MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 27 2018, 6:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dorothy Ferguson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 27, 2018 of the Parent-Child Relationship Court of Appeals Case No. of O.B.; 48A02-1709-JT-2306 A.B. (Mother), Appeal from the Madison Circuit Court Appellant, The Honorable G. George Pancol, v. Judge Trial Court Cause No. The Indiana Department of 48C02-1701-JT-3 Child Services, Appellee.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 1 of 9 Statement of the Case [1] A.B. (“Mother”) appeals the termination of the parent-child relationship with
her daughter (“O.B.”), claiming that there is insufficient evidence to support the
termination because the Department of Child Services (“DCS”) failed to prove
by clear and convincing evidence that the conditions that resulted in O.B.’s
removal will not be remedied. Concluding that there is sufficient evidence to
support the trial court’s decision to terminate the parent-child relationship, we
affirm the trial court’s judgment.1
[2] We affirm.
Issue Whether there is sufficient evidence to support the termination of the parent-child relationship.
Facts [3] O.B. was born in April 2004. In April 2013, O.B.’s aunt and uncle became her
guardians (“Guardians”). In June 2015, Mother moved to Mississippi and left
O.B. with Guardians. Mother was using drugs at the time and did not have a
stable residence. One month later, in July 2015, Guardians took O.B. to a
relative’s home and explained that they would no longer be able to keep O.B. in
their home because of her inappropriate behavior. Guardians explained that
1 O.B.’s father has never been identified.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 2 of 9 O.B. had threatened to kill herself and wished that other people would die. She
was also refusing to take her insulin as prescribed and was admitted to the
hospital because of her high blood sugar. After O.B. was discharged from the
hospital, DCS Family Case Manager Kaneshia Tinker (“FCM Tinker”)
contacted Mother and informed her that O.B. was no longer living with
Guardians. When FCM Tinker asked Mother to return to Indiana to begin
visiting O.B., Mother hung up the telephone.
[4] That same day, DCS filed a petition alleging that O.B. was a child in need of
services (“CHINS”). Following a November 2015 fact finding hearing, the trial
court adjudicated O.B. to be a CHINS. In a December 2015 dispositional
order, the trial court ordered Mother to: (1) complete a substance abuse
assessment; (2) submit to random drug screens; (3) obtain stable employment
and housing; and (4) participate in home-based counseling. The trial court also
ordered DCS to begin an Interstate Compact on the Placement of Children
(“ICPC”) so that Mother could be evaluated for services and placements in
Mississippi.
[5] DCS completed the ICPC in February 2016. While Mississippi was evaluating
whether it was going to accept the ICPC, Mother returned to Indiana.2 She
visited DCS Case Manager Kaylee Jones (“Case Manager Jones”) in August
2016 and asked for visitation, home based services, and therapy. Mother
2 Mississippi denied the ICPC in September 2016. Apparently officials in Mississippi could not find Mother. When they went to her home address, a man answered the door and would not let them into the house.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 3 of 9 submitted a drug screen, which tested positive for cocaine and alcohol.
Children’s Bureau Home-Based Case Manager Amy Newton (“Case Manager
Newton”) attempted to set up referrals for Mother in October 2016, but
Mother’s telephone was turned off, and DCS had no idea where Mother was
living at the time. Mother was subsequently “closed out [of the program]
unsuccessfully.” (Tr. 16).
[6] After Mother failed to participate in services, DCS filed a petition in January
2017 to terminate her parental rights. Testimony at the June and August 2017
fact finding hearings on the termination petition revealed that Case Manager
Jones had not had any contact with Mother from August 2016 until February
2017, when Case Manager Jones had been able to reach Mother by telephone
and notify her about the initial termination hearing. Mother explained that she
had returned to Mississippi. According to Case Manager Jones, Mother had
not complied with any of the court-ordered services. Further, Case Manager
Jones had “no idea” where Mother was living in Mississippi. (Tr. 52).
According to Case Manager Jones, Mother had previously lived with her sister
and “been on the road in a semi driving with another man.” (Tr. 53-54). Case
Manager Jones explained that Mother was “very transient,” which was
“completely unstable for [O.B.]” (Tr. 53).
[7] The testimony further revealed that O.B. had had only sporadic contact with
Mother on Facebook Messenger. O.B.’s therapist, Abbie Rust (“Therapist
Rust”), testified that O.B. was “typically . . . the one reaching out.” (Tr. 19).
Therapist Rust explained that “continued contact [was] definitely harmful to . .
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 4 of 9 . [O.B.]” because O.B. had the expectation that Mother would respond
appropriately and continuously. However, Mother frequently failed to respond.
One time, Mother’s friend told O.B. that Mother was “in an unsafe place.” (Tr.
20). According to Therapist Rust, such information was “harmful to [O.B.,]”
who had struggled with anxiety, depression, and suicidal thoughts. (Tr. 20).
[8] At the time of the hearing, O.B. was in foster care in a preadoptive placement.
She was “maintaining her diabetes” and doing well in school. (Tr. 51). The
plan for her care was adoption. Case Manager Jones and Court-Appointed
Special Advocate Becky Douglas (“CASA Douglas”) both testified that
termination was in O.B.’s best interest.
[9] Also at the hearing, Mother testified telephonically that she had a house in
Mississippi but did not have a job. When asked why she was not in Indiana,
Mother stated, “I got no I.D. I can’t get on the bus. I got nowhere to go if I go
back to Indiana.” (Tr. 69). Mother admitted that she had not participated in
any court-ordered services.
[10] Following the hearing, pursuant to O.B.’s request, the trial court judge
conducted an in camera interview with O.B. In August 2017, the trial court
issued a detailed eight-page order that terminated Mother’s parental
relationship with O.B. Mother appeals.
Decision [11] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 27 2018, 6:23 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dorothy Ferguson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 27, 2018 of the Parent-Child Relationship Court of Appeals Case No. of O.B.; 48A02-1709-JT-2306 A.B. (Mother), Appeal from the Madison Circuit Court Appellant, The Honorable G. George Pancol, v. Judge Trial Court Cause No. The Indiana Department of 48C02-1701-JT-3 Child Services, Appellee.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 1 of 9 Statement of the Case [1] A.B. (“Mother”) appeals the termination of the parent-child relationship with
her daughter (“O.B.”), claiming that there is insufficient evidence to support the
termination because the Department of Child Services (“DCS”) failed to prove
by clear and convincing evidence that the conditions that resulted in O.B.’s
removal will not be remedied. Concluding that there is sufficient evidence to
support the trial court’s decision to terminate the parent-child relationship, we
affirm the trial court’s judgment.1
[2] We affirm.
Issue Whether there is sufficient evidence to support the termination of the parent-child relationship.
Facts [3] O.B. was born in April 2004. In April 2013, O.B.’s aunt and uncle became her
guardians (“Guardians”). In June 2015, Mother moved to Mississippi and left
O.B. with Guardians. Mother was using drugs at the time and did not have a
stable residence. One month later, in July 2015, Guardians took O.B. to a
relative’s home and explained that they would no longer be able to keep O.B. in
their home because of her inappropriate behavior. Guardians explained that
1 O.B.’s father has never been identified.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 2 of 9 O.B. had threatened to kill herself and wished that other people would die. She
was also refusing to take her insulin as prescribed and was admitted to the
hospital because of her high blood sugar. After O.B. was discharged from the
hospital, DCS Family Case Manager Kaneshia Tinker (“FCM Tinker”)
contacted Mother and informed her that O.B. was no longer living with
Guardians. When FCM Tinker asked Mother to return to Indiana to begin
visiting O.B., Mother hung up the telephone.
[4] That same day, DCS filed a petition alleging that O.B. was a child in need of
services (“CHINS”). Following a November 2015 fact finding hearing, the trial
court adjudicated O.B. to be a CHINS. In a December 2015 dispositional
order, the trial court ordered Mother to: (1) complete a substance abuse
assessment; (2) submit to random drug screens; (3) obtain stable employment
and housing; and (4) participate in home-based counseling. The trial court also
ordered DCS to begin an Interstate Compact on the Placement of Children
(“ICPC”) so that Mother could be evaluated for services and placements in
Mississippi.
[5] DCS completed the ICPC in February 2016. While Mississippi was evaluating
whether it was going to accept the ICPC, Mother returned to Indiana.2 She
visited DCS Case Manager Kaylee Jones (“Case Manager Jones”) in August
2016 and asked for visitation, home based services, and therapy. Mother
2 Mississippi denied the ICPC in September 2016. Apparently officials in Mississippi could not find Mother. When they went to her home address, a man answered the door and would not let them into the house.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 3 of 9 submitted a drug screen, which tested positive for cocaine and alcohol.
Children’s Bureau Home-Based Case Manager Amy Newton (“Case Manager
Newton”) attempted to set up referrals for Mother in October 2016, but
Mother’s telephone was turned off, and DCS had no idea where Mother was
living at the time. Mother was subsequently “closed out [of the program]
unsuccessfully.” (Tr. 16).
[6] After Mother failed to participate in services, DCS filed a petition in January
2017 to terminate her parental rights. Testimony at the June and August 2017
fact finding hearings on the termination petition revealed that Case Manager
Jones had not had any contact with Mother from August 2016 until February
2017, when Case Manager Jones had been able to reach Mother by telephone
and notify her about the initial termination hearing. Mother explained that she
had returned to Mississippi. According to Case Manager Jones, Mother had
not complied with any of the court-ordered services. Further, Case Manager
Jones had “no idea” where Mother was living in Mississippi. (Tr. 52).
According to Case Manager Jones, Mother had previously lived with her sister
and “been on the road in a semi driving with another man.” (Tr. 53-54). Case
Manager Jones explained that Mother was “very transient,” which was
“completely unstable for [O.B.]” (Tr. 53).
[7] The testimony further revealed that O.B. had had only sporadic contact with
Mother on Facebook Messenger. O.B.’s therapist, Abbie Rust (“Therapist
Rust”), testified that O.B. was “typically . . . the one reaching out.” (Tr. 19).
Therapist Rust explained that “continued contact [was] definitely harmful to . .
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 4 of 9 . [O.B.]” because O.B. had the expectation that Mother would respond
appropriately and continuously. However, Mother frequently failed to respond.
One time, Mother’s friend told O.B. that Mother was “in an unsafe place.” (Tr.
20). According to Therapist Rust, such information was “harmful to [O.B.,]”
who had struggled with anxiety, depression, and suicidal thoughts. (Tr. 20).
[8] At the time of the hearing, O.B. was in foster care in a preadoptive placement.
She was “maintaining her diabetes” and doing well in school. (Tr. 51). The
plan for her care was adoption. Case Manager Jones and Court-Appointed
Special Advocate Becky Douglas (“CASA Douglas”) both testified that
termination was in O.B.’s best interest.
[9] Also at the hearing, Mother testified telephonically that she had a house in
Mississippi but did not have a job. When asked why she was not in Indiana,
Mother stated, “I got no I.D. I can’t get on the bus. I got nowhere to go if I go
back to Indiana.” (Tr. 69). Mother admitted that she had not participated in
any court-ordered services.
[10] Following the hearing, pursuant to O.B.’s request, the trial court judge
conducted an in camera interview with O.B. In August 2017, the trial court
issued a detailed eight-page order that terminated Mother’s parental
relationship with O.B. Mother appeals.
Decision [11] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 5 of 9 K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
termination of that right when parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 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.
[12] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
[13] A petition to terminate parental rights must allege:
(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 48A02-1709-JT-2306 | April 27, 2018 Page 6 of 9 (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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[14] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that the conditions
that resulted in O.B.’s removal or the reasons for placement outside the parent’s
home will not be remedied; and (2) a continuation of the parent-child
relationship poses a threat to O.B.’s well-being.
[15] However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.2d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss
only whether there is a reasonable probability that the conditions that resulted
in O.B.’s removal or the reasons for her placement outside Mother’s home will
not be remedied.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 7 of 9 [16] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. The second step requires trial courts to judge a
parent’s fitness at the time of the termination proceeding, taking into
consideration evidence of changed conditions and balancing any recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. The trial court
may also consider services offered to the parent by DCS and the parent’s
response to those services as evidence of whether conditions will be remedied.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. 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. E.M., 4 N.E.3d at 643.
[17] Here, our review of the evidence reveals that O.B. was placed outside the home
when Guardians could no longer manage her behavior or her diabetes. O.B.
could not return to Mother’s care because Mother was in Mississippi and
showed no interest in returning to Indiana to visit or care for O.B. After O.B.
was adjudicated to be a CHINS, DCS attempted to set up an ICPC so that
Mother could receive services in Mississippi. However, officials in Mississippi
could not locate Mother. Although Mother eventually returned to Indiana, she
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 8 of 9 failed to participate in any of the court-ordered services. The one drug screen
that she submitted tested positive for cocaine and alcohol. At the time of the
termination hearing, Mother had returned to Mississippi and had no plans to
return to Indiana. Also at the time of the hearing, O.B. was in foster care in a
preadoptive placement. She was maintaining her diabetes and doing well in
school. Both Case Manager Jones and CASA Douglas testified that
termination was in O.B.’s best interests. This evidence supports the trial court’s
conclusion that there was a reasonable probability that the conditions that
resulted O.B.’s removal would not be remedied. We find no error.
[18] Affirmed.
Kirsch, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 48A02-1709-JT-2306 | April 27, 2018 Page 9 of 9