In Re: The Termination of the Parent-Child Relationship of Mal.C.B. and Mak.C.B. (Minor Children) T.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 26, 2020
• Docket: 20A-JT-3
• 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 Jun 26 2020, 9:51 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 ATTORNEY FOR APPELLEE Cynthia Phillips Smith Curtis T. Hill, Jr. Law Office of Cynthia P. Smith Attorney General of Indiana Lafayette, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Termination of the June 26, 2020 Parent-Child Relationship of Court of Appeals Case No. Mal.C.B. and Mak.C.B. (Minor 20A-JT-3 Children); Appeal from the Tippecanoe T.C. (Mother), Superior Court The Honorable Kurtis Fouts, Appellant-Respondent, Special Judge v. Trial Court Cause No. 79D03-1904-JT-47 79D03-1904-JT-48 The Indiana Department of Child Services, Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 1 of 12 Statement of the Case [1] T.C. (“Mother”) appeals the termination of the parent-child relationships with

her twin sons, Mal.C.B. (“Mal.C.B.”) and Mak.C.B. (“Mak.C.B.”) (collectively

“the twins”), claiming 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 twins’ removal or the reasons

for placement outside Mother’s home will not be remedied; (2) a continuation

of the parent-child relationships poses a threat to the twins’ well-being; and (3)

termination of the parent-child relationships is in the twins’ best interests.

Concluding that there is sufficient evidence to support the trial court’s decision

to terminate the parent-child relationships, we affirm the trial court’s judgment.1

[2] We affirm.

Issue Whether there is sufficient evidence to support the involuntary termination of Mother’s parental rights.

Facts [3] Mother is the parent of the following children: (1) daughter, M.C., who was

born in July 2013 and who is in a guardianship with maternal grandmother in

Chicago; (2) son, K.C.B, who was born in July 2015 and who is also in a

1 The twins’ father’s (“Father”) parental rights were also terminated. However, Father is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 2 of 12 guardianship with maternal grandmother in Chicago; (3) twin sons, Mal.C.B.

and Mak.C.B., who were born in June 2016 and who are the children involved

in this appeal; (4) son, Ma.C., who was born in June 2017, and who is in a

guardianship with Mother’s sister in Georgia; and (5) daughter, T.C., who was

born in November 2018 and who lives with Mother.

[4] The twins, who were born prematurely, weighed a little more than one pound

each at birth. They were placed on ventilators and remained in an Illinois

hospital for more than three months before they were discharged to Mother and

Father. The twins and their parents subsequently moved to Lafayette, Indiana

to “get away from the environment” in Chicago.” (Tr. Vol. 2 at 154). Parents

and the twins moved in with family members. M.C. and K.C.B., who were

already in a guardianship with maternal grandmother, remained in Chicago.

[5] In April 2017, Father was charged in Illinois with aggravated sexual assault.

Mother remained at her family members’ home in Lafayette with the twins.

The home was over-crowded and had no hot water. In May 2017, maternal

grandmother allowed three-year-old M.C. to visit Mother. After boiling water

for M.C.’s bath, Mother set the pots down on the bathroom floor and left the

room. According to Mother, M.C. went into the bathroom and spilled the

water on herself. M.C. sustained second and third degree burns to over 60% of

her body, including her abdomen, back, genitals, left leg, and left arm.

Although staff at Riley Children’s Hospital believed that the burns looked as if

M.C. had been dipped and held in the boiling water, no criminal charges were

filed.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 3 of 12 [6] During its investigation of M.C.’s injuries, DCS removed the twins from

Mother’s home because of inadequate housing and safety concerns for the

twins. DCS placed the twins in foster care. At the time of their removal, the

twins were underweight, and the backs of their skulls were flat. In addition, the

almost one-year old twins could not roll over or crawl. They sought comfort

from each other rather than from adult caregivers.

[7] DCS filed a petition alleging that the twins were Children in Need of Services

(“CHINS”) in May 2017. Mother admitted that the children were CHINS, and

following an August 2017 dispositional hearing, the trial court ordered Mother

to: (1) complete a parenting assessment and follow all recommendations; (2)

obtain and maintain stable employment and housing; (3) participate in

parenting time; (4) remain drug free and submit to random drug screens; and (5)

participate in case management services.

[8] In October 2017, DCS filed a motion asking the trial court to find Mother in

contempt for failing to comply with the CHINS dispositional order. Mother

admitted that she had visited the twins only one time in three months and that

she had failed to participate in parenting education and case management

services. In November 2017, the trial court found Mother in contempt and

ordered her to serve four days in jail.

[9] In April 2018, DCS filed a second motion to find Mother in contempt for

failing to comply with the CHINS dispositional order. Mother had missed

several supervised visits with the twins and had not participated in the court-

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 4 of 12 ordered parenting education and case management services. The trial court

again found Mother in contempt and ordered her to spend thirty days in a work

release program.

[10] Two months later, in June 2018, DCS filed a petition to terminate Mother’s

parental relationships with the twins. DCS subsequently dismissed the petition

to give Mother additional time to participate in services. In November 2018,

Mother and several service providers worked together to create a 30/60/90-day

plan leading to the reunification of Mother and the twins. Each thirty-day

increment in the plan had specific goals for Mother to complete, including

supervised visitation with the twins, home-based case management services to

assist Mother in finding suitable housing and employment, and a parenting

skills curriculum. Mother, however, failed to successfully complete the plan.

[11] At some point in early 2019, Mother moved back to Chicago. In the spring of

2019, Mother moved to Georgia. In April 2019, DCS filed another petition to

terminate Mother’s parental relationships with the twins. Mother returned to

Lafayette in June 2019 and asked DCS to allow her to re-engage in services.

[12] DCS referred Mother to Amanda Schaeffer (“Schaeffer”) at Promising Futures

Incorporated for parenting education and case management services and to

Serena Wahl (“Wahl”) at Lifeline Youth and Family Services. Mother met

with Schaeffer four times and then missed four appointments in August 2019,

leading Schaeffer to close the referral. Mother told Wahl that she was

relocating to Chicago.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 5 of 12 [13] At the October 2019 termination hearing, DCS Family Case Manager Shawna

Yoder (“FCM Yoder”) testified that the reasons for the twins’ removal had not

been remedied. Specifically, FCM Yoder testified that Mother “ha[d] not

shown the ability to care for these children or have a bond with these children[.]

She had many opportunities that we could assist her with, and she didn’t take

advantage of them.” (Tr. Vol. 2 at 39). At the time of the termination hearing,

Mother had not seen the twins in almost a year. FCM Yoder also testified that

termination of Mother’s parental rights was in the twins’ best interests and that

the twins’ foster parents planned to adopt them.

[14] CASA Staff Advocate Brenda Gochenour (“CASA Gochenour”) also testified

that termination was in the twins’ best interests. CASA Gochenour further

explained that the twins were:

two little guys that have developmental needs and some special needs[.] They need to have consistency and stability and to make sure they get to their appointments and to their therapies and do the things that the doctors are recommending to let these children grow and lead normal lives.

(Tr. Vol. 2 at 145). According to CASA Gochenour, this was the first case that

she had had “where extra chances were given to parents.” (Tr. Vol. 2 at 146).

[15] Testimony at the termination hearing also revealed that the twins were thriving

in foster care. They had a strong bond with their foster parents and had gained

weight. In addition, the flatness on the back of their heads was becoming

rounder. Pediatric physical therapist Jamie Stormont-Smith (“PT Stormont-

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 6 of 12 Smith”), who has worked with the twins and their developmental delays,

testified that she has seen the twins make progress in the following areas: (1)

poop smearing; (2) sleep patterns; and (3) eating issues. As an example, PT

Stormont-Smith explained that Mak.C.B. had been making progress on his

tendency to eat to the point of vomiting, and Mal.C.B. had been making

progress on his tendency to avoid food and refuse to eat. According to PT

Stormont-Smith, an environment that supported the twins’ needs was critical.

She agreed that the twins would “need ongoing, extra attention in the future to

help them develop and progress.” (Tr. Vol. 2 at 114). PT Stormont-Smith also

testified that she believed that the foster parents would be able to identify any

new issues that would arise and would continue to work with the twins.

[16] At the time of the hearing, Father had been convicted of the aggravated sexual

assault charges and was incarcerated in Illinois. He testified remotely and

asked the trial court to “give [Mother] another chance[.]” (Tr. Vol. 2 at 153).

Mother also testified at the hearing. When asked if there was anything that she

wanted the trial court to know, Mother responded as follows:

I basically just want you to know this whole case is just a bunch of B.S. The twins were not in any harm’s way. They were not neglected. I am not a bad parent and this case went on for too long for nothing and all over some services. I really feel like the twins should be placed back with me. I am their Mother. And just like they keep saying that I don’t have a bond with them. They didn’t have a bond with the foster parents either when they took them away from me. They didn’t know them either. They are still young, and we can still establish our bond back. They can still get to know me. That’s all.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 7 of 12 (Tr. Vol. 2 at 184-85).

[17] In December 2019, the trial court issued a detailed order terminating Mother’s

parental relationships with the twins. Mother now appeals the terminations.

Decision [18] Mother argues that there is insufficient evidence to support the termination of

her 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 K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

the law provides for termination of that right when parents are unwilling or

unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

(Ind. 2005). The purpose of terminating parental rights is not to punish the

parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

[19] When reviewing the termination of parental rights, we will not weigh the

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship is clearly

erroneous, we review the trial court’s judgment to determine whether the

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 8 of 12 evidence clearly and convincingly supports the findings and the findings clearly

and convincingly support the judgment. Id. at 1229-30.

[20] 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.

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

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[21] Here, Mother argues that there is insufficient evidence to support the

termination of her parental rights. Specifically, she contends that the evidence

is insufficient to show that there is a reasonable probability that: (1) the

conditions that resulted in the twins removal or the reasons for placement

outside Mother’s home will not be remedied; and (2) a continuation of the

parent-child relationships poses a threat to the twins’ well-being.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 9 of 12 [22] At the outset, 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 twins’ removal or the reasons for their placement outside Mother’s home

will not be remedied.

[23] 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

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. Requiring trial courts to give due regard to

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 10 of 12 changed conditions does not preclude them from finding that a parent’s past

behavior is the best predictor of her future behavior. E.M., 4 N.E.3d at 643.

[24] Here, the twins were removed from Mother’s home because of inappropriate

housing and safety concerns. Our review of the evidence reveals that Mother

failed to comply with the CHINS dispositional order. Specifically, Mother was

twice held in contempt for failing to comply with the order. DCS filed a

termination petition in June 2018 and then dismissed it to allow Mother to re-

engage in services. Service providers worked with Mother to create a plan that

would lead to the reunification of Mother and the twins, and Mother failed to

follow it. After the the second termination petition was filed in April 2019,

DCS again provided Mother with additional services when she asked for them.

After receiving the services, Mother failed to comply with them. During the

course of the proceedings, Mother has shown no ability to care for the twins or

have a bond with them, and she has refused to participate in services that would

have enhanced her ability to do so. This evidence supports the trial court’s

conclusion that there was a reasonable probability that the conditions that

resulted in the twins’ removal would not be remedied. We find no error.

[25] Mother also argues that there is insufficient evidence that the termination was

in the twins’ 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

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 11 of 12 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. 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).

[26] Here, our review of the evidence reveals that the twins have developmental

delays. They require on-going extra attention as well as a supportive

environment. FCM Yoder and CASA Gochenour both testified that

termination was in the twins’ 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 twins’ best interests. There is

sufficient evidence to support the terminations.

[27] Affirmed.

Bradford, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-3 | June 26, 2020 Page 12 of 12