In the Matter of the Termination of the Parent-Child Relationship of J.B., and K.B., the Minor Children: I.B. (Mother) and R.B. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 12, 2017
• Docket: 40A01-1702-JT-429
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 12 2017, 10:26 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Curtis T. Hill, Jr. Madison, Indiana Attorney General David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 12, 2017 of the Parent-Child Relationship Court of Appeals Case No. of J.B., and K.B., the Minor 40A01-1702-JT-00429 Children: Appeal from the Jennings Circuit Court The Honorable Jon W. Webster, I.B. (Mother) and R.B. (Father), Judge Appellants-Respondents, Trial Court Cause Nos. 40C01-1606-JT-31 v. 40C01-1606-JT-32

Indiana Department of Child Services, Appellee-Petitioner

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 1 of 12 Case Summary [1] I.B. (“Mother”) and R.B. (“Father”) appeal the termination of their parental

rights to their children, arguing that the evidence is insufficient to support the

trial court’s decision. We affirm.

Facts and Procedural History [2] Mother and Father are the parents of J.B., who was born in March 2011, and

K.B., who was born in February 2012. The Indiana Department of Child

Services (DCS) became involved with the family in April 2013 after receiving a

report that Father had a “temper tantrum” and threw J.B. into his room, the

family’s house was “filthy,” and the children were not clean. Tr. Vol. IV p. 7.

The parents agreed to an informal adjustment; however, DCS removed the

children in June 2013 when conditions had not improved and the parents tested

positive for drugs. The children were placed in foster care.

[3] In July 2013, DCS filed a petition alleging that J.B. and K.B. were children in

need of services (CHINS). The parents admitted that the children were CHINS

due to “unsafe” home conditions and their positive drug screens. Ex. 8C.

Following the dispositional hearing, the court awarded DCS wardship of the

children and ordered the parents to, among other things, (1) maintain a safe,

clean, stable, drug-free, and violence-free home; (2) submit to random drug and

alcohol screens; (3) complete a parenting assessment and successfully complete

any recommendations developed as a result of that assessment; (4) complete a

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 2 of 12 substance-abuse assessment and follow all treatment recommendations; (5)

complete a psychological evaluation and successfully complete any

recommendations; and (6) attend all visits with the children. The permanency

plan at the time was reunification.

[4] When DCS was awarded wardship of the children, they were developmentally

behind. According to the foster-care case manager, J.B. was one of the “most

anxious” two-year-olds she had ever seen. Tr. Vol. II p. 53. He had a lot of

repetitive, obsessive behaviors, such as balling up a piece of lint and holding on

to it for more than a day. J.B. was also withdrawn and did not interact with

other children. He was almost completely nonverbal, using only three to five

words to communicate. He also exhibited negative coping skills, like banging

his head against the wall. K.B., who was one-and-a-half years old, was more

outgoing than J.B., although K.B. did not talk. K.B. was also more aggressive

than J.B., and his head banging was more extreme. K.B. also had night terrors.

While in their foster home, both J.B. and K.B. “got developmentally on track.”

Id. at 61. The case manager noted that the children regressed and resorted to

negative coping skills after supervised visits with their parents.

[5] In August 2013, the parents completed parenting assessments with Centerstone.

Father scored “high risk” in several areas, including lack of nurturing skills and

reversing family roles (treating the children as peers). Ex. 4A. Mother scored

“high risk” in all areas except one. Ex. 5A.

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 3 of 12 [6] The following month, the parents completed psychological evaluations with Dr.

Jill Christopher. Both parents’ IQ scores fell in the below-average range. Dr.

Christopher diagnosed Mother with depressive disorder and recommended

individual therapy and case-management services for parenting skills. As for

Father, Dr. Christopher recommended that he participate in individual therapy

for anger, depression, and mood instability and case-management services for,

among other things, parenting skills. Dr. Christopher noted that during

Mother’s and Father’s evaluations, they each said that they did not need help

with anything.

[7] A periodic case review was held in December 2013. The juvenile court found

that the parents were actively participating in all services and had shown

improvement. As a result, on February 4, 2014, the children were returned to

their parents for a trial home visit. At the beginning of the trial home visit, the

parents received intensive in-home services of 22-30 hours per week.

Eventually, the service provider’s hours were reduced to 5 hours per week to see

if the parents could implement what they had been learning. The parents,

however, lost any progress they had made and the children lost “about all the

gains they [had] made on their developmental catching up.” Tr. Vol. IV p. 37.

Accordingly, the trial home visit ended on May 13 due to lack of parental

supervision, and the children were placed in a new foster home, where they

remained at the time of the termination hearing. Upon receiving the children,

the foster mother described them as “wild and undisciplined.” Ex. 3. For

example, she said they walked on furniture and counters. These behaviors

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 4 of 12 improved, but like before, their behaviors regressed after supervised visits with

their parents.

[8] In January 2015, the parents underwent second psychological evaluations with

Dr. Tony Sheppard. As for Mother, Dr. Sheppard diagnosed her with bipolar

disorder and a personality disorder. He noted that she “has a number of factors

that impede her ability to engage with her children. Primary among these is a

self-centered approach to life. She will have to be taught how to put her own

needs aside in order to provide for her children.” Ex. 6. As for Father, Dr.

Sheppard found that he “appears to be in denial with regard to the myriad

problems that resulted in the removal of his children,” which “may explain his

inability to make the sustained changes in the home environment and lifestyle

that would be necessary for reunification.” Ex. 7. Accordingly, Dr. Sheppard

found that “[u]nless significant changes occur, there is likely little chance of

significant changes in this man’s readiness for or openness to change.” Id.

[9] In October 2015, the permanency plan was changed to adoption, with a

concurrent plan of reunification. The following month, Dr. Linda McIntire

completed a bonding and attachment assessment at DCS’s request. At the time,

J.B. was four years old and K.B. was three years old. Dr. McIntire opined that

despite the parents’ compliance with services, “they have made no progress.”

Ex. 3. As she observed in her report, “It was astonishing for this evaluator to

watch the family in a supervised visitation setting, as they made no effort to

control their children’s behavior, and little to engage with their children.” Id.

Dr. McIntire noted that Mother and Father “were seemingly far more interested

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 5 of 12 in playing with some of the toys than they were playing with or parenting the

children.” Id. Dr. McIntire also noted that Mother and Father “demonstrated

no ability to manage, or even perhaps understand, their children’s behaviors.”

Id. Dr. McIntire acknowledged that the parents had documented cognitive

deficiencies; however, she found that these deficits did not “account for the lack

of gains in services, or the lack of affective bond and interpersonal interactions

with the children.” Id. Rather, “the most compelling issue” was “the

substantial lack of emotional connection between [the parents] and the boys,”

which was “rooted in problems other than intellectual deficiency, poverty,

and/or drug abuse.” Id. Dr. McIntire recommended that the permanency plan

should not be reunification with Mother and Father but rather adoption by the

foster parents, with whom the children had “clearly bonded” and refer to as

“Mom” and “Dad” “by choice.” Id. Dr. McIntire noted that the “interaction

between the biological parents and the children was remarkably different than

that of the children and their foster parents earlier that morning. While the

children had some mild behavior difficulties, again as expected, the [foster

parents] handled them in a seamless manner.” Id.

[10] DCS filed a petition to terminate Mother’s and Father’s parental rights in June

2016. Fact-finding hearings were then held in August and October. Pamela

Baugh, the family-support specialist assigned to the family through Centerstone,

testified that she supervised visits with the parents and the children from

September 2013 until about a month before the termination hearing. The visits

were originally 1-2 hours per week and then increased to 8 hours per week.

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 6 of 12 Baugh said that Mother and Father never had a problem with attendance.

Rather, the problem was their low interaction with the children during the

visits. Baugh would give the parents suggestions, like Play-Doh or specific

crafts, but they never followed through on their own. Baugh also testified that

Mother and Father struggled with the nurturing portion of parenting, which

was harmful to the children’s mental health, and that she did not think that they

would ever change. Moreover, Baugh testified that although Mother and

Father had made improvements in their life skills through the years, they had

made no improvements in their ability to parent from 2013 to 2016. Tr. Vol. II

p. 109.

[11] In addition, DCS Family Case Manager Michelle Shepherd testified that the

parents’ attendance at visits was “phenomenal,” Father had not had a positive

drug screen since July 2015, and Mother and Father had “greatly increased

their personal daily living skills.” Tr. Vol. IV pp. 12, 13. However, “[a]s far as

their ability to parent their children,” Family Case Manager Shepherd said it

was “the same” “now” as the “very first” visit. Id. at 13. She gave the

following example:

[K.B.], the younger guy, kept getting closer to the fan, kept wanting to play with the fan. The fan was on. The hair on the back of my head was standing up and [Mother’s] just trying to push him away from it, and [the visit supervisor] whispers to me that he had told [Mother] every visit before to unplug the fan and put it up out of reach. Every visit before was at least 12 prior visits that they had had, and still he had to remind [Mother] that this is not good and the verbal didn’t work, so he had to go over and stand by [Mother], turn off the fan, and say, [K.B.] we don’t Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 7 of 12 play with this. This is 3 years into this case, 3 years of visit supervision and something as simple as a 4 year old playing with a fan is [it] life threatening, not necessarily[,] is it dangerous? Yeah.

Id. at 15. Accordingly, Family Case Manager Shepherd found that there was a

reasonable probability that the continuation of the parent-child relationship

posed a threat to the well-being of J.B. and K.B.:

The lack of interaction that I have personally witnesse[d], that Dr. McInt[i]re has witnessed, that every visit supervisor has witnessed, is emotional abuse, I mean just to put it at very bare bones. These children will not learn how to act with other people, if they don’t learn it at school, and that’s assuming that they get to school on time, don’t miss the bus and everything like that, they don’t get a chance to practice it at home. And if you don’t practice those social skills at home you don’t have them. [If] they can’t keep . . . [K.B.] safe from a fan, how do we expect [them] to keep them safe from anything else? They can’t keep [K.B.] from running across the street, running away from them because when mom says stop, he doesn’t stop. That’s not [K.B.] being indirect, if I did it, I’ve stopped him before . . . . Everyone in that household except for mom and dad are looked upon as an authority figure. Mom and dad are not, mom and dad will never be seen a[s] authority figures, they cannot do that which they need to do in order to be that authority.

Id. at 27.

[12] The juvenile court issued an order terminating Mother’s and Father’s parental

rights in January 2017. Mother and Father jointly appealed that order. The

State filed a motion for remand arguing that the juvenile court’s termination

order was deficient because it did not include the required statutory findings. Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 8 of 12 We ordered the juvenile court to issue an amended termination order. See In re

I.B., Case No. 40A01-1702-JT-429 (Ind. Ct. App. Aug. 31, 2017). The juvenile

court issued an amended termination order on September 11, 2017, finding that

there was a reasonable probability that continuation of the parent-child

relationship posed a threat to the well-being of J.B. and K.B., that termination

was in the best interests of the children, and that there was a satisfactory plan

for the care and treatment of the children, namely, adoption. The parties then

filed amended briefs based on this order.

Discussion and Decision [13] Mother and Father contend that there is insufficient evidence to support the

termination of their parental rights to J.B. and K.B. When reviewing the

termination of parental rights, we do not reweigh the evidence or judge witness

credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we

consider only the evidence and reasonable inferences that are most favorable to

the judgment of the trial court. Id. When a trial court has entered findings of

fact and conclusions, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. To determine whether a judgment terminating

parental rights is clearly erroneous, we review whether the evidence clearly and

convincingly supports the trial court’s findings and whether the findings clearly

and convincingly support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind.

2016).

[14] A petition to terminate parental rights must allege, among other things:

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 9 of 12 (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). Mother and Father “concede” that termination is

in the bests interests of J.B. and K.B. and that there is a satisfactory plan for

their care and treatment. Amended Appellants’ Br. p. 19. However, they argue

that there is insufficient evidence to support the juvenile court’s conclusion that

continuation of the parent-child relationship poses a threat to J.B.’s and K.B.’s

well-being.1

1 Mother and Father also argue that there is not a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the home of the parents will not be remedied. However, the juvenile court did not reach such a conclusion in this case. Indiana Code section 31-35-2- 4(b)(2)(B) is written in the disjunctive and requires clear and convincing evidence of only one of the

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 10 of 12 [15] Mother and Father argue that the juvenile court relied on “outdated reports and

evidence” in terminating their parental rights.2 Id. at 20. They emphasize that

DCS “submitted parenting assessments from August, 2013, psychological

reports from September, 2013, psychological reports from January, 2015, and a

parent-child assessment from November, 2015.” Id. at 20-21. However, they

note that the fact-finding hearings were held in August and October 2016,

which “makes these reports from nine months to three years old at the time of

the hearings.” Id. at 21. Mother and Father assert that testimony from the

“most recent service providers show[s] evidence of changed conditions that [is]

inconsistent with” the older evidence. Id. They direct us to testimony from

Patty Ruddick and Jessie Lang.

[16] We reject Mother and Father’s argument for several reasons. First, we do not

believe that these reports are “outdated.” At the very least, they show the

timeline in this case and the parents’ progression. Second, the parents’

argument strikes us as an attack on the weight of the evidence, not its

admissibility, and we do not reweigh evidence. See K.T.K., 989 N.E.2d at 1229.

circumstances listed in subsection (B). See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Although the juvenile court referenced (b)(2)(B)(i) early in its order, see Amended Appellants’ App. p. 70, it later found that only (b)(2)(B)(ii) had been satisfied. See id. at 75. Accordingly, we do not address (b)(2)(B)(i) in our decision. 2 Mother and Father also note that they both suffer from an intellectual disability and point out that mental disability, “standing alone, is not a proper ground for terminating parental rights.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992). However, there is no evidence here that the parents’ mental disability alone was the reason for terminating their parental rights to J.B. and K.B. See id. (“Where, however, the parents are incapable of or unwilling to fulfill their legal obligations in caring for their children, then mental illness may be considered.”).

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 11 of 12 Third, even without the reports, there is plenty of evidence in the record to

support the juvenile court’s conclusion that continuation of the parent-child

relationship poses a threat to the children’s well-being. For example, Baugh,

who supervised visits from September 2013 until about a month before the

termination hearing, testified that although Mother and Father had made

improvements in their life skills through the years, they had made no

improvements in their ability to parent from 2013 to 2016. In addition, Family

Case Manager Shepherd testified that although Mother and Father had

improved in some areas, their ability to parent had not improved from the first

visit to the last. And both testified that Mother’s and Father’s parenting was

harming the children’s mental health. Fourth, the witnesses Mother and Father

direct us to, Ruddick and Lang, worked primarily with the parents on life skills,

not parenting skills. Accordingly, we find that there is sufficient evidence to

support the juvenile court’s conclusion that continuation of the parent-child

relationship poses a threat to J.B.’s and K.B.’s well-being. We therefore affirm

the termination of Mother’s and Father’s parental rights.

[17] Affirmed.

Mathias, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 40A01-1702-JT-00429 | December 12, 2017 Page 12 of 12