Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Sep 16 2014, 8:57 am 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:
STEVEN J. HALBERT GREGORY F. ZOELLER Carmel, Indiana Attorney General of Indiana
ROBERT J. HENKE CHRISTINA D. PACE Deputies Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION ) OF THE PARENT-CHILD RELATIONSHIP OF: ) K.B. (MINOR CHILD) AND W.B. (MOTHER), ) Appellant-Respondent, ) ) vs. ) No. 49A05-1402-JT-63 ) THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Larry E. Bradley, Magistrate Cause No. 49D09-1307-JT-16119
September 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
W.B. (“Mother”) appeals from the termination of her parental rights as to her
daughter, K.B. We affirm.
Issue
Mother presents one issue for our review, which we restate as whether the Department
of Child Services (“DCS”) satisfied its statutory burden of proof as to termination of
Mother’s parental rights.
Facts and Procedural History
K.B. was born to Mother and J.R. (“Father”) on March 15, 2004. In 2010, K.B. was
found to be a Child in Need of Services (“CHINS”). At the conclusion of the first CHINS
case, K.B. was placed in Father’s custody. After allegations arose that Father had molested
K.B., a second CHINS proceeding was initiated in 2011 and K.B. was again adjudicated as a
CHINS. At the end of the second CHINS case in May 2012, K.B. was placed back into
Mother’s custody.
On July 19, 2012, K.B. was difficult to wake up, and was transported by ambulance to
a hospital. K.B. revealed that Mother had been making K.B. take excessive amounts of
prescription medication, and that Mother routinely took excessive amounts of medication that
caused her to go to sleep. K.B. was removed from Mother’s home.
On July 23, 2012, a CHINS petition was filed, and K.B. was adjudicated as a CHINS.
Mother was offered and verbally accepted referrals to services for home-based case
2 management, home-based therapy, supervised visits with K.B., random drug screens, and a
substance abuse assessment. Mother only exercised supervised visitation.
On September 5, 2012, Mother was charged with two counts of Neglect of a
Dependent and one count of Dealing in Narcotics. On March 19, 2013, Mother was
convicted of two counts of Neglect of a Dependent, and was sentenced to an aggregate term
of imprisonment of eight years. As part of the criminal proceedings, a no-contact order was
put into place as to Mother and K.B. Mother had no subsequent contact of any kind with
K.B. Mother remained incarcerated throughout the remainder of the CHINS proceedings.
On July 25, 2013, DCS filed its petition to terminate Mother’s parental rights as to
K.B. An evidentiary hearing was conducted on December 18, 2013 and January 10, 2014.
On January 17, 2014, the termination court entered its order terminating Mother’s
parental rights. This appeal ensued.
Discussion and Decision
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
witnesses. Id. We consider only the evidence that supports the judgment and the reasonable
inferences to be drawn therefrom. Id.
3 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.
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:
(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
4 (D) that there is a satisfactory plan for the care and treatment of the child.
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). A
trial court must judge a parent’s fitness to care for his or her child at the time of the
termination hearing, taking into consideration evidence of changed conditions. In re J.T.,
742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial court also must “evaluate
the parent’s habitual patterns of conduct to determine the probability of future neglect or
deprivation of the child.” Id. Courts have properly considered 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. A.F. v. Marion Cnty. Office of Family &
Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
On appeal, Mother contends that DCS did not carry its burden of proving by clear and
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Sep 16 2014, 8:57 am 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:
STEVEN J. HALBERT GREGORY F. ZOELLER Carmel, Indiana Attorney General of Indiana
ROBERT J. HENKE CHRISTINA D. PACE Deputies Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION ) OF THE PARENT-CHILD RELATIONSHIP OF: ) K.B. (MINOR CHILD) AND W.B. (MOTHER), ) Appellant-Respondent, ) ) vs. ) No. 49A05-1402-JT-63 ) THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Larry E. Bradley, Magistrate Cause No. 49D09-1307-JT-16119
September 16, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge Case Summary
W.B. (“Mother”) appeals from the termination of her parental rights as to her
daughter, K.B. We affirm.
Issue
Mother presents one issue for our review, which we restate as whether the Department
of Child Services (“DCS”) satisfied its statutory burden of proof as to termination of
Mother’s parental rights.
Facts and Procedural History
K.B. was born to Mother and J.R. (“Father”) on March 15, 2004. In 2010, K.B. was
found to be a Child in Need of Services (“CHINS”). At the conclusion of the first CHINS
case, K.B. was placed in Father’s custody. After allegations arose that Father had molested
K.B., a second CHINS proceeding was initiated in 2011 and K.B. was again adjudicated as a
CHINS. At the end of the second CHINS case in May 2012, K.B. was placed back into
Mother’s custody.
On July 19, 2012, K.B. was difficult to wake up, and was transported by ambulance to
a hospital. K.B. revealed that Mother had been making K.B. take excessive amounts of
prescription medication, and that Mother routinely took excessive amounts of medication that
caused her to go to sleep. K.B. was removed from Mother’s home.
On July 23, 2012, a CHINS petition was filed, and K.B. was adjudicated as a CHINS.
Mother was offered and verbally accepted referrals to services for home-based case
2 management, home-based therapy, supervised visits with K.B., random drug screens, and a
substance abuse assessment. Mother only exercised supervised visitation.
On September 5, 2012, Mother was charged with two counts of Neglect of a
Dependent and one count of Dealing in Narcotics. On March 19, 2013, Mother was
convicted of two counts of Neglect of a Dependent, and was sentenced to an aggregate term
of imprisonment of eight years. As part of the criminal proceedings, a no-contact order was
put into place as to Mother and K.B. Mother had no subsequent contact of any kind with
K.B. Mother remained incarcerated throughout the remainder of the CHINS proceedings.
On July 25, 2013, DCS filed its petition to terminate Mother’s parental rights as to
K.B. An evidentiary hearing was conducted on December 18, 2013 and January 10, 2014.
On January 17, 2014, the termination court entered its order terminating Mother’s
parental rights. This appeal ensued.
Discussion and Decision
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
witnesses. Id. We consider only the evidence that supports the judgment and the reasonable
inferences to be drawn therefrom. Id.
3 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.
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:
(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
4 (D) that there is a satisfactory plan for the care and treatment of the child.
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). A
trial court must judge a parent’s fitness to care for his or her child at the time of the
termination hearing, taking into consideration evidence of changed conditions. In re J.T.,
742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial court also must “evaluate
the parent’s habitual patterns of conduct to determine the probability of future neglect or
deprivation of the child.” Id. Courts have properly considered 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. A.F. v. Marion Cnty. Office of Family &
Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.
On appeal, Mother contends that DCS did not carry its burden of proving by clear and
convincing the requirements of subsection 31-35-2-4(b)(2)(B)(ii), which requires that the
court find there is a reasonable probability that continuation of the parent-child relationships
poses a threat to the well-being of the child. The statute “is written in the disjunctive” so that
only one of the requirements of subsection (B)—which include either that there is a
reasonable probability the conditions necessitating a child’s removal will not be remedied or
that continuation of the parent-child relationship poses a threat to the child’s well-being—
need be proven by clear and convincing evidence. In re L.S., 717 N.E.2d at 209.
Prior to the instant proceedings, Mother had been convicted of welfare fraud. After
K.B. was adjudicated a CHINS in July 2012, Mother was incarcerated during all but two
5 months of the instant case. During the termination hearing, Mother testified that she had
been addicted to pain medications for eight or nine years, had never sought treatment, and
increased her use of pain medications “twenty or thirty times” after the 2010 CHINS
proceeding. (Tr. at 17.) Mother acknowledged having overdosed twice and that she would
have died had K.B. not called for help. Mother stated that K.B. was more of a mother to her
than she was to K.B., and that for two years K.B. protected her from routine domestic abuse
at the hands of one of Mother’s boyfriends.
Mother testified that she would be released from prison in 2014 in order to begin
serving a portion of her prison term through work release with community corrections.
However, she acknowledged that it could take as much as a year for her to obtain a job and
housing suitable for herself and K.B., and testified that she would first need to address her
addiction and stress issues before she could provide any kind of parenting for K.B. Further,
Mother testified that though she wanted continued contact with K.B., she would accede to
plans for K.B. to be adopted, and said that K.B. should not be removed from a “good life” to
wait for Mother to address her own problems. (Tr. at 29.)
Mother’s testimony accords with the testimony of several social workers and therapy
providers, all of whom testified that K.B. needed a safe and stable home environment after
being diagnosed with post-traumatic stress disorder. Mother directs us to cases in which
Indiana courts have concluded that continuation of the parent-child relationship did not pose
a threat to the well-being of the child. Yet this case is readily distinguished based upon
Mother’s lack of action to arrange for employment or housing suitable for herself and K.B.
6 and the risk, given lack of prior rehabilitative behavior, that Mother would reoffend after
release from imprisonment. See, e.g., In re G.Y., 904 N.E.2d 1257, 1262 (Ind. 2009).
Accordingly, we cannot conclude that DCS failed to carry its burden as to the requirement
that it prove by clear and convincing evidence that continuation of the parent-child
relationship likely posed a threat to K.B.’s well-being.
Mother also contends that DCS failed to carry its burden of proving that there was a
satisfactory plan in place for the care and treatment of K.B. See I.C. § 31-35-2-4(b)(2)(D).
Such a plan 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. In re Termination of
Parent-Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied.
This Court has held that adoption is a satisfactory plan for the care and treatment of a child
under the termination of parental rights statute. In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct.
App. 2009).
Here, DCS established that the plan for K.B. was adoption. Mother contends that the
adoptive placement chosen is inadequate because it is a different family from the one that
served as K.B.’s foster family during much of the remainder of the case, and the prospective
adoptive family did not testify during the termination hearing. However, testimony from
DCS caseworkers and K.B.’s Guardian Ad Litem indicates that the prospective adoptive
family is committed to adopting K.B. and has asked sensitive and appropriate questions about
K.B., and K.B. has expressed her desire to remain with that family and to be adopted. We
7 thus conclude that DCS carried its burden to prove by clear and convincing evidence that a
satisfactory plan for K.B.’s care and treatment was in place.
Conclusion
DCS carried its burden of establishing by clear and convincing evidence that there was
a reasonable probability that continuing the parent-child relationship would be harmful to
K.B., and that the plan for K.B.’s care and treatment was satisfactory.
Affirmed.
NAJAM, J., and PYLE, J., concur.