In the Matter of the Termination of the Parent-Child Relationship of J.P. and M.B. (Minor Children) C.B. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2019
• Docket: 18A-JT-390
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 30 2019, 11:23 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 30, 2019 of the Parent-Child Relationship Court of Appeals Case No. of J.P. and M.B. (Minor 18A-JT-390 Children); Appeal from the Marion Superior C.B. (Mother), Court The Honorable Marilyn A. Appellant-Respondent, Moores, Judge v. The Honorable Scott B. Stowers, Magistrate Indiana Department of Child Trial Court Cause Nos. Services, 49D09-1702-JT-183 49D09-1702-JT-184 Appellee-Petitioner.

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 1 of 12 Statement of the Case [1] C.B. (“Mother”) appeals the juvenile court’s termination of her parental rights

over her minor children, J.P. and M.B. (“Children”). Mother 1 raises a single

issue for our review, which we restate as the following three issues:

1. Whether the juvenile court erred when it concluded that the conditions that resulted in the Children’s removal from Mother’s care would not be remedied.

2. Whether termination of Mother’s parental rights was in the Children’s best interests.

3. Whether there is a satisfactory plan for the care and treatment of the Children.

[2] We affirm.

Facts and Procedural History [3] Mother has two children: J.P., born on June 16, 2005; and M.B., born on

October 3, 2006. In February 2013, the Indiana Department of Child Services

(“DCS”) received a report that Mother’s home had no heat, no running water,

and a broken refrigerator, and that there was human feces in the bathroom.

Mother was arrested for child neglect, and the Children were removed from her

care. On February 27, DCS filed petitions alleging that the Children were

Children in Need of Services (“CHINS”). After a hearing, the court

1 The Children’s fathers do not join this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 2 of 12 adjudicated the Children to be CHINS, and on May 28, the juvenile court

entered its dispositional order and instructed Mother to participate in home

based counseling and to submit to random drug screens.

[4] Mother initially complied with the dispositional order and exercised

unsupervised visitation with the Children. However, in April 2015, Mother

was involved in a “domestic disturbance” with a man in the Children’s

presence. Tr. at 13. Accordingly, on April 28, the juvenile court temporarily

suspended Mother’s visitation and later reinstated it, but only under the

supervision of Kelsey Middaugh, a family consultant with Lifeline Youth and

Family Services. During the ensuing five months, Mother cancelled four

supervised visits with the Children, and she ended seven of the visits early.

Middaugh had warned that ending visits early would cause Middaugh to “close

out” the supervised visitation services. Id. at 74. Despite that warning, Mother

ended an October visit early, and Middaugh closed out Mother’s services.

[5] After the domestic disturbance, DCS recommended that Mother submit to a

domestic violence assessment, and she complied. Penny Carter with Branches

of Life completed the assessment and recommended that Mother participate in

domestic violence education. Mother completed the program, but Carter found

Mother to be “combative” and described Mother as trying to convince Carter

that Mother was not a victim. Id. at 65.

[6] Mother proceeded to visit Children at maternal grandmother’s house, where

they had been placed. But Mother ceased visitations with the Children in July

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 3 of 12 2016. Mother perceived that maternal grandmother had “sabotaged” her

attempts to see the Children. Id. at 17.

[7] During the course of the CHINS proceeding, Mother had lived at eight different

residences, at least four of which were unsuitable for the Children. In January

2017, the juvenile court held a permanency hearing, and Mother claimed that

she had recently leased an apartment. Mother presented the court with

photographs of the apartment. Mother also told the court that she had a valid

driver’s license. Shortly after that hearing, the court learned that Mother had

lied both about the apartment, which was not really her residence, and the

validity of her driver’s license. In February, DCS filed petitions to terminate

Mother’s parental rights over the Children.

[8] On December 13, the court held a fact-finding termination hearing. Thereafter,

in January 2018, the court entered the following findings of fact and

conclusions of law:

20. There is a reasonable probability that the conditions that resulted in the [C]hildren’s removal and continued placement outside of the home will not be remedied by their [M]other. [Mother] has had nearly five (5) years to comply with services and has not done so. No service provider has recommended that the [C]hildren be returned to the care of their [M]other. [Mother] has not completed services and little to no progress has been made toward reunification. [Mother] does not have stable housing or employment. Furthermore, she attempted a fraud upon the CHINS court by submitting a false lease agreement and fake photographs of what she represented as her home.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 4 of 12 21. Continuation of the parent-child relationship[s] poses a threat to the [C]hildren’s well-being in that it would serve as a barrier for them obtaining permanency through an adoption when their [M]other hasn’t demonstrated that she can provide stability and parent. She has not seen the [C]hildren since July 2016. As recently as the December 13, 2017[,] Termination Trial, [Mother] didn’t even know the ages of her [C]hildren. In nearly five years, [Mother] has been unable to provide a safe and stable home for her children.

22. Termination of the parent-child relationship[s] is in the best interests of the [C]hildren. Termination would allow them to be adopted into a stable and permanent home where their needs would be safely met.

23. There exists a satisfactory plan for the future care and treatment of the [C]hildren, that being adoption.

24. The Guardian ad Litem agrees with the permanency plan of adoption as being in the [C]hildren’s best interests.

Appellant’s App. Vol. 2 at 51. In light of its findings and conclusions, the court

ordered the termination of Mother’s parental rights. This appeal ensued. 2

2 Mother timely filed a notice of appeal, pro se, on February 8, 2018. On August 28, this Court remanded to the juvenile court because the record was not clear as to whether the court had advised Mother that she had the right to appellate counsel. Thereafter, the juvenile court appointed appellate counsel for Mother, and on November 19, she filed her amended notice of appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 5 of 12 Discussion and Decision Overview

[9] We begin our review of this appeal by acknowledging that “[t]he traditional

right of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.

denied. However, a juvenile court must subordinate the interests of the parents

to those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re 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

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

responsibilities. Id. at 836.

[10] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove:

(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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 6 of 12 (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

***

(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) (2018). DCS’s “burden of proof in termination of

parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.

Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

I.C. § 31-37-14-2).

[11] When reviewing a termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of

Fam. & Child. (In re D.D.), 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 juvenile

court’s 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.

Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.

Ct. App. 1999), trans. denied.

[12] Here, in terminating Mother’s parental rights, the juvenile court entered

findings of fact and conclusions thereon following an evidentiary hearing.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 7 of 12 When a juvenile court’s judgment is based on such findings and conclusions,

we apply a two-tiered standard of review. Bester v. Lake Cty. Off. of Fam. &

Child., 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 juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at

208.

[13] On appeal, Mother contends that the juvenile court erred when it concluded

that: the conditions that resulted in the Children’s removal will not be

remedied; the continuation of the parent-child relationships poses a threat to the

Children’s well-being; termination is in the Children’s best interests; and there is

a satisfactory plan for the care and treatment of the Children. However, as

Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need

not address Mother’s contention that the continuation of the parent-child

relationships poses a threat to the Children’s well-being.

Issue One: Failure to Remedy

[14] We first address the juvenile court’s conclusion that there is a reasonable

probability that the conditions that resulted in the Children’s removal or the

reasons for placement outside Mother’s home will not be remedied. In

determining whether the conditions that led to a child’s placement outside the

home will not be remedied, a juvenile court is required to (1) ascertain what Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 8 of 12 conditions led to the child’s removal or placement and retention outside the

home; and (2) determine whether there is a reasonable probability that those

conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re K.T.K.),

989 N.E.2d 1225, 1231 (Ind. 2013). Here, the juvenile court found that DCS

had removed the Children from Mother’s home and placed them in foster care

because of Mother’s lack of suitable housing and her neglect of the Children.

[15] In order to determine whether there is a reasonable probability that the

conditions that resulted in removal will not be remedied, the juvenile court

should assess a parent’s “fitness” at the time of the termination hearing, taking

into consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of

Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh

any improvements the parent has made since removal against the parent’s

“habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation.” Id. When making such decisions,

juvenile courts should consider evidence of a “parent’s prior criminal history,

drug and alcohol abuse, history of neglect, failure to provide support, lack of

adequate housing, and employment.” Evans v. St. Joseph Cty. Off. of Fam. &

Child. (In re A.L.H.), 774 N.E.2d 896, 990 (Ind. Ct. App. 2002).

[16] The juvenile court found that, over the course of the almost five years after the

Children’s removal from Mother’s care: Mother’s participation in visitation

with the Children was inconsistent, and Mother stopped visiting the Children in

July 2016; Mother lived in eight different homes, including an apartment

infested with bedbugs, and she failed to show that she had suitable housing at

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 9 of 12 the time of the factfinding hearing; Mother lied to the juvenile court about

having found suitable housing and about having a valid driver’s license; and

Mother refused to participate in home based case management. Accordingly,

we cannot say that the juvenile court erred when it concluded that there is a

reasonable probability that the conditions that resulted in the Children’s

removal or the reasons for placement outside Mother’s home will not be

remedied. 3

Issue Two: Children’s Best Interests

[17] Mother also asserts that the juvenile court clearly erred when it concluded that

termination of her parental rights is in the Children’s best interests. In

determining what is in a child’s best interests, a juvenile court is required to

look beyond the factors identified by DCS and consider the totality of the

evidence. A.S. v. Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind.

Ct. App. 2010). A parent’s historical inability to provide “adequate housing,

stability, and supervision,” in addition to the parent’s current inability to do so,

supports finding termination of parental rights is in the best interests of the

child. Id.

3 To the extent Mother contends that the court’s termination order is clearly erroneous because DCS did not offer her adequate services during the CHINS proceeding aimed at finding suitable housing, that contention is without merit. DCS presented evidence that it offered Mother home based case management services to find suitable housing, and Mother refused that assistance. In any event, as DCS points out, our courts have “long recognized that, in ‘seeking termination of parental rights,’ the DCS has no obligation ‘to plead and prove that services have been offered to the parent to assist in fulfilling parental obligations.’” T.D. v. Ind. Dep’t of Child Servs. (In re J.W.), 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (quoting S.E.S. v. Grant Cty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992)), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 10 of 12 [18] When making its decision, the court must subordinate the interests of the

parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a

child is irreversibly harmed before terminating the parent-child relationship.”

Id. Moreover, this Court has previously held that recommendations of the

family case manager and court-appointed advocate to terminate parental rights,

coupled with evidence that the conditions resulting in removal will not be

remedied, are sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. Id.

[19] Here, again, Mother has not seen the Children since July 2016, and she has not

had suitable or stable housing since the CHINS petitions were filed in 2013.

DCS offered Mother assistance in finding a suitable home, but Mother rejected

it. And, while Mother completed domestic violence education, she did not

admit that she had been a victim of domestic violence. The Children are

thriving in their placement with maternal grandmother. The Guardian ad

Litem (“GAL”) testified that termination was in the Children’s best interests

because maternal grandmother has “given them permanency.” Tr. at 119.

Given the totality of the evidence, including the GAL’s testimony, Mother

cannot show that the juvenile court erred when it concluded that termination of

her rights was in the Children’s best interests.

Issue Three: Satisfactory Plan

[20] Finally, Mother contends that the juvenile court clearly erred when it concluded

that DCS had a satisfactory plan for the care and treatment of the Children. Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 11 of 12 Indiana courts have traditionally held that for a plan to be satisfactory, for the

purposes of the termination statute, it need not be detailed, so long as it offers a

general sense of the direction in which the child will be going after the parent-

child relationship is terminated. K.W. v. Ind. Dep’t of Child Servs. (In re A.S.), 17

N.E.3d 994, 1007 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A DCS

plan is satisfactory if the plan is to attempt to find suitable parents to adopt the

children. Id. Here, DCS presented evidence that the Children’s maternal

grandmother, with whom they have lived for several years, plans to adopt

them.

[21] Mother contends that the plan for her mother to adopt the Children is not

satisfactory because, she asserts, maternal grandmother has mental health issues

and will not let Mother see the Children. But Mother ignores the evidence that

the Children are thriving in maternal grandmother’s care. Mother’s contentions

on this issue amount to a request that we reweigh the evidence, which we

cannot do. We hold the juvenile court did not err when it concluded that DCS’

plan of adoption was satisfactory.

[22] In sum, we affirm the juvenile court’s termination of Mother’s parental rights

over the Children.

[23] Affirmed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019 Page 12 of 12