In re the Termination of the Parent-Child Relationship of Z.G. (Minor Child) and R.H. (Mother) and K.G. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 27, 2018
• Docket: 02A03-1710-JT-2358
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 27 2018, 6:43 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT R.H. ATTORNEYS FOR APPELLEE David L. Joley Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General of Indiana ATTORNEY FOR APPELLANT K.G. Katherine A. Cornelius Robert J. Henke Roberta Renbarger Deputy Attorneys General Fort Wayne, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the April 27, 2018 Parent-Child Relationship of Court of Appeals Case No. Z.G. (Minor Child) and 02A03-1710-JT-2358 R.H. (Mother) and K.G. Appeal from the Allen Superior (Father), Court The Honorable Charles F. Pratt, Appellants-Respondents, Judge v. The Honorable Sherry A. Hartzler, Magistrate Indiana Department of Child Trial Court Cause No. Services, 02D08-1609-JT-227 Appellee-Petitioner.

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 1 of 12 [1] R.H. (“Mother”) and K.G. (“Father”) appeal the order of the Allen Superior

Court terminating their rights to their minor child, Z.G. On appeal, Mother and

Father argue that the Indiana Department of Child Services (“DCS”) presented

insufficient evidence to support the trial court’s decision to terminate their

parental rights.

[2] We affirm.

Facts and Procedural History [3] Z.G. was born to Mother and Father in October 2008. Mother and Father are

not married but generally lived together while Z.G. was in their care. Both

Mother and Father have been incarcerated for criminal convictions and parole

violations, and both have used illegal substances in the past. Father is also

mildly mentally handicapped and suffers from anxiety and depression.

[4] In May 2014, DCS received a report that Father was yelling at and beating Z.G.

in the front yard of a home Father was helping to repair. During their

investigation, DCS observed that Z.G. was dirty, bruised, and had sores on his

legs. Z.G. stated that Father caused his injuries. The home where Z.G. was

found was not safe, had exposed wiring, and had no working utilities. There

was no working bathroom, and a five-gallon bucket contained urine and feces.

Father also admitted to using cocaine, which he tested positive for. Z.G. was

removed from both parents and placed in foster care.

[5] On June 4, 2014, Mother and Father admitted that Z.G. was a child in need of

services (“CHINS”). Mother and Father were ordered to refrain from drug use

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 2 of 12 and criminal activity, maintain clean, safe, and appropriate housing, and

cooperate with caseworkers. Mother and Father were also ordered to undergo

mental health assessments and drug and alcohol assessments and follow all

resulting recommendations. Both parents were ordered to enroll in homebased

services, and Father was ordered to attend parenting classes. The trial court

ordered both parents to participate in supervised visitation with Z.G.

[6] Mother was involved in a romantic relationship and lived with a man who both

she and Father knew had a prior conviction for attempted rape. Father lived

with them, but Mother’s boyfriend later insisted that Father move out. Father

threatened to kill Mother’s boyfriend and obtained a gun to do so but did not

carry out his threat.

[7] In August 2015, Mother’s boyfriend was arrested on a new rape charge. He was

later convicted and sentenced to the Department of Correction. Also, during

these proceedings, Mother and Father allowed a convicted sex offender to

reside with them for two weeks.

[8] Mother violated her parole five times during these proceedings. And she was

incarcerated multiple times for approximately nine months total during these

proceedings. She is still on parole through October 2018. Mother tested positive

for cocaine in March 2017 and April 2017. Mother was unsuccessfully

discharged from her court-ordered substance abuse program.

[9] Mother participated in visitation with Z.G. during the periods of time when she

was not incarcerated, and that visitation generally went well. Mother’s home is

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 3 of 12 appropriate. And Mother has maintained employment when she is not

incarcerated. But Mother would allow Father to care for Z.G. while she is

working if Z.G. was returned to her care.

[10] Father tried to commit suicide in 2015 and threatened to kill himself in

December 2016. Father lacks coping skills and often resorts to making threats

against others, including the service providers in this case. Father consistently

lacked a stable home during these proceedings. Father was incarcerated three

times for a total of 20 months for violating his parole during these proceedings.

He was released from parole in August 2016. He admitted that he used cocaine

in April 2017.

[11] Z.G. suffers from post-traumatic stress disorder (PTSD), anxiety disorders, and

attention deficit hyperactivity disorder. Z.G. is likely cognitively delayed, but

because of behavior problems, service providers were unable to complete an IQ

test or cognitive assessment. Z.G.’s behaviors include aggressive behaviors,

extreme tantrums, screaming, crying, use of foul language, and running out of

his school building. Z.G. lacked the basic skills of a student entering

kindergarten. Z.G.’s behavior improved during the 2016-17 school year but was

still concerning. He continued to have tantrums and throw items at adults.

Instead of running out of the school building, Z.G. would attempt to hide under

furniture or run in the school hallways. Z.G. also started biting. Z.G. exhibited

his worst behavior on Tuesdays, the day after his visits with Father. Often, his

behavior was so disruptive, Z.G. would have to leave school.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 4 of 12 [12] Z.G.’s counselor testified that Z.G. is emotionally reactive, and because of his

emotional instability, she is only able to address his behavioral problems in

counseling. Z.G.’s counselor observed a PTSD flashback when she asked him

about a recent visit with his parents. Z.G. hid under a table while he cried and

yelled at the counselor to stop hurting him. Z.G. needs a very stable and

structured home environment with consistent expectations, consequences, and

rewards. And Z.G.’s parents would need to be educated about Z.G.’s diagnosis

and training in parenting a special needs child.

[13] In 2015, Z.G.’s counselor observed family visits between Z.G. and Father and

Z.G. and Mother. Father had trouble redirecting Z.G. and keeping him on task.

During the visit with Mother, Z.G. started to exhibit behaviors the counselor

had not seen before including thumb sucking. Z.G. was also actively non-

compliant during the visit. The counselor recommended ending the visits

between Z.G. and parents.

[14] Father struggles when he tries to deal with Z.G.’s tantrums and aggressive

behaviors. To his credit, Father admitted that he is not able to parent Z.G. on

his own. Tr. Vol. II p. 229; Tr. Vol. III, p. 2.

[15] Because Mother and Father did not benefit from and/or complete services,

continued to use illegal substances, and were incarcerated multiple times during

the CHINS proceedings, on November 29, 2016, the DCS filed a petition to

terminate Mother’s and Father’s parental rights. The court held fact-finding

hearings on April 26, May 10 and 17, and June 14, 2017.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 5 of 12 [16] The court appointed special advocate (“CASA”) and family case manager

testified that both Mother’s and Father’s parental rights should be terminated.

The CASA and family case manager believed that Mother’s rights should be

terminated because Mother continued to use cocaine, had not resolved her drug

use problem, did not complete her individual therapy, has been repeatedly

incarcerated, lived with and had a romantic relationship with a man convicted

of attempted rape, demonstrating poor decision-making skills, and allows

Father to move in and out of her home. They recommended that Father’s rights

should be terminated because he failed to benefit from services, did not have

safe and stable housing, continued to use cocaine, struggled with life skills, and

invited a sex offender to live with him. Father also told Z.G. that Z.G.’s

behavior was the reason he could not return to parents’ home.

[17] The trial court issued its order terminating Mother’s and Father’s parental rights

to Z.G. on September 12, 2017. Both parents appealed the order, and our court

granted the DCS’s motion to consolidate the appeals.

Termination of Parental Rights [18] 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

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 6 of 12 the proper disposition of a petition to terminate parental rights. In re G.Y., 904

N.E.2d 1257, 1259 (Ind. 2009).

[19] 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.

[20] The burden is on the 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). 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).

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 7 of 12 [21] 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.

[22] Indiana Code section 31-35-2-8(c) now1 provides that the trial court “shall enter

findings of fact that support the entry of the conclusions required by subsections

(a) and (b)” to either terminate a parent-child relationship or to dismiss the

termination petition. See Ind. Code § 31-35-2-8(c) (emphasis added). When the

trial court enters such findings and conclusions of law, we apply a two-tiered

standard of review. A.D.S. v. Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1156

(Ind. Ct. App. 2013), trans. denied. We first determine whether the evidence

supports the findings, and second we determine whether the findings support

the judgment. Id. “Findings are clearly erroneous only when the record contains

1 Indiana Code section 31-35-2-8 was amended in 2012 to add the requirement that the trial court enter findings of fact. See Pub. L. No. 128-2012; see also In re N.G., 61 N.E.3d 1263, 1265 (Ind. Ct. App. 2016) (noting 2012 amendment to require findings of fact supporting trial court’s decision to either grant or dismiss a petition to terminate parental rights).

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 8 of 12 no facts to support them either directly or by inference.” Id. (quoting Quillen v.

Quillen, 671 N.E.2d 98, 102 (Ind. 1996)). If the evidence and inferences support

the trial court’s decision, we must affirm. Id.

Discussion and Decision [23] On appeal, Mother and Father argue that the trial court’s conclusion that

continuation of the parent-child relationship posed a threat to Z.G.’s well-being

is not supported by clear and convincing evidence.2 In considering their

arguments, we note that a trial court need not wait until a child is irreversibly

influenced by a deficient lifestyle such that his physical, mental, and social

growth is permanently impaired before termination the parent-child

relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). And to

evaluate whether continuation of the parent-child relationship poses a threat to

the child, a trial court “should consider a parent’s habitual pattern of conduct to

determine whether there is a substantial probability of future neglect or

deprivation” while also judging a parent’s fitness to care for his child as of the

2 Because we conclude that DCS proved that there is a reasonable probability that the continuation of the parent-child relationships poses a threat to Z.G.’s well-being, we need not address parents’ arguments directed at the removal prong of Indiana Code section 31-35-2-4(b)(2)(B). See In re A.K., 924 N.E.3d at 220 (noting that section 4(b)(2)(B) is written in the disjunctive and that the trial court is required to find that only one prong of subsection (b)(2)(B) has been established). Also, although both parties made a statement in their briefs that termination of their rights was not in Z.G.’s best interests, neither parent presented any argument that termination of his or her parental rights was not in Z.G.’s best interests.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 9 of 12 time of the termination proceedings, taking into consideration evidence of

changed conditions. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012).

A. Mother

[24] Mother argues that after she was released from incarceration she enrolled and

participated in services. And “the court should have given great weight to the

positive steps Mother has taken to reunify with Z.G., and given her the ample

time that protects this constitutionally sacred relationship.” Mother’s

Appellant’s Br. at 13.

[25] Mother has a history of use of illegal substances and incarceration. Importantly,

she did not complete her court-ordered substance abuse treatment program. Her

risk of relapse is high. And she tested positive for cocaine in March and April

2017. Mother was also unsuccessfully discharged from home-based therapy.

Mother was given another referral for substance abuse counseling, but Mother

frequently canceled those appointments. Mother’s visitation with Z.G. went

well when it occurred, but Mother missed many visitations due to incarceration

or cancellations. Mother also demonstrated poor-decision making by being

romantically involved with and residing with a man convicted of attempted

rape, who was also convicted of rape during these proceedings. Mother also

allowed a man Father met in prison live in her home for two weeks. The man

was a registered sex offender. Mother would also allow Father to provide day

care for Z.G. if he were returned to her care.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 10 of 12 [26] Z.G., who has been in foster care since May 2014, requires a very stable and

structured home environment with consistent expectations, consequences, and

rewards. Although Mother has an adequate home, throughout these

proceedings Mother’s criminal behavior and subsequent incarcerations made it

impossible for her to provide a stable home. Mother’s historical pattern of

behavior compels the conclusion that she cannot maintain a stable and

structured home environment for Z.G. And Mother has not demonstrated that

she is able to ensure that Z.G.’s special needs are met. For all of these reasons,

we conclude that clear and convincing evidence supports the trial court’s

conclusion that there is a reasonable probability that the continuation of the

parent-child relationships poses a threat to Z.G.’s well-being.

B. Father

[27] Father argues that he has a deep bond with Z.G. and cites to the visitation

supervisor’s testimony that he was caring, engaged, and affectionate during

visitation with Z.G. Father also notes that he is participating in services to assist

him with coping skills and maintaining stable housing.

[28] Father participated in services; however, Father did not demonstrate that he

benefited from those services. Also, Father’s mild mental handicap and mental

health issues inhibit his ability to parent a special needs child. Father did not

learn to control Z.G.’s behaviors, and his progress in family therapy was slow.

Father struggles with coping skills and frustration often results in Father

threatening other people.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 11 of 12 [29] Father has a history of using illegal substances when he is under stress. Father

has demonstrated poor decision making in several instances including obtaining

a gun to shoot Mother’s boyfriend, allowing a sex offender to live with him for

two weeks, and living with individuals who steal from him. Father is unable to

protect himself from those who seek to take advantage of him. And Father has

not been able to maintain a stable home and struggles to provide for his own

needs. Finally, Father admitted that he would not be able to parent Z.G. by

himself. For these reasons, we conclude that the DCS presented clear and

convincing evidence that continuation of Father’s relationship with Z.G. poses

a threat to his well-being.

Conclusion [30] Nearly all cases involving the termination of parental rights are tragic. This case

is no different. We have no reason to doubt Mother’s and Father’s love for and

bond with Z.G. But that does not make the termination of their parental rights

improper. Mother’s and Father’s argument that the DCS failed to prove that

continuation of the parent-child relationship poses a threat to Z.G.’s well-being is

merely a request to reweigh the evidence and the credibility of the witnesses,

which we cannot do. Considering the facts favorable to the trial court’s decision,

and the reasonable inferences that may be drawn therefrom, we cannot say that

the trial court clearly erred in terminating Mother’s and Father’s parental rights.

[31] Affirmed.

Riley, J., and May, J., concur.

Court of Appeals of Indiana | Memorandum Decision 02A03-1710-JT-2358 | April 27, 2018 Page 12 of 12