MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 14 2016, 7:57 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE MOTHER Gregory F. Zoeller Renee M. Ortega Attorney General of Indiana Lake Superior Court, Juvenile Division Robert J. Henke Public Defender’s Office David E. Corey Crown Point, Indiana Deputy Attorneys General ATTORNEY FOR APPELLANT Indianapolis, Indiana FATHER Deidre L. Monroe Lake Superior Court, Juvenile Division Public Defender’s Office Gary, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 14, 2016 of the Parent-Child Relationship Court of Appeals Case No. of P.W., Father, and T.Y., 45A03-1605-JT-1167 Mother, and R.Y., T.Y., & Appeal from the T.C.Y., Minor Children, Lake Superior Court P.W. and T.Y., The Honorable Thomas P. Stefaniak, Jr., Judge Appellants-Respondents, Trial Court Cause Nos. v. 45D06-1410-JT-233 45D06-1410-JT-234 45D06-1410-JT-235
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 1 of 27 Indiana Department of Child Services, Appellee-Petitioner.
Kirsch, Judge.
[1] P.W. (“Father”) and T.Y. (“Mother”) separately appeal the juvenile court’s
order terminating their parental rights to their children R.Y. and T.Y. Mother
also appeals the termination of her parental rights to T.C.Y. Parents raise the
following consolidated and restated issue:
I. Whether the juvenile court’s order terminating Father’s parental rights to R.Y. and T.Y. and Mother’s parental rights to R.Y., T.Y., and T.C.Y (collectively, “Children”) are clearly erroneous.
Mother, alone, raises the following restated issue:
II. Whether Mother’s trial counsel was ineffective.
[2] We affirm.
Facts and Procedural History [3] Mother and Father (together, “Parents”) are the biological parents of R.Y., who
was born on January 19, 2011, and T.Y., who was born on May 15, 2012. Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 2 of 27 Mother is also the biological mother of T.C.Y., who was born on May 31,
2008.1 In the early morning hours of February 15, 2013, the Indiana
Department of Child Services (“DCS”) received a call from the East Chicago
Police Department (“ECPD”) regarding Children being left at home alone. At
that time, Children were four years, two years, and nine months of age.
[4] Earlier that evening, an ECPD officer had responded to Mother’s call that she
and Father were fighting. During the dispute, Father had left, and Mother,
concerned he was going to slash the tires on her car, called the police. The
officer assured Mother, who was under the influence of alcohol, that her tires
had not been slashed. Shortly thereafter, the same officer was again on patrol
when he saw Mother at a neighborhood gas station putting air in her tires.
Knowing that Mother had been the only caretaker at the home, the officer
detained Mother, while other officers went to Mother’s home. There, they
discovered Children alone and awake. Mother was arrested for public
intoxication and remained in jail for two or three days. DCS Family Case
Manager Veronica Martinez (“FCM Martinez”), responding to ECPD’s call to
assess the situation, arrived at Mother’s home around 2:00 a.m. and found the
home in “disarray,” and the refrigerator knocked over onto its side. Tr. at 11.
Efforts to find someone to care for Children were unsuccessful, and Children
were removed from the home and placed in foster care.
1 Father’s brief mistakenly states that he is the Father of all three children. However, DNA testing eliminated Father as the biological father of T.C.Y. The identity of T.C.Y’s father is unknown.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 3 of 27 [5] On February 19, 2013, DCS filed a petition alleging Children were children in
need of services (“CHINS”) based, in part, on Mother’s arrest for public
intoxication and Children having been left alone at home at such young ages.
A hearing was held that same day, and Mother admitted to the material
allegations of the CHINS petition. Children were adjudicated CHINS and
ordered to remain in foster care as temporary wards of DCS. At that time, the
CHINS court ordered Mother to participate in and comply with services,
including, drug and alcohol evaluations, clinical assessments, parenting
assessments, and supervised visitation. Mother was also ordered to submit to
random drug screens. While Father initially denied the CHINS allegations, the
CHINS court adjudicated Children were CHINS as to Father when he failed to
appear at a March 2013 fact-finding hearing. At that time, the court ordered
him to participate in the same services previously ordered for Mother. During a
July 2014 permanency hearing, the CHINS court approved concurrent
permanency plans of reunification and adoption. About one year later, the
CHINS court changed the permanency plan to adoption.
[6] Meanwhile, in May 2015, DCS filed petitions to terminate Parents’ parental
rights to their respective children. The juvenile court held an evidentiary
hearing on the termination petitions in April 2016 at which Mother, Father,
FCM Martinez, Caring Corner therapist Sharon Parker (“Therapist Parker”),
and DCS Family Case Manager Darren Washington (“FCM Washington”) all
testified. FCM Martinez testified that she spoke with Father a few days after
Children were removed, and he reported that Mother was drinking on the night
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 4 of 27 in question and “when she drinks, she gets argumentative.” Tr. at 13. Father
had been arrested before for domestic violence against Mother and admitted to
FCM Martinez that he left the home after Mother called the police because he
was concerned about again being arrested for domestic violence. Id. at 13, 18.
[7] FCM Martinez testified that Mother told her that Children had not been left
alone, instead, a neighbor had agreed to “watch the children, but not in
[Mother’s] home. [The neighbor] would visually check on the home” from her
own home across the street. Id. at 14 (emphasis added). FCM Martinez
learned from police that no one was checking on Children. FCM Martinez
testified at the April 2016 hearing that it is customary in each case to look at a
parent’s prior child protective services history and criminal history to
understand the situation. In this case, FCM Martinez noted that Mother had
two older children who were living with their father. Additionally, there had
been an Informal Adjustment in June 2012 regarding Parents’ youngest child,
T.Y., the details of which FCM Martinez could not recall. FCM Martinez
recommended, and the CHINS court ordered, Parents to participate in clinical
assessments, parental assessments, supervised visitation, and substance abuse
assessments.
[8] Evidence was also presented that, in 2013, DCS had referred Mother to
Therapist Parker, who provided Mother with individual therapy and substance
abuse therapy for over two years (ending July 2015). Therapist Parker testified
that Mother resisted treatment, believing that Children should never have been
removed from her home and denying that she had issues “she needed to work
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 5 of 27 on.” Tr. at 29-30. About six months later, Therapist Parker found that the
program was not going well and identified various obstacles, including,
Mother’s denial of being accountable for poor decision making, Mother’s
“cognitive deficits,” and Mother’s inconsistency with taking medication
prescribed to stabilize her mood. Id. at 31-33, 37. Additionally, Therapist
Parker noted that Mother’s relationship with Father was “toxic” because both
had a history of substance abuse, which meant that they could thwart each
other’s attempt to “get clean.” Id. at 35. Therapist Parker testified that Mother
had no “true progression” with therapeutic services over the next year and a
half. Id. at 38. While recognizing that Mother attended a group to address
substance abuse issues, Therapist Parker confirmed that Mother continued to
have relapses. In fact, Mother was charged with alcohol-related offenses, and
she had used marijuana on the day before the termination hearing. Id. at 39,
100. Therapist Parker noted that Mother was not “making much better
decisions than when [Therapist Parker] first started working with her.” Id. at
39. Therapist Parker agreed that Mother had plenty of time and opportunities,
and was able to meet with Therapist Parker, but despite all of that “we are kind
of right where we started.” Id. at 43. By the time therapy ended, Mother still
had not admitted that she had a problem. Id. at 44.
[9] Father also had been referred to Therapist Parker, who identified issues that
Father needed to work on, including anger and alcohol abuse. Id. at 41.
Therapist Parker testified that Father lived in Illinois and was inconsistent in
attending services, even though she offered to meet him in Illinois. He also did
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 6 of 27 not respond to her calls. Therapist Parker stated that Father was involved when
he attended therapeutic services, but his attendance was too inconsistent. She
opined that Father had made no real progress.
[10] In February 2014, FCM Washington was assigned to work on concurrent plans
of reunification and termination. He testified that his focus was Children’s
safety, stability, and permanency, and he tried to keep Parents compliant with
the case plans. Id. at 172. Initially, the plan for Children was reunification with
Father. Father was given the opportunity to participate in numerous services,
but he failed to participate consistently. Id. at 174. FCM Washington learned
that Father did not have a job or means of transportation. Id. at 177. FCM
Washington told Father “he needed to comply with services in order . . . to
move forward,” but Father “disappeared” and disconnected his phone. Id.
Father did not get in touch with FCM Washington again until November or
December of 2014, after Father learned that DCS had filed a petition to
terminate his parental rights. Id.
[11] Father was unsuccessful in complying with services, and the juvenile court
changed the permanency plan from reunification with Father to reunification
with Mother. Tr. at 174. FCM Washington testified that Mother, initially, was
able to “go through parenting and then parenting interaction with the
[C]hildren. She was taking drug screens.” Id. at 175. Abuse of alcohol became
an issue for Mother and, at the time of the April 2016 fact-finding hearing, she
had two pending cases for alcohol-related offenses in East Chicago. Id. at 175-
76. Initially, parenting education was provided by Kitty Taylor (“Taylor”).
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 7 of 27 FCM Washington testified that when he or Taylor visited, Mother had the
habit of answering the door late or not at all. Tr. at 179. During the CHINS
and termination proceedings, Mother had positive screens for alcohol. Id. At
one point, FCM Washington and Therapist Parker spoke with Mother about
the option of inpatient treatment as a means to address her persistent problem
with alcohol abuse, drugs, and rage. Id. FCM Washington opined that
Mother’s condition was serious enough to warrant such treatment, but Mother
was “vehemently” against it. Id. at 179-80.
[12] During the entire month of April 2015, Mother did not participate in services.
Id. at 181. She also did not see Children because she refused to answer the door
when Taylor brought them for a visit. Id. FCM Washington stated that it was
difficult to bring about reunification because Mother had made insufficient
progress on the issue of substance abuse as revealed by her two arrests (March
2014 and April 2015) for public intoxication. Furthermore, although Mother
had been referred to a psychiatrist who prescribed medication to stabilize her
mood, Mother refused to take the medication “because she didn’t know why
she even had a DCS case in the first place.” Id. at 184. At Mother’s request,
FCM Washington removed Taylor from the case and replaced her with
Kimberlee Woods (“Woods”). Mother made no dramatic improvements and
still refused to answer the door when Woods brought Children for visitation.
Moreover, Mother again tested positive for alcohol and synthetic marijuana.
Id. at 185. FCM Washington stressed to Mother the importance of no longer
using drugs.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 8 of 27 [13] FCM Washington testified that, although Mother initially did well with
services, there was a sharp decline in cooperation once Mother resumed contact
and communication with Father. Id. at 188. It was FCM Washington’s
opinion that inpatient treatment could have worked, but Mother rejected that
option twice. Id. at 188-89. FCM Washington maintained that, such treatment
would have taken Mother away from the neighborhood environment and
influences that were harmful to her. He opined, “I think those influences are
going to continue to be there and [Mother] hasn’t done anything to prevent
those influences from coming in and taking over.” Id. at 189-90.
[14] In light of Mother’s consistent substance abuse, her continued volatile
relationship with Father, and her “consistent negative behavior,” FCM
Washington concluded that Mother’s home would be an unstable and unsafe
placement for Children. Id. at 187. He testified that, as of the date of the
permanency fact-finding hearing, DCS was no closer to reuniting Children with
Mother than it had been when FCM Washington joined the case in February
2014. Id. at 192-93. He testified that DCS did everything it could to reunite
Children with Parents; however, it was now in Children’s best interests to
proceed with the termination of Parents’ parental rights and pursue the
permanency plan of being adopted by their foster mother. Id. at 193. On April
27, 2016, the juvenile court entered its order terminating Father’s parental rights
to R.Y. and T.Y. and Mother’s parental rights to Children. Parents now
appeal.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 9 of 27 Discussion and Decision
I. Termination of Parental Rights [15] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.
“However, a trial court must subordinate the interests of the parents to those of
the child when evaluating the circumstances surrounding a termination.” Id. at
1188. Termination of a parent-child relationship is proper where a child’s
emotional and physical development is threatened. Id. “Although the right to
raise one’s own child should not be terminated solely because there is a better
home available for the child, parental rights may be terminated when a parent is
unable or unwilling to meet his or her parental responsibilities.” Id.
[16] Before an involuntary termination of parental rights may occur, DCS is
required to allege and prove, among other things:
(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.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 10 of 27 (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).2 DCS’s burden of proof for establishing these
allegations in termination cases is one of clear and convincing evidence. In re
H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009). 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).
[17] When reviewing a termination of parental rights issue, our court will not
reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56
N.E.3d 625, 628 (Ind. 2016). We consider “only the evidence and any
reasonable inferences therefrom that support the judgment,” and give “‘due
regard’ to the trial court’s opportunity to judge the credibility of the witnesses
firsthand.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind.
2013). Here, in terminating Parents’ parental rights to their respective children,
the juvenile court entered specific findings and conclusions. When a trial
court’s judgment contains specific findings of fact and conclusions thereon, we
2 Father and Mother concede that the juvenile court was correct in finding that Children were removed from Parents’ care for at least six months under a dispositional decree, thus satisfying the element required under Indiana Code § 31-35-2-4(2)(A)(1). Mother’s Br. at 9; Father’s App. at 12-13.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 11 of 27 apply a two-tiered standard of review. In re R.S., 56 N.E.3d at 628 (citation
omitted). First, we determine whether the evidence supports the findings, and
second, we determine whether the findings support the judgment. Id. (citation
omitted). We will set aside the court’s judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. Findings are clearly erroneous
only when the record contains no facts or inferences drawn therefrom that
support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment
is clearly erroneous if the findings do not support the trial court’s conclusions or
the conclusions do not support the judgment. Id. If the evidence and inferences
support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
[18] In its April 27, 2016 order terminating Parents’ parental rights, the juvenile
court entered findings of fact and conclusions thereon. While Mother
challenges four of the juvenile court’s findings, as we discuss below, Father
challenges none of the findings. An unchallenged finding is taken as true. See
McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (accepting as
true trial court findings that appellant did not challenge). Children were
removed from Mother’s home on February 15, 2013 and have been under the
supervision of DCS for at least fifteen of the most recent twenty-two months.
Mother’s App. at 1, paras. 1, 2.3 The juvenile court found that Parents had been
3 The juvenile court does not number its findings. For clarity, we have assigned numbers to each paragraph beginning with Paragraph 1 after the phrase, “The allegations of the petition are true,” and ending with Paragraph 27 before the phrase, “Further the factors requiring dismissal . . . .” Mother’s App. at 1-5.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 12 of 27 previously involved with DCS in connection with an Informal Adjustment
pertaining to T.Y. having been born testing positive for marijuana. The
Informal Adjustment was open from June 2012 until December 2012.
A. Father
[19] Although he does not contest any of the juvenile court’s findings, Father argues
that the termination of his parental rights was not supported by clear and
convincing evidence. He contends that the juvenile court was clearly erroneous
in concluding that: (1) there is a reasonable probability that: (a) the conditions
that resulted in the removal of R.Y. and T.Y. or the reasons for placement
outside Parents’ home will not be remedied; and (b) the continuation of the
parent-child relationship poses a threat to the well-being R.Y. and T.Y.; (2)
termination was in the best interests of R.Y. and T.Y.; and (3) there was a
satisfactory plan for the care and treatment of R.Y. and T.Y.
[20] In determining whether the conditions that resulted in the removal of R.Y. and
T.Y. will likely not be remedied, we engage in a two-step analysis. In re E.M., 4
N.E.3d 636, 642-43 (Ind. 2014). 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 pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.” Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 13 of 27 152 (Ind. 2005). “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.” In re E.M., 4 N.E.3d at 643. “Requiring trial
courts to give due regard to changed conditions does not preclude them from
finding that parents’ past behavior is the best predictor of their future behavior.”
Id.
[21] Father, who was not present at the time DCS removed R.Y. and T.Y. from
Mother’s home, contends they were removed because Mother was drunk, and
she left them unattended. Father’s Br. at 7. While Father suggests that these are
conditions he cannot remedy, Father fails to address the juvenile court’s
uncontested finding that Parents had a history of domestic violence and that
R.Y. and T.Y. were placed outside the home because Mother was arrested and
“[F]ather was unavailable.” Mother’s App. at 2, para. 3.4
[22] The condition of Father’s unavailability has not been remedied. Services were
offered to Father, including clinical assessment, substance abuse evaluations,
psychological and psychiatric evaluations, parenting education, individual
therapy, and domestic violence services. Id. at 2, para. 5. The juvenile court
found that Father was inconsistent with his services, was highly inconsistent
with therapy services, and made no progress because he failed to make himself
4 Father also suggests that DCS did not intend to reunite him with his children, Father’s Br. at 5. We find no evidence to support that statement. Here, Father was provided numerous services and offered supervised visitation in an effort to reunite him with his children. Father’s lack of involvement does not change the efforts DCS expended on Father’s behalf.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 14 of 27 available for services. Id. at 2, para. 7. Anger and abuse of alcohol were major
factors that Father did not address. The juvenile court found credible Father’s
testimony that “he made the decision not to participate in any services for
reunification and voluntarily stopped all services.” Id. at 3, para. 11. Father
was “totally non-compliant with services and services were stopped July of
2015.” Id. “After three years of service, [Father is] no closer to reunification
with [his] children than [he] was three years ago, when the children were
removed.” Id. at 5, para. 23. “Father voluntarily did not see his children for six
months. Father was not vested in services, did not visit his children
consistently, and has shown no interest in parenting these children.” Id. at 3,
para. 11. The juvenile court’s conclusion that the reasons R.Y. and T.Y. were
removed in February 2013 have not been remedied and are unlikely to be
remedied in the near future is not clearly erroneous.5 Id. at 5, para. 23.
[23] Father also asserts that there was insufficient evidence to support the juvenile
court’s conclusion that termination of the parent-child relationship was in the
best interests of R.Y. and T.Y. Father contends that the juvenile court failed to
address the pain and suffering R.Y. and T.Y. will feel when they realize that
5 Father also contends that DCS failed to prove by clear and convincing evidence that there was a reasonable probability that the continuation of the parent-child relationship posed a threat to the well-being of R.Y. and T.Y. Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the juvenile court need only find that one of the requirements of subsection (b)(2)(B) has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Therefore, finding, as we do, that sufficient evidence supports the conclusion that the conditions resulting in the removal of R.Y. and T.Y. will likely not be remedied, we need not also address whether sufficient evidence supported the conclusion that the continuation of the parent-child relationship posed a threat to the well-being of those children.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 15 of 27 they “will not have any further contact with their father or his family.” Father’s
Br. at 14. Father also asserts that he is young, may have more children, and
R.Y. and T.Y. “should have a fundamental right to have a relationship with
their other siblings.” Id. at 15. Father, however, cites to no authority to suggest
how the above considerations impact a best-interests analysis. Generally,
failure to make a cogent argument results in waiver of the issue. See A.D.S., 987
N.E.2d at 1156 n.4 (arguments waived on appeal when mother failed to support
them with cogent argument). However, considering the significance of
terminating parental rights, here, we choose to address whether termination of
Father’s parental rights was in the best interests of R.Y. and T.Y.
[24] In determining what is in the best interests of a child, the juvenile court must
look beyond the factors identified by DCS and consider the totality of the
evidence. A.D.S., 987 N.E.2d 1158. In so doing, the juvenile court must
subordinate the interests of the parent to those of the child. Id. A court need
not wait until the child is irreversibly harmed before terminating the parent-
child relationship. Id. “Moreover, we have previously held that the
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.” Id. at 1158-59.
[25] Here, the domestic violence issues between Mother and Father were a concern
throughout DCS’s involvement. Father testified that he completed anger
management counseling in 2013; however, the juvenile court found that
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 16 of 27 episodes of domestic violence between Parents occurred after that date. Id. at 3,
paras. 10, 14. Father was totally non-compliant in services and did not contact
DCS, nor could DCS find him, from about March 2014 until around December
2014. Tr. at 191. Additionally, Father chose not to participate in any services
for reunification and voluntarily stopped all services. Mother’s App. at 3, para.
11. During the three years preceding the termination, all three children were
able to live together with the same foster mother—the mother who intends to
adopt them. FCM Washington testified that, as of the date of the permanency
fact-finding hearing, DCS was no closer to reuniting R.Y. and T.Y. with Father
than it had been when FCM Washington joined the case in February 2014. Id.
at 193. FCM Washington testified, and the juvenile court agreed, that DCS did
everything it could to reunite R.Y. and T.Y. with Father; however, it was now
in the best interests of R.Y. and T.Y. to proceed with the termination of
Father’s parental rights and pursue the permanency plan of being adopted by
their foster mother.6 Tr. at 193. The juvenile court did not err in concluding
that termination of Father’s parental rights was in his children’s best interests.
[26] Finally, Father argues that DCS does not have a satisfactory plan for the care
and treatment of R.Y. and T.Y. FCM Washington testified that he had
conferred with Children’s foster mother prior to the hearing and that she
confirmed her interest in adopting Children. Father, however, noting that
6 Although attorneys for the Court Appointed Special Advocate (“CASA”) appeared at the evidentiary hearing, the CASA did not testify.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 17 of 27 foster mother did not testify at the termination hearing regarding her intent to
adopt Children, maintains that the DCS plan for the future care and custody of
R.Y., T.C.Y., and T.Y. is “marginal at best.” Father’s Br. at 14. We disagree.
Indiana courts have traditionally held that for a plan to be “satisfactory” for the
purposes of the termination statute, it need not be detailed, so long as it offers a
general sense of the direction in which the child will be going after the parent-
child relationship is terminated. In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.
2014), trans. denied. A DCS plan that attempts to find suitable parents to adopt
the children is a satisfactory plan. Id. “In other words, there need not be a
guarantee that a suitable adoption will take place, only that DCS will attempt to
find a suitable adoptive parent.” Id. Accordingly, a plan is not unsatisfactory
just because DCS has not identified a specific family to adopt the children. Id.
Here, DCS confirmed that the foster mother intended to adopt Children. The
juvenile court did not err in concluding there was a satisfactory plan for the care
and treatment of R.Y. and T.Y. DCS alleged and proved by clear and
convincing evidence each element of Indiana Code section 31-35-2-4(b)(2). The
juvenile court did not err in terminating Father’s parental rights as to R.Y. and
T.Y.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 18 of 27 B. Mother
[27] Mother challenges the juvenile court’s findings of fact in Paragraphs 12, 13, 18,
and 22.7 Addressing Paragraph 12, Mother contends that the fact that she has
two older children who do not live with her does not support the juvenile
court’s finding that “Mother does not have custody of any of her children.”
Mother’s Br. at 5-6; Mother’s App. at 3, para. 12. Here, the juvenile court was not
concerned with determining who had legal custody of each of Mother’s five
children; instead, the court was concerned with whether any of those children
were in Mother’s home and under her care. Viewing the evidence in the light
most favorable to the juvenile court’s findings, as we must, we cannot say that it
was error for the juvenile court to find that evidence that all of Mother’s
children lived outside her home equated to a finding that Mother did not have
custody of any of her children. See In re Termination of Parent-Child Relationship
of D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004) (we consider only evidence
and reasonable inferences most favorable to judgment), trans. denied.
[28] Mother also argues that, notwithstanding her five years of college, her cognitive
defects prevented her from engaging in services; therefore, it was error for the
juvenile court to find in Paragraph 13 that she “is an educated person,” was not
accepting of therapy, and “did not vest herself in the services.” Mother’s Br. at
7 Mother also mentions that the evidence does not clearly and convincingly support Paragraph 24. Mother’s Br. at 8. Because Mother fails to support her assertions with argument or citations to the record, her argument is waived. See Ramsey v. Madison Cnty. Dep’t of Family & Children, 707 N.E.2d 814, 818 (Ind. Ct. App. 1999).
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 19 of 27 10-11; Mother’s App. at 3, para. 13. Mother asserts that her requests for help
from FCM Washington and her participation in group therapy undermine the
juvenile court’s finding in Paragraph 18 that she “did not become vested in the
services and did not seem willing to remedy the reasons for the removal of the
children.” Mother’s Br. at 11; Mother’s App. at 4, para. 18. Finally, Mother
admits that, while there is evidence that she did not answer her door or do
services for the month of April 2015, those facts, alone, are insufficient to
support the juvenile court’s finding in regarding Paragraph 22 that she would
not answer her door for her case manager or to allow the Children to visit.
Mother’s App. at 5, para. 22. We find Mother’s arguments regarding Paragraphs
13, 18, and 22 are an invitation for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. In re J.C., 994 N.E.2d 278, 288
(Ind. Ct. App. 2013). The trial court’s findings in Paragraphs 12, 13, 18, and 22
are not clearly erroneous.
[29] Mother also challenges the juvenile court’s conclusions that: (1) there is a
reasonable probability that: (a) the conditions that resulted in the removal of
Children or the reasons for placement outside Parents’ home will not be
remedied; and (b) the continuation of the parent-child relationship poses a
threat to the well-being of Children; and (2) termination was in the best interests
of Children.
[30] Children were removed from Mother’s care when Parents were fighting and a
refrigerator was knocked onto its side and after Mother had been drinking, left
Children alone, and was arrested for public intoxication. Mother and Father
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 20 of 27 had a history of domestic violence. Mother contends that the evidence did not
clearly and convincingly prove that conditions resulting in removal of Children
likely will not be remedied. We disagree.
[31] The CHINS and termination proceedings extended over a period of three years.
Mother was offered numerous services during that period of time, including
clinical assessments, supervised visitation, psychiatric and psychological
evaluations, substance abuse evaluations, and services to address domestic
violence, anger management, and parenting education. Mother’s App. at 2, para.
5. Therapist Parker testified that, although Mother initially made herself
available for services, she did not participate during services, she was resistant
to take prescribed drugs to stabilize her mood, and she denied she had a
problem with alcohol. Id. at 3, para. 13. Mother continued her toxic
relationship with Father even after obtaining a protective order against him. Id.
at 3, para. 14. It was Mother’s opinion that Children should never have been
removed from her home and that she did not have anything “she needed to
work on.” Tr. at 29-30.
[32] Mother believes she has no problem with alcohol or drugs. Mother’s App. at 4,
para. 16. On appeal, Mother contends that her use of alcohol is not a habit, but
directly related to DCS having removed Children from her home. Mother
claims she was too busy to drink when Children were home and that she drinks
now to feel better about Children being gone. Mother’s Br. at 13. The evidence,
however, does not support Mother’s contention that she does not have a
substance abuse issue. Mother’s history of substance abuse predates DCS’s
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 21 of 27 current involvement in Mother’s life. Mother’s youngest child tested positive
for marijuana at birth resulting in an Informal Adjustment. Mother also
testified that one or two of her arrests between 2008 and February 2013 were
related to alcohol. Tr. at 109, 111. Mother was arrested for public intoxication
on the night Children were removed. In February 2013, referring to Mother’s
prior use of alcohol, Father stated that Mother “became angry and violent when
she was drinking.” Mother’s App. at 2, para. 8. Mother was not able to change
this habitual behavior. Recognizing that Mother attended a group session to
address substance abuse issues, Therapist Parker confirmed that Mother
continued to have relapses, as reflected by subsequent legal charges related to
Mother’s use of alcohol. In fact, Mother even admitted to using marijuana on
the day before the April 2016 evidentiary hearing. Tr. at 100. Therapist Parker
opined that Mother “had plenty of time, plenty of opportunities, was able to
meet with [Therapist Parker], but despite all of that we are kind of right where
we started.” Id. at 43. By the time therapy ended, Mother still had not
admitted that she had a problem. Id. at 44. Based on this evidence, the juvenile
court did not err in concluding that the conditions that resulted in the removal
of Children from Mother will likely not be remedied.8
8 Like Father, Mother also contends that DCS failed to prove by clear and convincing evidence that there was a reasonable probability that the continuation of the parent-child relationship posed a threat to the well- being of Children. DCS must prove only one of the requirements of Indiana Code section 31-35-2-4(b)(2)(B). A.D.S., 987 N.E.2d at 1156. Finding sufficient evidence that conditions will likely not be remedied, we do not address the issue of threat.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 22 of 27 [33] Mother also suggests that the findings do not support the juvenile court’s
conclusion that termination of the parent-child relationship was in the best
interests of Children. Mother argues that, in the absence of testimony regarding
Children’s relationship with Mother and with the foster mother, there was
insufficient evidence to conclude that termination of Mother’s rights were in the
best interests of Children. We disagree.
[34] A determination of the best interests of the children should be based on the
totality of the circumstances.” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App.
2012). Here, the domestic violence issues between Mother and Father were a
concern throughout DCS’s involvement. Mother continued her toxic
relationship with Father even though she had obtained a protective order
against him. Mother’s App. at 3, para. 14. Mother did not engage during
services and denied she had a problem with alcohol, yet continued to drink. Id.
at 3, para. 13. FCM Washington testified that it was in the best interests of
Children that Mother’s parental rights be terminated. Tr. at 193.
[35] The juvenile court found:
The reasons that the children were removed in February of 2013 have not been remedied by either parent and is [sic] unlikely to be remedied in any near future. After three years of services, the parents are no closer to reunification with their children than they were three years ago when the children were removed.
Neither parent is providing any emotional or financial support for the children. Neither parent has completed any case plan for reunification. Neither parent can maintain sobriety and provide
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 23 of 27 a safe environment for children. The children have been in placement since February of 2013 and have never been returned to parental care or custody. The children are placed together in the home and are bonded and thriving.
Mother’s App. at 5, paras. 23, 24.
[36] Mother recognizes that permanency is a central consideration in determining
what will be in Children’s best interest. Mother’s Br. at 16. Children have been
out of Mother’s care and have lived together in the same foster home for three
years, and the foster mother intends to adopt Children. The foster home is a
place where Children are bonded and thriving. We find no error in the juvenile
court’s conclusion that termination of Mother’s parental rights is in the best
interests of Children. The State alleged and proved the elements of Indiana
Code section 31-35-2-4(b)(2) by clear and convincing evidence, and the juvenile
court did not err in terminating Mother’s parental rights to Children.
II. Effective Assistance of Counsel [37] Mother asserts that she received ineffective assistance of counsel. The standard
for such a review was set forth by our Supreme Court’s in Baker v. Marion
County Office of Family & Children, 810 N.E.2d 1035 (Ind. 2004) where our
Supreme Court held:
Where parents whose rights were terminated upon trial claim on appeal that their lawyer underperformed, we deem the focus of the inquiry to be whether it appears that the parents received a fundamentally fair trial whose facts demonstrate an accurate determination. The question is not whether the lawyer might
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 24 of 27 have objected to this or that, but whether the lawyer’s overall performance was so defective that the appellate court cannot say with confidence that the conditions leading to the removal of the children from parental care are unlikely to be remedied and that termination is in the child’s best interest.
Baker, 810 N.E.2d at 1041. Mother contends that her trial counsel was
ineffective for failing to: (1) object to questions about her criminal history; (2)
object to the admission of Mother’s July 2012 police report, State’s Exhibit AA;
(3) elicit testimony about Mother’s cognitive delays; and (4) elicit testimony
about her relationship with Children. Mother’s Br. at 18.
[38] Regarding the failure of Mother’s counsel to object to evidence about Mother’s
criminal history, items (1) and (2) above, any objection trial counsel could have
made would have been properly overruled by the juvenile court. A
determination of a parent’s fitness to care for his or her child requires an
evaluation of a parent’s habitual pattern of behavior as evidence of possible
future neglect or deprivation. Bester, 839 N.E.2d at 152. In addressing this
inquiry, courts may consider factors including a parent’s prior criminal history,
drug and alcohol abuse, lack of employment, and failure to provide support.
A.B. v. Ind. Dep’t of Child Servs., 61 N.E.3d 1182, 1189 (Ind. Ct. App. 2016).
Trial counsel was not ineffective for failing to object to the admission of
evidence pertaining to Mother’s criminal history.
[39] Mother also contends that trial counsel was ineffective for failing to investigate
Mother’s alleged cognitive delay. It is not clear how further investigation
would have aided Mother’s cause. Therapist Parker’s testimony on the subject Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 25 of 27 was strong, suggesting, as she did, that Mother may suffer cognitive deficits that
could have prevented her from understanding information provided to her
during therapy. Tr. at 30-32. This testimony alone could have allowed the
juvenile court to conclude that Mother needed more time to pursue services for
reunification. However, further inquiry into this subject could have provided
additional support for the juvenile court’s conclusion that conditions resulting
in Children’s removal from Mother’s care would not be remedied. On this
issue, we again find no ineffective assistance of counsel.
[40] Finally, Mother argues that trial counsel was ineffective for failing to elicit
testimony about her relationship with Children. Children were removed from
Mother’s care when they were four years, two years, and nine months of age
and, during the ensuing three years were not returned to Mother’s care.
Mother’s App. at 5, para. 24. Mother was inconsistent in her visits with
Children, and all visitation was terminated in July 2015. State’s Ex. Y at 2. By
Mother’s own admission, she continued to drink alcohol after Children were
removed as a way to “socialize and make [her]self happy.”9 Tr. at 93. Under
these conditions, it is unclear how Children could have had a strong
relationship with their Mother. However, assuming, arguendo, that they did,
the reasons for terminating Mother’s parental rights Children still would have
outweighed any such relationship.
9 When asked during the fact-finding hearing whether Mother has “more time to drink and get in trouble now,” Mother responded, “No, I’m saying I have more time to socialize.” Tr. at 100.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 26 of 27 [41] Here, we can say with confidence that the conditions leading to Children’s
removal or the reasons for placement outside the home of Mother are unlikely
to be remedied and that termination of Mother’s parental rights is in the
Children’s best interests. Mother’s trial counsel was not ineffective, and she
received a fundamentally fair trial, the facts of which demonstrate an accurate
determination. Baker, 810 N.E.2d at 1041.
[42] Finding no error on the part of the juvenile court or Mother’s trial counsel, we
affirm the juvenile court’s decision to terminate Father’s parental rights to R.Y.
and T.Y. and to terminate Mother’s parental rights to Children.
[43] Affirmed.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1605-JT-1167 | December 14, 2016 Page 27 of 27