MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 29 2016, 9:16 am
regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher L. Clerc Gregory F. Zoeller Columbus, Indiana Attorney General of Indiana
Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 29, 2016 of the Parent-Child Relationship Court of Appeals Case No. of: I.H., A.H., E.H., and F.H., 03A01-1507-JT-953 Minor Children, Appeal from the Bartholomew Circuit Court and The Honorable Stephen R. J.H., Mother, Heimann, Judge
Appellant-Respondent, The Honorable Heather M. Mollo, Magistrate v. Trial Court Cause Nos. 03C01-1406-JT-2493 The Indiana Department of 03C01-1406-JT-2494 Child Services, 03C01-1406-JT-2495 03C01-1406-JT-2496 Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 1 of 17 Brown, Judge.
[1] J.H. (“Mother”) appeals the involuntary termination of her parental rights with
respect to her daughters, I.H., A.H., E.H., and F.H. (the “Children”). Mother
raises one issue, which we revise and restate as whether the evidence is
sufficient to support the termination of her parental rights. We affirm.
Facts and Procedural History
[2] Mother had four children, I.H., born on October 11, 2000, A.H., born on April
20, 2002, E.H., born on December 30, 2003, and F.H., born on October 26,
2006. In February 2009, the Department of Child Services (“DCS”) received
reports regarding the condition of the home, that Mother was using illegal
drugs, the Children had recurring head lice, and that F.H. had been left
unattended and was nearly struck by a car. DCS learned that Mother’s
grandmother and mother actually had guardianship of the Children at that
time. Mother acknowledged to DCS that she was unemployed, did not have
stable housing, and had some issues with substance abuse, and that these
factors led to the guardianship. DCS closed the assessment because it was
determined that the Children had appropriate caregivers under the
guardianship.
[3] In March 2012, DCS received a report alleging poor living conditions in
Mother’s home, trash throughout the home, feces and vomit in the bathrooms,
and clothing, other items, and empty beer cases scattered throughout the home.
The case was assigned to family case manager Mike Gamroth (“FCM
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 2 of 17 Gamroth”), and, on March 19, 2012, he knocked on the door of Mother’s
residence, and a child said that Mother was in the shower. FCM Gamroth
returned within twenty minutes, knocked, and contacted law enforcement when
no one answered.
[4] Law enforcement and Cathy Franke, the family case manager supervisor,
responded to the scene, and Mother answered the door and stated that she had
been in the shower. Mother allowed them into the home which was very dirty
and had old alcohol bottles, empty beer cases, cleaning chemicals within reach
of the children, a stained and sticky carpet, a kitchen cluttered with dirty dishes
and pans, and an extremely dirty refrigerator with very little edible food. There
was dried vomit around the toilet and used feminine products located in the
hallway, and the beds were “covered in items.” Transcript at 54. Mother
submitted to a drug screen which tested positive for methamphetamine.
[5] On March 20, 2012, DCS filed verified petitions alleging that the Children were
in need of services (“CHINS”) due to unsafe and unsanitary conditions in the
home. The Children were removed due to the conditions of the home and
Mother’s use of methamphetamine. During the removal of the Children, James
Bennett, a person with a drug history, was arrested in front of the Children.
Bennett was much younger than Mother and would sometimes be left alone
with the Children as a caregiver.
[6] At some point, Home Builders, an intensive family preservation service, helped
clean up the home, talked about parenting, and discussed how Mother could
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 3 of 17 best move forward. On April 28, 2012, the Children were returned to Mother
for a trial home visit.
[7] On May 11, 2012, the court held a fact-finding hearing on the CHINS petition
and entered an order finding that Mother admitted that the Children were
CHINS and finding that Mother was unable or unwilling to maintain a safe
environment for the Children. A dispositional hearing was held on June 14,
2012.
[8] On June 26, 2012, Ann Moore, a home-based case worker, met with Mother.
That day, Mother had moved into “grandma’s home,” but they had lost that
home “just immediately” because grandmother died. Id. at 58. Mother told
Moore that they were going to camp in the woods for a couple weeks until she
could “figure things out.” Id. at 59. During the visit, A.H. had stepped on a
piece of glass and had “a little pseudo band-aid tied around it.” Id. at 58. A.H.
was waiting for someone to come and take her to the emergency room, but no
one came for almost an hour, so Moore took her to the emergency room where
she received stitches. The next day, Mother tested positive for
methamphetamine, the trial home visit was terminated, and the Children were
removed from Mother’s care due to ongoing concerns of housing and a lack of
medical attention.
[9] On July 2, 2012, the court entered a dispositional order which ordered Mother
to contact the family case manager every week to allow them to monitor
compliance, complete the 12 Step Facilitation program through Centerstone,
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 4 of 17 complete a psychological evaluation and successfully complete any and all
recommendations, attend and participate in NA/AA meetings, continue to
meet with a recovery coach, successfully complete home-based case
management and/or therapy, and successfully complete an intensive family
preservation program.
[10] At some point, Mother was diagnosed with a major and recurrent depressive
disorder. In November 2012, she completed the twelve-step facilitation and
aftercare through Centerstone as recommended by her substance abuse
evaluation, but subsequently missed appointments with her recovery coach.
[11] In January 2013, Mother tested positive for methamphetamine and underwent
a medication evaluation. It was recommended that she take medication, and
she sometimes complied.
[12] In April and May 2013, Mother again tested positive for methamphetamine and
missed a couple of psychiatric medication appointments. In June 2013,
inpatient treatment was recommended.
[13] In July 2013, Mother went to Harbor Lights and was released with
recommendations to follow up with Centerstone, undergo another assessment,
and follow those recommendations. The next month she began “Living in
Balance,” but by September 2013 it was reported that she was behind in her
meetings. Id. at 146. She graduated from “Living in Balance” on October 30,
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 5 of 17 2013, but it was noted that she had three missed appointments during the
month of October. Id.
[14] In January 2014, the plan was for Mother to seek individual counseling and
medication management services through Centerstone on her own, and it
“would have been a fairly easy transition for her” because she was still working
with Centerstone. Id. at 118. On February 4, 2014, Beth Grunewalt was
assigned as Mother’s individual therapist, but reported no contact after
Gruenwalt made multiple attempts. On February 20, 2014, Mother was
reassigned to Ashley Pulskamp, another therapist employed at Centerstone.
The next month she began individual therapy with Pulskamp, but following the
March 21st session Pulskamp did not see or hear from Mother for two months,
and Mother failed to show for two drug screens.1 On May 21, 2014, Pulskamp
reviewed the zero tolerance agreement with Mother which detailed that she
could not miss three more appointments without a doctor’s statement and that
she could not fail drug screens, and she signed the agreement. Mother kept her
next two appointments, including one on June 12, 2014, at which she said that
she was barely able to make it to work that day and that she was thinking about
using. Meanwhile, after May 16, 2014, medication management could no
longer contact Mother because she “never followed up.” Id. at 120.
1 When asked whether Mother had any positive drug screens during 2014, Elizabeth Curtis, a family case manager, testified that she had “what we would consider positive no shows,” one of which occurred in March and another in April. Transcript at 113.
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 6 of 17 [15] On June 6, 2014, DCS filed a verified petition for the involuntary termination
of Mother’s parental rights to the Children2 and a hearing was held on
November 18, 2014. Moore, the home-based case worker, described the
supervised visitation as “[u]sually very chaotic” with “[e]verybody talking at
once.” Id. at 59. When asked if she noticed any changes over the course of the
last two and one-half years, Moore stated: “Overall we are pretty much at the
same place.” Id. at 60. Moore testified that she tried to give Mother some
direction on how to improve visits with the Children, which were chaotic, but
Mother did not implement the direction on a consistent basis.
[16] When asked to explain her concerns with Mother’s housing stability, Moore
stated that Mother had been evicted from her initial residence, lost her
grandmother’s home to an eviction, stayed with some friends for a couple of
weeks, moved back to grandmother’s home until the foreclosure in April 2013,
then slept on her friend’s couch in April and May, moved to a home in
Columbus until the fall of 2013 when she moved into a home on Stanley Drive,
but lost that home in December 2013 because her dog did substantial damage to
the home and she was asked to leave, moved into a rental home in Columbus
and stayed there until July 2014, and then moved to a mobile home park with a
friend in Elizabethtown. Moore also testified that Mother had lost multiple
jobs.
2 DCS also requested the termination of the parental rights of the Children’s father. The father signed consent forms regarding the termination.
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 7 of 17 [17] When asked her opinion as to Mother’s ability to provide and care for the
Children long term, she answered: “Well, with the lack of employment stability
and the lack of housing stability, I would say long term prognosis would not be
good.” Id. Moore testified that the Children love Mother but are tired and
“they just need this chapter to close so that they can move on.” Id. at 68-69.
She testified that Mother “really tried hard” but “was just unable to show the
ability to provide stability.” Id. at 69.
[18] Pulskamp, Mother’s therapist, testified regarding Mother’s missed
appointments and that she had no contact with Mother since June 12, 2014,
stating “[s]he was scheduled to follow up with me on June 16th, 2014 for her
next appointment, and no call no showed.” Id. at 81.
[19] The court appointed special advocate, Kelly Harden (“CASA Harden”),
testified that she had concerns with Mother’s inconsistent housing, financial
instability, lack of transportation, and inability to obtain utilities such as heat.
She expressed concern for the Children’s need for permanency. She testified
that she did not believe that Mother was able to provide the Children with a
safe, drug free, stable home and that she did not foresee Mother being able to
obtain that in the near future. When asked what she believed was in the best
interest of the Children, she stated “at this time for permanency for the
[C]hildren, it would be for them to move forward with the adoption and to
terminate rights.” Id. at 94.
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 8 of 17 [20] A family case manager, Elizabeth Curtis (“FCM Curtis”), testified that during
the life of the case, Mother has had “[f]ive homes with two, at least two periods
of unknown whereabouts and at one point staying with, several instances of
staying with friends while looking for a home.” Id. at 142. She did not
consider Mother to have successfully completed counseling, and testified that
Mother was compliant with home-based case management but goals were not
met, issues were not resolved, and she did not develop new coping skills. She
testified that Mother can maintain sobriety but that “it’s concerning that we are
seeing a relapse, a pattern of relapses.” Id. at 130. She testified that Mother
was not compliant with meeting either her or the Children’s medical and
mental health needs, and that she was concerned with “[h]ousing, employment,
organization, budgeting, transportation[,] [p]arenting, decision making.” Id. at
122.
[21] When asked whether she had the opportunity to view Mother’s current address
in Elizabethtown, FCM Curtis answered:
I have not. I have been out there two times and have not been successful in making contact with anyone living in the home. It’s reported that [Mother] is staying with either roommates or friends and I’m not aware of who those people are.
Id.
[22] Mother testified that she lived in a trailer with Bennett’s mother, father and
grandmother, but they were moving out of the trailer, and her mother was
moving in with her. She testified that Bennett “kinda floats between, back and
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 9 of 17 forth.” Id. at 166. She stated that FCM Curtis did not leave her business card
at her most recent residence or tried to call, that she worked forty hours a week
at Wal-Mart and part-time at another employer, that she attends NA meetings,
has a sponsor, has been clean since she had been at Harbor Lights, and that a
lot of her problems were due to her financial situation. On cross-examination,
she testified that she still associates with Bennett because he went “through all
this with me and he is one of the people that sit down and encourage me, and
talk to me and tell me to keep my head up, and tell me that I’m, to keep on
trying, and not to give up.” Id. at 176-177.
[23] On May 8, 2015, the court entered an order terminating Mother’s parental
rights, making detailed findings of fact, and concluding that there is a
reasonable probability that the conditions which resulted in the Children’s
removal and continued placement outside the home will not be remedied, that
continuation of the parent-child relationship poses a threat to the Children’s
well-being, that termination of Mother’s parental rights was in the Children’s
best interests, and that adoption is a satisfactory plan for the Children.
Discussion
[24] The issue is whether the evidence is sufficient to support the termination of
Mother’s parental rights. In order to terminate a parent-child relationship, DCS
is required to allege and prove, among other things:
(A) that one (1) of the following is true:
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 10 of 17 (i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 11 of 17 (D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[25] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. “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.
[26] “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. “[W]e do not independently determine
whether that heightened standard is met, as we would under the ‘constitutional Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 12 of 17 harmless error standard,’ which requires the reviewing court itself to ‘be
sufficiently confident to declare the error harmless beyond a reasonable doubt.’”
Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967), reh’g denied). “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.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A)). “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. at 640.
[27] We note that the involuntary termination statute is written in the disjunctive
and requires proof of only one of the circumstances listed in Ind. Code § 31-35-
2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we
limit our review to whether DCS established that there was a reasonable
probability that the conditions resulting in the removal or reasons for placement
of the Children outside the home will not be remedied. See Ind. Code § 31-35-2-
4(b)(2)(B)(i).
[28] In determining whether the conditions that resulted in the Children’s removal
will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at
642-643. First, we identify the conditions that led to removal; and second, we
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. In the second step, the trial court must judge a
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 13 of 17 parent’s fitness as of the time of the termination proceeding, taking into
consideration evidence of changed conditions and balancing a parent’s recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. 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. Id.
Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that parents’ past behavior is the best predictor of
their future behavior. Id.
[29] A court may properly 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. In re N.Q., 996 N.E.2d 385, 392 (Ind.
Ct. App. 2013). A trial court can reasonably consider the services offered by
DCS to the parent and the parent’s response to those services. Id. Further,
where there are only temporary improvements and the pattern of conduct
shows no overall progress, the court might reasonably find that under the
circumstances, the problematic situation will not improve. Id. 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 Z.C., 13 N.E.3d 464, 469
(Ind. Ct. App. 2014), trans. denied.
[30] Mother argues that DCS did not present clear and convincing evidence that
there is a reasonable probability that the conditions which resulted in the
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 14 of 17 Children’s removal or the reasons for placement outside the home would not be
remedied. She asserts that she had adequate housing, employment, and was
sober at the time of the termination hearing.
[31] DCS argues that Mother does not challenge any of the court’s findings and that
the findings support the termination order. DCS points out that Mother does
not challenge the court’s conclusion that termination was in the Children’s best
interests or that DCS had a satisfactory plan for the Children.
[32] The trial court’s order addressed the arguments Mother now raises on appeal
regarding her housing, employment, and sobriety. Specifically, the court found:
17. There have been no positive drug screens since Mother’s release from Harbor Lights in July 2013. The DCS family case manager has had difficulty contacting Mother for purposes of administering drug screens. She has gone to Mother’s home and has sent texts in an attempt to drug screen, with no response. The last screen that was administered was June 2014.
*****
22. Mother has lived in nine different locations since June 2012. No home has been appropriate for the Children to live in. She has been evicted from one home and asked to vacate another after leaving a dog unattended in the home while she stayed with the family of a boyfriend. At one point she was sleeping on a friend’s couch. One of the homes had no running water. Another home had the electricity disconnected due to lack of payment. At time of trial, Mother testified that [] she has secured a three bedroom trailer. There currently are other occupants in the trailer that Mother reports will be moving out. These occupants are the family to James Bennett, an individual Mother
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 15 of 17 has been cautioned about. She is still involved with Mr. Bennett romantically. The family members of Mr. Bennett will be moving into a trailer in close proximity to Mother and she plans to rely on the family to help with transportation and the care of the Children. These plans strongly indicate that Mr. Bennett will continue to have a presence in the lives of the Children.
24. Mother’s lack of stability with employment also has contributed to an ongoing state of crisis. She has held seventeen jobs since June 2012, some lasting only one day. At time of trial, Mother was employed at Wal-Mart and Clarion.
Appellant’s Appendix at 48-49. The court also found that Mother’s attendance
in recovery work and individual therapy has been “sporadic to non-existent.”
Id. at 47. The court also found:
40. Even if Mother has now demonstrated a sufficient period of time with sobriety, she is still not in a position for the Children to be immediately returned to her care. Daily living stability, improved mental health functioning and the ability to parent four Children would require additional services and monitoring. The Children’s urgent needs for permanency do not support giving Mother this additional time.
Id. at 51.
[33] The record reveals that the Children were removed from Mother in March 2012
due to the unsafe and unsanitary conditions in the home and Mother’s use of
methamphetamine. While Mother made some progress at certain times, she
tested positive for methamphetamine multiple times after the removal of the Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 16 of 17 Children, failed to show for drug screens in March and April 2014, did not
comply with the recommendations following her release from Harbor Lights,
did not keep appointments with her therapists, did not follow up with
medication management, did not develop new coping skills, and switched jobs
and moved multiple times. Mother failed to demonstrate during visits that she
could successfully deal with the Children. FCM Curtis testified that the
conditions which resulted in the removal of the Children had not been
remedied. CASA Harden testified that she did not believe that Mother was able
to provide the Children with a safe, drug free, stable home, and that she did not
foresee Mother being able to obtain that in the near future.
[34] Based upon the court’s findings and the record, we conclude that clear and
convincing evidence supports the trial court’s determination that there was a
reasonable probability that the conditions leading to the Children’s removal
would not be remedied. As pointed out by DCS, Mother does not challenge the
trial court’s finding that termination was in the Children’s best interests.
Conclusion
[35] We conclude that the trial court’s judgment terminating Mother’s parental
rights is supported by clear and convincing evidence. We find no error and
affirm.
[36] Affirmed.
Kirsch, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 03A01-1507-JT-953 | January 29, 2016 Page 17 of 17