In the Matter of the Termination of the Parent-Child Relationship of: R.A.B. (Minor Child) and Z.T.B. (Mother) & R.W.B. (Father) v. The Indiana Department of Child Services

• Court: Indiana Court of Appeals
• Decided: January 23, 2014
• Docket: 02A03-1306-JT-234
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Jan 23 2014, 8:33 am 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: R.W.B.: GREGORY F. ZOELLER TIMOTHY E. STUCKY Attorney General of Indiana Blume, Connelly, Jordan, Stucky & Lauer, LLP Fort Wayne, Indiana ROBERT J. HENKE Deputy Attorney General ATTORNEY FOR APPELLANT Indianapolis, Indiana Z.T.B.: AARON J. SPOLARICH MARK A. THOMA Deputy Attorney General Leonard, Hammond, Thomas &Terrill Indianapolis, Indiana Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE ) TERMINATION OF THE PARENT-CHILD ) RELATIONSHIP OF: ) ) R.A.B. (Minor Child) ) ) And ) ) Z.T.B. (Mother) & R.W.B. (Father), ) ) Appellants/Respondents, ) ) vs. ) No. 02A03-1306-JT-234 ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee/Petitioner. ) APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Charles F. Pratt, Judge Cause No. 02D08-1212-JT-144

January 23, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Chief Judge

Case Summary

Z.T.B. (“Mother”) and R.W.B. (“Father”) appeal the termination of their parental

rights to their three-year-old son, R.A.B. They argue that termination of their rights was

not in R.A.B.’s best interests and adoption by his foster parents was not a satisfactory

plan for his care and treatment. But R.A.B. has been in foster care since he was four

months old, and since that time, neither parent has shown that they are capable of caring

for him. R.A.B. is thriving in his foster home and is bonded to his foster parents, who

have been approved to adopt him. We therefore conclude that there is sufficient evidence

to support the trial court’s decision to terminate Mother’s and Father’s parental rights.

We affirm.

Facts and Procedural History

Mother has been diagnosed with bipolar disorder and manic depression. On May

1, 2010, Mother went to the hospital for an “episode.” She was released that day. The

following day, Mother, who had been wandering around outside wearing only a t-shirt

and underwear, asked staff at her apartment complex to watch four-month-old R.A.B.

She then returned to the hospital. When she arrived, Mother became physically

aggressive with medical personnel who tried to subdue her. Mother admitted that she 2 was not taking her medications, was using marijuana, and was the victim of recent

domestic violence. As a result of Mother’s interactions with medical professionals, the

local Allen County Department of Child Services (“ACDCS”) took custody of R.A.B.

and filed a petition alleging that he was a child in need of services (“CHINS”). At this

time, Father, whose paternity had not been established, was incarcerated for battering

Mother.

After a fact-finding hearing, the trial court adjudicated R.A.B. a CHINS. The

court ordered Mother to cooperate with caseworkers, establish R.A.B.’s paternity, refrain

from criminal activity, maintain appropriate housing, participate in mental-health and

substance-abuse services, take all prescribed medications, submit to random drug screens,

and attend scheduled parenting time with R.A.B. As R.A.B.’s putative father, Father was

ordered to formally establish paternity, cooperate with caseworkers, refrain from criminal

activity, obtain appropriate housing, participate in anger-management and mental-health

services, and submit to random drug screens.

With each status hearing, it became more apparent that Mother would not comply

with the case plan or follow the court’s orders. She did not complete mental-health or

substance-abuse services, take her medications as prescribed, or exercise regular

parenting time with R.A.B. In February 2011, the trial court warned Mother that if she

did not follow its orders, her parental rights could be terminated. But Mother did not

heed the court’s warning; she continued to refuse services and tested positive for

marijuana and cocaine. Meanwhile, Father was not involved in the case plan; he never

communicated with caseworkers or participated in services.

3 In December 2012, ACDCS filed a petition to terminate Mother’s and Father’s

parental rights. The trial court heard evidence on the termination petition over three days

in March 2013.

At the hearings, caseworkers testified that Mother failed to complete substance-

abuse, mental-health, and other therapeutic services. She continued to struggle with

substance-abuse and mental-health issues: she tested positive for marijuana on multiple

occasions and cocaine on one occasion, and she refused to take her medications as

prescribed. See Tr. p. 129-35. ACDCS also presented evidence that Mother’s

unmanaged substance-abuse and mental-health issues had played a part in arrests for

public nudity and disorderly conduct. Caseworkers also explained why Father had been

largely absent from the case. In July 2010, he was incarcerated for one year in Illinois.

He then violated parole five times, which caused him to be incarcerated for all but four

months during the period from January 2011 to February 2013. At the time of the

termination hearing, he was incarcerated with an earliest release date of March 2014.

Meanwhile, R.A.B. was thriving in foster care. Emma Robinette, R.A.B.’s court-

appointed special advocate (“CASA”), told the court that R.A.B. had progressed since

being removed from Mother’s care: “[W]hen I first visited him, he didn’t cry, he didn’t

hold his bottle, he didn’t play or smile, he just – was kind of there.” Id. at 69. But now,

“[R.A.B.] has really evolved. He’s an awesome little boy. I can understand him. He

plays. And when you look in his eyes, you know how much love he gets at home.” Id.

CASA Robinette also told the court that Mother did not believe she had done anything

wrong or that she should have to participate in services. Id. at 83-84. She and her

4 supervisor, Suzanne Lange, recommended terminating Mother’s and Father’s parental

rights. Id. at 315.

R.A.B.’s therapist, Deanna Young, also recommended terminating the parents’

rights. Young explained that R.A.B., who suffered from separation anxiety, was bonded

to his foster family and removing him from their care would disrupt his mental health.

Id. at 285. She opined that it was in R.A.B.’s best interests to stay with his foster family.

Id. at 286. Roberta Renbarger, the guardian ad litem (“GAL”) assigned to the case, also

recommended terminating Mother’s and Father’s parental rights. Id. at 486. GAL

Renbarger testified that adoption would “provide the stability that [R.A.B.] needs.” Id. at

488. The GAL explained that Mother’s failure to complete services and Father’s criminal

history prevented them from providing such stability. Id. at 485-86.

ACDCS’s plan for R.A.B. was adoption, and R.A.B.’s foster parents had been

approved to adopt him. ACDCS had investigated placing R.A.B. with Mother’s aunt,

Berniece Brown, but ACDCS declined to approve Brown to adopt R.A.B. Brown had

never met R.A.B., had “severe physical limitations” and limited income, and was already

caring for a number of other children. Id. at 453.

At the end of May, the trial court entered its order with findings terminating

Mother’s and Father’s parental rights. See Appellant Mother’s App. p. 54-65.

Mother and Father now appeal.

Discussion and Decision

5 On appeal, Mother and Father argue that termination of their parental rights was

not in R.A.B.’s best interests and adoption was not a satisfactory plan for R.A.B.’s care

and treatment.1

Termination of Parental Rights

“The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children.” In re K.T.K., 989

N.E.2d 1225, 1230 (Ind. 2013) (citations omitted). The parent-child relationship is one of

our culture’s most valued relationships. Id. (citation omitted). “And a parent’s interest in

the upbringing of their child is ‘perhaps the oldest of the fundamental liberty interests

recognized by the courts.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)).

But parental rights are not absolute—“children have an interest in terminating parental

rights that prevent adoption and inhibit establishing secure, stable, long-term, continuous

relationships.” Id. (citations omitted). Thus, a parent’s interests must be subordinated to

a child’s interests when considering a termination petition. Id. (citation omitted). A

parent’s rights may be terminated if the parent is unable or unwilling to meet their

parental responsibilities by failing to provide for the child’s immediate and long-term

needs. Id. (citations omitted).

When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Id. at 1229 (citation omitted). Instead,

we consider only the evidence and reasonable inferences that support the judgment. Id.

(citation omitted). “Where a trial court has entered findings of fact and conclusions of

1 Mother and Father are represented by separate attorneys and have filed separate appellate briefs; however, they raise the same arguments and support those arguments with nearly identical reasoning. 6 law, we will not set aside the trial court’s findings or judgment unless clearly erroneous.”

Id. (citing Ind. Trial Rule 52(A)). In determining whether the court’s decision to

terminate the parent-child relationship is clearly erroneous, “we review the trial court’s

judgment to determine whether the evidence clearly and convincingly supports the

findings and the findings clearly and convincingly support the judgment.” Id. (citation

omitted).

A petition to terminate parental rights must allege:

(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 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; 7 (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). “DCS must prove the alleged circumstances by clear and

convincing evidence.” K.T.K., 989 N.E.2d at 1231 (citation omitted). On appeal, Mother

and Father challenge the sufficiency of the evidence supporting the trial court’s judgment

as to subsections (C) and (D) of the termination statute.

A. Best Interests

Mother and Father first argue that termination of their parental rights was not in

R.A.B.’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.

Trial courts need not wait until a child is irreversibly harmed such that their physical,

mental, and social development is permanently impaired before terminating a parent’s

rights. See K.T.K., 989 N.E.2d at 1235. Permanency is a central consideration in

determining the best interests of a child. Id. (citation omitted).

Mother and Father have waived their best-interests argument because they fail to

appropriately develop or support it. See Ind. Appellate Rule 46(A)(8)(a) (requiring

conclusions to be supported by cogent reasoning” and “citations to the authorities,

statutes, and the Appendix or parts of the Record on Appeal relied on”). 8 Waiver notwithstanding, the evidence in the record supports the conclusion that

termination of Mother’s and Father’s parental rights is in R.A.B.’s best interests.

The trial court found that termination was in R.A.B’s best interests because R.A.B.

deserved a safe, stable, and nurturing home environment. See Appellant Mother’s App.

p. 65. The court also noted that those involved with the case—GAL Renbarger, CASA

Robinette, CASA Robinette’s supervisor, and R.A.B.’s therapist—unanimously

recommended terminating Mother’s and Father’s parental rights. Id. Notably, the trial

court also concluded that there was a reasonable probability that the conditions resulting

in R.A.B.’s removal or placement outside Mother’s and Father’s care would not be

remedied, and Mother and Father do not challenge this finding. From this, we conclude

that the evidence supports the trial court’s determination that termination of Mother’s and

Father’s parental rights was in R.A.B.’s best interests. See In re A.I., 825 N.E.2d 798,

811 (Ind. Ct. App. 2005) (testimony of caseworkers, together with evidence that the

conditions resulting in placement outside the home will not be remedied, was sufficient to

prove by clear and convincing evidence that termination was in child’s best interests)

(citation omitted), trans. denied.

B. Satisfactory Plan

Mother and Father also argue that ACDCS lacked a satisfactory plan for R.A.B.’s

care and treatment.

In order for the trial court to terminate a parent-child relationship, the court must

find that there is a satisfactory plan for the care and treatment of the child. Ind. Code §

31-35-2-4(b)(2)(D). That plan need not be detailed, so long as it offers a general sense of

9 the direction the child will go after the parent-child relationship is terminated. In re L.B.,

889 N.E.2d 326, 341 (Ind. Ct. App. 2008).

ACDCS’s plan for R.A.B.’s care and treatment was adoption by his foster parents,

who had been approved to adopt him. Mother and Father argue that this plan was

unsatisfactory because Mother’s aunt, Berniece Brown, was willing to care for R.A.B.

But ACDCS investigated this potential placement and declined to approve Brown to

adopt R.A.B. Brown had never met R.A.B., had “severe physical limitations” and limited

income, and was already caring for a number of other children. And to the extent the

parents suggest that Brown can care for R.A.B.—without adopting him—until one or

both parents are ready to care for him, this would delay permanency for R.A.B.

indefinitely. We have repeatedly recognized that children’s needs are too substantial to

force them to wait while determining if their parents will be able to parent them. See In

re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004). At the time of the termination

hearing, R.A.B. was three years old and had already spent more than two and a half years

in foster care. The trial court did not err in concluding that he should not have to wait

any longer for permanency. Mother and Father have not shown that ACDCS’s plan of

adoption for R.A.B. was unsatisfactory.2

Affirmed.

RILEY, J., and MAY, J., concur.

2 In arguing that ACDCS’s plan was unsatisfactory, both parents cite In re R.H., 892 N.E.2d 144 (Ind. Ct. App. 2008). But R.H. is distinguishable: a key aspect of the Court’s analysis in that case was the fact that the father “did everything that was asked of him.” Id. at 150. That cannot be said of either parent in this case. 10