MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 20 2016, 9:03 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Michael B. Troemel Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 20, 2016 of the Parent-Child Relationship Court of Appeals Case No. of C.B., Mother, B.G., Father, 79A04-1506-JT-736 and N.W., S.G. and R.B., Minor Appeal from the Children, Tippecanoe Superior Court C.B. and B.G., The Honorable Thomas K. Milligan, Senior Judge Appellants-Respondents, Trial Court Cause Nos. v. 79D03-1409-JT-39 79D03-1409-JT-40 79D03-1409-JT-41 Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 1 of 30 Kirsch, Judge.
[1] In a joint proceeding, the juvenile court terminated the parental rights of C.B.
(“Mother”) as to her minor children, N.W., S.G., and R.B., and the parental
rights of B.G. (“Father”) as to his minor child, S.G. Mother and Father
(“Parents”) appeal, raising the following consolidated and restated issues:
I. Whether the juvenile court’s termination order as to Mother is clearly erroneous; and
II. Whether the juvenile court’s termination order as to Father is clearly erroneous.
[2] We affirm.
Facts and Procedural History [3] Mother is the biological parent of three daughters N.W., S.G., and R.B
(collectively, “Children”), who were born in October 2001, May 2006, and June
2011 respectively. Father is the biological parent of S.G.1 In April 2013,
Children were living in Lafayette, Indiana with Mother, her former boyfriend
(“S.S.”), and his two children, one of whom was three-year-old Z.S. In the
afternoon of April 12, 2013, Z.S. was taken to the hospital due to marks and
bruises on his body, a laceration to his head, and lethargic behavior. DCS Ex. 1
at 2. Z.S. subsequently developed a subdural hematoma and was hospitalized
1 The juvenile court also terminated the parental rights of N.W.’s father and of R.B.’s father; those fathers, however, do not appeal.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 2 of 30 for several days. Mother admitted that she had “backhanded [Z.S.] because he
wasn’t listening” and that Z.S. fell backwards. DCS Ex. 1 at 2. It was
determined that Mother’s account of the incident did not match the nature and
extent of the injuries. Mother was arrested that same day and charged with
battery on a child and neglect of a dependent. Prior to Z.S.’s hospitalization,
and Mother’s resultant arrest, Mother had arranged for Children to be “cared
for by their extended family”; N.W. and S.G. were cared for by their maternal
grandmother (“Grandmother”), and the youngest child, R.B., was cared for by
her maternal aunt (“Aunt”), Mother’s half-sister. Id.
[4] The Indiana Department of Child Services (“DCS”) became involved with the
family while Z.S. was in the hospital and, on April 23, 2013, filed a petition
alleging that Children were children in need of services (“CHINS”). In
addition to the pending charges against Mother, further allegations were made
that Mother had a history of: (1) excessive discipline of Children; (2) being
overwhelmed with the responsibilities of parenting; (3) having relationships
with inappropriate or violent men, some of whom had criminal histories; and
(4) being the victim of domestic violence both as a child and in her relationships
with men. Mother reported that as a child she was sexually abused by a family
member and abused and neglected by her mother, Grandmother. DCS Ex. 3 at
57, DCS Ex. 4, Vanderwater-Piercy Psychological Evaluation at 11.2 On June 4,
2 DCS Exhibit 4 is not consecutively paginated; therefore, we refer to the page number of the specific report.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 3 of 30 2013, the juvenile court appointed Lynn Davis to be the Child Appointed
Special Advocate (“the CASA”).
[5] A fact-finding hearing was held on the CHINS petition, and Children were
found to be CHINS on June 18, 2013.3 As to Mother, the juvenile court noted:
(1) Mother’s pending criminal charges regarding Z.S.; (2) reports from Mother’s
family that she had a history of using extreme discipline on Children, including
the use of wooden spoons, belts, and her hand; (3) Mother had left eleven-year-
old N.W. to take care of three to five children4 and, via text message, told N.W.
“to ‘get out the belt’ if the younger children misbehaved”; (4) Mother had
written a letter to Children, while incarcerated, telling them she was sorry she
had asked them to lie and it was “okay to tell the truth.” DCS Ex. 2 at 44. As
to Father, the juvenile court noted that he had not had consistent contact with
S.G. and had not seen S.G. in about three months. Id. The juvenile court
ordered Children to remain in their respective relative placements.
[6] DCS prepared a Predispositional Report, dated July 5, 2013, the findings of
which the juvenile court adopted during its July 9, 2013 dispositional hearing.
Those findings included: (1) Children had a strong connection to Mother’s side
3 The CHINS and the termination proceedings that took place between April 23, 2013 and October 2014 were heard in the court of Judge Faith Graham, with Magistrate Crystal Sandy presiding. Senior Judge Thomas K. Milligan presided over the four termination hearings in late 2014 and early 2015. 4 There is a conflict in the record regarding the number of children N.W. was asked to watch. DCS reported that Mother had left N.W. to take care of up to six children, DCS Ex. 2 at 44, while the juvenile court found that Mother left N.W. to take care of three to five children. Appellant’s App. at 39.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 4 of 30 of the family; (2) none of Children had special medical needs or had used drugs;
(3) N.W. and S.G. were at that time attending individual therapy; and (4)
notwithstanding being in separate homes, Children were able to interact with
each other in a meaningful way. DCS Ex. 3 at 60-61. Following the hearing,
the juvenile court ordered Children to remain in relative placement and ordered
Parents to participate in services set forth in the parental participation order
with the goal of reunification. DCS Ex. 2 at 40.
[7] In October 2013, Mother pleaded guilty to neglect of a dependent with bodily
injury as a Class C felony for the injuries she inflicted on Z.S. Mother was
sentenced to four years—one year executed with Tippecanoe County
Community Corrections (“Tippecanoe Corrections”) on home detention, GPS
monitoring, and three years on supervised probation. DCS Ex. 3 at 43-44.
Mother was supervised by Tippecanoe Corrections Case Manager Jennifer
Horn from November 19, 2013 until November 7, 2014. Tr. at 409. Mother
was initially monitored as “high risk . . . due to her IRES5 score and her
history,” but was later modified to moderate risk. Id. Mother was returned to
high risk, however, after she violated the terms of her community corrections
by: (1) missing a drug screen in March 2014; (2) having problems keeping her
GPS charged while working for Indiana Packers; and (3) being “out of
5 The record before us does not reflect the meaning of the acronym “IRES.”
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 5 of 30 bounds.”6 Id. at 410. Mother also “received a work crew sanction,” but asked
that good time credit be taken away because she was unable to complete the
work crew hours. Id.
[8] The juvenile court held a CHINS case review hearing in October 2013 and
another in February 2014; Mother appeared in person at both hearings, and
Father appeared at the latter hearing. In preparation for those hearings, DCS
prepared three-month progress reports, one dated September 30, 2013
(“September Report”) and the other dated December 30, 2013 (“December
Report”). The September Report provided that Mother: (1) was inconsistent in
her case management participation; (2) had participated in a psychological
evaluation, but at DCS’s directive, would have to complete a comprehensive
psychological assessment with a parenting component; and (3) during the three-
month period from July 9 to September 30, had maintained approximately
twenty hours of supervised visitation per week. DCS Ex. 3 at 51, 52. Following
the October 2013 hearing, the juvenile court ordered Mother to: (1) comply
with the parental participation decree; (2) submit to random drug screens within
twenty-four hours of request from DCS, the CASA, and service providers; (3)
participate in Case Management once a week; (4) complete a parenting
education course; (5) participate in individual and family therapy; (6)
6 Case Manager Horn described these violations as follows: (1) Mother, for unexplained reasons, did not show up for a drug screen on the appointed day, but showed up and passed it the next day; (2) Mother’s place of employment, Indiana Packers, was not a “home zone” so Mother’s unit would continually attempt to charge, resulting in the GPS unit dying before she returned home; (3) Mother was out of bounds when she took Children to a McDonald’s play area without giving prior notice to her case manager. Tr. at 410-14.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 6 of 30 participate in visitation by agreement of treatment team; (7) participate in a
comprehensive psychological evaluation with a parenting component; (8)
continue to use the journal to facilitate visitation; (9) complete the RAISE
Program, to address domestic violence, and follow all recommendations. DCS
Ex. 2 at 36. Father was ordered to: (1) comply with the parental participation
decree; (2) complete a parenting assessment, a mental health assessment, and a
substance abuse assessment and follow the recommendations as to each; (3)
participate in visitation pursuant to a treatment team agreement; and (4) submit
to random drug screens within twenty-four hours of request from DCS, the
CASA, and service providers. Id. at 37.
[9] The December Report noted that, during the three-month period from
September 30 to December 31, 2013, Mother maintained approximately
twenty-five hours of supervised visitation per week, with no cancellations. DCS
Ex. 3 at 41. Additionally, Mother participated in a comprehensive
psychological evaluation with licensed psychologist Jeff Vanderwater-Piercy
(“Dr. Vanderwater-Piercy”). Through that evaluation, Mother was diagnosed
with: (1) “Anxiety Disorder Not Otherwise Specified (with features of
posttraumatic stress)”; (2) “Major Depressive Disorder, Recurrent, In
Remission”; and (3) “Personality Disorder Not Otherwise Specified (Mixed
Personality Disorder with Dependent and Narcissistic Features).” DCS Ex. 3 at
35; DCS Ex. 4, Vanderwater-Piercy Psychological Evaluation at 11. The evaluation
recommended that Mother participate in parenting education courses. The
December Report noted that: (1) Mother was participating in or had
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 7 of 30 participated in individual therapy, parenting evaluation, visitation,
psychological evaluation; (2) all of Mother’s drug screens were clean; (3)
Mother had obtained suitable, individual housing in her own name, (4) Mother
maintained transportation; and (5) Mother maintained employment. DCS Ex. 3
at 40. Both the September and December Reports reflected DCS Case Manager
Taylor Fristoe’s (“Fristoe”) assessment that Mother did not recognize her
mental health issues. Id. at 40, 51. Following the February 2014 hearing, the
juvenile court recommended that Children remain in relative placement and
that Parents continue with previously-ordered services.
[10] The juvenile court held a permanency hearing in April 2014. In preparation for
that hearing, DCS prepared a progress report (“Permanency Report”), dated
April 15, 2014, which covered the time-period from December 31, 2013 to April
15, 2014. Like the December Report, the Permanency Report reflected that
Mother maintained approximately twenty-five hours of semi-supervised
visitation per week, and also attended the three Child and Family Team
Meetings for that period. DCS Ex.3 at 28-29. DCS reported: (1) Mother does
not believe Dr. Vanderwater-Piercy’s assessment that she is narcissistic, stating
that she always puts Children first; (2) Mother continues to hold the idea of
DCS’s involvement being the fault of others, including relative placement,
believing that if DCS was “not involved that the case would be closed and the
children would already be returned to her care”; and (3) somebody made a
hotline report regarding bruising on R.B. and S.G after a visit with Mother;
however, a follow-up investigation revealed that claims of Mother’s
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 8 of 30 wrongdoing were unsubstantiated. Id. at 29, 30. DCS also reported, “[Mother]
has presented as argumentative when conversing with DCS; however, when
DCS is around [Mother], she does not raise her voice or become inappropriate
in front of the children.” Id. at 29. The Permanency Report showed that, in
addition to Mother’s participation in individual therapy, parenting evaluation,
visitation, and a psychological evaluation, Mother has made herself available to
meet with providers and the treatment team; has continued to have clean drug
and alcohol screens; has obtained suitable housing in her own name; and has
maintained employment and transportation. Id. at 25. At that time, Mother
had successfully completed the RAISE Program through Bauer Family
Resources (“Bauer”), to address issues of domestic violence. Id. at 25-26.
[11] The Permanency Report recommended that relative placement continue only
until Mother finds appropriate and consistent childcare for Children. Id. at 21.
The “team” had several Child and Family Team Meetings to discuss a plan.
Services were offered to Mother “to address the underlying reasons for
involvement, which [Mother] was cooperative [with] and engaged in.” Id.
DCS agreed that a trial home visit would be appropriate once Mother obtained
an appropriate childcare plan. Id. In summary, DCS noted:
Despite the disagreement about involvement, [Mother] has participated in services and improved with interaction through visits with the girls. She has maintained her housing and employment and has several strengths. [Mother] clearly has a strong bond with her children and they show the desire to be home with her. She has shown the ability to obtain childcare, but needs to maintain it. If [Mother] develops an appropriate
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 9 of 30 and consistent childcare plan, the team would like to move to a trial home visit.
Id. at 30.
[12] In its April 22, 2014 Order on Permanency Hearing, the juvenile court accepted
the Permanency Report as presented by DCS and placed Children in Mother’s
home for a trial home visit. Id. at 26. As part of its Order, the juvenile court
ordered Mother to complete the following services: (1) “[s]ign a release for her
therapist to release information to DCS and CASA”; (2) contact Wabash Valley
Alliance (“Wabash Valley”) to begin a transition plan for Children’s services
from Bauer; (3) “[c]ontinue to participate in case management”; and (4)
“[c]ooperate with the IV-D Prosecutor in establishing paternity of [R.B].” DCS
Ex. 2 at 26. It is not clear whether Mother completed these tasks.
[13] About one month later, on May 20, 2014, DCS Case Manager Fristoe filed a
status report with the juvenile court, alleging that during the trial home visit:
(1) S.G. and R.B had started to act out in school and daycare—S.G. was defiant
and argues with the teachers, and R.B. “hit another child at the daycare” and
has been atypically rude; (2) Mother failed to call S.G.’s case manager and
therapist during the trial home visit; (3) Mother failed to provide R.G.’s current
daycare with the necessary documentation and contact numbers; (4) DCS was
unable to obtain records from Alpine Clinic concerning Mother’s individual
therapy; (5) Mother had her license suspended for failing to pay a speeding
ticket; (6) Mother failed to inform DCS she was suspended from her job for five
days “due to falling asleep on the clock”; (7) Mother had not been in Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 10 of 30 communication with DCS. DCS Ex. 3 at 16-17. Case Manager Fristoe asserted
that Mother “hasn’t shown her willingness and ability to provide her children
with structure, stability, and appropriate services they need, while maintaining
an attitude that she does not need to participate anymore, since [Children] are
in her care.” Id. at 17.
[14] The juvenile court held an emergency modification hearing on May 23, 2014.
As part of its order, the juvenile court ordered Mother to complete the following
tasks prior to the June 3, 2014 hearing: (1) set up an appointment for S.G.’s
therapy; (2) communicate with S.G.’s case manager to set up a plan of action
regarding S.G.; (3) obtain Mother’s entire medical file from Alpine Clinic and
provide a copy of the same to all parties; (4) take whatever steps necessary to
reinstate driver’s license; (5) apply for Food Stamps at the Medicaid Office; (6)
obtain documentation showing all rent, utilities, and car payments are current;
(7) provide the current daycare provider with any requested information and/or
documentation; (8) provide a written plan for daycare plans for N.W and S.G.
through the summer. DCS Ex. 2 at 19.
[15] During the June 3, 2014 hearing, the CASA testified that Mother was unable to
accomplish these goals in a timely fashion. Tr. at 510-11. Wabash Valley Case
Manager Tiana Evans (“Evans”) reported that Mother was unable to secure
stable daycare and could not obtain the necessary information for R.B.’s
daycare provider. DCS Ex. 6, May 2014 Wabash Valley Progress Report at 2. At
the conclusion of the hearing, the juvenile court removed Children from
Mother’s home and terminated the trial home visit.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 11 of 30 [16] At the August 26, 2014 permanency hearing, the juvenile court changed the
permanency plan to termination of Parents parental rights, and DCS filed its
petition for termination of parental rights on September 9, 2014. DCS Ex. 2 at
7. The juvenile court held its termination hearing over multiple days—
November 14 and December 15, 2014, and February 6 and March 5, 2015. At
the termination hearings, DCS introduced three volumes of exhibits, which
included periodic reports from DCS Case Manager Fristoe, and separate reports
from Wabash Valley and Bauer, regarding Mother’s progress with services.
Also included in the exhibits were periodic reports about Mother’s visitation
with Children, her ongoing therapy, her drug screens, as well as periodic reports
from the CASA. The following pertinent individuals testified at one or more of
the four termination hearings: Mother; Father; Tiana Evans, who was
Mother’s case manager from Wabash Valley; Erica Eads, who was S.G.’s
school and home-based case manager from Wabash Valley; Mother’s brother;
Aunt; Case Manager Fristoe, who, starting in August 2013, was Mother’s DCS
case manager; the CASA; N.W. and S.G., who were Mother’s oldest two
children; and Tippecanoe Corrections Case Manager Jennifer Horn.
[17] On May 26, 2015, the juvenile court issued its order terminating the parental
rights of Mother and Father. The juvenile court included in its findings that
Mother had a history of being the victim of domestic violence, using excessive
discipline, being overwhelmed with the responsibilities of parenting, having
liaisons or relationships with inappropriate and violent men, struggling with
judgment and decision making, encouraging Children to lie, and failing to
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 12 of 30 obtain appropriate childcare providers. Appellant’s App. at 38. Based on those
and other factors, the juvenile court concluded:
There is a reasonable probability the conditions that resulted in removal of the child from the parents’ care or the reasons for continued placement outside the home will not be remedied. The parents have not demonstrated a willingness to make lasting changes from past behaviors. There is no reasonable probability the parents will be able to provide adequately for the children’s mental, emotional, or basic needs.
Continuation of the parent-child relationship poses a threat to the well-being of the child. The children need parents with whom they can form a permanent and lasting bond to provide for their emotional and psychological as well as physical well-being. The children’s well-being would be threatened by keeping them in the parent-child relationships with parents whose own choices and actions have rendered them unable to meet the needs of their children.
....
For the foregoing reasons, it is in the best interests of [Children] that the parental rights of [Mother] … [and Father] … be terminated and that the children be made available for adoption.
Appellant’s App. at 43. Mother and Father now appeal.
Discussion and Decision [18] Our Supreme Court has “repeatedly recognized that parental rights are precious
and protected by our Federal and State constitutions.” In re E.M., 4 N.E.3d
636, 641-42 (Ind. 2014) (citing In re Adoption of C.B.M., 992 N.E.2d 687, 692
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 13 of 30 (Ind. 2013)) (internal quotation marks omitted). “Accordingly, when seeking to
terminate parental rights, DCS must prove its case by ‘clear and convincing
evidence,’ Ind. Code § 31-37-14-2 (2008)—a ‘heightened burden of proof’
reflecting termination’s ‘serious social consequences.’” Id. at 642 (quoting In re
G.Y., 904 N.E.2d 1257, 1260-61 & n.1 (Ind. 2009)). “[W]eighing the evidence
under that heightened standard is the trial court’s prerogative—in contrast to
our well-settled, highly deferential standard of review.” In re E.M., 4 N.E.3d at
642. “‘We do not reweigh the evidence or determine the credibility of
witnesses, but consider only the evidence that supports the judgment and the
reasonable inferences to be drawn from the evidence.’” Id. (quoting Egly v.
Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). “We
confine our review to two steps: whether the evidence clearly and convincingly
supports the findings, and then whether the findings clearly and convincingly
support the judgment.” Id. (citing K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1229-30 (Ind. 2013)).
[19] Reviewing whether the evidence “clearly and convincingly” supports the
findings, or the findings “clearly and convincingly” support the judgment, is not
a license to reweigh the evidence. Id. “Rather, it is akin to the ‘reasonable
doubt’ standard’s function in criminal sufficiency of the evidence appeals—in
which we do not reweigh the evidence or assess the credibility of the witnesses,
and consider only whether there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” Id.
(emphasis in original) (internal quotation marks omitted). “That is, we do not
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 14 of 30 independently determine whether that heightened standard is met, as we would
under the constitutional harmless error standard, which requires the reviewing
court itself to be sufficiently confident to declare the error harmless beyond a
reasonable doubt.” Id. (emphasis in original) (internal quotation marks
omitted). Our review must “give ‘due regard’ to the trial court’s opportunity to
judge the credibility of the witnesses firsthand,” and “not set aside [its] findings
or judgment unless clearly erroneous.” K.T.K., 989 N.E.2d at 1229 (citing Ind.
Trial Rule 52(A)).
[20] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate
parental rights of a child in need of services must, in pertinent part, allege the
following:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(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 wellbeing of the child.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 15 of 30 ....
(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.
The petitioner must prove each of these elements by clear and convincing
evidence. Ind. Code § 31-37-14-2; see also Castro v. State Office of Family &
Children, 842 N.E.2d 367, 373 (Ind. Ct. App. 2006), trans. denied.
[21] Here, the Parents do not contest the juvenile court’s findings that Children have
been out of their care for more than six months or that DCS deems it a
satisfactory plan for the care and treatment of Children that Grandmother is
willing to adopt N.W. and S.G. and Aunt is willing to adopt R.B. Instead,
Parents argue that DCS failed to prove by clear and convincing evidence that
the conditions that resulted in the removal of Children will not be remedied,
that the continuation of the parent-child relationship with Parents poses a threat
to Children, and that termination of Mother’s and Father’s parental rights is in
Children’s best interests.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 16 of 30 I. Mother [22] Mother contends that the evidence was insufficient to support the juvenile
court’s findings of fact and conclusion that the conditions that resulted in
Children’s removal will not be remedied. We disagree.7
[23] In determining whether there is a reasonable probability that the conditions that
led to Children’s removal and continued placement outside the home would not
be remedied, we engage in a two-step analysis. K.T.K., 989 N.E.2d at 1231.
First, we ascertain what conditions led to Children’s placement and retention
outside the home, and second, we determine whether there is a reasonable
probability that those conditions will not be remedied. Id. In the second step,
the juvenile court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions and
balancing a parent’s recent improvements against “‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at
1231).
7 DCS is required to prove either (i) the conditions resulting in child’s placement outside the home will not be remedied, or (ii) the continuation of the parent-child relationship poses a threat to the child’s well-being. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court need only find one of the two elements proven by clear and convincing evidence. Castro v. State Office of Family & Children, 842 N.E.2d 367, 373 (Ind. Ct. App. 2006), trans. denied. Finding as we do that the juvenile court did not err in finding clear and convincing evidence that the conditions that resulted in Children’s removal will likely not change, we need not address the issue of whether Mother poses a threat to Children.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 17 of 30 [24] Pursuant to this rule, “trial courts have properly considered 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. In addition, DCS need not provide evidence ruling
out all possibilities of change; rather, it need establish only that there is a
reasonable probability the parent’s behavior will not change. In re Kay L., 867
N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust that delicate balance to the
trial court, which has discretion to weigh a parent’s prior history more heavily
than efforts made only shortly before termination.” In re E.M., 4 N.E.3d at 643.
[25] Here, Children were removed from Mother’s home in connection with her
arrest and subsequent prosecution for having hit and injured Z.S. Further
inquiry revealed that Mother had a history of being the victim of domestic
abuse both as a child and an adult and that Mother historically became
involved with and exposed Children to men who were violent. Additional
concerns about Mother were her harsh discipline style and that Mother, on
occasion, left N.W. alone to care for three to five other children.
[26] During the termination hearings, Case Manager Fristoe testified that Mother’s
parental rights should be terminated. Case Manager Fristoe testified that, in her
opinion, the conditions that resulted in Children being removed from Mother
would not be remedied. Id. at 313-14. Case Manager Fristoe testified that prior
to the trial home visit Mother’s house was usually “really clean”; however,
during the trial home visit “there were things all over the house [and] there was
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 18 of 30 food that would be left out.” Id. at 317. During the four-week trial home visit,
Mother did not schedule counseling appointments for S.G., stopped
communicating with S.G.’s case manager, and did not return paperwork to
S.G.’s school. Tr. at 315-16. Case Manager Fristoe made the following
observations about Mother: “[s]he allows dangerous men around her children
and presents them as father figures, she asks them to call them their fathers; she
will not maintain or prioritize [Children’s] needs regarding education, mental
health, case management; she will not reach out for supports [sic] when she
needs anything; she will cut the relatives out of her life who have been a strong
support for her and for the kids.” Id. at 318.
[27] The CASA explained that Children were removed from the home “due to
abusive relationship where [Mother] became very overwhelmed with stress and
that resulted in an injury to a two year old child 8 where the child was
hospitalized,” and that Mother “lied about the occurrence.” Id. at 505. The
CASA also testified that there were times that Mother used N.W. to babysit for
Children. The CASA stated her concern for the safety of Children because
Mother “gets very overwhelmed and doesn’t recognize when she’s
overwhelmed.” Id. The CASA also cited to problems “regarding inappropriate
caregivers” for Children. Id. Elaborating on the childcare issue, the CASA
stated that “moving toward the trial home visit, it took seven weeks for
8 Mother’s intake officer reported that Z.S. was three years old. DCS Ex. 1 at 2.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 19 of 30 [Mother] to establish childcare.” Id. at 505-06. With the childcare struggles
Mother “[fell] back into the pattern of calling family members at the last minute
and demanding that they provide the childcare for her.” Id. at 507. The CASA
also testified that the trial home visit fell apart because Mother “treated [S.G.]
very harshly”; “[S.G.] demonstrated very regressive behaviors”; S.G. was
struggling educationally, but Mother wasn’t appropriately acting on those
struggles; concerns arose because childcare “wasn’t holding up very strongly”;
Mother was not keeping up with Children’s therapy, and Mother was not
communicating with S.G.’s service provider. Id. 508-10.
[28] Mother’s brother (“Brother”) and Aunt also testified during the termination
hearings as to their concern regarding returning Children to Mother. Brother
testified that Mother was “entirely capable” of caring for Children, “but she’s
not shown me a willingness to do what she has to do to really be a good mom
like she could be.” Tr. at 182. Brother described Mother’s historical
shortcomings, where Mother would rely on Brother’s financial support and
leave Children with Grandmother and “just check out for a little while.” Id. at
182-84. Brother admitted that he had “not spent a significant amount of time”
at Mother’s home, but when he visited he found the conditions unacceptable—
“dirty and cluttered; dirty dishes;[and] dirty floor.” Id. at 185. Elaborating, he
said that “the kitchen was filthy and nasty and . . . and dirty dishes in the living
room and things like that.” Id. at 201. He further stated that Mother made too
many decisions that exposed Children to “things [and people] they should not
be exposed to,” and sometimes put her needs before Children’s. Id.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 20 of 30 [29] Aunt also testified regarding Mother’s historical shortcomings. Aunt cited to a
childcare problem, which occurred in Chicago, when the caregiver of Children
could not find Mother. Id. at 274. Aunt noted that Mother’s home was usually
“rather cluttered and dirty.” Id. at 250. “Cluttered with clothing and leftover
food containers, baby bottles and diapers that should’ve been either washed or
thrown away.” Id. Mother’s ex-boyfriend threatened Mother and had hit Z.S.
in Aunt’s presence. Aunt also stated that there were times when the family had
to deal with Children having lice. Id. at 246-50, 259.
[30] Case Manager Eads testified that, even though Mother had recently been
answering Eads’s texts and phone calls, Mother had not reached out to work
cooperatively with Eads on S.G.’s issues prior to the plan for termination.
When asked if she was convinced that Mother’s parental rights should be
terminated, Case Manager Eads stated that she could not answer the question
because she had not had enough “supervised visit time” with the family. Tr. at
86-87.
[31] Wabash Valley Case Manager Evans testified that she “was on the fence”
regarding whether Mother’s rights should be terminated. Tr. at 485. While
providing no specifics, Evans testified, “I have not observed [Mother] physically
do anything to harm the children, but I do have some concerns that I think need
to be addressed because it’s important for her address [sic] certain things with
them.” Id. When asked, Case Manager Evans stated that Mother had not
shown a willingness to address those issues. Id. Explaining, Evans said, “I
have voiced my opinion in regards to how she should handle some situations
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 21 of 30 and most of the time it’s an excuse on why she shouldn’t go the way that I’m
saying.” Id. Case Manager Evans also testified that Mother yells frequently.
Evans said she would give Mother a grade of 78% for her participation
throughout the case. Id. at 485-86. During the March 5, 2015 hearing, Evans
testified that Mother was hesitant to meet “because she really didn’t need my
attention.” Id. at 487.
[32] Dr. Vanderwater-Piercy’s psychological evaluation of Mother reported that
individuals with similar test results have: a tendency toward nonconforming
behavior; problems with authority; conflictual interpersonal relationships; and
problems with impulsiveness, sensation-seeking, and acting out when bored.
DCS Ex. 4, Vanderwater-Piercy Psychological Evaluation at 10. These individuals
also have inflated self-image and problematic behavior. Id. The juvenile court
noted that the existence of these traits were amply supported by the testimony
of Brother and Aunt. The juvenile court also believed that Mother’s
estrangement from her family, due in part to family’s disapproval of Mother’s
lifestyle, validated Dr. Vanderwater-Piercy’s findings that individuals with
similar response styles are likely to have a strong need for approval and
validation, may lack self-awareness and insight regarding personality flaws and
problematic behavior, and have an inflated self-image and sense of competence.
Id. These individuals perceive and present themselves as having few faults or
liabilities with respect to their functioning. Id.
[33] The juvenile court, in part, found that Mother’s history of domestic violence
began when she was a child; Mother was sexually abused by a family friend and
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 22 of 30 abused and neglected by her mother. Appellant’s App. at 39. Since the age of
seventeen, Mother had made bad decisions regarding her relationships with
men, some of whom had criminal records and all of whom were physically
abusive to Mother; R.B. was conceived through an act of rape. Id. Children
were placed outside the home because Mother had hit and injured Z.S.
Children remained in relative placement because of Mother’s unwillingness or
inability to find suitable childcare, refusal to take responsibility for her actions,
emotional instability, and unwillingness or inability to see what she has done
wrong, coupled with a lack of understanding as to the nature and requirements
of parenting. Id. at 40. Mother had made inappropriate childcare decisions,
including leaving eleven-year-old N.W. to care for three to five younger
children, and on another occasion, allowing children to be cared for by an
individual who did not have prior approval from DCS. Id. at 39, 40. Mother
did not plan ahead for childcare, which resulted in last minute emergencies and,
on one occasion, Mother asking Children to lie about who was watching them.
Id. at 40.
[34] The juvenile court also found that Mother did not fully understand the nature
and requirements of parenting “such as putting the needs of the children before
her own; whether it is financial, emotional support, time with the children, or
meeting physical and emotional needs.” Id. at 40-41. Mother is self-centered
and simply does not view this as a parenting deficit. The trial home visit did
not go well, as evidenced by S.G. being happy and well-adjusted once placed
with Grandmother, but when the trial home visit neared, S.G.’s behaviors
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 23 of 30 deteriorated, and she had difficulty in school. Id. at 42. Prior to the trial home
visit, DCS and the CASA reminded Mother about the importance of continuing
therapy for the Children, especially as S.G.’s behavioral issues were increasing.
Id. It was a difficult time for the school, and school officials reported that at
times they were unable to reach Mother. Id. Once the trial home visit ended,
many of S.G.’s negative behaviors decreased, and she was doing much better
overall until visits with Mother increased again, when S.G. began displaying
similar behaviors again. Id. The juvenile court also observed that, due to her
childhood, Mother has developed an inability to trust others. Id. Mother has
an unwillingness to cooperate, needs to be in control of her life and
circumstances, and is oppositional defiant to the detriment of Children. Id.
The personality construct as described by Dr. Vanderwater-Piercy renders
Mother incapable of confidently raising Children under circumstances where
Children would be safe and healthy. Id. at 42-43.9
[35] As Mother correctly notes on appeal, some of the juvenile court’s findings of
fact are historical in nature. The importance of these events is not whether they
happened in the past, but whether they provide any insight into future
conditions. Here, the juvenile court had the difficult task of determining
whether there was a probability that these historical conditions would not be
remedied. This case, from CHINS through termination of parental rights, took
9 The juvenile court did not include citations to the record in its findings of fact—an omission that somewhat hampered our review.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 24 of 30 place over a period of more than two years. A great deal of evidence, including
three volumes of exhibits and more than six hundred pages of testimony, was
presented to the juvenile court. Numerous witnesses testified. The evidence
before the juvenile court was that Mother had historical issues of being
overwhelmed while caring for Children, using excessive discipline on Children,
and exposing Children to individuals who were violent. In the opinion of Case
Manager Fristoe and the CASA, Mother returned to her old ways during the
trial home visit, and the behavior of S.G. and R.B. had regressed. Tr. at 315-17,
505-10. Case Manager Fristoe concluded that the conditions that resulted in
Children being removed from Mother would not be remedied. Id. at 313-14.
[36] The juvenile court heard the testimony and saw the demeanor of the witnesses.
From this vantage point, the juvenile court sifted through the evidence to
conclude, “[t]he parents have not demonstrated a willingness to make lasting
changes from past behaviors,” and “there is no reasonable probability the
parents will be able to provide adequately for children’s mental, emotional, or
basic needs.” Appellant’s App. at 43. Mother urges this court to consider that
she maintained housing and employment, among other factors. This is a
request that we reweigh the evidence and judge the credibility of witnesses,
which we will not do. In re E.M., 4 N.E.3d at 642. We cannot say that it was
error for the juvenile court to find that the conditions that resulted in the
termination of Mother’s parental rights will not be remedied.
[37] Mother next argues that there was insufficient evidence to prove that
termination was in the best interests of Children. In determining the best
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 25 of 30 interests of a child, the trial court must look beyond the factors identified by
DCS and consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236
(Ind. Ct. App. 2009). “In so doing, the trial court must subordinate the interests
of the parent to those of the child.” Id. Children have a paramount need for
permanency, which our Supreme Court has deemed a central consideration in
determining a child’s best interests. In re E.M., 4 N.E.3d at 647-48. Courts
need not wait until a child is harmed irreversibly before terminating the parent-
child relationship. Id. The testimony of service providers may support a
finding that termination is in the child’s best interests. In re A.K., 924 N.E.2d
212, 224 (Ind. Ct. App. 2010), trans. dismissed; see Stewart v. Ind. Dep’t of Child
Servs., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (we have repeatedly
recognized that testimony of family case manager and CASA, in addition to
evidence demonstrating reasonable probability that the conditions that resulted
in removal of child would not be remedied, is sufficient to show by clear and
convincing evidence that termination is in child’s best interests).
[38] During the home visit, Mother had been unable to accomplish all of the tasks
assigned to her by DCS and could not maintain the therapy appointments
required to address S.G.’s mental health issues. Children were close to their
maternal relatives. At the time of the termination hearings, N.W. and S.G. had
lived with Grandmother, and R.B. had lived with Aunt, for more than two
years. In addition to the testimony of Case Manager Fristoe and the CASA, the
juvenile court heard testimony that Mother and Children are clearly bonded
and want to live together. For many of the above-cited reasons, Case Manager
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 26 of 30 Fristoe and the CASA made clear their opinions that it was in Children’s best
interests to terminate Mother’s parental rights. Tr. at 318-19, 504. Brother
testified, “[I]t’s been proven over and over to me that it’s just what’s going to be
best for the girls is that [Mother’s] not in charge of their care anymore. And
maybe what’s best for her too.” Id. at 199. Brother also testified that there had
been times when Mother did what she needed to do to take care of Children
and herself, but “those stretches seem rare in retrospect,” especially over the
course of thirteen years. Id. at 200. It was the juvenile court’s duty to review
the record, assess the credibility of the witnesses, weigh the evidence, and
determine the best interests of Children. The juvenile court’s determination
that termination of Mother’s parental rights is in S.G.’s best interests is
supported by clear and convincing evidence and, therefore, is not clearly
erroneous.
II. Father [39] Father argues that the evidence was insufficient to support the termination of
his parental rights. S.G. testified that she loves Father and would like to see
him again. Tr. at 398. Father likewise testified that he loves S.G. a lot and has
a good relationship with her. Id. at 603. Father explained that he had not
attended most of the hearings because his driver’s license was suspended, and
his vehicles were not working properly. Id. While admitting to having a
pending misdemeanor charge, Father expressed the belief that it was going to be
dismissed. Id. at 601-02. Father urged the juvenile court not to terminate his
parental rights, saying, “I have nothing to do with what’s going on with this
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 27 of 30 situation with [Mother]. Me and [S.G.] have a really good relationship and I
don’t think I should get my parental rights deleted because of somebody else’s
problems.” Id. at 604.
[40] Case Manager Fristoe testified that Father has a history of substance abuse and
has a major criminal conviction. Father was ordered to participate in certain
services and have visitation with S.G. Although Father participated in an
assessment, Case Manager Fristoe testified that he “didn’t follow through with
anything.” Id. at 320. Additionally, Case Manager Fristoe testified that while
Father’s home was a ninety-minute drive away, he had not, to her knowledge,
made any effort to reach out and communicate with S.G. Id. at 320-21.
Mother testified that once the case started, Father’s contact with S.G. became
“practically non-existent.” Id. at 572.
[41] The majority of the juvenile court’s findings and conclusions focused on
whether Mother’s parental rights should be terminated. The juvenile court,
however, made the following findings and conclusions regarding Father.
Father’s relationship with Mother lasted one year, and Father was physically
abusive towards Mother; Mother left Father after he hit her while she was
pregnant with S.G. Appellant’s App. at 39. Father has been in S.G.’s life
sporadically, but he has only seen her twice since he was released from prison
after serving time for a cocaine conviction. Father lives about ninety minutes
from S.G. and has not played a significant role in her life. Id. at 43.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 28 of 30 [42] While S.G. was not removed from Father’s care, to maintain his parental
rights, DCS required Father to complete certain services. While Father
completed an assessment, he did not complete any of the other services.
Equally important, Father did not increase his contact with S.G. Father has
shown little interest in taking responsibility for S.G.’s care. The juvenile court’s
determination that termination of Father’s parental rights is in S.G.’s best
interests is supported by clear and convincing evidence and therefore is not
clearly erroneous.
Conclusion [43] “Decisions to terminate parental rights are among the most difficult our trial
courts are called upon to make.” In re E.M., 4 N.E.3d at 640. “They are also
among the most fact-sensitive—so we review them with great deference to the
trial courts, recognizing their superior vantage point for weighing the evidence
and assessing witness credibility.” Id. Over the four-day hearing, the juvenile
court was presented with conflicting evidence through the testimony of
numerous witnesses and three volumes of exhibits. “Because a case that seems
close on a ‘dry record’ may have been much more clear-cut in person, we must
be careful not to substitute our judgment for the trial court when reviewing the
sufficiency of the evidence.” Id.
[44] We 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 716, 722 (Ind. Ct. App. 1997)
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 29 of 30 (quoting In re Egly, 592 N.E.2d at 1235). Based on the record before us, we
cannot say that the juvenile court’s termination of Mother’s or Father’s parental
rights to Children was clearly erroneous. We affirm the juvenile court’s
judgment.
[45] Affirmed.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A04-1506-JT-736 | May 20, 2016 Page 30 of 30