In the Matter of the Termiation of Parent-Child Relationship of Mi.S. & M.W. (Minor Children), M.S. v. The Indiana Department of Child Services

• Court: Indiana Court of Appeals
• Decided: January 31, 2014
• Docket: 49A05-1306-JT-282
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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:

JILL M. ACKLIN GREGORY F. ZOELLER Acklin Law Office, LLC Attorney General of Indiana Westfield, Indiana Indianapolis, Indiana

ROBERT J. HENKE Deputy Attorney General Indianapolis, Indiana

CHRISTINE REDELMAN Deputy Attorney General Indianapolis, Indiana

JAN 31 2014 at 9:17 am IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION ) OF PARENT-CHILD RELATIONSHIP OF ) Mi.S. & M.W. (Minor Children), ) ) and ) ) M.S. (Mother) ) ) Appellant, ) No. 49A05-1306-JT-282 ) vs. ) ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee. )

APPEAL FROM THE SUPERIOR COURT OF MARION COUNTY The Honorable Marilyn Moores, Judge The Honorable Larry J. Bradley, Magistrate Cause No. 49D09-1209-JT-34593 Cause No. 49D09-1209-JT-34594 January 31, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

M.S.’s (“Mother’s”) parental rights to two of her six children were terminated by

the Marion Superior Court. Mother appeals and argues that the evidence was insufficient

to support the trial court’s termination of her parental rights.

We affirm.

Facts and Procedural History

Mother has six children, but only two children are subject to the termination

proceeding at issue. M.S. was born on May 10, 2003, and M.W. was born on July 17,

2006. M.S.’s father’s whereabouts are unknown, and he has not established paternity to

her. M.W.’s father is deceased.

On November 24, 2009, a petition was filed alleging that the children were in need

of services (“CHINS”) due to educational neglect. The petition also alleged that Mother

had recently given birth to her sixth child, N.S., who tested positive for marijuana at birth.

Mother’s fifth child, N.P., also testified positive for an illegal substance at birth, and

Mother successfully participated in an Informal Adjustment with the Department of Child

Services (“DCS”), which case closed prior to N.S.’s birth.

On December 9, 2009, Mother admitted the allegations in the CHINS petition, and

all six children were removed from Mother’s care. The trial court ordered Mother to

participate in certain services including home based case management and therapy,

substance abuse treatment, visitation, and random urine screens. 2 In May 2011, Mother had leased a home, had a car, and was employed. She was

participating in services and had unsupervised visitation with the children. But shortly

thereafter, she lost her job, and her house no longer had electricity or water service. Also,

during a visitation, N.P. injured her foot, and Mother did not seek medical care. Mother

also did not seek medical care for her four youngest children who had scabies. Finally,

service providers were concerned that Mother’s boyfriend was abusive, and he was often

present during visitation.

For all of these reasons, in October 2011, Mother’s oldest child and M.S., who had

been placed in Mother’s home on temporary trial visitation, were ordered detained out of

her home. Mother then became inconsistent with scheduled visitation. Her visitation

with all six children was suspended in June 2012 after she missed ten of twelve visits.

Visitation was reinstated in August 2012, but was again suspended on December 15,

2012, after she missed two more visits, and the DCS filed the petition to terminate her

parental rights.

Throughout the CHINS and termination proceedings, Mother completed the

substance abuse treatment and completed random urine screens. She never tested

positive for illegal substances, but she also did not complete all requested urine screens.

Mother attempted to find stable housing and employment; however, her attempts were

unsuccessful. On the date of the termination hearing, Mother was living with a friend

and “that housing [was] not appropriate for the children.” Appellant’s App. p. 39.

Mother’s progress in home-based therapy “was characterized as being up and down due

3 to inconsistent participation, and having on and off employment, housing and

transportation.” Id.

The service providers in this case were also concerned about Mother’s abusive

relationship with W.P., the father of her three youngest children who are not a part of this

termination case. W.P. was charged with domestic battery and battery in 2012. However,

the charges against W.P. were dismissed after Mother recanted her statement. Mother

refused to admit to DCS services providers and to the court that she was a victim of

domestic violence until the last day of the termination hearing. On that date, she finally

admitted that W.P. had been abusing her over a two-year period.

After an initial placement in therapeutic foster care, M.S. and M.W. are now

placed with relatives, who plan to adopt them, and they have bonded with their caregiver.

The children have “special needs resulting from trauma affected behavior and receive

therapy and mentoring. The caregivers are meeting these needs.” Id. at 40. Mother does

not agree that her children need therapy. And she “failed to respond when [Ma.S.’s]1

behavior therapist reached out to her to join in with the therapy that was in place for well

over a year.” Id.

The guardian ad litems (“GALs”) did not agree with the DCS’s plan for adoption.

The trial court disagreed with the GALs and found that “unstable housing and income, a

long denial of domestic violence, and whether [Mother] would meet the children’s basic

and special needs raise serious safety concerns.” Id. at 41. Therefore, the trial court

1 Ma.S., Mother’s oldest child, is also not a part of this proceeding. 4 determined that termination of Mother’s parental rights was in M.W. and M.S.’s best

interests and concluded:

34. There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by their mother. [Mother] appears to have remedied the original reason the CHINS was filed, that being illegal substance use. Conditions that resulted in having the children removed a second time and conditions that have kept the children from being reunified are stability in housing and income issues, domestic violence issues, and appropriate parenting, existed at the time of the August 22, 2012 Permanency Hearing, and currently exist. It has been three and one-half years. *** 36. Continuation of the parent-child relationship poses a threat to the children’s well-being. [Mother] is not at a place, after three and one-half years of services, to offer the children stability and permanency or be able to safely meet their needs, . . . Termination would provide the children with the opportunity to obtain a permanent home through adoptions and where their special needs will continue to be met. The children have been outside their mother’s home for a long time and have struggled with the stressful ups and downs. *** 41. Termination of the parent-child relationship is in the best interests of the children. It would be best if the children could be raised by their mother, but after three and one-half years, the children need to be able to get on with their lives by being adopted into a safe, stable and permanent home.

Id. at 40-41. Mother now appeals the trial court’s order terminating her parental rights to

M.S. and M.W.

Standard of Review

When we review a termination of parental rights, we will not reweigh the evidence

or judge the credibility of the witnesses. In re P.P., 804 N.E.2d 258, 265 (Ind. Ct. App.

2004), trans. denied. Instead, we consider only the evidence and reasonable inferences

that are most favorable to the judgment. Id. Moreover, in deference to the trial court’s

5 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.

Here, in terminating Mother’s parental rights, the trial court entered specific

factual findings and conclusions. When a trial court’s judgment contains specific

findings of fact and conclusions thereon, we apply a two-tiered standard of review.

Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).

First, we determine whether the evidence supports the findings, and second, we

determine whether the findings support the judgment. Id. “Findings are clearly

erroneous only when the record contains no facts to support them either directly or by

inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and

inferences support the trial court’s decision, we must affirm. L.S., 717 N.E.2d at 208.

Discussion and Decision

“The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,

666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must

subordinate the interests of the parents to those of the child when evaluating the

circumstances surrounding a termination. In the Matter of Termination of the Parent

Child Relationship of K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a

parent-child relationship is proper where a child’s emotional and physical development is

threatened. Id. Although the right to raise one’s own child should not be terminated

solely because there is a better home available for the child, parental rights may be

6 terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id. at 836.

Before parental rights may be involuntarily terminated in Indiana, 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. (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)(B)-(D). The State’s burden of proof for establishing these

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 (2008)). Clear

and convincing evidence need not reveal that the continued custody of the parents is

wholly inadequate for the child’s very survival. Bester, 839 N.E.2d at 148. Rather, it is

sufficient to show by clear and convincing evidence that the child’s emotional

development and physical development are put at risk by the parent’s custody. Id.

Finally, “if the court finds that the allegations in a petition described in section 4 of this

chapter are true, the court shall terminate the parent-child relationship.” Ind. Code § 31-

35-2-8(a).

I. Threat to the Well-Being of the Children

7 Indiana Code § 31-35-2-4(b)(2)(B) requires the State to establish, by clear and

convincing evidence, only one of the three requirements of subsection (b)(2)(B).

Because we find it to be dispositive, we limit our review to Mother’s allegations of error

pertaining to subsection (b)(2)(B)(ii) of Indiana’s termination statute, namely, whether

DCS proved by clear and convincing evidence that there is a reasonable probability that

continuation of the parent-child relationship poses a threat to the well-being of the

children.

In determining whether the continuation of the parent-child relationship poses a

threat to a child’s well-being, the trial court need not wait until the child is irreversibly

influenced by a deficient lifestyle before terminating the relationship. In re E.S., 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002). Instead, “[w]hen the evidence shows that the

emotional and physical development of a child in need of services is threatened,

termination of the parent-child relationship is appropriate.” Id. A parent’s habitual

pattern of conduct is relevant 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). “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.” McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003).

Despite over three years of services, Mother has not been able to establish stable

housing for herself and her children. Mother certainly made a sincere effort to obtain

stable housing earlier in the proceedings, and had made enough progress for DCS to

8 place her two oldest children with her, including M.S. However, in October 2011, the

children were returned to foster care after caseworkers discovered that Mother’s home

had no electricity or water. And during the termination hearings, which occurred in

February, March and May of 2013, Mother resided with a cousin and later with a friend.

Neither of those residences was appropriate for the children. Mother has also been

unable to maintain stable employment.

Throughout these proceedings, Mother also habitually failed to participate in or

seek health care for her children when needed. When M.S.’s and M.W.’s younger sibling

injured her foot while in Mother’s care, Mother failed to seek medical treatment for the

child. In October 2011, Mother’s four youngest children had scabies. Mother does not

agree that her children need therapy, including sexual abuse therapy for M.W. and mental

health therapy for M.S. Mother also refused to participate in her oldest child’s therapy

when his behavior therapist asked Mother to do so.2 Mother has stated that the children

will not participate in therapy if they are returned to her care. Also, DCS had to get a

court order to provide medication for the children because Mother refused to do so

despite doctor’s orders. See Tr. p. 200.

Mother also maintained an abusive relationship with W.P., who is the father of

Mother’s three youngest children. The service providers believed W.P. was abusing

Mother because of bruising to her face and a broken finger. Mother’s sister told DCS

2 Mother’s objects to our court’s consideration of the trial court’s findings discussing her oldest son’s therapy because the oldest son is not a part of this proceeding. However, the trial court’s findings addressing Mothers lack of participation in her oldest son’s therapy and her opposition to giving him prescribed medication are relevant to our consideration of her habitual patterns of conduct and whether Mother can safely parent her children. 9 that their family was concerned that there was domestic violence between W.P. and

Mother. W.P. was charged with battery and domestic battery in December 2012, but the

charges were dismissed when Mother recanted her statement. Mother continued to deny

any domestic violence between herself and W.P. to the caseworkers and to the court

throughout the proceedings, until the final termination hearing in May 2013. Also, M.W.

acted out sexually on his foster sibling and disclosed to caseworkers that W.P. had taught

him the “nasty game.” Tr. p. 242. The DCS caseworkers were also concerned that W.P.

was living in Mother’s household despite a court order that he not have contact with the

children. Mother testified that she ended the relationship with W.P. in December 2012.

Mother was referred to home-based counseling services five times because

services were unsuccessfully closed, or she failed to benefit from the services. Mother’s

participation in services was inconsistent, and on more than one occasion, Mother’s

home-based counselor did not have any contact with Mother. Home-based counselor

Jennifer Lopez Hunt was concerned that Mother was unable to provide for the children’s

basic needs. Tr. p. 359. Mother’s family case managers also had difficulty contacting

Mother because she lacked a working phone, or the phone numbers provided were

incorrect. Mother would engage in services for some period of time but at other times

was difficult to work with.

Mother also failed to show up for several visits with the children or would call to

cancel shortly before the visit was to take place. Mother’s inconsistent visitation was

“very damaging to the kids.” Tr. p. 202. The missed visits caused the older children,

including M.S. and M.W., to act out, and they physically damaged the foster parents’

10 home, including tearing doors off hinges and putting holes in the walls. Mother’s last

visitation with the children occurred in November 2012. Her visits were suspended for a

second time shortly thereafter because she missed two additional visitations with the

Mother has habitually failed to provide stability for the children and has neglected

their basic needs. Mother has not demonstrated that she has benefited from over three

years of services. Importantly, in the months leading up to the termination hearings,

Mother continually caused emotional harm to the children by missing many scheduled

visitations. This evidence supports the trial court’s conclusion that continuation of the

parent-child relationship poses a threat to the well-being of M.S. and M.W.

II. Best Interests

Mother also challenges the trial court’s conclusion that termination of her parental

rights is in M.S. and M.W.’s best interests. A determination of what is in the best

interests of a child should be based on the totality of the circumstances. See Lang v.

Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007),

trans. denied. A parent’s historical inability to provide a suitable environment, along

with the parent’s current inability to do the same, supports a finding that termination of

parental rights is in the child’s best interests. Id. A trial court need not wait until a child

is irreversibly harmed such that his or her physical, mental, and social development are

permanently impaired before terminating the parent-child relationship. In re A.D.W., 907

N.E.2d 533, 540 (Ind. Ct. App. 2008). Permanency is a central consideration in

determining the best interests of a child. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).

11 In support of her arguments, Mother relies almost exclusively on the GALs’

testimony that the children would benefit from continued contact with Mother because

they are bonded with her. Although the GALs believed that Mother should be given

more time to complete services because they felt that she is capable of parenting the

children, the DCS case workers disagreed. Mother’s emphasis on the GALs’ testimony is

simply a request to reweigh the evidence, which our court will not do.

Case manager Farr testified that termination of Mother’s parental rights was in

M.S. and M.W.’s best interests, and observed that the children, who are finally

progressing in therapy, are currently in a stable, permanent placement with their maternal

great uncle. Tr. pp. 286-87. Mother has continually neglected the physical and mental

health of the children, and their safety. In over three years, Mother has not been able to

provide a permanent and stable home for the children, and is also currently unable to do

so. The children have ongoing mental health needs, and from the evidence in the record,

the trial court could reasonably conclude that Mother will not tend to those needs if M.S.

and M.W. are returned to her care. For all of these reasons, we conclude that the DCS

presented clear and convincing evidence that termination of Mother’s parental rights is in

the children’s best interests.

Conclusion

We will reverse a termination of parental rights only upon a showing of clear error,

that is, that which leave us with a definite and firm conviction that a mistake has ben

made. See In re L.B., 889 N.E. 326, 342 (Ind. Ct. App. 2008). We find no such error in

12 this case. Accordingly, we affirm the trial court’s judgment terminating Mother’s

parental rights to M.S. and M.W.

Affirmed.

BRADFORD, J., and PYLE, J., concur.