MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 30 2017, 9:13 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Attorney General of Indiana Walter, P.C. David E. Corey Nappanee, Indiana Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the November 30, 2017 Parent-Child Relationship of Court of Appeals Case No. K.J. and E.L. (Minor Children), 75A03-1706-JT-1321 and Appeal from the Starke Circuit Court K.I.J. (Mother) and E.L.L. The Honorable Kim E. Hall, Judge (Father) Trial Court Cause Nos. Appellant-Respondents, 75C01-1701-JT-1 75C01-1701-JT-2 v.
Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 1 of 20 Mathias, Judge.
[1] K.I.J. (“Mother”) and E.L.L. (“Father”) (collectively “the Parents”) challenge
the order of the Starke Circuit Court terminating their parental rights to their
minor children K.J. (“Daughter”) and E.L. (“Son”) (collectively “the
Children”). On appeal, the Parents claim that the attorney appointed to
represent them jointly at the termination hearing was ineffective due to a
conflict of interest. Because the performance of Parents’ counsel does not
diminish our confidence that the trial court’s termination decision was proper,
we affirm.
Facts and Procedural History [2] Mother and Father are the parents of Daughter, born in April 2011, and Son,
born in October 2013. On October 4, 2015, police called the local office of the
Indiana Department of Child Services (“DCS”) after they found Mother and
Father passed out in a car parked in front of an auto parts store. Mother and
Father appeared to be under the influence of some intoxicating substance, as
they both had slurred and slowed speech and diminished mental capacity. The
Children were in the back seat of the car. When they were examined, it was
discovered that the Children were infested with lice and fleas. The Children had
to undergo multiple treatments to remove the infestation. When the Children
were taken by DCS, then four-year-old Daughter had no emotional reaction to
leaving her parents and went willingly with the DCS caseworker, which is not a
typical reaction for a child removed from her parents.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 2 of 20 [3] As a result of this incident, Mother and Father were both arrested and charged
with Level 6 Felony neglect of a dependent and Class B misdemeanor public
intoxication. Father was additionally charged with Class A misdemeanor
driving while suspended. Mother tested negative for drugs, but Father, who
denied using drugs, tested positive for use of methadone, methamphetamine,
and amphetamine. The trial court approved the continued detention from the
Parents at a detention and initial hearing held October 7, 2015. The trial court
also approved placement of the Children in foster care.
[4] On October 19, 2015, the Children were adjudicated to be children in need of
services (“CHINS”) by the admission of the Parents. The trial court entered a
dispositional decree on November 17, 2015, which ordered the Parents to
participate in services as follows: (1) complete an initial clinical assessment and
follow all recommendations; (2) complete a substance abuse assessment and
follow all recommendations; (3) complete a parenting assessment and follow all
recommendations; (4) comply with all random drug and alcohol screens given
by DCS and service providers; (5) cooperate with home-based case
management services and homemaker services as arranged by DCS; (6) obtain
and maintain appropriate housing; (7) obtain and maintain employment or a
means of financial support for the children; (8) cooperate with DCS and
maintain contact with updated information or changes; and (9) complete a
psychological assessment and follow any recommendations from the
assessment. Ex. Vol. p. 12.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 3 of 20 A. Father
[5] Father did not complete any of the ordered services, nor did he ever visit the
Children due to his frequent incarceration and his inability to produce clean
drug screens. Also, Father never contacted the DCS family case manager to set
up any visitation with the Children.
[6] When Father was released from jail on December 2, 2015, he was rearrested
and charged with public intoxication just two days later. He was ultimately
convicted on this charge and sentenced to four months in jail. Father then
pleaded guilty to the charges of neglect and driving while suspended on May 4,
2016, and was sentenced to an aggregate sentence of two years to be served in
the community corrections work release program. While in jail, Father began to
work with Jerome Kelly (“Kelly”), a case worker from Family Focus, on
“father engagement services.” Kelly attempted to work with Father on
developing a twelve-week parenting program and also planning for housing,
employment, and substance abuse therapy after his release. After he was
transferred to the community corrections work release program, however,
Father did not contact Kelly and there was a lapse in Father’s participation in
services.
[7] After Father was placed in community corrections, he often appeared to be
under the influence of illicit drugs. Indeed, his first job in the work release
program was terminated after approximately one month due to his substance
abuse; his second job lasted only approximately two weeks before he was again
terminated because he appeared to be under the influence at work. A drug Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 4 of 20 screen Father took around this time, mid-July 2016, tested positive for synthetic
marijuana. On August 3, 2016, Father was found to have violated the terms of
his placement in work release and sent back to jail. He was released on October
4, 2016.
[8] A meeting was held later that month with the Parents, DCS, the service
providers, and the children’s court-appointed special advocate (“CASA”). At
this meeting, Father indicated that he understood that he needed to comply
with the case plan, which he had not been doing. But Father insisted upon
“getting his own treatment and . . . completing the services on his own and not
through DCS.” Tr. p. 43. He was not cooperative and eventually “stormed out”
of the meeting. Id. at 45. Thereafter, Father did not participate in services and
did not respond to attempts to contact him. Thus, the DCS family case manager
had no contact with Father until the January 17, 2017 permanency hearing.
And at that time, Father tested positive for marijuana and Suboxone,1 a
controlled substance for which he did not have a prescription; instead, he
obtained the drug from a friend. Father admitted to the DCS case manager that
he was unable to stay sober or even take steps toward sobriety.
[9] At the termination hearing, Father testified that he was employed full time at a
factory and living with his sister and her two young children. He further
testified that he was close to completing a substance abuse treatment he had
1 Suboxone is a trade name for a compound containing the opiate drug buprenorphine and naloxone, used to treat opioid overdoses. See Buprenorphine/Naloxone, PubMed Health, U.S. National Library of Medicine, https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0023949/?report=details(published Nov. 1, 2017).
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 5 of 20 started at the beginning of the year and that he had tested negative for drug use.
But Father had no explanation for why he had not informed DCS of his
claimed progress in dealing with his substance abuse problem.
B. Mother
[10] As a result of the neglect charges, Mother was in jail from the beginning of
October 2015 until the end of April 2016. She was then sent to Life House, a
facility for seriously mentally ill adults in Valparaiso, Indiana, where she still
remained at the time of the termination hearing.
[11] Mother completed a psychological evaluation in July 2016, during which she
reported that she had a history of substance abuse that started at the age of
fourteen with the use of marijuana and then continued to include alcohol,
cocaine, and heroin. She also admitted that, in the six months prior to DCS’s
involvement, she was using methamphetamine. Mother also reported a history
of mental illness, including bipolar disorder and schizophrenia. She had been
hospitalized three or four times for manic episodes and suicidal behavior. While
in jail, Mother attempted suicide by cutting her wrists. Mother also reported
that she was legally married to a man other than Father, and that there had
been one incident of domestic violence involving Father.
[12] Dr. LeRoy Burgess (“Dr. Burgess”), conducted a psychological parenting
evaluation of Mother. The tests given as part of this evaluation revealed that
Mother’s intelligence was in the lower end of average; although she likely had a
learning disorder, her scores did not indicate an intellectual disability. The
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 6 of 20 testing also confirmed that Mother has symptoms consistent with bipolar
disorder and personality traits including negativistic thinking, borderline
personality characteristics, and paranoia in addition to “the significant presence
of anxiety, mania, post-traumatic stress, perceptual disturbances, and major
depression that has likely developed and is exacerbated by [Mother]’s
personality characteristics.” Ex. Vol. p. 80. The tests further indicated that there
was a significant probability that Mother had moderate to severe substance
abuse disorder.
[13] Mother was also given the Child Abuse Potential Inventory test, which is
administered in an effort to assist in the determination of risk for future child
abuse. Mother’s responses resulted in a “significantly elevated abuse score
(=326)” which “indicates that she shares similar characteristics with physical
child abusers, and that she is at greater risk to physically abuse her children
than other parents.” Id. at 82. Mother’s results indicated “the need of
immediate and continued intervention in order to better manage any potential
risk of maladaptive parenting and interpersonal functioning.” Id. at 83.
[14] Dr. Burgess diagnosed Mother with generalized anxiety disorder,
schizoaffective disorder (“Bipolar Type, Moderate”), and severe alcohol use
disorder. Id. at 80. Dr. Burgess also provided several recommendations before
Mother was reunited with the Children, including: complete abstinence from
substance use; continued medical treatment; individual psychological therapy;
participation in parenting classes; supervised visitation with the Children; and
securing gainful employment when recommended by her therapist. Id. at 80–84.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 7 of 20 [15] The DCS family case manager worked with Mother when she was at Life
House, where Mother completed two parenting programs. However, Mother
was unable to apply what she was taught to her interaction with the Children.
During her visits with the Children, Mother had to be prompted to do basic
parenting, such as holding a child’s hand when getting out of a car, taking them
to the restroom, and washing the child’s hands after using the restroom. Mother
lacked attentiveness and had trouble keeping focused on the Children. Mother
also showed anger issues. When she forgot to ask then two-year-old Son if he
had to use the bathroom, the child understandably had an accident. This
happened on two or three occasions, causing Mother to curse at the toddler.
[16] When the visits started after Mother’s release from jail, the Children did not
recognize Mother. Before the visits began, the Children’s therapist showed a
photo of Mother to Daughter, who denied that the person in the photo was her
mother. When showed the photo again, Daughter stated that she did not want
to talk about Mother. The therapist testified that the Children’s reaction
indicated that their bond with Mother had been “very weak, or severed, or non-
existent.” Tr. p. 123. As the visits continued, Daughter recognized who Mother
was, and, initially at least, was affectionate towards her. But the bond
dissipated as the visits continued. In December 2016, Daughter did not want
the visits to continue and wanted them to end early. On January 17, 2017,
Daughter scratched herself on the face and neck during her visit with Mother
because she was so distraught. She scratched herself in an attempt to end the
visit early. Thereafter, the trial court suspended the visitations. Son too
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 8 of 20 appeared to have little bond with Mother. He cried when removed from his car
seat to go to visits, and he sought comfort from the visitation coordinator rather
than Mother.
[17] Mother also had trouble obtaining and maintaining employment. Mother
testified that she had applied for over sixty jobs, but she had one job during the
CHINS proceedings at a fast food restaurant, and this lasted only one day
because she was unable to use the computer system. Mother testified that she
had previously been employed by other restaurants and one factory, but these
jobs lasted only a few months due to her mental health issues.
[18] Mother told her case manager that she planned on living with her own mother
(“Grandmother”). But Grandmother already had custody of three of Mother’s
other teenaged children. Mother told her case manager that the children were
with Grandmother because she could not afford to care for them, but she
reported in her psychological evaluation that the reason for their placement
with Grandmother was Mother’s previous suicide attempt. Moreover,
Grandmother informed Mother that she could not stay with her. Mother did
not have a driver’s license or any means of transportation. She stated that she
was applying for social security benefits and hoped to get an apartment on her
own.
C. The Children
[19] After being removed from the Parents’ care, the Children were placed in the
same foster home. The children began therapy with goals of adjusting to their
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 9 of 20 new placement and addressing any symptoms of trauma. The Children adjusted
quickly and very well to their foster family and consider their foster family to be
their family.
D. Termination Proceedings
[20] As a result of the Parents’ failure to show adequate progress, the DCS filed a
petition to terminate the Parent’s parental rights on January 17, 2017. The trial
court held a fact-finding hearing on the petition on March 22, 2017. At the
hearing both Mother and Father were represented by the same counsel, who
had been appointed during the CHINS proceedings. On March 31, 2017, the
trial court entered two orders, one for each child, containing findings of fact and
conclusions of law and terminating the Parent’s rights to the Children. The
Parents now appeal.
I. Termination of Parental Rights
[21] We have often noted that 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 the termination of such rights when the parents
are unable or unwilling to meet their responsibilities as parents. Id. Indeed, the
parents’ 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).
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 10 of 20 [22] The termination of parental rights is controlled by Indiana Code section 31-35-
2-4(b)(2), which provides that a petition to terminate parental rights 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.
[23] The burden is on DCS to prove each element by clear and convincing evidence.
Ind. Code § 31-37-14-2; G.Y., 904 N.E.2d at 1261. As 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 that subsection has been established by clear and convincing
evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
[24] If the court finds the allegations in a petition are true, the court shall terminate
the parent-child relationship. I.C. § 31-35-2-8(a). If the court does not find that
the allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).
Indiana Code section 31-35-2-8(c) provides that the trial court “shall enter
findings of fact that support the entry of the conclusions required by subsections
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 11 of 20 (a) and (b)” to either terminate a parent-child relationship or to dismiss the
termination petition. See Ind. Code § 31-35-2-8(c).
II. Assistance of Counsel in Termination Cases
[25] The Parents claim that they were denied the effective assistance of trial counsel
at the termination hearing. Our supreme court has noted that the United States
Supreme Court has held that the federal Constitution “does not require the
appointment of counsel in every parental termination proceeding.” Baker v.
Marion Cty. Office of Family & Children, 810 N.E.2d 1035, 1038 (Ind. 2004) (citing
Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31–32 (1981)). Instead, “[t]he
constitutional assurance of due process calls for counsel where the trial court’s
assessment of such factors as the complexity of the proceeding and the capacity
of the uncounseled parent indicates an appointment is necessary.” Id. (citing
Lassiter, 452 U.S. at 31–32).
[26] Indiana has chosen to provide counsel to indigent parents in termination
proceedings, rather than “incur the time and money to litigate eligibility for
public counsel in each case.” Id.; see also Ind. Code § 31-32-4-1 (“The following
persons are entitled to be represented by counsel . . . (2) A parent, in a
proceeding to terminate the parent-child relationship, as provided by IC 31-32-
2-5”); Ind. Code § 31-32-2-5 (“A parent is entitled to representation by counsel
in proceedings to terminate the parent-child relationship.”). This right to
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 12 of 20 counsel includes the right to counsel on appeal. In re Termination of Parent-Child
Relationship of I.B., 933 N.E.2d 1264, 1268 (Ind. 2010).2
[27] Earlier opinions from this court had measured counsel’s performance using the
two-part Strickland test applicable in criminal cases. Baker, 810 N.E.2d at 1039
(citing J.T. v. Marion Cty. Office of Family and Children, 740 N.E.2d 1261, 1265
(Ind. Ct. App. 2000)). The Baker court, however, held that the Strickland
standard was inappropriate to evaluate claims of ineffective assistance of
counsel in termination proceedings.3 Id. Instead, the Baker court set forth the
following test to judge counsel’s effectiveness in termination proceedings:
2 The statutory right to counsel in termination proceedings does not include the right to counsel when seeking post-judgment or collateral relief. In re I.B., 933 N.E.2d at 1267 n.2 (citing Baker, 810 N.E.2d at 1038). 3 The Baker court gave several reasons for its rejection of the use of the Strickland test in termination cases:
[First], experience in the criminal law with the present system of direct appeals, post- conviction proceedings, and habeas petitions demonstrates that with rare exception counsel perform capably and thus ensure accurate decisions. The correctness of such decisions is at the heart of the assurance that parties in termination cases will receive due process. Second, criminal prosecutions and termination proceedings are substantially different in focus. The resolution of a civil juvenile proceeding focuses on the best interests of the child, not on guilt or innocence as in a criminal proceeding. *** Third, serial relitigation in criminal cases imposes a substantial burden on victims and witnesses, typically adults. In the context of termination cases, extended litigation imposes that burden on the most vulnerable people whom the system and such cases seek to protect: the children. . . . Due to the immeasurable damage a child may suffer amidst the uncertainty that comes with such collateral attacks, it is in the child’s best interest and overall well being to limit the potential for years of litigation and instability. *** Fourth, the odds of an accurate determination in a termination case are enhanced by the fact of judicial involvement that is much more intensive than it is [in] the usual criminal case. Id. at 1039–41 (citations omitted). The Baker court further noted that termination of parental rights is a last resort. Id. at 1041. “Parents have numerous opportunities to rectify their situations before the parental termination hearing. A termination hearing results only when attempts to rectify the conditions that led to removal from the parents have failed over a prolonged period.” Id.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 13 of 20 Where parents whose rights were terminated [at] trial claim on appeal that their lawyer underperformed, we deem the focus of the inquiry to be whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination. The question is not whether the lawyer might have objected to this or that, but whether the lawyer’s overall performance was so defective that the appellate court cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the child’s best interest.
Id. at 1041.
[28] Thus, in addressing the Parent’s claim of ineffective assistance, we do not focus
on the particular actions of the Parent’s counsel, i.e. “whether he objected to
this or that[.]” Id. Instead, we will consider whether counsel’s performance was
so defective as to undermine our confidence in the trial court’s termination
decision. See In re A.P., 882 N.E.2d 799, 806 (Ind. Ct. App. 2008) (holding that
termination counsel did not provide ineffective assistance where parent received
a fundamentally fair trial where the facts demonstrated an accurate
determination and court could say with confidence that DCS adequately proved
its case); Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 376 (Ind.
Ct. App. 2007) (holding that parent’s counsel provided effective assistance
where court’s confidence that trial court’s order was supported by sufficient
evidence had not been undermined), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 14 of 20 III. Parents’ Counsel Was Not Ineffective
[29] The Parents claim that their trial counsel was ineffective because he represented
them jointly at the termination hearing. A similar argument was before the
court in Baker, where both parents were represented by the same counsel at the
termination hearing.
[30] In Baker, the court recognized that a conflict of interest “might well produce a
procedurally unfair setting,” but held that the parents’ counsel’s joint
representation did not result in a conflict of interest. Baker, 810 N.E.2d at 1042.
The court noted that both parents had the same interests, i.e. preserving their
parental rights, and there was no “solid evidence” that their interest were
adverse and hostile. Id. The parents’ counsel cross-examined witnesses and
cross-examined the parents. Id. And neither parent blamed the other for the
allegations made by the State. Id. Nor was there any indication that either
parent stood to gain significantly by separate representation, as both parents
were “individually and independently required to complete certain treatments
and services to regain custody of [their child],” and “[e]ach of them was
responsible for his or her own services and neither could gain from the other’s
participation or lack thereof.” Id. Moreover, both parents neglected to complete
the services and treatment required of them after being afforded ample time to
do so, and both admitted that they were unable to parent their child at the time
of the termination hearing. Id. Therefore, the Baker court held that “[t]here is
nothing to suggest that representation by a single lawyer led to a fundamentally
unfair hearing.” Id.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 15 of 20 [31] Here, the Parents argue that the present case is sufficiently different from the
facts in Baker to show that there was a conflict of interest sufficient to produce a
procedurally unfair setting. Specifically, they argue that there was a “high
likelihood” of a conflict of interest between Mother and Father that precluded
their counsel from being effective. Appellant’s Br. at 11. In support of this
argument, the Parents rely on two portions of testimony.
[32] The first testimony was from the family case manager, who testified that Father
told him that he had to “step up” as a parent because Mother could not parent.
Tr. p. 39. The second was from Kelly, the “fatherhood engagement worker,”
who testified that he and Father had a conversation about how Father “really
needed to step up because—or make a decision to where the children may need
to go because mom is not capable of doin[g] this by herself.” Tr. p. 66. The
Parents now argue that, had their trial counsel not represented both of them, his
strategy may have been different and he would have attacked these witnesses’
testimony through cross-examination.
[33] Neither of these statements indicates that the Parents had a conflict of interest.
The testimony by the family case manager simply reflects that Father
understood that he needed to accept his role as a parent; and the testimony by
the engagement worker does not even attribute the statement about Mother’s
parenting abilities to Father.
[34] Even if these statements did establish that “Father did not have a high regard
for Mother’s ability to effectively parent the children,” Appellant’s Br. at 11, the
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 16 of 20 trial court’s findings and conclusions contain no indication that the trial court,
when making its termination decision, relied upon Father’s apparent agreement
with DCS with regard to Mother’s parenting abilities. In other words, there is
nothing to indicate that the trial court’s decision was based upon Father’s
assessment of Mother’s parenting skills. We therefore fail to see how further
cross-examination of these witnesses would have affected the trial court’s
determination.
[35] Furthermore, as in Baker, both Parents had the same interests—preserving their
parental rights to the Children. Both Parents were separately required to
complete certain treatment and services and each was responsible for his or her
own participation in services. Thus, neither could gain from the other’s
participation or lack thereof. See Baker, 810 N.E.2d at 1042. Father failed to
complete services and Mother gained little from her participation in services,
despite having been given ample time to participate and learn from the services.
Accordingly, we discern nothing that would indicate that the performance of
Parents’ counsel was so defective that we cannot say with confidence that the
conditions leading to the removal of the Children from parental care are
unlikely to be remedied and that termination is in the Children’s best interest.
To the contrary, as discussed below, the evidence before the court
overwhelmingly supported the trial court’s determination.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 17 of 20 IV. Sufficient Evidence to Support Termination
[36] There was ample evidence before the trial court to support the decision to
terminate the Parents’ rights to the Children.4 The conditions that led to the
removal of the Children were the Parents’ drug use and neglect of the Children.
Despite being offered services, Father never completed drug treatment and
instead repeatedly tested positive for drugs and even appeared to be under the
influence when he was in community corrections. Father lost his job due to
being under the influence at work. After being placed back in jail and then
released, Father insisted on getting his own treatment, but Father later admitted
that he could not stay sober. And even at the termination hearing, Father
provided no corroboration to his claim of participating in a drug treatment
program. Perhaps more telling is that Father never visited the Children during
the CHINS proceedings, nor did he ever contact DCS to attempt to set up
visitation. From this evidence, the trial court properly concluded that there was
a reasonable probability that the conditions that led to the Children’s placement
outside the Parents’ home, or the reason for continued placement outside the
Parents’ home, would not be remedied.
4 The Parents do not directly challenge any of the trial court’s findings of fact or conclusions of law. Thus, to the extent that they argue that the trial court’s findings or conclusions are clearly erroneous, they have waived this issue by failing to make a cogent argument, Runkel v. Miami Cty. Dep’t of Child Servs., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied (citing Ind. Appellate Rule 46(A)(8)(a)), and we accept the trial court’s findings as true. See McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (accepting as true factual findings that were unchallenged by father); see also See T.B. v. Indiana Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012) (when unchallenged findings support termination, there is no error), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 18 of 20 [37] The same is true for the trial court’s decision regarding Mother’s parental rights.
Although there was evidence that Mother has also abused drugs and alcohol,
her main problem was her serious mental illness, including bipolar disorder and
schizophrenia, which has led to suicide attempts and hospitalization. Mother
was unable to apply the skills that were taught to her through the service
providers, and she scored disturbingly high on a test designed to detect the risk
of future child abuse. Mother did not interact properly with the Children during
visit with them, even cursing at the youngest child when he had a toilet-training
accident. The Children had a weak to nonexistent bond with Mother and the
visits with Mother caused emotional trauma to both. Mother was unable to
maintain employment and had no plans for stable housing once she was
released from a residential treatment facility. Given these facts and
circumstances, the trial court could readily conclude that there was a reasonable
probability that the conditions that led to the Children’s placement outside the
Parents’ home, or the reason for continued placement outside the Parents’
home, would not be remedied.
[38] There was also sufficient evidence to support the trial court’s conclusion that
termination was in the best interests of the Children. In addition to the Parents’
lack of progress in rectifying their drug abuse and/or mental health issues, both
Children showed little bond to their Parents. Indeed, Daughter did not even
react when taken from the Parents’ care. And neither child showed any
attachment to Mother during visits. Daughter even harmed herself during a visit
with Mother in an attempt to end the visit early. Father never visited the
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 19 of 20 Children after their removal. In foster care, the Children adjusted quickly and
were doing well. They consider their foster parents to be their family, and Son
has known no other family. The trial court’s conclusion that termination of the
Parents’ rights was in the best interests of the Children was not clearly
erroneous.
Conclusion [39] In this case, trial counsel’s joint representation of Parents was only a potential,
not an actual, conflict of interest. There was ample, independent, clear and
convincing evidence to support the trial court’s decision to terminate both
Mother’s and Father’s parental rights to the Children. Accordingly, we affirm
the judgment of the trial court terminating Mother and Father’s parental rights
to the Children.
[40] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 75A03-1706-JT-1321 | November 30, 2017 Page 20 of 20