MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 04 2015, 8:52 am 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 ATTORNEY FOR APPELLEE Kara Hancuff Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Bloomington, Indiana Robert J. Henke Abigail R. Miller Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 4, 2015 of the Parent-Child Relationship Court of Appeals Case No. of: H.A., B.A., and J.A. (Minor 53A01-1408-JT-338 Children) Appeal from the Monroe Circuit and Court The Honorable Stephen R. Galvin, H.A. (Mother) Judge Appellant-Respondent, Cause Nos. 53C07-1403-JT-110 53C07-1403-JT-111 53C07-1403-JT-112 v.
The Indiana Department of Child Services, Appellee-Petitioner
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 1 of 9 Case Summary [1] H.A. (“Mother”) appeals the trial court’s order granting the Department of
Child Services’s (“DCS”) petition seeking termination of Mother’s parental
rights as to H.A., B.A., and J.A. (“Children”). Mother contends that there was
insufficient evidence to support the decision to terminate her parental rights.
[2] We affirm.
Facts and Procedural History [3] Mother gave birth to H.A. in 2005, B.A. in 2006, and J.A. in 2007. On
December 6, 2010, the Children were adjudicated as Children in Need of
Services (“CHINS”) after an incident in which Mother was found unresponsive
as a result of alcohol consumption, and required resuscitation and emergency
medical assistance (“first CHINS case”). The first CHINS case was closed in
2011.
[4] In October 2012, Mother’s then-boyfriend, Cordell “Memphis” Hairston
(“Hairston”), beat H.A., leaving marks. H.A.’s injuries were discovered and
reported to the Monroe County Department of Child Services. On January 11,
2013, all three children were subsequently adjudicated as CHINS. In its finding
that the Children were CHINS, the trial court found based upon Mother’s
admissions that Hairson had battered both H.A. and B.A. in the past.
[5] DCS commenced providing services, and the Children remained in the home.
DCS attempted to provide services to Mother, the Children, and Hairston. Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 2 of 9 Though Hairston initially expressed willingness to participate in services, he
ultimately did not avail himself of DCS-provided services.
[6] In 2013, after Hairston refused to participate in DCS-provided services, the
Children were removed from the home, and would not be returned to Mother’s
care except during supervised visitation. Mother developed a safety plan with
assistance from service providers. Because Hairston had refused to participate
in DCS-provided services after having beaten H.A., the safety plan required that
Mother and the Children have no contact with Hairston.
[7] In November 2013, H.A. revealed that she had been molested by Jerry Owens
(“Owens”), an acquaintance of Mother and the Children’s maternal
grandmother. During ongoing team meetings in the CHINS action. The safety
plan was updated to require no contact with Owens, and the plan left in-place
the requirement that Mother have no contact with Hairston.
[8] During the course of the CHINS proceedings, mother alternately denied and
admitted having ongoing contact with Hairston, and Bloomington Police
Department officers were called to respond to several incidents involving
Mother and Hairston. The latest of these incidents involving police occurred on
April 15, 2014, during which police were called to Hairston’s residence. Police
found Mother outside the home after having attempted to force open the door;
mother claimed that she was attempting to retrieve property from Hairston,
including a dog. Even after this, Mother remained in contact with Hairston by
telephone.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 3 of 9 [9] In March 2014, information came to DCS’s attention, which DCS conveyed to
several of the contractors providing services to Mother and the Children. As a
result of this information, two of the contractors ceased providing therapeutic
services and supervision of Mother’s visits with the Children, and new service
providers were selected.1
[10] On March 4, 2014, DCS filed its petition to terminate Mother’s parental rights.
[11] An evidentiary hearing was conducted on June 23, 2014.
[12] On July 24, 2014, the trial court issued its order terminating Mother’s parental
rights. This appeal ensued.
Discussion and Decision Standard of Review [13] Mother appeals the termination of her parental rights. Our standard of review
is highly deferential in such cases. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct.
App. 2001). This Court will not set aside the trial court’s judgment terminating
a parent-child relationship unless it is clearly erroneous. In re A.A.C., 682
N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the sufficiency of the
evidence to support a judgment of involuntary termination of a parent-child
relationship, we neither reweigh the evidence nor judge the credibility of the
1 The nature of the information that caused the change in services was not disclosed in admissible evidence during the evidentiary hearing, and there was no documentation provided to this Court on this matter.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 4 of 9 witnesses. Id. We consider only the evidence that supports the judgment and
the reasonable inferences to be drawn therefrom. Id.
[14] Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet
their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not
to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied.
[15] Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege
and prove by clear and convincing evidence in order to terminate a parent-child
relationship:
(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. (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 county office of family and children 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:
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Mar 04 2015, 8:52 am 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 ATTORNEY FOR APPELLEE Kara Hancuff Gregory F. Zoeller Deputy Public Defender Attorney General of Indiana Bloomington, Indiana Robert J. Henke Abigail R. Miller Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 4, 2015 of the Parent-Child Relationship Court of Appeals Case No. of: H.A., B.A., and J.A. (Minor 53A01-1408-JT-338 Children) Appeal from the Monroe Circuit and Court The Honorable Stephen R. Galvin, H.A. (Mother) Judge Appellant-Respondent, Cause Nos. 53C07-1403-JT-110 53C07-1403-JT-111 53C07-1403-JT-112 v.
The Indiana Department of Child Services, Appellee-Petitioner
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 1 of 9 Case Summary [1] H.A. (“Mother”) appeals the trial court’s order granting the Department of
Child Services’s (“DCS”) petition seeking termination of Mother’s parental
rights as to H.A., B.A., and J.A. (“Children”). Mother contends that there was
insufficient evidence to support the decision to terminate her parental rights.
[2] We affirm.
Facts and Procedural History [3] Mother gave birth to H.A. in 2005, B.A. in 2006, and J.A. in 2007. On
December 6, 2010, the Children were adjudicated as Children in Need of
Services (“CHINS”) after an incident in which Mother was found unresponsive
as a result of alcohol consumption, and required resuscitation and emergency
medical assistance (“first CHINS case”). The first CHINS case was closed in
2011.
[4] In October 2012, Mother’s then-boyfriend, Cordell “Memphis” Hairston
(“Hairston”), beat H.A., leaving marks. H.A.’s injuries were discovered and
reported to the Monroe County Department of Child Services. On January 11,
2013, all three children were subsequently adjudicated as CHINS. In its finding
that the Children were CHINS, the trial court found based upon Mother’s
admissions that Hairson had battered both H.A. and B.A. in the past.
[5] DCS commenced providing services, and the Children remained in the home.
DCS attempted to provide services to Mother, the Children, and Hairston. Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 2 of 9 Though Hairston initially expressed willingness to participate in services, he
ultimately did not avail himself of DCS-provided services.
[6] In 2013, after Hairston refused to participate in DCS-provided services, the
Children were removed from the home, and would not be returned to Mother’s
care except during supervised visitation. Mother developed a safety plan with
assistance from service providers. Because Hairston had refused to participate
in DCS-provided services after having beaten H.A., the safety plan required that
Mother and the Children have no contact with Hairston.
[7] In November 2013, H.A. revealed that she had been molested by Jerry Owens
(“Owens”), an acquaintance of Mother and the Children’s maternal
grandmother. During ongoing team meetings in the CHINS action. The safety
plan was updated to require no contact with Owens, and the plan left in-place
the requirement that Mother have no contact with Hairston.
[8] During the course of the CHINS proceedings, mother alternately denied and
admitted having ongoing contact with Hairston, and Bloomington Police
Department officers were called to respond to several incidents involving
Mother and Hairston. The latest of these incidents involving police occurred on
April 15, 2014, during which police were called to Hairston’s residence. Police
found Mother outside the home after having attempted to force open the door;
mother claimed that she was attempting to retrieve property from Hairston,
including a dog. Even after this, Mother remained in contact with Hairston by
telephone.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 3 of 9 [9] In March 2014, information came to DCS’s attention, which DCS conveyed to
several of the contractors providing services to Mother and the Children. As a
result of this information, two of the contractors ceased providing therapeutic
services and supervision of Mother’s visits with the Children, and new service
providers were selected.1
[10] On March 4, 2014, DCS filed its petition to terminate Mother’s parental rights.
[11] An evidentiary hearing was conducted on June 23, 2014.
[12] On July 24, 2014, the trial court issued its order terminating Mother’s parental
rights. This appeal ensued.
Discussion and Decision Standard of Review [13] Mother appeals the termination of her parental rights. Our standard of review
is highly deferential in such cases. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct.
App. 2001). This Court will not set aside the trial court’s judgment terminating
a parent-child relationship unless it is clearly erroneous. In re A.A.C., 682
N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the sufficiency of the
evidence to support a judgment of involuntary termination of a parent-child
relationship, we neither reweigh the evidence nor judge the credibility of the
1 The nature of the information that caused the change in services was not disclosed in admissible evidence during the evidentiary hearing, and there was no documentation provided to this Court on this matter.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 4 of 9 witnesses. Id. We consider only the evidence that supports the judgment and
the reasonable inferences to be drawn therefrom. Id.
[14] Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet
their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not
to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied.
[15] Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege
and prove by clear and convincing evidence in order to terminate a parent-child
relationship:
(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. (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 county office of family and children 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:
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 5 of 9 (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. [16] The requirements of Subsection 31-35-2-4(b)(2)(B) are written in the disjunctive,
and thus DCS need only prove one of the three subsections. L.S., 717 N.E.2d
at 209.
[17] Here, the trial court entered findings of fact that CHINS adjudications had been
twice entered regarding each of the Children: a first CHINS adjudication was
entered as to each child on December 6, 2010, and a second CHINS
adjudication was entered as to each on January 11, 2013. Each adjudication
was established at the evidentiary hearing on the termination petition through
admission into evidence of copies of the orders establishing the CHINS
adjudications. Thus, while Mother argues that DCS failed to meet its
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 6 of 9 evidentiary burden as to the other prongs of Subsection 31-35-2-4(b)(2)(B), there
was sufficient evidence to satisfy the statutory requirement on this point.2
[18] Mother also contends that DCS failed to adduce sufficient evidence that
termination of her parental rights was in the Children’s best interests. When
determining what is in the best interests of a child, the court must look beyond
the factors identified by DCS and consider the totality of the evidence. In re
J.C., 994 N.E.2d 278, 289-90 (Ind. Ct. App. 2013). The court must subordinate
the parent’s interests to those of the child, and need not wait until a child is
harmed irreversibly before terminating the parent-child relationship. Id. at 290.
“A parent’s historical inability to provide a suitable environment, along with a
current inability to do the same, supports finding termination of parental rights
is in the best interests of the children.” Id.
[19] Here, the Children were removed from the home because Hairston refused to
participate in DCS-provided services after using excessive physical discipline on
H.A. and M.A. Part of the safety plan for the Children, the development of
which Mother participated in, required that Mother was to have no contact
with Hairston or, later, with Owens; Mother was aware of this requirement.
Yet Mother continued to be in contact with both men, and did not pursue
protective orders against them. Despite the requirement of no contact, on April
2 We note that Mother’s brief before this Court wholly disregards Subsection 31-35-2-4(b)(2)(B)(iii). Mother’s brief omits that prong from the quotation of the applicable statutory provisions and, as a result, misquotes the statute. (Appellant’s Br. at 5.)
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 7 of 9 15, 2014, Mother went to Hairston’s home, kicked at Hairston’s door, and
attempted to retrieve property from him; this resulted in a police run to
Hairston’s residence. Mother continued to have phone contact with Hairston,
despite testifying during the evidentiary hearing on DCS’s petition to terminate
her parental rights that the Children were removed from the home because of
Hairston’s treatment of H.A.
[20] In addition, though Mother engaged DCS services, after more than a year of
supervised visitation Mother did not demonstrate substantial and consistent
improvement in managing the Children’s sometimes-violent emotional and
behavioral outbursts. After the Children were removed from the home, Mother
never moved beyond supervised visitation with the Children. Catherine
Colbert, a social worker for a DCS contractor, and Melissa Richardson, who
supervised visitation between Mother and the Children, both testified that they
did not believe that the Children could be safely returned to Mother’s care as a
result of her inability to manage the Children’s behaviors independently of
supervisory assistance. We accordingly find no error in the trial court’s
conclusion that termination of parental rights was in the best interests of the
Children.
Conclusion [21] The trial court did not err when it terminated Mother’s parental rights as to the
Children. We accordingly affirm the judgment.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 8 of 9 [22] Affirmed.
Robb, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 53A01-1408-JT-338 | March 4, 2015 Page 9 of 9