Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED Jan 23 2013, 9:30 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral CLERK of the supreme court, court of appeals and estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JUSTIN R. WALL CHRISTINE REDELMAN Wall Legal Services Indiana Department of Child Services Huntington, Indiana Indianapolis, Indiana
ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE ) TERMINATION OF THE PARENT-CHILD ) RELATIONSHIP OF: ) ) A.B. & P.B. (Minor Children), ) ) AND ) ) E.B. (Mother), ) ) Appellant-Respondent, ) ) vs. ) No. 35A05-1206-JT-298 ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee-Petitioner. ) )
APPEAL FROM THE HUNTINGTON JUVENILE COURT The Honorable Thomas M. Hakes, Judge Cause Nos. 35C01-1103-JT-6 & 35C01-1103-JT-7 January 23, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Judge
Case Summary
E.B. (“Mother”) appeals the involuntary termination of her parental rights to her
children, A.B. and P.B. Concluding that clear and convincing evidence supports the trial
court’s judgment, we affirm.
Facts and Procedural History
Mother is the biological mother of A.B., born in January 2007, and P.B., born in
September 2009.1 The local Huntington County office of the Indiana Department of
Child Services (“HCDCS”) became involved with Mother in 2008 after receiving a
referral that the family home was in an unsafe and unsanitary condition. HCDCS
caseworkers visited the home and observed: (1) “numerous piles of dog feces in every
room upstairs”; (2) “trash, clothing, dirty diapers, and cigarette butts” littering the
“entire” kitchen and living-room floors; and (3) the only toilet in the home was “full of
human waste and not functioning.” Petitioner’s Ex. 1.1.2 In addition, there was no
electricity in the lower level of the house, so an extension cord was being utilized to
supply power for a toaster and hot plate on the lower level. By the next day, the house
1 K.B. is A.B.’s biological father. K.M. is P.B.’s biological father. Both fathers voluntarily relinquished their parental rights to their respective child during the underlying proceedings. In addition, neither father participates in this appeal. We therefore limit our recitation of the facts to those pertinent solely to Mother’s appeal. 2 Unfortunately, the pages of the Volume of Exhibits submitted on appeal were not enumerated. We therefore cannot cite to any specific page numbers throughout this Opinion. 2 had been cleaned, but the toilets remained non-functioning. In addition, Mother assured
caseworkers that the family was moving that weekend.
Approximately one week later, HCDCS received another referral that the family
had not moved and that the home was once again in an unsafe and unsanitary condition.
A second assessment of the home revealed that the electrical and plumbing issues had not
been resolved, dog feces was smeared on the kitchen floor, trash, clothing and other
debris covered the living room floor, and the home now had a condemnation notice
posted on the door. Additionally, it was reported that Animal Control had taken the
family dogs to a local shelter.
As a result of its assessment, HCDCS filed a petition alleging A.B. was a child in
need of services (“CHINS”). The child was so adjudicated in December 2008. Although
the trial court allowed A.B. to remain in Mother’s physical custody as an in-home
CHINS, preliminary services were offered to the family. In January 2009, the trial court
issued a dispositional order formally removing A.B. from Mother’s legal custody and
directing Mother to participate in and successfully complete a variety of services
designed to help her maintain the safety, stability, and sanitary conditions of the family
home. The court’s dispositional order also directed Mother to participate in individual
counseling to address her historical pattern of dating sex offenders, equip her with
appropriate discipline techniques, and help her learn how to deal with stress. In addition,
psychological testing for Mother was ordered to rule out any mental illnesses and to
further address Mother’s parenting deficiencies.
3 For the next several months, Mother refused to participate in court-ordered
reunification services on a regular basis. P.B. was born in September 2009. The next
month, following another verified report of unsafe and unsanitary conditions in the
family home, P.B. was adjudicated a CHINS. Although HCDCS petitioned the trial court
to remove both children from Mother’s physical care at that time, the request was denied.
Mother’s participation in reunification services continued to be sporadic and
ultimately unsuccessful. For example, Mother refused to complete a psychological
evaluation for approximately eighteen months after the trial court’s initial order to do so.
Although there were brief periods of time during which Mother cooperated with
caseworkers and service providers, she was unable to consistently demonstrate an ability
to implement the parenting techniques she was being taught. In addition, the family
moved frequently and experienced several periods of homelessness, and Mother
continued to engage in an on-and-off-again relationship with her domestic partner despite
repeated episodes of domestic violence that oftentimes occurred in the presence of the
children.
In January 2010, HCDCS again petitioned the trial court to modify its
dispositional order and to remove the children from Mother’s physical care. The trial
court denied HCDCS’s request. In April 2010, however, the children were removed from
Mother and placed in foster care due to the ongoing lack of stability in the family home.
Although a three-month trial home visit was later attempted in September 2010, Mother
returned the children to foster care later the same month after being involved in a
domestic dispute and losing her housing.
4 In January 2011, another domestic dispute between Mother and her domestic
partner occurred in the family home. Mother was arrested for Class A misdemeanor
battery. Mother was later convicted and remained incarcerated until July 2011.
Meanwhile, in March 2011, HCDCS filed petitions under separate cause numbers
seeking the involuntary termination of Mother’s parental rights to both children.
A consolidated evidentiary hearing on the termination petitions was held in
September 2011. During the hearing, HCDCS presented considerable evidence regarding
Mother’s failure to successfully complete a majority of the court-ordered reunification
services, including individual counseling and home-based services, and that she remained
unable to demonstrate she was capable of providing the children with a safe and stable
home environment. Among other things, HCDCS presented evidence establishing that
Mother remained unemployed, never took responsibility for her role in the removal of the
children from her care, and continued to struggle with anger-management issues. In
addition, Mother had resided in approximately twelve different locations, including the
Huntington County Jail, during the underlying proceedings. Although the evidence
reveals that Mother eventually secured housing in October 2010 that appeared to be
suitable for the children, the residence belonged to Mother’s domestic partner, whom
Mother continued to live with and be financially dependent upon despite significant past
incidents of domestic violence. Mother also never completed court-ordered home-based
counseling and intensive family preservation services, but she continued to participate in
at least some of these services at the time of the termination hearing.
5 As for the children, Guardian ad Litem (“GAL”) Joseph Wiley indicated he was
concerned about the pattern of violence in the family home, as well as Mother’s anger
issues and the potential for future neglect and abuse should the children be returned to
Mother’s care. Nevertheless, GAL Wiley declined to offer an opinion as to whether
termination of parental rights was appropriate due to his recent appointment to the case.
HCDCS family case manager Bobbie Lamb, on the other hand, did recommend
termination of Mother’s parental rights as in the children’s best interests. Family
Preservation Counselor Rosella Stouder likewise testified that she had numerous
concerns pertaining to the lack of safety and sanitary conditions found in the various
residences Mother had lived in throughout this case. Stouder further confirmed that she
remained concerned about the “underlying anger” and “control issues” that were
prevalent in the family home. Tr. p. 39. In addition, Stouder testified that Mother had
informed her on “two or three occasions” that Mother’s domestic partner had been
“abusing” Mother and “the girls” and that three-year-old A.B. had been observed
“masturbating.” Id. at 42.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. In November 2011, the trial court issued its judgment terminating Mother’s
parental rights to both children. Mother appealed, claiming there were insufficient
factual findings to support the trial court’s judgment. On May 9, 2012, another panel of
this Court reversed the trial court’s termination order in an unpublished Memorandum
Decision and remanded this cause for further proceedings. See A.B. v. Ind. Dep’t of Child
Servs., 968 N.E.2d 341 (Ind. Ct. App. 2012). In so doing, this Court noted that although
6 the trial court had made thirty-one specific findings concerning Mother’s failure to
consistently participate in and benefit from court-ordered reunification services, inability
to retain and implement the parenting techniques being taught to her by service providers,
refusal to disengage from unhealthy and physically violent personal relationships, and
ongoing inability to provide a safe and sanitary home environment, the trial court had
neglected to make any findings whatsoever specifically pertaining to the requisite
statutory elements delineated in Indiana’s involuntary termination statute.
On May 25, 2012, the trial court entered an amended judgment terminating
Mother’s parental rights to A.B. and P.B. Mother now appeals.
Discussion and Decision
The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re I.A., 934
N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of
his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting
Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Indeed[,] the parent-child relationship is
‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty.
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parental
rights are “not absolute and must be subordinated to the child’s interests when
determining the proper disposition of a petition to terminate parental rights.” Id. (citing
In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans. denied). Thus, parental
rights may be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id.
7 When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. D.D., 804 N.E.2d at 265. Instead, we
consider only the evidence and reasonable inferences that are most favorable to the
judgment. Id. Here, the trial court made specific findings and conclusions in its
termination order. When a trial court enters specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. First, we determine whether the
evidence supports the findings, and second, we determine whether the findings support
the judgment. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147
(Ind. 2005). In deference to the trial court’s unique position to assess the evidence, we
will set aside the court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied;
see also Bester, 839 N.E.2d at 147. Clear error is that which leaves us with a definite and
firm conviction that a mistake has been made. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct.
App. 1997).
In Indiana, before parental rights may be involuntarily terminated, the State is
required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for 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.
8 (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).3 In addition, HCDCS has the burden of pleading and
proving each element of Indiana Code § 31-35-2-4(b) by ‘“clear and convincing
evidence’” before the trial court can involuntarily terminate parental rights. In re G.Y.,
904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Mother
challenges the sufficiency of the evidence supporting the trial court’s judgment as to
subsections (B), (C), and (D) of the termination statute detailed above. See Ind. Code §
31-35-2-4(b)(2)(B)-(D).
I. Conditions Remedied/Threat to Well-Being
Indiana Code section 31-35-2-4(b)(2)(B) requires a trial court to find only one of
the three elements of subsection (b)(2)(B) has been established by clear and convincing
evidence before properly terminating parental rights. See L.S., 717 N.E.2d at 209. Here,
the trial court determined that subsection (b)(2)(B)(i) was established by clear and
convincing evidence, that is to say that HCDCS proved by clear and convincing evidence
there is a reasonable probability the conditions resulting in A.B.’s and P.B.’s removal
and/or continued placement outside of Mother’s care will not be remedied. See I.C. § 31-
35-2-4(b)(2)(B)(i).
3 Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case. 9 In making such a determination, a trial court must judge a parent’s fitness to care
for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 511 (Ind. Ct. App. 2001),
trans. denied. The court must also evaluate the parent’s habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or deprivation of the
child. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000). Similarly, courts may consider
evidence of a parent’s prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and lack of adequate housing and employment. A.F. v. Marion
Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans.
denied. The trial court may also consider the services offered to the parent by a county
office of the Indiana Department of Child Services and the parent’s response to those
services, as evidence of whether conditions will be remedied. Id. at 1252. Finally, the
language of Indiana’s termination statute makes clear that “it 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.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005),
trans. denied
Here, in determining that there is a reasonable probability the conditions resulting
in the children’s removal and/or continued placement outside of Mother’s care will not be
remedied, the trial court made detailed findings in its termination order regarding
Mother’s unresolved parenting, housing, and employment issues, as well as her lack of
progress in improving her ability to provide a safe and stable home environment for the
10 children. With regard to Mother’s history of domestic violence, the trial court noted that
domestic disputes had occurred in the family home in September 2010, December 2010,
and again in January 2011, after which Mother was arrested and incarcerated for
misdemeanor battery. The court also specifically acknowledged the testimony of several
service providers who confirmed Mother had “resided in twelve (12) different locations[,]
including the Huntington County Jail” during the history of this case, “failed to complete
home-based counseling [and] home-based services,” “routinely” failed to have utilities in
her various residences, “disclosed that her domestic partner had ‘molested’ the minor
child, [A.B.]” and “failed to show a transfer of learning” of the parenting and discipline
techniques Mother had been taught by service providers. Appellant’s App. p. 20. Based
on these and other findings, the trial court concluded that “Mother’s actions and failures
throughout this period show[] that there is a reasonable probability that the reasons for
placement will not be remedied.” Id. at 22. Our review of the record leaves us convinced
that these findings and conclusions are supported by abundant evidence.
During the termination hearing, case manager Lamb confirmed that she had been
working with Mother and the family for just under three years. Lamb further testified
that notwithstanding the wealth of services available to Mother throughout the underlying
CHINS and termination proceedings, Mother had failed to (1) complete home-based
counseling, (2) complete home-based caseworker services designed to help Mother
maintain the condition of her home and work on parenting skills, budgeting, and self-
sufficiency, and (3) maintain weekly contact with HCDCS. Lamb also informed the trial
court that Mother had failed to obtain her GED, never obtained employment, oftentimes
11 did not have electricity or heat in the home she was living in at the time, and refused to
take her prescription medication as prescribed. When asked whether she believed there
was a reasonable probability that the conditions resulting in the children’s removal would
be remedied, Lamb answered, “No.” Tr. p. 25.
Family Preservation Counselor Stouder also testified during the termination
hearing. When asked to describe her observations of Mother and the children during
home visits, Stouder reported that there was “a lot of uh, arguing and fighting” and
“animosity between the members of the family.” Id. at 51. Stouder went on to state that
the household seemed to be “in constant turmoil” with family members “erupting” into
daily “screaming arguments” and that despite her attempt to help, there was “very little
effect on changing that behavior.” Id. at 51, 54. Stouder further explained:
After two[-]and[-]a[-]half years of home[-]based services, [Mother] failed to show a transfer of learning in the area of understanding her children’s needs, how to discipline consistently and appropriately, and most importantly . . . [how] to maintain a safe environment for her [children] and provide basic necessities. [Mother] often failed to put her [children’s] needs first as evidenced through relationships she entered.
Id. at 58-59. In addition, concerns regarding Mother’s unresolved parenting issues,
housing and income instability, and potential for future neglect of the children were
likewise indicated in the testimony of GAL Wiley.
As previously explained, a trial court must judge a parent’s fitness to care for his
or her children at the time of the termination hearing, taking into consideration the
parent’s habitual patterns of conduct to determine the probability of future neglect or
deprivation of the children. D.D., 804 N.E.2d at 266. Where a parent’s “pattern of
12 conduct shows no overall progress, the court might reasonably find that under the
circumstances, the problematic situation will not improve.” In re A.H., 832 N.E.2d 563,
570 (Ind. Ct. App. 2005). Moreover, a trial court need not wait until a child is
irreversibly influenced by a deficient lifestyle such that his or her physical, mental, and
social growth are permanently impaired before terminating the parent-child relationship.
In re E.S., 762 N.E.2d 1287 (Ind. Ct. App. 2002).
Throughout the underlying proceedings, Mother has demonstrated a persistent
unwillingness and inability to take the actions necessary to show she is capable of
refraining from engaging in abusive relationships and providing A.B. and P.B. with the
safe and stable home environment the children need. Based on the foregoing, we
conclude that that there is clear and convincing evidence to support the trial court’s
findings set forth previously, as well as the court’s ultimate determination that there is a
reasonable probability the conditions leading to A.B.’s and P.B.’s removal and continued
placement outside of Mother’s care will not be remedied. Mother’s arguments to the
contrary amount to an impermissible invitation to reweigh the evidence. See D.D., 804
N.E.2d at 265.
II. Best Interests
We next consider Mother’s assertion that HCDCS failed to prove termination of
her parental rights is in the children’s best interests. In determining what is in the best
interests of a child, the trial court is required to look beyond the factors identified by the
Indiana Department of Child Services and look to the totality of the evidence. McBride
v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
13 In so doing, the trial court must subordinate the interests of the parent to those of the
child. Id. A trial court need not wait until a child is irreversibly harmed such that his or
her physical, mental, and social development is permanently impaired before terminating
the parent-child relationship. Id. at 199.
In addition to the specific findings and conclusions previously cited, the trial court
made several additional pertinent findings and conclusions in determining that
termination of Mother’s parental rights is in A.B.’s and P.B.’s respective best interests.
Specifically, the court found that Mother had “disclosed” to Stouder that her domestic
partner “had ‘molested’ the minor child, [A.B.].” Appellant’s App. p. 20. The court
further found that A.B.’s behavior “worsened when visitation [with Mother] increased
but improved after visitation was ended due to [M]other’s incarceration,” and that A.B.
continues to have “problems that will need continued attention.” Id. Based on these and
other findings, the trial court concluded, “Mother’s actions have placed the children in
positions of danger[.] . . . Mother has not attempted to correct the issues that would
remedy the out[-]of[-]home placement. . . . [T]ermination is therefore in the children’s
best interests.” Id. at 22. These findings and conclusions, too, are supported by the
evidence.
The record reveals that A.B. suffers with several mental-health issues including
Disruptive Behavior Disorder, Post-Traumatic Stress Disorder, and Reactive Attachment
Disorder. A.B. also meets the criteria for Adjustment Disorder. During the termination
hearing, A.B.’s therapist, Lynn Baker, described A.B.’s behaviors as “aggressive” and
“inappropriate.” Tr. p. 71. Baker also relayed episodes of “unprovoked rage,” “spitting,”
14 and “biting” in the foster home. Id. at 71, 75. When describing A.B.’s conduct during
play therapy, Baker testified that A.B.’s play therapy “is highly revolved around the
trauma that [A.B.] has been through.” Id. at 71. Baker further explained that A.B.’s play
characters are “aggressive” with each other, use “vicious mean voices,” and that A.B.
“identifies the abuser as ‘mom’ and has it yelling at the kids and locking them in rooms.”
Id. Baker thereafter informed the trial court that A.B.’s behavior “indicates a child with
very deep emotional scarring from very poor parenting in the past.” Id. at 72. When
asked whether she had any concerns for the future of A.B., Baker responded, “I have
grave concerns for [A.B.] if [the child is placed] back in the environment she’s been in
before.” Id. at 77.
Case manager Lamb and home-based therapist Patricia Fox likewise both
recommended termination of Mother’s parental rights as in the children’s best interests.
In so doing, Fox reported that “not much has changed” as far as Mother’s lack of
progress in services and unwillingness to take “personal responsibility” for “the position
she’s gotten in to.” Id. at 94. Fox further testified that A.B.’s behavior had regressed
following the trial home visit such that the “[v]ulger language, anger, [and] acting out
started slowly coming back” to the point that Fox had to refer A.B. for more evaluation.
Id. at 95.
Based on the totality of the evidence, including Mother’s unresolved parenting,
domestic violence, and housing instability issues, coupled with the testimony from Baker,
Lamb, and Fox recommending termination of Mother’s parental rights, we conclude that
15 clear and convincing evidence supports the trial court’s determination that termination of
Mother’s parental rights is in A.B.’s and P.B.’s respective best interests.
III. Satisfactory Plan
Finally, we consider Mother’s allegation that HCDCS failed to show by clear and
convincing evidence that it had a satisfactory plan for the future care and treatment of the
children. Indiana Code section 31-35-2-4(b)(2)(D) provides that before a trial court may
terminate a parent-child relationship, it must find that there is a satisfactory plan for the
future care and treatment of the child. D.D., 804 N.E.2d at 268. It is well established,
however, that this plan need not be detailed, so long as it offers a general sense of the
direction in which the child will be going after the parent-child relationship is terminated.
Id. HCDCS’s plan for A.B. and P.B. is adoption. This plan provides the trial court with
a general sense of the direction of the children’s future care and treatment. HCDCS’s
plan is therefore satisfactory. See id. (concluding that the State’s plan for child to be
adopted by current foster parents or another family constitutes a suitable plan for future
care of child).
This Court will reverse a termination of parental rights ‘“only upon a showing of
‘clear error’– that which leaves us with a definite and firm conviction that a mistake has
been made.”’ In re A.N.J., 690 N.E.2d at 722 (quoting Egly v. Blackford Cnty. Dep’t of
Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error here.
Affirmed.
BAILEY, J., and BROWN, J., concur.