MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Dec 26 2018, 7:06 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT W.S. ATTORNEYS FOR APPELLEE INDIANA Victoria L. Bailey DEPARTMENT OF CHILD SERVICES Marion County Public Defender Curtis T. Hill, Jr. Agency Attorney General of Indiana Indianapolis, Indiana David E. Corey ATTORNEY FOR APPELLANT S.S. Deputy Attorney General Indianapolis, Indiana Danielle Sheff Sheff Law Office Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 26, 2018 of the Parent–Child Relationships Court of Appeals Case No. of: A.S. and An.S. (Minor 18A-JT-1652 Children) Appeal from the Marion Superior and Court The Hon. Marilyn A. Moores, W.S. (Father) and S.S. (Mother), Judge Appellants-Respondents, The Hon. Scott B. Stowers, Magistrate v. Trial Court Cause Nos. 49D09-1707-JT-621 The Indiana Department of Child 49D09-1707-JT-622 Services, Appellee-Petitioner,
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 1 of 17 and
Child Advocates, Inc., Appellee-Guardian ad Litem.
Bradford, Judge.
Case Summary [1] W.S. (“Father”) and S.S. (“Mother”) (collectively, “Parents”) have seven
children together, two of whom, A.S. and An.S. (collectively, “the Children”),
are the subject of this appeal. In April of 2015, the Indiana Department of
Child Services (“DCS”) visited Parents’ home and found it to be in poor
condition. DCS removed the Children and petitioned to have them adjudicated
to be children in need of services (“CHINS”). In August of 2015, the juvenile
court adjudicated the Children to be CHINS and ordered several reunification
services for Parents, none of which were successfully completed. In May of
2016, the juvenile court suspended visitation with the Children, and, in July of
2017, DCS petitioned to terminate Parents’ parental rights in the Children. In
June of 2018, following a termination hearing spread over four days, the
juvenile court ordered Parents’ parental rights terminated. Mother contends
that she was denied due process on the first day of the termination hearing, and
both Parents contend that the juvenile court’s judgment of termination was
clearly erroneous. Because Mother has waived any claim that she was denied
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 2 of 17 due process and we disagree that the juvenile court’s judgment was clearly
erroneous, we affirm.
Facts and Procedural History [2] Parents have seven children together, including A.S. (born November 4, 2005)
and An.S. (born October 10, 2010). A.S. has a cognitive disability and chronic
lung disease and had heart surgery soon after her birth. An.S. has severe
learning disabilities and has experienced short-term memory loss. In April of
2015, DCS family case manager Amy Bricker (“FCM Bricker”) visited Parents’
Indianapolis home and observed that the front door was ajar and could be
opened without using the knob. FCM Bricker noted that there were no
working utilities; there was very little furniture and no appliances; personal
items were stored in bags; the linoleum floor was unclean and covered with
trash and some pills; the ceiling was completely caved in; the family appeared
to be staying in only one bedroom; and the bathtub was full of garbage, trash,
and debris. On April 2, 2015, DCS removed the Children from the home and
filed a petition alleging that the they were CHINS. On July 29, 2015, Father
pled guilty to carrying a handgun without a license, and the trial court
sentenced him to six days of incarceration and 359 days of probation.
[3] On August 3, 2015, the juvenile court found the Children to be CHINS and
ordered Parents to complete mental health assessments and participate in
reunification services, including home-based therapy, home-based case
management, substance-abuse assessment, and random drug screens. On
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 3 of 17 August 14, 2015, the juvenile court ordered An.S. to be placed back with
Parents on a trial basis. Home-based therapist Katy Shapiro provided the
family with therapy and crisis management in September of 2015 but closed out
the services that same month due to noncompliance. On October 5, 2015, the
juvenile court ordered that An.S. again be removed from Parents’ home. An.S.
was placed in a foster home in October of 2015.
[4] On May 12, 2016, the juvenile court suspended visitation with the Children
after it found that Parents had not been working with their home-based
therapist and that the visits had not been going well. An.S. had displayed
behavioral issues before and after visitation, including acting out, shutting
down, not speaking, wetting himself, and sleepwalking, behaviors that largely
subsided when visitation was terminated. An.S. does not ask his foster family
about Parents.
[5] On June 23, 2016, the juvenile court held a permanency hearing, after which it
made the following findings:
1) This matter has been open since April of 2015 and no service provider has recommended that the children be returned to the care of Mother or Father. 2) Neither parent has completed home-based therapy and are only minimally complying with home-based case management. The home-based case manager has not seen any sustainable improvement. 3) Housing issues still remain and where the family lives is unknown and the employment history for both parents is not stable.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 4 of 17 4) Service providers for the children agree with changing the plan to adoption. 5) Neither parent is regularly screening but it is noteworthy that Father’s last screen was positive for synthetic THC. 6) Neither parent has completed the recommendations of the dual diagnosis assessment. 7) Parents do not attend [child and family team meetings (“CFTMs”)] and parents do not maintain contact with DCS. 8) [An.S.] is in a home [that] is pre-adoptive, the other children are not. The best interests of [the Children] require a change in plan to adoption. Ex. Vol. I p. 243. On February 2, 2017, the juvenile court held a permanency
hearing, after which it maintained adoption as the plan for the Children and did
not authorize visitation. On July 5, 2017, DCS petitioned to terminate Parents’
parental rights in the Children. In September of 2017, Father pled guilty to
Level 5 felony robbery, and the trial court sentenced him to two years of
incarceration.
[6] Also in September of 2017, family case manager Arealia Williams (“FCM
Williams”) took over the case, and A.S. was placed in therapeutic foster care.
Father was already incarcerated, and Mother was subject to service referrals for
home-based care management, home-based therapy, and random drug screens.
At some point, these services were discontinued due to Mother’s lack of
engagement. Mother had completed only one drug screen and FCM Williams
never received a report that Parents had completed services.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 5 of 17 [7] On February 7, March 14 and 28, and April 10, 2018, the juvenile court held a
termination hearing. At the time, A.S. was in pre-adoptive foster care, and
An.S. had been in the same pre-adoptive placement since October of 2015.
FCM Williams testified that A.S.’s services included medication management
for behavioral issues and an individualized education plan (“IEP”). An.S.’s
services included a tutor, speech therapy, and an IEP. FCM Williams testified
that DCS’s plan involving the termination of parental rights and adoption was
appropriate for the Children, that they were doing well in their current
placements, and that it was their best interests to remain where they were.
[8] Court-appointed special advocate Susan Kobets (“CASA Kobets”), who had
been appointed to the case in July of 2015, also testified. CASA Kobets
indicated that she met with both Children at least once a month as well as
attending school meetings and CFTMs. As for Parents, they only attended
approximately half of the CFTMs. CASA Kobets indicated that both
Children’s needs were being met in their current placements. With regard to
An.S. specifically, CASA Kobets testified that his current placement was
capable of providing him with long-term stability and support without DCS
involvement. CASA Kobets opined that neither Parent had made progress
sufficient to justify pursuing reunification and that termination and remaining
in their current placements was in the Children’s best interests. CASA Kobets
testified, “I just think after all of this time and all of these promises that it’s just
time to move on with these children. These children need some permanency.
They need to know who they can depend on.” Tr. Vol. II p. 197. Counsel for
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 6 of 17 the guardian ad litem (“GAL”) agreed that termination was in the Children’s
best interests. On June 20, 2018, the juvenile court ordered the termination of
Parents’ parental rights in An.S. and A.S. The juvenile court’s order provided,
in part, as follows:
34. There is a reasonable probability that the conditions that resulted in the children’s removal and continued placement outside of the home will not be remedied by their parents. [Parents] have had nearly three years to demonstrate an ability to parent and provide a stable home and have not done so. Despite DCS making multiple referrals, neither parent [has] successfully completed any services. There has been a long pattern of instability that has not improved. Since parenting time was suspended by the CHINS Court in May 2016, neither parent has progressed sufficiently in services for pare[n]ting time to have been reinstated. 35. Continuation of the parent–child relationship poses a threat to the children’s best interests in that it would serve as a barrier for them obtaining permanency through an adoption when their parents are unable to provide permanency and parent. Both children are thriving in their respective foster homes. Their behaviors have improved significantly since their parenting time with [Parents] was suspended. 36. Termination of the parent–child relationship is in the children’s best interests. Termination would allow them to be adopted into a stable and permanent home where their needs will be safely met. 37. There exists a satisfactory plan for the future care and treatment of the children, that being adoption. 38. The [GAL] agrees with the permanency plan of adoption as being in the children’s best interests. 39. [Both Children] have on two (2) separate occasions been adjudicated to be CHINS. In 2012 under Cause Numbers
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 7 of 17 49D09-1202-JC-007745 and 48; and in 2015 under Cause Numbers 49D09-15-4-JC-001101 [and] 2. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the parent–child relationship between [A.S.] and [An.S.] and [Parents] is hereby terminated. All rights, powers, privileges, immunities, duties and obligations, any rights to custody, parenting time or support, pertaining to the relationship are permanently terminated, including the need to consent to adoption. Order pp. 3–4.
Discussion and Decision [9] 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, 145 (Ind. 2005). Further,
we acknowledge that the parent–child relationship is “one of the most valued
relationships of our culture.” Id. However, 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 responsibilities as parents.
In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to the children’s
interest in determining the appropriate disposition of a petition to terminate the
parent–child relationship. Id.
[10] In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re Invol. Term. of Parental
Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 8 of 17 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. 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.
I. Due Process [11] Mother contends that certain alleged anomalies that occurred on the first day of
the termination hearing, at which she appeared telephonically and by counsel,
deprived her of due process. Specifically, Mother contends that each of the
following occurred during the hearing: (1) FCM Bricker interrupted Mother’s
counsel during cross-examination and objected to her questions; (2) Father
interjected telephonically; (3) police arrived at Mother’s home at some point
during the hearing to investigate a report that two of the Children’s siblings
were there, as they had been reported as runaways; and (4) three of her other
children were present with Mother, somehow causing her to violate the
separation of witnesses order. Mother, however, never raised her due process
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 9 of 17 arguments in the juvenile court. A parent waives a due-process claim in a
CHINS or termination proceeding by raising that claim for the first time on
appeal. See, e.g., McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d
185, 194–95 (Ind. Ct. App. 2003) (concluding that a mother waived any
argument that irregularities in CHINS proceeding that preceded termination
were waived because they were brought up for the first time on appeal); In re
K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (concluding that a mother
waived a claim of due process denial because the constitutional claim was
brought for the first time on appeal). Because Mother failed to raise her due
process arguments in the juvenile court, she has waived them for appellate
review.
II. Whether the Juvenile Court’s Termination of Parents’ Parental Rights was Clearly Erroneous [12] Indiana Code section 31-35-2-4(b) governs what DCS must allege and establish
to support a termination of parental rights. Of relevance to this case, DCS was
required to establish by clear and convincing evidence that, for each of the
Children,
(A) that […] the following is true: (i) The child has been removed from the parent for at least six (6) months under a dispositional decree. [….] (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
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 10 of 17 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).
[13] It is not disputed that both Children were removed for at least six months
pursuant to a dispositional decree, a requirement imposed by Indiana Code
section 31-35-2-4(b)(2)(A). Mother contends, however, that DCS failed to
establish that (1) the conditions that resulted in the Children’s removal were not
remedied, (2) the continuation of the parent–child relationship poses a threat to
the well-being of the Children, (3) termination is in the best interests of the
Children, or (4) DCS has a satisfactory plan for the care and treatment of the
Children. Father also contends that DCS presented insufficient evidence to
establish that termination was in the Children’s best interests.
A. Indiana Code Section 31-35-2-4(b)(2)(B) [14] Mother contends that the record does not establish that the reasons for the
Children’s continued removal would not be remedied or that the continued
parent–child relationship posed a threat to the Children. The juvenile court,
however, also found that both Children had already been adjudicated to be
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 11 of 17 CHINS on two separate occasions, a finding neither parent challenges.
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,
DCS must only establish one of the circumstances listed. See Ind. Code § 31-35-
2-4(b)(2)(B) (providing that DCS must establish that one of the following is
true: “[t]here 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[, t]here is a reasonable probability that the continuation of
the parent–child relationship poses a threat to the well-being of the child[, or
t]he child has, on two (2) separate occasions, been adjudicated a child in need
of services”). Because DCS established that both Children had been
adjudicated to be CHINS on two separate occasions, we need not further
address Mother’s specific arguments regarding the other provisions of Indiana
Code section 31-35-2-4(b)(2)(B).
[15] That said, DCS, at the very least, has produced ample evidence to sustain the
juvenile court’s finding that there is a reasonable probability that the
circumstances that led to the Children’s removal would not be remedied. In
making such a determination, a juvenile court engages in a two-step inquiry.
First, the juvenile court must “ascertain what conditions led to their placement
and retention in foster care.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1231 (Ind. 2013). After identifying these initial conditions, the juvenile
court must determine whether a reasonable probability exists that the
conditions justifying a child’s continued “placement outside the home will not
be remedied.” In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004) (citation
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 12 of 17 omitted). The statute focuses not only on the initial reasons for removal “but
also those bases resulting in continued placement outside the home.” In re A.I.,
825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. DCS need not rule out
all possibilities of change; rather, it must establish that there is a reasonable
probability that the parent’s behavior will not change. In re B.J., 879 N.E.2d 7,
18-19 (Ind. Ct. App. 2008), trans. denied.
[16] Here, the Children were removed because of the poor condition of the family’s
home and substance-abuse issues. A.S. has never been returned to Parents’
care, and An.S. was later removed in October 2015 after a brief trial home visit.
As for whether the conditions were likely to be remedied, Parents had nearly
three years to demonstrate the ability and/or willingness to parent and provide
a stable home but did not do so. Despite DCS making multiple referrals,
neither Parent successfully completed any services nor gave any indication that
they had managed to achieve or maintain any stability in their living situation.
The juvenile court also noted that since visitation had been suspended in May
of 2016, neither parent ever progressed sufficiently in services for parenting time
to be reinstated. We think that three years without any significant progress is
sufficient to support a finding that none was likely to occur in the future. DCS
provided ample evidence to sustain the juvenile court’s finding that there was a
reasonable probability that the circumstances that led to the Children’s removal
would not be remedied.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 13 of 17 B. Indiana Code Section 34-35-2-4(b)(2)(C) [17] Mother and Father both contend that insufficient evidence supports the juvenile
court’s conclusion that termination is in the Children’s best interests. We are
mindful that in determining what is in the best interests of the Children, the
juvenile court is required to look beyond the factors identified by DCS and look
to the totality of the evidence. McBride, 798 N.E.2d at 203. In doing so, the
juvenile court must subordinate the interests of the parents to those of the
children involved. Id. Furthermore, this court has previously determined that
the testimony of a GAL regarding a child’s need for permanency supports a
finding that termination is in the child’s best interests. In the matter of Y.E.C.,
534 N.E.2d 273, 276 (Ind. Ct. App. 1992).
[18] FCM Williams testified that DCS’s adoption plan was appropriate for the
Children and that it was in their best interests to remain in their placements.
CASA Kobets also testified that in was in the Children’s best interests to
terminate Parents’ parental rights and remain in their placements. Finally, the
GAL agreed through counsel that termination was in the Children’s best
interests. Although this evidence by itself is likely sufficient to sustain the
juvenile court’s finding that termination is in the Children’s best interests, see,
e.g., In re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App. 2001) (concluding that
testimony of GAL and FCM was sufficient to sustain finding that termination
was in the child’s best interests), there is more.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 14 of 17 [19] A.S. and An.S. were removed from Parents’ home in April of 2015, and, except
for a brief attempt to return An.S. to the home, have been in foster placements
ever since. In their placements, the Children, who each have special needs, are
doing well and receiving assistance that they were not receiving when with
Parents. CASA Kobets testified that both Children’s needs were being met in
their current placements and that they needed permanency. A.S.’s services
included medication management for behavioral issues and an IEP, while
An.S.’s services included a tutor, speech therapy, and an IEP.
[20] Moreover, Parents’ behavior provides no indication that they can adequately
care and provide for the Children or even that they are particularly interested in
trying. Neither Parent has a stable employment history, and housing issues
have not been resolved. Father was incarcerated for much of the CHINS and
termination proceedings, and Mother has shown—at best—sporadic interest in
reunification. There is no indication that either Parent has come close to
successfully completing any of the services offered to them, including, but not
limited to, home-based therapy and case management, drug screening, and
CFTMs.
[21] Finally, there is evidence that a continued relationship with Parents would be
actively detrimental to the Children, even assuming that they could provide for
their basic needs. Visitation was permanently suspended at least in part because
An.S.’s reactions to it were so intensely negative. Since visitation has been
suspended, An.S.’s behaviors have subsided and he does not ask about Parents.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 15 of 17 DCS has produced sufficient evidence to sustain a conclusion that termination
is in the Children’s best interests.
C. Indiana Code Section 34-35-2-4(b)(2)(D) [22] Finally, Mother contends that the juvenile court’s conclusion that DCS has a
satisfactory plan for the placement of the Children is unsupported by the record.
DCS’s plan for the Children if the juvenile court granted termination is
adoption. “For 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 v.
Starke Cty. Office of Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App. 2007)
(quoting In re Termination of Parent–Child Relationship of D.D., 804 N.E.2d 258,
268 (Ind. Ct. App. 2004), trans. denied), trans. denied. DCS’s plan for eventual
adoption by a foster family easily satisfies this test, as “(a)ttempting to find
suitable parents to adopt [the Children] is clearly a satisfactory plan.” Id. at 375
(citing Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997)). In any
event, DCS’s plan is more than just a general sense of direction, as An.S.’s
foster mother testified that his foster parents would consider adopting him if he
became available and that their home would be able to provide for his needs,
and A.S.’s current placement is pre-adoptive. Mother has failed to establish
error in this regard.
Conclusion
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 16 of 17 [23] Because she raises it for the first time on appeal, Mother has waived her
argument that the juvenile court denied her the process to which she is due.
Mother and Father have also failed to establish that the juvenile court’s
judgment is clearly erroneous in any respect.
[24] The judgment of the juvenile court is affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1652 | December 26, 2018 Page 17 of 17