In the Matter of the Termination of the Parent-Child Relationship of T.W. (Minor Child) and J.W. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 18, 2020
• Docket: 19A-JT-2246
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 18 2020, 8:57 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin R. Wall Curtis T. Hill, Jr. Wall Legal Services Attorney General of Indiana Huntington, Indiana Steven J. Hosler Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination February 18, 2020 of the Parent–Child Relationship Court of Appeals Case No. of T.W. (Minor Child) 19A-JT-2246 Appeal from the Wabash Circuit and Court The Honorable Robert R. J.W. (Mother), McCallen, III, Judge Appellant-Respondent, Trial Court Cause No. 85C01-1903-JT-5 v.

Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 1 of 15 Bradford, Chief Judge.

Case Summary [1] J.W. (“Mother”) and E.W. (“Father”) are the biological parents of T.W.

(“Child”). The Department of Child Services (“DCS”) became involved with

the family due to allegations of sexual abuse and educational neglect of Child.

Mother refused to cooperate with DCS’s investigation into the allegations of

abuse and neglect and Child was subsequently removed from her care and

adjudicated to be a Child in Need of Services (“CHINS”). Following the

CHINS adjudication, Mother and Father were ordered to complete certain

services, but failed to do so. Given their failure to complete services, DCS

eventually petitioned to terminate their parental rights to Child. Following an

evidentiary hearing, the juvenile court granted DCS’s termination petition. On

appeal, Mother contends that DCS failed to present sufficient evidence to

support the termination of her parental rights.1 We affirm.

Facts and Procedural History [2] Child was born on October 27, 2007. On May 15, 2017, DCS opened an

assessment regarding educational neglect of Child. Mother refused to

cooperate in regards to the assessment. On June 20, 2017, DCS received a

1 Father does not participate in this appeal. As such, we will limit our discussion to facts relevant to the termination of Mother’s parental rights to Child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 2 of 15 report regarding alleged sexual abuse of Child. DCS Family Case Manager

(“FCM”) Valerie Eiler initiated an investigation into the alleged abuse. Mother

refused to cooperate with the investigation and failed to produce Child for a

scheduled meeting at the DCS office. At some point, Child was removed from

Mother’s care and placed in foster care. DCS ultimately determined that the

allegations of sexual abuse were unsubstantiated but that the allegations of

educational neglect were substantiated.

[3] On June 22, 2017, DCS filed a petition alleging that Child was a CHINS. On

December 4, 2017, the juvenile court adjudicated Child to be a CHINS on the

basis of educational neglect. During the January 19, 2018 dispositional

hearing, the juvenile court ordered Mother, inter alia, to undergo substance-

abuse and parenting assessments, complete any services recommended by DCS,

refrain from using illegal substances and alcohol, attend visitation with Child,

and obey the law.

[4] During a December 7, 2018 case review hearing, the juvenile court noted that

while Mother had visited Child, she had not complied with Child’s case plan.

The juvenile court noted that “[d]espite numerous opportunities, [Mother] has

still failed to submit to a substance abuse assessment and parenting assessment

as ordered by the Court. Even when summer visitation in the home was

contingent on her participation, she failed to participate in the assessments.”

Ex. 12. The juvenile court again ordered Mother to complete the previously-

ordered assessments and to submit to random drug testing.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 3 of 15 [5] On June 3, 2019, the permanency plan was changed to a concurrent plan that

included both termination of parental rights and adoption. In changing the

permanency plan, the juvenile court found that Mother had not complied with

Child’s case plan. Specifically, Mother, who had been incarcerated since

March 10, 2019,2 had not visited Child since March 2, 2019, and had failed to

comply with her court-ordered services with the exception of visitation.

[6] On March 19, 2019, DCS filed a petition to terminate Mother’s parental rights

to Child. At some point after DCS filed the termination petition, Mother, while

still incarcerated, began participating in services, completing the previously-

ordered assessments on June 17, 2019. The juvenile court conducted an

evidentiary hearing on August 13, 2019. During this hearing, DCS presented

evidence outlining Child’s significant needs, which included a need for stability

and permanency, and Mother’s failure to fully engage in services aimed at

helping her learn how to adequately provide for Child’s needs. Mother

presented evidence that she claimed demonstrated progress and a positive

change in the circumstances that led to Child’s continued removal from her

care. Following conclusion of the evidence, the juvenile court took the matter

under advisement. On August 27, 2019, the juvenile court issued an order

terminating Mother’s parental rights to Child.

2 Mother was incarcerated after being charged with theft and burglary and alleged to be a habitual offender. She has since been convicted of Level 4 felony burglary and Class A misdemeanor theft and found to be a habitual offender. Mother faces a lengthy period of incarceration as a result of these convictions and her status as a habitual offender.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 4 of 15 Discussion and Decision [7] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although

parental rights are of a constitutional dimension, the law allows for the

termination of those rights when parents are unable or unwilling to meet their

parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

trans. denied. Parental rights, therefore, are not absolute and must be

subordinated to the best interests of the children. Id. Termination of parental

rights is proper where the children’s emotional and physical development is

threatened. Id. The juvenile court need not wait until the children are

irreversibly harmed such that their physical, mental, and social development is

permanently impaired before terminating the parent–child relationship. Id.

[8] Mother contends that the evidence is insufficient to sustain the termination of

her parental rights to Child. In reviewing termination proceedings on appeal,

this court will not reweigh the evidence or assess the credibility of the witnesses.

In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d 874, 879

(Ind. Ct. App. 2004). We only consider the evidence that supports the juvenile

court’s decision and reasonable inferences drawn therefrom. Id. Where, as

here, the juvenile court includes findings of fact and conclusions thereon in its

order terminating parental rights, our standard of review is two-tiered. Id.

First, we must determine whether the evidence supports the findings, and,

second, whether the findings support the legal conclusions. Id.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 5 of 15 [9] In deference to the juvenile court’s unique position to assess the evidence, we

set aside the juvenile court’s findings and judgment terminating a parent–child

relationship only if they are clearly erroneous. Id. A finding of fact is clearly

erroneous when there are no facts or inferences drawn therefrom to support it.

Id. A judgment is clearly erroneous only if the legal conclusions made by the

juvenile court are not supported by its findings of fact, or the conclusions do not

support the judgment. Id.

[10] Mother claims that DCS failed to present sufficient evidence to prove by clear

and convincing evidence:

(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. (D) that there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2).

I. Indiana Code Section 31-35-2-4(b)(2)(B) [11] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

in the disjunctive, the juvenile court need only find that one of the conditions

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 6 of 15 listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

2003), trans. denied. Therefore, where the juvenile court determines that one of

the above-mentioned factors has been proven and there is sufficient evidence in

the record supporting the juvenile court’s determination, it is not necessary for

DCS to prove, or for the juvenile court to find, either of the other factors listed

in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.

[12] DCS does not allege that Child has been adjudicated CHINS on two separate

occasions. As such, DCS had to prove either that (1) the conditions resulting in

removal from or continued placement outside Mother’s home will not be

remedied or (2) the continuation of the parent–child relationship poses a threat

to Child.

[13] The juvenile court determined that the evidence established a reasonable

probability that the conditions that resulted in Child’s removal and continued

placement outside Mother’s care would not be remedied. When making a

determination as to whether the conditions leading to placement outside a

parent’s care are likely to be remedied, juvenile courts “should judge a parent’s

fitness at the time of the termination hearing, considering any change in

conditions since the removal.” Lang v. Starke Cty. Office of Family & Children, 861

N.E.2d 366, 372 (Ind. Ct. App. 2007). “The trial court can also consider the

parent’s response to the services offered through the DCS.” Id. “‘A pattern of

unwillingness to deal with parenting problems and to cooperate with those

providing social services, in conjunction with unchanged conditions, support a

finding that there exists no reasonable probability that the conditions will

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 7 of 15 change.’” Id. (quoting In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999),

trans. denied).

[14] In support of its determination that the conditions for placement outside

Mother’s care would not be remedied, the juvenile court noted that after Child

was found to be a CHINS, Mother was ordered to refrain from using,

consuming, manufacturing, trading, distributing, or selling any illegal

controlled substance; refrain from consuming alcohol; obey the law; complete

parenting and substance-abuse assessments and follow all recommendations;

and attend all scheduled visits with Child. While Mother did attend scheduled

visits with Child, she was otherwise largely, if not entirely, noncompliant with

the ordered services. With respect to Child’s ongoing placement outside

Mother’s care, the juvenile court found

By [December 7, 2018], [Child’s] behavior in his foster placement had worsened and on or about January 14, 2019, he was placed residentially at DAMAR Services.

A permanency hearing was held on May 31, 2019.… [Child] was doing much better in his placement at DAMAR. DCS had arranged for [Mother] to obtain her substance abuse assessment while she was incarcerated, but she refused. Again [Mother’s] participation in ordered services was virtually non-existent and [she had not] completed [her] required substance abuse and parenting assessments.

***

[Mother] has been uncooperative from the beginning. Her attitude in Court reflects she has no intention of doing what she has been ordered to do. [Mother] and [Father’s] relationship is Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 8 of 15 hot and cold. Despite having the ability to share a car to visit [Child] before he was placed at DAMAR, [Mother] was unwilling to do that.… [Mother] and [Father] are resistant to any change and unwilling to do what they need to do (i.e. obey the law, engage in assessments and services, cooperate with each other) for reunification to occur.

[Mother] acknowledged she has smoked marijuana since the dispositional order was entered.

[Mother] provided a myriad of reasons why she didn’t do what was ordered for reunification to occur. * She was sick and hospitalized 4 days in June or July of 2018. * She didn’t trust the DCS or Bowen Center. * She was offended that DCS asked her to take drug screens despite being ordered to do so. * She was incarcerated briefly, on June 29, 2019 [sic], and then re-incarcerated on March 10 of this year.

She has had ample time and opportunity to engage in services, as ordered. Her excuses don’t justify her wholesale failure to engage in services beyond her exercise of supervised parenting time. She has only recently engaged in services and then only after being incarcerated. Even then, she declined the first substance abuse assessment offered to her while in jail and further declined to review her case plan in June of 2019. Her recent efforts are superficial and insincere.

Much of [Mother’s] testimony was an effort to re-litigate the finding of CHINS. That ship sailed long ago. However, by doing so, she evidenced that she resents the finding of CHINS and has no intention of doing what she has been ordered to do.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 9 of 15 The Court finds, by clear and convincing evidence, that the allegations of the Petition are true, in that:

b. There is a reasonable probability the conditions that resulted in his removal or his continued removal will never be remedied. In fact, it’s a virtual[] certain[t]y[.]

Appellant’s App. Vol. II pp. 57–59. Mother does not challenge these findings

on appeal. As such, we accept the findings as true. See In re S.S., 120 N.E.3d

605, 610 (Ind. Ct. App. 2019). We agree with the juvenile court’s

determination that these findings demonstrate a reasonable probability that the

conditions resulting in Child’s removal from or continued placement outside

Mother’s care will not be remedied.

[15] In challenging the sufficiency of the evidence to sustain the termination of her

parental rights to Child, Mother blames her failure to consistently engage in

services on her frustration with “DCS’[s] repeated requests” that she complete a

substance-abuse assessment and drug testing, arguing that “drug testing

wouldn’t help her learn to be a better parent to Child.” Appellant’s Br. p. 22.

Regardless of whether Mother believed she should have to participate in drug

testing or complete a substance-abuse assessment, Mother was nevertheless

ordered to do so following the determination that Child was a CHINS. Mother

further argues that although she was incarcerated at the time of the evidentiary

hearing, her incarceration “would eventually end” at which time she could “be

reunified with Child.” Appellant’s Br. p. 23. Mother’s arguments amount to Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 10 of 15 an invitation for this court to reweigh the evidence, which we will not do. See

In re S.P.H., 806 N.E.2d at 879.

II. Indiana Code Section 31-35-2-4(b)(2)(C) [16] We are mindful that in considering whether termination of parental rights is in

the best interests of a child, the juvenile court is required to look beyond the

factors identified by DCS and look to the totality of the evidence. McBride v.

Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003). In doing so, the juvenile court must subordinate the interests of the

parents to those of the children involved. Id. “A parent’s historical inability to

provide a suitable environment along with the parent’s current inability to do

the same supports a finding that termination of parental rights is in the best

interests of the children.” Lang, 861 N.E.2d at 373. Furthermore, this court has

previously determined that the testimony of the case worker, guardian ad litem

(“GAL”), or a CASA regarding a child’s need for permanency supports a

finding that termination is in the child’s best interests. Id. at 374; see also Matter

of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

[17] With respect to the best interests of Child, the juvenile court found as follows:

[Child] is doing better in his current placement.

[Child] needs structure and stability. His parents can provide neither. They live chaotic lifestyles and [Mother] has frequent brushes with the law. Sadly, the Court believes that will never change.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 11 of 15 The evidence is clear and convincing that continuation of the parent-child relationship is not in [Child’s] best interests and that doing so would be detrimental to his physical and/or mental well-being.

Appellant’s App. Vol. II pp. 58–59. The juvenile court’s findings are supported

by the record.

[18] The record reveals that Child has significant needs and requires stability. Child

has been diagnosed with mild intellectual disability disorder and conduct

disorder. Emily Watson, Child’s therapist at Damar, testified that stability and

consistency are important to Child’s treatment and progress. FCM Gary Spratt

testified that he believed that termination of Mother’s parental rights was in

Child’s best interests, explaining:

As numerous therapists and – and mental professionals have said earlier, [Child] needs a very stable environment, he needs both parents, he needs them to be involved with his services. [Child], unlike most kids, has significant needs. Um, those needs are not being met with his current situation. He needs a family that is willing to and able to engage in those services so they can learn to parent him and he can learn to be cooperative with that and want to be cooperative.

Tr. pp. 165–66. CASA Angela Dunn also testified that she believed that

termination of Mother’s parental rights was in Child’s best interests, explaining

that Child’s behavioral issues have decreased and Child “seems to be more

settled and happier” since his contact with Mother stopped. Tr. p. 133. She

opined that contact with Mother was inhibiting and disrupting Child’s progress.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 12 of 15 The juvenile court’s determination that termination of Mother’s parental rights

is in Child’s best interests is supported by sufficient evidence.

III. Indiana Code Section 31-35-2-4(b)(2)(D) [19] We have previously concluded that “[f]or a plan to be ‘satisfactory,’ for

purposes of the 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.’” Lang, 861 N.E.2d at 374 (quoting In re Termination

of Parent–Child Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004),

trans. denied). “A DCS plan is satisfactory if the plan is to attempt to find

suitable parents to adopt the children.” In re A.S., 17 N.E.3d 994, 1007 (Ind.

Ct. App. 2014). “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 if DCS has not

identified a specific family to adopt the children.” Id.

[20] In challenging the sufficiency of the evidence to prove that DCS has a

satisfactory plan for Child’s care and treatment, Mother “concedes that case

law on this particular point is not particularly in her favor as this Court has

previously noted that it is acceptable for DCS to show adoption being a

satisfactory plan for the care and treatment of children such as Child.”

Appellant’s Br. p. 26. Mother maintains, nonetheless, that in this case, a

satisfactory plan for Child’s care would be to maintain the status quo. We

disagree.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 13 of 15 [21] In determining that DCS has a satisfactory plan for Child’s care and treatment,

the juvenile court found

DCS’s plan for [Child] is adoption. Adoption is the only chance that [Child] will get to have the permanency he deserves now. Given [Child’s] many needs, adoption will be difficult but not impossible. The DCS has many resources in placing hard to adopt children such as [Child]. Further, [Child’s] current placement is better suited to prepare him for adulthood than any current alternatives.

Appellant’s App. Vol. II p. 59. This finding is supported by the evidence. FCM

Spratt testified that the plan for Child following termination of Mother’s

parental rights would be adoption and that DCS would work to locate “the

perfect home for him. Somebody that meets his needs.” Tr. p. 167. FCM

Spratt further explained that in Child’s case, DCS would

be looking for a two-parent household, with no other children, that – and ideally, they would be within close proximity to [Damar] so that way they can participate in like – they were said earlier, the family therapy, family counseling, things like that, learning the skills that are needed for them to parent [Child].

Tr. p. 167. Applying our conclusion in Lang that “[a]ttempting to find suitable

parents to adopt [Child] is clearly a satisfactory plan,” 861 N.E.2d at 375, we

conclude that DCS has a satisfactory plan for Child’s care and treatment.

Mother’s contention otherwise amounts to an invitation to reweigh the

evidence, which, again, we will not do. See In re S.P.H., 806 N.E.2d at 879.

[22] The judgment of the juvenile court is affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 14 of 15 Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2246 | February 18, 2020 Page 15 of 15