter often had trouble regulating her emotions. On
more than one occasion, Daughter reverted to acting like a younger child
during visitation with Mother, crawling on the floor. And again, if Daughter
ever brought up the subject of the sexual abuse she had suffered at the hands of
Brother, Mother ignored the subject.
[16] Daughter reacted poorly to the visitations with Mother, behaving badly for one
or two days after the visits and being very clingy to her foster mother. Daughter
also stated that she did not want to visit Mother, and would occasionally feign
illness to avoid going. Accordingly, in June 2015, the visitation service provider
decided that visitations should be reduced from once per week to once every
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 7 of 22 other week and take place in a therapeutic setting. The visitation supervisor
testified that Mother had still not moved beyond the need for supervised
visitation. The supervisor also remained concerned about Daughter’s emotional
reaction to Mother and Mother’s inability to appropriately respond to
Daughter’s outbursts. On July 9, 2014, the permanency plan was changed from
reunification to adoption.
[17] In foster care, Daughter’s behavior improved. She was able to explain her
emotions and have fewer outbursts. She was learning to better understand
personal boundaries, and was less nervous and hyperactive. Daughter felt safe
in foster care.
[18] On July 20, 2014, due to Mother’s lack of progress and the time that had
passed, DCS filed a mandatory petition to terminate Mother’s parental rights,
as Daughter had been out of the parents’ care for fifteen out of the most recent
twenty-two months.3 The trial court held a hearing on the termination petition
on September 3, 2015, and, on January 22, 2016, the trial court entered an
order terminating Mother’s parental rights to Daughter.
[19] Mother appealed, and, on October 6, 2016, a panel of this court held:
[T]he trial court’s findings are so sparse that we cannot discern whether it based its termination order on proper statutory
3 Federal law provides that, as a condition of receiving federal funding, a state must file a petition to terminate the parental rights of the parents of a child who has been in foster care under the responsibility of the state for fifteen of the most recent twenty-two months. Castro v. State Office of Family & Children, 842 N.E.2d 367, 377 (Ind. Ct. App. 2006) (citing 42 U.S.C. § 675(5)(E)). Indiana Code section 31-35-2- 4.5(a)(2)(B) codifies this federal requirement in Indiana. Castro, 842 N.E.2d at 377.
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 8 of 22 considerations. As we are not at liberty to scour the record to find evidence to support the judgment, we remand with instructions for the trial court to enter proper findings of fact and conclusions of law to support the termination of Mother’s parental rights.
In re Involuntary Termination of Parent-Child Relationship of N.G., 61 N.E.3d 1263,
1266 (Ind. Ct. App. 2016).
[20] On February 26, 2017, DCS filed a motion requesting that the trial court enter
additional findings to support its termination order. On February 24, 2017, the
trial court entered an order containing its additional findings, and on March 3,
2017, the trial court entered an amended termination order. The trial court
noted in its amended termination order that Daughter had been removed from
the care of the foster parents with whom she had been placed after removal
from the care of Aunt, but had been placed in another pre-adoptive foster home
in July 2016. Mother now appeals.
I. Admission of Evidence
[21] Mother claims that the trial court committed reversible error in the admission of
certain evidence. In addressing this claim, we note that decisions regarding the
admission of evidence are entrusted to the sound discretion of the trial court,
and we will not reverse that decision on appeal except for an abuse of that
discretion. D.B.M. v. Indiana Dep’t of Child Servs., 20 N.E.3d 174, 178–79 (Ind.
Ct. App. 2014). A trial court abuses its discretion when its evidentiary decision
is clearly against the logic and effect of the facts and circumstances before it, or
the trial court has misinterpreted the law. Id. at 179; D.G.B. v. State, 833 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 9 of 22 519, 524 (Ind. Ct. App. 2005). The fact that evidence was erroneously admitted
does not automatically require reversal, and we will reverse only if we conclude
the admission affected a party’s substantial rights. D.B.M., 20 N.E.3d at 179.
The admission of evidence that is merely cumulative of other evidence
generally amounts to harmless error, as such admission does not affect a party’s
substantial rights. Id.
[22] Mother argues that the trial court admitted various evidence which referred to
Daughter’s out-of-court statements. This, she claims, was improper because the
statements did not meet the requirements for admissibility under Indiana Code
chapter 31-35-4, governing the admission of recorded statements of a child in
termination actions, nor did they fall within any of the established exceptions to
the hearsay rule.
[23] Mother, however, points to few actual examples of the evidence that she now
claims was improperly admitted. Indeed, her argument mostly refers in broad
terms to “evidence,” “documents,” and “testimony” without giving specific
examples or citation to the record. See, e.g., Appellant’s Br. at 40 (“There is
voluminous evidence in the record that the DCS’[s] witnesses frequently
testified to the child’s out-of-court statements.”); id. at 41 (“Various documents
filed by the DCS in the CHINS matter reference [child’s] allegations [of sexual
abuse by her brother].”); id. at 43 (“The record contains hearsay evidence of
sexual abuse and hearsay evidence of statements made against mother. . . .
[T]he out-of-court statements regarding the sexual abuse and statements
regarding mother, were hearsay.”).
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 10 of 22 [24] It is Mother’s burden on appeal to support her argument with appropriate
citations to the record. See Ind. Appellate Rule 46(A)(8)(a) (“Each contention
[in the appellant’s brief] must be supported by citations to the authorities,
statutes, and the Appendix or parts of the Record on Appeal relied on[.]”). We
will not undertake the burden of combing and sifting through the record to find
support for an appellant’s argument.4 Clark Cty. Drainage Bd. v. Isgrigg, 963
N.E.2d 9, 19 n.4 (Ind. Ct. App. 2012), adhered to on reh’g, 966 N.E.2d 678;
Wright v. Elston, 701 N.E.2d 1227, 1230 (Ind. Ct. App. 1998), trans. denied. We
address Mother’s evidentiary argument only to the extent that she refers to
specific instances of the admission of evidence.
[25] Mother first refers to the DCS progress report dated June 16, 2015, in which the
DCS family case manager repeats Daughter’s statements that she did not wish
to visit Mother or remain in Mother’s care. Mother does not provide a citation
to the record where we can find such a statement. Nevertheless, we have
located this report in DCS’s Exhibit A. However, Mother did not object to the
admission of DCS’s Exhibit A. See Tr. p. 11 (trial court noting that DCS’s
Exhibit A was admitted without objection). Her argument with regard to the
admissibility of this document is therefore waived. See In re Guardianship of
Hickman, 805 N.E.2d 808, 822 (Ind. Ct. App. 2004) (“The failure to make a
contemporaneous objection to the admission of evidence at trial, so as to
4 Mother briefly argues that “several of DCS’[s] witnesses made . . . assertions” as to their belief in Daughter’s allegations. Appellant’s Br. at 40. Mother does not explain which witnesses made such assertions or where such assertions were made in the transcript. Nor does she further develop this argument. We therefore consider it waived. See App. R. 46(a)(8)(A).
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 11 of 22 provide the trial court an opportunity to make a final ruling on the matter in the
context in which the evidence is introduced, results in waiver of the error on
appeal.”), trans. denied.
[26] Mother does refer to portions of testimony to which she did object.5 First, she
objected to testimony of the CASA that referred to the fact that the CASA had
watched the interviews of Daughter at the child advocacy center. Tr. pp. 67–68.
We note, however, that the CASA never actually testified to any statement
made by Daughter during these interviews. The CASA testified merely that she
watched those interviews. The CASA’s testimony would be hearsay only if it
referred to a statement made by Daughter. But counsel for DCS carefully
worded her questions to the CASA and specifically asked her to answer
“[w]ithout talking about what someone said on the [interview] video . . . .” Tr.
p. 70. The fact that the CASA watched the interviews and testified to this fact is
not, of itself, hearsay.
[27] Mother also objected to the CASA’s testimony that, based on what Daughter
told her, she felt that Mother was unable to properly meet Daughter’s need for
5 Mother argues that she objected to the admission of some evidence by moving for a continuance immediately before trial based on the late disclosure of the CASA’s report, which contained references to Daughter’s interview at a child advocacy center. Mother also claimed that the statements contained in this report were hearsay and inadmissible under the child hearsay statute, Indiana Code chapter 31-35-4. The trial court, however, declined to grant a continuance and indicated that it would rule on the admissibility of the evidence as it was presented. Mother’s pre-trial motions were effectively motions in limine, which the trial court denied. But this did not relieve Mother of her burden to make a contemporaneous objection to the evidence she claimed was inadmissible. See Fricke v. Gray, 705 N.E.2d 1027, 1030 (Ind. Ct. App. 1999) (noting that a ruling on a pre-trial motion in limine is not a final ruling on the admissibility of evidence and that the party must still object to the admission of the evidence at the time it is offered), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 12 of 22 safety. Id. at 71–72. It does appear that the CASA based her testimony on what
Daughter told her. See id. at 71 (testimony of CASA stating, in response to
question of how she knew Daughter was in fear for her safety with Mother,
“She told me.”).
[28] Even if we assume that this portion of the CASA’s testimony is hearsay, it
would not constitute reversible error. Erroneously admitted evidence that is
merely cumulative in nature is harmless if the same or similar evidence is
submitted without objection. Homehealth, Inc. v. N. Ind. Pub. Serv. Co., 600
N.E.2d 970, 974 (Ind. Ct. App. 1992). Here, there was evidence admitted
without objection establishing that Daughter did not feel safe in Mother’s care.
See Tr. pp. 21, 32 (testimony of child’s therapist on cross-examination by
Mother that Daughter felt safer out of Mother’s care and that Daughter did not
feel safe in Mother’s care); id. at 59 (testimony of visitation supervisor that
Daughter had issues with feeling safe and did not feel safe with Mother).
Accordingly, the trial court did not commit any reversible error in overruling
Mother’s hearsay objection to this portion of the CASA’s testimony.
[29] Lastly, Mother objected to the CASA’s testimony that Daughter had finally
gathered the courage to tell her Mother about the abuse she suffered at the
hands of Brother.6 Tr. pp. 88–89. Mother’s objection to the CASA’s testimony
6 Mother also objected to the admission of the CASA’s report to the extent it contained statements made by Daughter during the interviews at the child advocacy center and statements made by Daughter as related to the CASA by her foster mother. Tr. pp. 77–79. But, as Mother acknowledges, the trial court did not admit the CASA’s report. See Appellant’s Br. at 42 (noting that “the report by the CASA did not come into evidence[.]”).
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 13 of 22 that Daughter had to gather the courage to tell Mother about the abuse was that
the testimony was based on facts not in evidence. Mother made no objection to
this testimony based on hearsay or the child hearsay statute, the grounds she
now argues on appeal. A party may not object on one ground at trial and seek
reversal on appeal using a different ground. Reed v. Bethel, 2 N.E.3d 98, 107
(Ind. Ct. App. 2014).
[30] In short, Mother has not established reversible error with regard to the trial
court’s admission of evidence.
II. Termination of Parental Rights
[31] Mother also claims that the trial court clearly erred in determining that DCS
met its burden to establish that termination of Mother’s parental rights was
proper.
A. Applicable Law and Standard of Review
[32] The purpose of terminating parental rights is not to punish parents but instead
to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. 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).
[33] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate
parental rights must allege: Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 14 of 22 (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.
[34] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; G.Y., 904 N.E.2d at 1260. But because Indiana Code section 31-35-
2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that
only one prong of subsection 4(b)(2)(B) has been established by clear and
convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
[35] 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 Cnty.
Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead
sufficient to show by clear and convincing evidence that the child’s emotional
and physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 15 of 22 [36] We have long had 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. We
consider only the evidence and reasonable inferences favorable to the trial
court’s judgment. Id. In deference to the trial court’s unique position to assess
the evidence, we will set aside a judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. Clear error is that which leaves us
with a definite and firm conviction that a mistake has been made. J.M. v. Marion
Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.
denied.
B. Conditions that Resulted in Removal
[37] Mother argues that the trial court clearly erred in concluding that there was a
reasonable probability that the conditions that resulted in Daughter’s removal
from the parents’ home would not be remedied. When deciding whether there
is a reasonable probability 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 determine a parent’s fitness to care for the child at the time of the
termination hearing while also taking into consideration evidence of changed
circumstances. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57
(Ind. Ct. App. 2013), trans. denied. However, the trial court may disregard
efforts made only shortly before termination and weigh more heavily a parent’s
history of conduct prior to those efforts. In re K.T.K., 989 N.E.2d 1225, 1234
(Ind. 2013).
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 16 of 22 [38] Mother argues that the reason for Daughter’s removal was Father attacking
Brother while she was at work. She claims that she cannot be held responsible
for the actions of others. But the relevant question is not only why the child was
removed from her parents’ care, but also whether “the reasons for placement
outside the home of the parents” will be remedied. I.C. § 31-35-2-4(b)(2)(B)(i).
See also In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005) (“[I]t is not just the
basis for the initial removal of the child that may be considered for purposes of
determining whether a parent’s rights should be terminated, but also those bases
resulting in the continued placement outside of the home.”).
[39] The reason for Daughter’s continued placement outside of Mother’s home was
that Brother sexually abused Daughter. Mother had difficulty accepting
Brother’s actions and would change the subject when the issue was brought up
by Daughter. Mother told the service providers that she thought Daughter had
been happy in her care and was unaware of any sexual abuse. Daughter’s own
therapy was frustrated by Mother’s inability or unwillingness to discuss the
abuse. Mother was never able to properly apologize to Daughter for her role in
failing to keep Daughter safe, which hampered Daughter’s ability to feel safe
with Mother. Daughter’s behavior worsened around the times of her visits with
Mother.
[40] Furthermore, Mother seemed unable to benefit from the services offered to her.
Mother stopped attending her individual therapy in October 2013, and did not
keep in regular contact with the family case manager after that date. Mother
was unable to learn or retain much from the parenting classes and had trouble
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 17 of 22 applying what was taught to her interactions with Daughter. Although Mother
did regularly attend visitations, she never managed to retain enough from the
services offered to her to be able to move past supervised visitations. Mother
herself was the victim of sexual abuse and was unable to progress in therapy
with Daughter until she addressed her own psychological problems that
stemmed from this abuse, which she had not done.7
[41] Given our deferential standard of review in family law matters, we are unable
to say that the trial court clearly erred in concluding that DCS had established
by clear and convincing evidence that there was a reasonable probability that
the conditions that resulted in Daughter’s removal from the parents’ home or
the reasons for placement outside the home would not be remedied.
C. Continuation of Parent-Child Relationship
[42] Mother also argues that the trial court clearly erred in determining that there
was a reasonable probability that the continuation of the parent-child
relationship poses a threat to the well-being of the child.
[43] We first observe that Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive; accordingly, the trial court is required to find that only one prong of
Section 4(b)(2)(B) has been established. In re A.K., 924 N.E.2d at 220. We have
7 Mother briefly cites In re V.A., 51 N.E. 3d 1140, 1149 (Ind. 2016), in support of her argument that the presence of a parent who has a mental illness in the home of the child is insufficient to who a risk of substantial harm to the child. See id. Mother argues that her mental health issues cannot form the basis of the trial court’s decision to terminate her parental rights if they do not put the child in danger. But here, termination was not based solely on Mother’s mental issues. And there was evidence that Mother’s PTSD was a factor limiting her ability to help Daughter deal with her emotional problems.
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 18 of 22 already concluded that DCS proved that there was a reasonable probability that
the conditions which resulted in the children’s removal from Mother’s care, or
the reasons for Daughter’s placement outside Mother’s home would not be
remedied. We therefore need not address Mother’s arguments directed at the
“threat” prong of Section 4(b)(2)(B). See id. But even if we address the “threat”
prong of Section 4(b)(2)(B), Mother would not prevail.
[44] In addressing the threat prong of Section 4(b)(2)(B), the trial court must
consider the parent’s habitual patterns of conduct to determine the probability
of future neglect or deprivation of the child. A.D.S., 987 N.E.2d 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. 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. Actual physical abuse is not required to find that
there is a reasonable probability that continuation of the parent-child
relationship poses a threat to a child’s wellbeing, and a court need not wait until
the child suffers permanent psychological or physical injury before intervening.
In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005), trans. denied. Instead, the
evidence need only show that the emotional and physical development of the
child is threatened. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002).
[45] In addressing the threat prong, the trial court here noted that, when Daughter
arrived at her foster home, she had trouble with boundaries and would
approach and hug strangers. Daughter ate with her fingers instead of utensils
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 19 of 22 and had poor personal hygiene, not knowing how to properly brush her teeth or
wipe herself after using the bathroom. Daughter also displayed hyper-vigilant
behavior, repeatedly checking to make sure the doors to the house and the
window in her bedroom were shut and locked. The foster parents eventually
had to add a dowel rod to the window to reassure Daughter that her Brother or
Mother could not break into the home and take her away. Although Daughter
made improvements in her behavior while in the care of the foster parents, she
would revert to more disruptive behavior after visits with Mother. Both the
CASA and Daughter’s therapist testified that they believed continuation of the
parent-child relationship posed a threat to Daughter’s well-being because
Mother remained a trigger for Daughter’s behavior.
[46] Again, under our extremely deferential standard of review, we cannot say that
the trial court clearly erred in determining that there was clear and convincing
evidence establishing that there was a reasonable probability that continuation
of the parent-child relationship posed a threat to Daughter’s well-being.
D. Best Interests of the Child
[47] Mother also argues that the trial court erred in concluding that termination of
the parent-child relationship was in the best interests of the children. In
determining what is in the best interests of the child, the trial court must look
beyond the factors identified by DCS and look to the totality of the evidence.
A.D.S., 987 N.E.2d at 1158. The trial court must subordinate the interests of the
parent to those of the child, and the court need not wait until the child is
irreversibly harmed before terminating the parent-child relationship. Id. A Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 20 of 22 recommendation by the case manager or child advocate to terminate parental
rights, in addition to evidence that the conditions resulting in removal or
continued placement outside the parent’s home will not be remedied, is
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. Id at 1158–1159.
[48] Here, the trial court found that Daughter’s behavior and condition have
improved considerably since being removed from her Mother and placed in
foster care. Mother argues that the trial court placed too great an emphasis on
permanency, implying that the trial court should have given Mother more time
to participate in services. But Mother had over two and a half years to
participate in services. And during this time, she failed to benefit from the
parenting classes offered to her, made little progress in individual therapy, and
failed to maintain consistent contact with DCS. “[C]hildren cannot wait
indefinitely for their parents to work toward preservation or reunification—and
courts ‘need not wait until the child is irreversibly harmed such that the child’s
physical, mental and social development is permanently impaired before
terminating the parent-child relationship.’” In re E.M., 4 N.E.3d 636, 648 (Ind.
2014) (quoting K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1235 (Ind.
2013)).
[49] Moreover, the CASA, the DCS family case manager, and Daughter’s therapist
all testified that, in their opinions, termination of Mother’s parental rights was
in Daughter’s best interest. Tr. pp. 30, 84, 117. This evidence was sufficient to
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 21 of 22 support the trial court’s conclusion that termination of Mother’s parental rights
was in the best interests of the child. See A.D.S., 987 N.E.2d at 1158.
Conclusion [50] The trial court did not commit reversible error in the admission of evidence
Mother now claims was impermissible hearsay. The trial court did not clearly
err when it determined that DCS had presented clear and convincing evidence
establishing that there is a reasonable probability that the conditions that
resulted in Daughter’s removal from Mother’s home or the reasons for her
continued placement outside Mother’s home would not be remedied and that
the continuation of the parent-child relationship poses a threat to Daughter’s
well-being. Nor did the court clearly err in determining that termination of
Mother’s parental rights was in Daughter’s best interests.
[51] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1703-JT-668 | September 8, 2017 Page 22 of 22