MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this FILED Memorandum Decision shall not be regarded Sep 23 2016, 9:24 am as precedent or cited before any court except CLERK for the purpose of establishing the defense of Indiana Supreme Court Court of Appeals res judicata, collateral estoppel, or the law of and Tax Court
the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Steven J. Halbert Gregory F. Zoeller Carmel, Indiana Attorney General of Indiana
Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA In the Matter of the Termination of September 23, 2016 the Parent-Child Relationship of Court of Appeals Case No. N.D. and A.J., Minor Children 49A02-1603-JT-415 Appeal from the Marion Superior L.J., Mother, Court The Honorable Marilyn A. Appellant-Respondent, Moores, Judge v. The Honorable Larry E. Bradley, Magistrate The Indiana Department of Child Trial Court Cause Nos. Services, 49D09-1506-JT-425 Appellee-Petitioner. 49D09-1506-JT-426
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 1 of 22 [1] L.J. (“Mother”) appeals the involuntary termination of her parental rights with
respect to her daughters, A.J. and N.D. Mother raises two issues which we
consolidate and restate as whether the evidence is sufficient to support the
termination of her parental rights. We affirm.
Facts and Procedural History
[2] On January 6, 2002, A.J. was born to Mother and B.D. (“Father”).1 On
December 26, 2002, N.D. was born to Mother and Father.
[3] In April 2013, Mother was living with J.M., the father of three of her other
children, and eight of her children in a residence on Goodlet Street. Mother
was arrested for disorderly conduct and served nine days in jail. That month,
DCS filed a petition alleging that A.J., N.D., and five of Mother’s other
children were children in need of services (“CHINS”) because Mother failed to
provide a safe living environment with necessary supervision, she was recently
arrested and incarcerated leaving the children without an appropriate caregiver,
there were allegations that one of Mother’s children was “perpetrating sexually
on his siblings,” and A.J. recently obtained a grease burn due to lack of
supervision. Petitioner’s Exhibit 1.
[4] In June 2013, the parties agreed to an informal adjustment under which Mother
would participate in home based therapy and case management, substance
1 DCS stated that Father was the alleged father of A.J., and Mother testified that Father was the father of A.J. Father signed consents for the adoption of A.J. and N.D.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 2 of 22 abuse treatment, domestic violence education, and submit to random urine
drug screens. Other than the domestic violence education, Mother was actively
involved in services until January 2014, but completed only her substance abuse
treatment as a part of the informal adjustment. On December 11, 2013, DCS
requested an extension of the informal adjustment because of Mother’s housing
instability.
[5] On January 3, 2014, Mother called Family Case Manager Annaliese Gibbs2
(“FCM Gibbs”) regarding a domestic violence incident that had occurred in the
home on Belleview. FCM Gibbs determined that J.M. and his girlfriend were
also residing in the home and “that turned out to be a . . . bit of a dysfunctional
situation for the family.” Transcript at 71. That same day, Mother discussed
with FCM Gibbs and the home based therapist that she had continued to
struggle with alcohol even after successfully completing her treatment in
September 2013 and that she also “had incidence [sic] of domestic violence
between herself and [J.M.], who was residing in the home.” Id. at 71-72.
Mother was open about the abuse she was suffering and admitted that her home
was not a safe place. On January 3, 2014, the children were removed from the
home, and Mother also moved out.
2 FCM Gibbs indicated that she was formerly known as Annaliese Diaz.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 3 of 22 [6] On January 9, 2014, DCS filed a verified petition alleging that A.J. and N.D.
were CHINS.3 DCS alleged that the children’s physical or mental condition
was seriously impaired or seriously endangered as a result of the inability,
refusal, or neglect of the children’s parents to supply them with necessary food,
clothing, shelter, medical care, education, or supervision. DCS alleged that
FCM Gibbs determined that Mother failed to provide the children a safe and
secure home free from domestic violence and that she and J.M. had a history of
violence and engaged in domestic violence in front of the children. DCS
alleged that Mother and J.M. had unsuitable housing in which the utilities were
turned off and there was inadequate bedding. DCS also alleged that the
whereabouts of Father were unknown and he had failed to meet his children’s
needs and protect them from domestic violence in the home.
[7] That same day, the court held a hearing at which Mother appeared, and the
court authorized the children’s continued removal. Mother signed a document
titled “Respondent’s Admission to Amended Petition, Paragraph 4(a),” stating
that the children are CHINS because Mother requires assistance providing the
basic necessities for the children such as housing with functioning utilities, and
it also states: “services: Home Based, Domestic Violence Intake, ensure [N.D.]
remain[s] in therapy, Substance Abuse Assessment.” Petitioner’s Exhibit 16.
3 The petition also listed Mother’s other children, but this appeal involves the termination of Mother’s parental rights as to only A.J. and N.D.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 4 of 22 [8] On February 12, 2014, the court found the children to be CHINS, held a
dispositional hearing, and entered a dispositional order and a parental
participation order.4 The court ordered Mother to engage in a home based
counseling program, complete a substance abuse assessment and successfully
complete all treatment recommendations, submit to random drug/alcohol
screens, complete a domestic violence intake or assessment and complete all
services and recommendations, and ensure that N.D. continue to participate in
therapy and follow all recommendations.
[9] In early February, the service providers and DCS had concerns with Mother’s
struggle in maintaining open communication and in fully participating in
services. DCS attempted to hold a child and family team meeting on February
19th to discuss what barriers Mother may have had towards progressing in her
treatment, but Mother did not attend the meeting, and DCS subsequently filed
an affidavit to suspend visitation in February 2014. In March 2014, the court
suspended Mother’s visitation.
[10] In March 2014, Mother stated to FCM Gibbs that she had been in Gary,
Indiana, for a couple of weeks but had returned to Indianapolis and hoped to
re-engage in services and find stable housing and employment. During a period
of time, neither DCS nor the service providers were able to contact Mother.
4 The record does not contain the transcript of the February 12, 2014 hearing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 5 of 22 [11] After a couple of months, DCS determined that Mother was back in Gary, and
Mother indicated that she wanted to stay in Gary and requested to transfer her
services. In May 2014, FCM Gibbs re-referred services to Mother in Gary for
home based therapy and case management, a substance abuse assessment and
recommended treatment, domestic violence education, and random drug
screens.
[12] In August 2014, FCM Gibbs transferred the case to Family Case Manager
Elizabeth Plew (“FCM Plew”) who had difficulty reaching Mother at the
number she was provided. FCM Plew gave Mother her phone number, and
Mother sent text messages to FCM Plew “usually just prior to Court . . . or just
after Court asking [her] what happened at Court if she didn’t attend.”
Transcript at 110. There was a period of several months where FCM Plew was
unable to reach Mother.
[13] In January 2015, Mother told FCM Plew that she would be moving back to
Indianapolis and asked to start visiting A.J. and N.D. Mother did not have an
address she could give FCM Plew or a stable plan for housing or employment.
To FCM Plew’s knowledge, Mother did not move back to Indianapolis.
[14] On January 7, 2015, the court entered an order following a periodic review
hearing finding that Mother moved to Gary and was participating in some
services, including drug screens which had been negative, but was not
participating in substance abuse treatment. The court noted that Mother
reported she would be moving back to Indianapolis in February.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 6 of 22 [15] On June 5, 2015, DCS filed a verified petition for the involuntary termination
of the parent-child relationship between Mother and A.J. and N.D. On
January 28, 2016, the court held an evidentiary hearing at which Mother
appeared telephonically. She testified that she had nine children and that none
of them lived with her at that time, and that J.M. was physically abusing her in
front of the children in the Bellview residence. Mother testified that back in
January 2014, she took her children to the foster home to “get them to safety”
and away from J.M. Id. at 43. She stated that she moved to Gary because she
did not feel safe anymore.
[16] Mother testified that the water had been shut off to her residence on Belleview
but that she had it turned back on and that the utilities including the lights and
gas worked. She stated that she did not have electricity for two hours, that
[J.M.] paid the bill and the electricity was back on in twenty minutes, and that
she moved into her own place on July 1, 2015.
[17] When asked if she just stopped participating in services, Mother answered:
“The services, the services, they’ve been stopped participating with me. They
were only going to spend thirty minutes with me and I probably felt like I
probably need a hour, hour and a half so.” Id. at 20. She testified that she did
not contact FCM Gibbs when she did not think she was getting services that she
needed, and that she received a phone number but no one answered when she
called or responded to her text messages. She also stated that she tried to call
FCM Gibbs’s supervisor but no one answered and that she stopped trying to
contact DCS around February 2015.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 7 of 22 [18] Mother testified that she works at a soul food restaurant Sundays through
Fridays from 6:00 a.m. to 5:00 p.m. and that she is paid every day “under the
table.” Id. at 36. She stated that she would like her children to come home
because she is stable and working, had not been arrested, and there had been no
domestic violence in the home.
[19] Mother testified that she had not seen A.J. or N.D. for over two years, that she
had not been involved in services for about eleven months, and that she did not
talk to FCM Plew about initiating visits again with A.J. and N.D. because
FCM Plew never wanted to answer or respond to her messages or calls. When
asked why she did not complete any services in Gary, Mother answered:
They just, they stopped coming and stopped calling me and they wasn’t doing what they were supposed to do. I think they just in it for the money I’m sorry to say but they was just in it for the money and come and see me and want to leave thirty minutes want to leave. I mean like, then my case manager didn’t want to take me here and there where I needed to go. Talked this through myself and got on my feet and getting my stuff, got on my own feet and found my own job and my own place. Walking on my feet by myself without my case manager.
Id. at 34.
[20] According to the testimony of FCM Gibbs, who was assigned the case between
June 2013 and August 2014, there were multiple housing transitions throughout
the first six months including some periods of homelessness in August due to an
eviction from Mother’s first home. Of the services Mother agreed to, she
completed only her substance abuse treatment, and FCM Gibbs subsequently
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 8 of 22 referred her twice for a substance abuse assessment and treatment based upon
her admission to alcohol use. FCM Gibbs also referred Mother twice to
domestic violence treatment after her initial referral, but she did not complete
those services while FCM Gibbs had the case.
[21] FCM Plew testified that the last time Mother worked with any service providers
was January 2015, that Mother never gave her any documentation that she had
stable housing or proof of a stable income, and that DCS had concerns with
Mother’s pattern of instability in housing and employment, her ability to
provide for the children, the history of domestic violence and Mother’s failure
to complete domestic violence treatment, and Mother’s history of substance
abuse and failure to successfully complete treatment. She testified that the
conditions that resulted in the removal of A.J. and N.D. had not been
remedied, that it was her belief that the continuation of the parent-child
relationship posed a threat to the well-being of A.J. and N.D., and that
termination was in the best interests of A.J. and N.D.
[22] The guardian ad litem for A.J. and N.D., Marquia Washum (“GAL
Washum”), testified that she reviewed the contents of the entire Child
Advocates case file and reports from service providers, interviewed or contacted
the case manager, foster parents, and previous guardian ad litem, and visited
with A.J. and N.D. multiple times. She testified that A.J. and N.D. did not
voice any desire to be placed in Mother’s care and that both reported during
several visits that they would like to be adopted by their foster parents. GAL
Washum recommended the termination of Mother’s parental rights because she
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 9 of 22 had not fully and successfully engaged in services and the children had been out
of her care for a significant amount of time. She testified that she believed that
the plan of adoption was in the best interests of the children. When asked why
Mother should not be given additional time to complete services, GAL
Washum answered that the children had been out of Mother’s care for a
significant amount of time, there were concerns that the reasons for
involvement had not been remedied, and the children had bonded to the foster
parents and were excelling in that environment.
[23] On February 2, 2016, the court entered an order terminating Mother’s parental
rights to A.J. and N.D. Specifically, the order states in part:
Upon evidence presented, the Court now finds by clear and convincing evidence:
1. [Mother] is the mother of [A.J.] and [N.D.], minor children ages thirteen and twelve, respectively.
2. [Father] is the father of [N.D.] and the alleged father of [A.J.]. He has signed consents for their adoption.
3. Child in Need of Services Petitions “ChINS” were filed on [A.J.] and [N.D.] on April 11, 2013, under Cause Numbers 49D091304JC03322 & 3 after [Mother] was incarcerated leaving no one to care for the children. There were also allegations that another of [Mother’s] children was perpetrating sexually on siblings.
4. Although the children were initially detained outside the home, they were placed back with [Mother] and the ChINS
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 10 of 22 matter was dismissed in June 2013, and replaced with an Informal Adjustment.
5. [Mother’s] housing was unstable and the Informal Adjustment was extended.
6. Due to [Mother] struggling with alcohol abuse and domestic violence in the home, the children were removed, due to [Mother’s] being honest and open with her family case manager, on January 3, 2014.
7. New Child in Need of Services Petitions were filed on [A.J.] and [N.D.] on January 9, 2014, under Cause Numbers 49D091401JC000034 and 49D091401JC000036.
8. On February 12, 2014, the children were adjudicated to be in need of services after [Mother] admitted to allegations that she needed assistance providing basic necessities for the children such as housing with functioning utilities, an [sic] agreed to do home based services, and a domestic violence intake and a substance abuse assessment.
9. Disposition was held on February 12, 2014, at which time the children remained placed outside the home.
*****
12. After the February 12, 2014 disposition date, [Mother’s] whereabouts were unknown and she had stopped services that were referred in January and February, 2014.
13. On May 19, 2014, home based therapy and case management, a substance abuse assessment, random urine
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 11 of 22 screens and domestic violence education were again referred in Gary, Indiana.
14. [Mother] contacted her family case manager to re-engage in services and she had relocated to Gary, Indiana.
15. Services eventually closed in Gary, Indiana and [Mother] never asked for further referrals.
16. [Mother] had completed substance abuse treatment but struggled with alcohol thereafter, and was in need of further treatment.
17. Parenting time for [Mother] was suspended in March 2014, but was authorized to continue upon positive recommendations by the service providers. [Mother] had been inconsistent in visits, services and contact, and she was inappropriate in conversations with the children.
18. [Mother] appeared at a Periodic Review Hearing in January 2015, represented she was moving back to Indianapolis, and requested visits. The Court authorized visits conditioned on positive recommendation by the children’s therapist.
19. [Mother] did not have stable housing in Gary until July 2015. Since that time she has resided in a home with her fiancé who has a month to month lease.
20. [Mother] first obtained employment three months ago at a restaurant and gets paid “under the table”.
21. The last visit that took place between [Mother] and daughters was on February 15, 2014.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 12 of 22 22. [A.J.] and [N.D.] are in a preadoptive placement. They have resided with their current foster parents for over two years.
26. The children have voiced to their Guardian ad Litem their wish to be adopted.
27. There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside the home will not be remedied by [Mother]. [Mother] has still not addressed the issues of domestic violence and alcohol abuse. She does not have independent housing and has been employed, getting paid illegally, for only the past three months when she has a long pattern of instability. Her lack of contact with her family case managers demonstrate a lack of effort at reunification.
28. Continuation of the parent-child relationship poses a threat to the children’s well-being in that it would pose as a barrier to obtaining permanency for them through an adoption and into a home where they are happy and excel. The children have been wards for a significant amount of time and need to move forward. [Mother] has not seen the girls for almost two years.
29. Family Case Manager Elizabeth Plew recommends adoption for the children.
30. Guardian ad Litem Marquia Washum recommends termination of parental rights and adoption as being in the children’s best interests based on the children’s wishes, [Mother’s] level of engagement of services, the significant amount of time that has passed, and the children’s placement where they are bonded and are excelling.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 13 of 22 31. Termination of the parent-child relationship is in the best interests of the children. Termination would allow them to be adopted into a stable and permanent home where their needs will be safely met.
32. There exists a satisfactory plan for the future care and treatment of the children, that being adoption.
Appellant’s Appendix at 24-26.
Discussion
[24] The issue is whether the evidence is sufficient to support the termination of
Mother’s parental rights. In order to terminate a parent-child relationship, DCS
is required to allege and prove, among other things:
(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
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 14 of 22 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
(D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[25] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 15 of 22 consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. “We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence.” Id. (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592
N.E.2d 1232, 1235 (Ind. 1992)). “We confine our review to two steps: whether
the evidence clearly and convincingly supports the findings, and then whether
the findings clearly and convincingly support the judgment.” Id.
[26] “Reviewing whether the evidence ‘clearly and convincingly’ supports the
findings, or the findings ‘clearly and convincingly’ support the judgment, is not
a license to reweigh the evidence.” Id. “[W]e do not independently determine
whether that heightened standard is met, as we would under the ‘constitutional
harmless error standard,’ which requires the reviewing court itself to ‘be
sufficiently confident to declare the error harmless beyond a reasonable doubt.’”
Id. (quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967), reh’g denied). “Our review must
‘give “due regard” to the trial court’s opportunity to judge the credibility of the
witnesses firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cnty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))).
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 16 of 22 [27] We note that the involuntary termination statute is written in the disjunctive
and requires proof of only one of the circumstances listed in Ind. Code § 31-35-
2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we
limit our review to whether DCS established that there was a reasonable
probability that the conditions resulting in the removal or reasons for placement
of A.J. and N.D. outside the home will not be remedied. See Ind. Code § 31-35-
2-4(b)(2)(B)(i).
[28] In determining whether the conditions that resulted in the children’s removal
will not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d at 642-
643. First, we identify the conditions that led to removal, and second, we
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. In the second step, the trial court must judge a
parent’s fitness as of the time of the termination proceeding, taking into
consideration evidence of changed conditions, balancing a parent’s recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. We entrust that
delicate balance to the trial court, which has discretion to weigh a parent’s prior
history more heavily than efforts made only shortly before termination. Id.
Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that a parent’s past behavior is the best predictor of
her future behavior. Id. “The statute does not simply focus on the initial basis
for a child’s removal for purposes of determining whether a parent’s rights
should be terminated, but also those bases resulting in the continued placement
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 17 of 22 outside the home.” In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013)
(citation and internal quotation marks omitted). A court may properly consider
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. Id. A trial court can reasonably consider the services offered by
DCS to the parent and the parent’s response to those services. Id. Further,
where there are only temporary improvements and the pattern of conduct
shows no overall progress, the court might reasonably find that under the
circumstances, the problematic situation will not improve. Id.
[29] Mother argues that she was a victim of domestic violence and took the initiative
to remove herself and her children from the abuser, and that she went to Gary
“to get away from this dangerous individual who is incarcerated for murder.”
Appellant’s Brief at 14-15. She contends that there is no evidence that she
needs any sort of program to avoid further domestic violence. As to her
struggle with alcohol use, she posits that there is no evidence her use continued
after the children’s removal. Her position is that there was not clear and
convincing evidence that her housing or employment created a danger to her
children.5 DCS argues that the court’s unchallenged findings support the
judgment and that the decision is not clearly erroneous.
5 Mother also raises a number of arguments relating to Father. Specifically, Mother asserts that Father was not served notice of the CHINS petition until after the adjudication and disposition had been made, that the CHINS adjudication and disposition on February 12, 2014, were as to Mother only, and that the order terminating parental rights does not refer to a dispositional order applicable to Father. Mother does not develop a cogent argument as to why these assertions with respect to Father warrant reversal of the
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 18 of 22 [30] With respect to Mother’s employment, Mother testified that she worked six
days a week for the three months prior to the termination hearing, she did not
provide any verification of employment to her case manager, and she was being
paid “under the table.” Transcript at 36. She also testified that her last prior
employment was in 2011.
[31] As for housing, Mother testified that she lived in a residence on Goodlet Street
for six or seven months when DCS first became involved, moved to her sister’s
house and then to a place on Belleview, then went to live with her brother for a
couple of weeks, then with her sister in Gary for six months, and then in
Indianapolis with a man for three weeks before moving to Gary in July 2015 in
a residence that was leased in her fiancé’s name under a month-to-month lease.6
FCM Gibbs testified that she received the case in June 2013 and that there were
multiple housing transitions throughout the first six months that she had the
case including some times of homelessness in August due to an eviction from
Mother’s first home. She also testified that Mother lived with the children in a
studio apartment that was being rented by a person with whom she had a
termination of her parental rights, particularly where Father waived his right to a fact finding as to A.J. and N.D. and signed consents for the adoption of A.J. and N.D. Accordingly, we find these arguments waived. 6 Mother’s testimony regarding her residences is somewhat conflicting. She testified that after she left her house on Belleview, she went to live with her brother for a couple of weeks before leaving town and moving to Gary on April 11, 2014. Counsel for DCS asked Mother where she was living during the six months between April of 2014 and July of 2015, and Mother answered: “2014, I was living in Indianapolis . . . for roughly about three weeks and then I moved here in 2015.” Transcript at 18. During cross-examination by the guardian ad litem’s attorney, Mother testified that she moved to Gary in April 2015. During questioning by her attorney, Mother testified that she moved to Gary in April 2014. Her attorney stated: “Okay, so I, I was a little confused. Did you ever move back to Indianapolis from Gary once you moved up there in April of 2014?” Id. at 37. Mother responded: “No.” Id. She also indicated that she lived in Gary continuously since April 2014.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 19 of 22 relationship between December 4, 2013, and January 3, 2014, until the
apartment was condemned. We cannot say that the trial court’s findings
regarding Mother’s housing instability are clearly erroneous.
[32] As to the domestic violence education and substance abuse treatment, the
record reveals that Mother agreed to participate in substance abuse treatment
and domestic violence education as part of the informal adjustment. When
asked if Mother participated in services during the time period from June 2013
until January 2014, FCM Gibbs stated that “besides from [sic] the domestic violence
education, she was actively . . . involved in the other services up until the
January date.” Transcript at 91-92 (emphasis added). Mother completed her
substance abuse treatment in September 2013 as part of the informal
adjustment, but stated in January 2014 that she continued to struggle with
alcohol use. While Mother was open about the abuse she was suffering, she did
not complete domestic violence education. Her admission that the children
were CHINS included a notation for services for domestic violence and
substance abuse. In the February 12, 2014 parental participation order, the
court ordered Mother to complete a substance abuse assessment and
successfully complete all treatment recommendations, and complete a domestic
violence intake or assessment and complete all recommended services. FCM
Gibbs testified that Mother expressed ongoing concerns with respect to her
relationship with J.M. and his harassment of her after she moved to Gary.
FCM Plew testified that Mother did complete a substance abuse assessment and
that she believed Mother completed a domestic violence assessment, but she did
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 20 of 22 not complete treatment for either domestic violence or substance abuse. We
cannot say that the trial court’s finding that Mother has still not addressed the
issues of domestic violence and alcohol abuse is clearly erroneous.
[33] We also observe that Mother struggled with maintaining communication and
participating in services, did not attend the child and family team meeting on
February 19, 2014, stopped participating in services in Gary in February 2015,
and did not complete any of the services provided in Gary. In addition to her
other testimony, FCM Plew testified that the conditions that resulted in
removal of A.J. and N.D. had not been remedied, and that termination was in
the best interests of A.J. and N.D. GAL Washum also recommended the
termination of Mother’s parental rights because Mother had not fully and
successfully engaged in services.
Conclusion
[34] Based upon the court’s findings and the record as set forth in part above, we
conclude that clear and convincing evidence supports the trial court’s
determination that there was a reasonable probability that the conditions
leading to the removal of A.J. and N.D. would not be remedied.
[35] For the foregoing reasons, we conclude that the trial court’s judgment
terminating the parental rights of Mother is supported by clear and convincing
evidence.
[36] Affirmed.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 21 of 22 Robb, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JT-415 | September 23, 2016 Page 22 of 22