In the Matter of the Termination of the Parent-Child Relationship of LT., J.T., Ju.D., B.D., Ja.D., and A.D. (Minor Children) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 28, 2018
• Docket: 71A03-1708-JT-1866
• 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 Feb 28 2018, 9:16 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 (M.F.) ATTORNEYS FOR APPELLEE Ernest P. Galos Curtis T. Hill, Jr. South Bend, Indiana Attorney General ATTORNEY FOR APPELLANT (C.D.) Abigail R. Recker Deputy Attorney General Mark F. James Indianapolis, Indiana Anderson, Agostino & Keller, P.C. South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination February 28, 2018 of the Parent-Child Relationship Court of Appeals Case No. of L.T., J.T., Ju.D., B.D., Ja.D., 71A03-1708-JT-1866 and A.D. (Minor Children) and Appeal from the St. Joseph Probate Court The Honorable James N. Fox, M.F. (Mother) and C.D. (Father), Judge Appellants-Respondents, Trial Court Cause Nos. 71J01-1610-JT-70 v. 71J01-1610-JT-71 71J01-1610-JT-72 Indiana Department of Child 71J01-1610-JT-73 Services, 71J01-1610-JT-74 71J01-1610-JT-75 Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 1 of 12 Vaidik, Chief Judge.

Case Summary [1] M.F. (“Mother”) and C.D. (“Father”) appeal the termination of their parental

rights. Finding no error, we affirm.

Facts and Procedural History [2] Mother is the natural mother of six children: L.T., born in 2007; J.T., born in

2008; Ju.D., born in 2010; B.D., born in 2011; Ja.D, born in 2013; and A.D.,

born in 2015. Father, who is Mother’s uncle, is the natural father of the four

youngest children.1 What follows is taken primarily from the trial court’s

findings of fact, none of which are challenged by either Mother or Father.

[3] In July 2015, the Department of Child Services (“DCS”) received an abuse-and-

neglect report regarding the condition of the family home. DCS investigated

and found the home “to be cluttered with laundry, canned food, and kitchen

items piled on the floor, that several live cockroaches were observed in the

kitchen, that bug killing powder was observed in the kitchen in reach of the

children[.]” Appellants’ App. Vol. II p. 76. In addition, “the five (5) oldest

children did not have beds but were made to sleep on pallets” because,

1 D.T. is the natural father of L.T. and J.T. The trial court also terminated his parental rights, but he is not involved in this appeal.

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 2 of 12 according to Mother, “they urinate themselves.” Id. Mother and Father

admitted that B.D., who was three at the time, had “buzzed” her own hair and

“ate soiled tissues from the toilet.” Id. J.T. had been diagnosed with ADHD

and oppositional defiant disorder but was not taking any medication. Father

“admitted to struggling with paranoia and had been diagnosed with anxiety,

ADHD, and bipolar disorder,” and he had hallucinations. Id. During the

investigation, the family moved “due to mold in the home,” but their new

home “was infested with fleas.” Id. “Ongoing supervision concerns persisted

with the children; the children were observed playing with glass and one was

nearly hit by a car.” Id.

[4] In August 2015, while the initial investigation was still in progress, DCS

received a report that Mother and Father had been arrested after leaving A.D.,

who was only a few months old, in a parked car at a Walmart. This prompted

DCS to take custody of the children. “[T]he children had previously been

removed from Mother and [Father’s] care while residing in the State of Utah,

due to unsanitary home conditions and a lack of supervision of the children.”

Id. DCS filed petitions alleging that the children were in need of services

(“CHINS”), which Mother and Father eventually admitted.

[5] Mother and Father completed psychological parenting assessments in the fall of

2015. Mother was diagnosed with “compulsive personality disorder with

narcissistic features, which manifests itself in rigid thinking, defensiveness, and

a lack of empathy,” and psychotherapy was recommended. Id. at 79. Mother

attended therapy, but she “failed to develop and implement parenting skills,

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 3 of 12 struggled with empathy, nurture, consistency, and maintaining realistic

expectations of the children.” Id. She also “failed to understand and

acknowledge the confusion her incestuous relationship could have on her

sexually reactive children.” Id. She “asked for guidance from her therapist, but

failed to follow through on the advice and engag[ed] in arguments.” Id.

[6] The assessment of Father’s parenting dynamics “revealed alarming scores and

[an] admission that his child, [A.D.], does not reinforce him as a parent and is

not sufficiently adaptable, resulting in feelings of depression.” Id. He was

diagnosed with a major mood disorder, major depression, and ADHD, and

psychotherapy was recommended. He participated in therapy and “made some

progress,” but the therapy “did not include any outside stressors, such as

parenting multiple children,” and “improvement in his parenting skills [was]

not observed during visitation.” Id. In January 2016, Father’s visitation was

temporarily suspended due to an admission of homicidal and suicidal thoughts.

[7] A primary concern was the sexualized behavior of the children. Mother

admitted that L.T., J.T., and Ju.D. “engaged in inappropriate touching prior to

DCS involvement, while in the care of [Mother] and [Father].” Id. at 77.

While the CHINS case was pending, “an incident occurred in which [J.T.] gave

[L.T.] hickeys” on his neck. Id. DCS family case manager (“FCM”) Renaldo

Wilmoth attended a visitation between Mother and the children during which

the hickeys were visible, but Mother didn’t address the issue with the children.

L.T. and J.T. also made various disclosures of a sexual nature. L.T. reported

that Mother and Father had sex in his presence, and J.T. “disclosed a lack of

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 4 of 12 supervision in Mother’s home and inappropriate sexual touching amongst her,

[L.T.], and a younger brother.” Id. J.T. also reported that she had viewed

pornographic material on a computer in Mother’s home. “The children require

constant supervision in order to be placed safely in the same home,” but L.T.

and J.T. both “identified [L.T.] as the primary caregiver when they resided with

Mother and [Father].” Id. “Given the sexual reactivity among siblings, [L.T.]

and [J.T.] require the modeling of healthy, appropriate sexual relationships,”

but “observing an incestuous relationship such as that of Mother and [Father]

would, at best, serve to confuse the children.” Id.2 Despite knowing of the

children’s sexualized behavior, Mother and Father did not get any of them into

therapy to address the issue. L.T. and J.T.’s therapist “credibly testified” that

Mother is unable “to provide the high level of structure and supervision that

[L.T.] and [J.T.] require.” Id. at 78.

[8] “[B.D.] exhibits aggressive and sexualized behavior, including a disregard for

personal space and inappropriate physical affection.” Id. She kissed an

unknown child during one supervised visit, and neither Mother nor Father

noticed. At another visit, Mother did not notice that B.D., J.T., and Ju.D. were

kissing each other in a playhouse. The children were also seen “grabbing one

another’s private parts” during Mother and Father’s supervised visits. Id.

2 In Indiana, sex between an uncle (here, Father) and a niece (here, Mother) constitutes incest, a Level 5 felony. Ind. Code § 35-46-1-3.

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 5 of 12 Eventually, a “no touching” rule was put into place during visitations, but

Mother and Father failed to consistently enforce the policy.

[9] In addition to the sexual issues, Ju.D and B.D. “have been diagnosed with post-

traumatic stress disorder, express fear of being left alone, and exhibit great

attachment to their foster parents and school staff.” Id. “Mother and [Father’s]

struggle to adequately supervise the children prohibits them from meeting

[Ju.D.] and [B.D.’s] needs.” Id.

[10] The majority of Mother’s and Father’s visits with the children “were

characterized by failures to adequately supervise, re-direct, provide structure,”

whether Mother and Father visited together or separately. Id. “Mother and

[Father] completed a parenting class, but failed to consistently apply the

techniques learned in class.” Id. “Despite repeated redirection from service

providers, Mother and [Father] were unable to position themselves [where] all

children could be seen.” Id. “Mother and [Father’s] inability to adequately

supervise all of the children, even in an enclosed area, puts all of the children at

risk.” Id. Visitation with Mother and Father caused “significant behavioral

problems” for the children. Id. “The children frequently expressed refusal to

attend visits and acted out during and after visits,” and at times the children’s

behavior after visits “escalated to such extremes” that the visitation supervisor

needed to pull over on the highway. Id.

[11] The trial court appointed Pam and Noel Wycliff as court-appointed special

advocates (“CASAs”) for the children. Pam Wycliff “offered services to

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 6 of 12 Mother and [Father] due to difficulties they had experienced with home

conditions and transportation,” but they “failed to follow through with

initiating the service.” Id. at 79. Mrs. Wycliff believed that Mother and Father

“were not able to demonstrate adequate supervision over the children.” Id.

During one visit to a park, Mother left Ju.D. in a bathroom and didn’t realize it

until she was asked three times how many children she had with her.

[12] In October 2016, DCS filed petitions to terminate Mother’s and Father’s

parental rights, with the plan for the future care of the children being adoption.

“Despite over one year of offered services, Mother and [Father] were unable to

progress to any visit supervision less restrictive than fully supervised,” id. at 79,

and in December 2016, their visitation was suspended. However, sibling

visitation continued, and the children’s behavior during visits and transport

“greatly improved.” Id. at 78. Marked improvement in Ju.D. and B.D.’s

“acting out” behavior was observed, and displays of sexualized behavior

“drastically decreased.” Id. at 79. L.T., Ja.D., and A.D. thrived in their

placements. J.T. “struggled” in her placement even after parental visitation was

suspended, but her behavior “further escalated after seeing Mother at a medical

appointment post-visit suspension.” Id. Mother responded to the suspension of

visitation by withholding consent to J.T. being given an ADHD medication

that had been recommended by a doctor.

[13] The trial court held a hearing on the termination petitions in April 2016.

Among DCS’s witnesses were FCM Wilmoth and the two CASAs, all of whom

testified that termination is in the best interests of the children. Mother and

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 7 of 12 Father testified that they were living in an “appropriate and affordable” new

home, but Mother “admitted that they are already behind on their mortgage,

despite financial assistance from DCS.” Id. at 79. They lived at four addresses

in twenty months while the CHINS and termination cases were pending.

[14] After the hearing, the trial court issued an order granting DCS’s petitions,

reaching the following conclusions under the termination statute, Indiana Code

section 31-35-2-4: (1) the children have been removed from the parents for at

least six months under a dispositional decree; (2) there is a reasonable

probability that the conditions that resulted in the children’s removal will not be

remedied and that continuation of the parent-child relationship poses a threat to

the well-being of the children; (3) termination is in the best interests of the

children; and (4) the plan of adoption of the children is satisfactory.

[15] Mother and Father now appeal.

Discussion and Decision [16] In a termination case, the trial court must make conclusions regarding the

allegations in the termination petition, and it must enter findings of fact in

support of those conclusions. Ind. Code § 31-35-2-8. When the losing party

appeals, the role of the appellate court is to determine whether the evidence

supports the findings and whether the findings support the conclusions. In re

R.S., 56 N.E.3d 625, 628 (Ind. 2016). We will set aside a termination judgment

only if it is clearly erroneous. Id.

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 8 of 12 [17] Here, Mother and Father do not challenge any of the trial court’s ninety-eight

findings of fact. Nor do they challenge the trial court’s first and last

conclusions: that the children have been removed from the parents for at least

six months under a dispositional decree and that the plan of adoption of the

children is satisfactory. Therefore, we need only decide whether the trial

court’s findings support its conclusions that there is a reasonable probability

that the conditions that resulted in the children’s removal will not be remedied

and that termination is in the best interests of the children. We hold that they

do.3

[18] Numerous findings of fact support the trial court’s conclusion that there is a

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

removal—lack of safe and stable housing and lack of supervision—will not be

remedied. Even after the children were removed in Utah “due to unsanitary

home conditions and a lack of supervision,” Mother and Father allowed their

home in Indiana to become so filthy that it prompted a DCS investigation.

That investigation revealed a continuing lack of supervision, with children

eating tissues out of the toilet, playing with glass, and nearly getting hit by a car.

One child, J.T., was not taking any medication after being diagnosed with

3 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that resulted in the children’s removal will not be remedied, we do not address its alternate conclusion that there is a reasonable probability that continuation of the parent-child relationship poses a threat to the well-being of the children. See In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010) (“We first observe that [Indiana Code] section 31-35-2-4(b)(2)(B) is written in the disjunctive. Thus DCS was required to prove by clear and convincing evidence only one of the two requirements of subsection (B).”).

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 9 of 12 ADHD and oppositional defiant disorder. Then, in August 2015, while the

initial investigation was still in progress, Mother and Father were arrested after

leaving A.D., an infant, in a parked car at a Walmart.

[19] After being diagnosed with significant mental-health disorders, Mother and

Father began seeing therapists, but the things they learned and the progress they

made were not implemented in their visits with the children. Perhaps most

troublesome is Mother’s failure to “understand and acknowledge the confusion

her incestuous relationship could have on her sexually reactive children.” At

one point, Father’s visitation was suspended after he admitted to having

homicidal and suicidal thoughts.

[20] The trial court also found that the children are in need of close supervision and

that Mother and Father have simply failed to demonstrate an ability to provide

that supervision. At various visits, Mother did not address the fact that L.T.

had hickeys on his neck (which had been given to him by J.T.), Mother and

Father did not notice that B.D. kissed an unknown child, and Mother did not

notice that B.D., J.T., and Ju.D. were kissing each other. During some visits,

the children were seen “grabbing one another’s private parts.” A “no touching”

rule was eventually put into place, but Mother and Father failed to consistently

enforce it. Furthermore, despite knowing of the children’s sexualized behavior,

Mother and Father did not get any of them into therapy to address the issue.

And despite guidance from service providers, Mother and Father failed to

position themselves where all children could be seen during visitation. Visits

with Mother and Father also caused “significant behavioral problems” for the

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 10 of 12 children. After more than a year of services, Mother and Father still had not

progressed beyond fully supervised visitation, and their visitation eventually

had to be suspended. Apparently in retaliation for the suspension, Mother

withheld consent to J.T. being given a doctor-recommended ADHD

medication. Notably, sibling visitation continued after the suspension, and the

children’s behavior during visits and transport “greatly improved.” Ju.D. and

B.D. acted out less, and displays of sexualized behavior “drastically decreased.”

[21] The trial court’s findings also support a conclusion that stable housing will

continue to be a concern. Mother and Father lived at four addresses in twenty

months while the CHINS and termination cases were pending. One of the

CASAs offered services to Mother and Father relating to home conditions and

transportation, but they did not follow through with initiating the service. In

addition, by the time of trial, Mother and Father were behind on the mortgage

on their new home despite financial assistance from DCS.

[22] In light of all these findings, we cannot say that the trial court erred, clearly or

otherwise, by concluding that there is a reasonable probability that the

conditions that led to the removal of the children will not be remedied.

[23] We also affirm the trial court’s conclusion that termination is in the best

interests of the children. “[T]he recommendation by both the case manager and

child advocate to terminate parental rights, in addition to evidence that the

conditions resulting in removal will not be remedied, is sufficient to show by

clear and convincing evidence that termination is in the child’s best interests.”

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 11 of 12 In re A.D.S., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied. Here,

we have addressed the substantial evidence that the conditions resulting in

removal probably will not be remedied, and FCM Wilmoth and both CASAs

all recommended termination. As such, we will not disturb the trial court’s

best-interests determination.

[24] Affirmed.

May, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1708-JT-1866 | February 28, 2018 Page 12 of 12