MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 19 2017, 10:58 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Erin L. Berger Curtis T. Hill, Jr., Evansville, Indiana Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- January 19, 2017 Child Relationship of: Court of Appeals Case No. G.C., A.R., and B.R. (minor 82A05-1607-JT-1753 children); Appeal from the Vanderburgh E.R. (mother) Superior Court The Honorable Brett J. Niemeier, Appellant-Respondent, Judge v. Trial Court Cause Nos. 82D04-1507-JT-1274 The Indiana Department of 82D04-1507-JT-1275 82D04-1507-JT-1276 Child Services, Appellee-Petitioner.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 1 of 10 Statement of the Case [1] E.R. (“Mother”) appeals the termination of the parental-relationship with her
children, G.C. (“G.C.”), A.R. (“A.R.”), and B.R. (“B.R.”), (collectively “the
children”), claiming that: (1) the trial court erred in denying her motions to
correct error and for a new trial; and (2) the Department of Child Services
(“DCS”) failed to prove by clear and convincing evidence that there is a
reasonable probability that the conditions that resulted in the children’s removal
or the reasons for placement outside Mother’s home will not be remedied.
Concluding that the trial court did not err in denying the motions and that there
is sufficient evidence to support the trial court’s decision to terminate the
parent-child relationship, we affirm.
Issues 1. Whether the trial court erred in denying Mother’s motions to correct error and for a new trial.
2. Whether there is sufficient evidence to support the termination of the parent-child relationship.
Facts [2] Mother is the parent of G.C., who was born in August 2001; A.R., who was
born in September 2008; and B.R., who was born in May 2012. In September
2013, Mother and the three children had recently been evicted from their home
and were living without electricity or water. Mother, who was suffering from
mental health issues and abusing alcohol and methamphetamine, physically
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 2 of 10 abused twelve-year-old G.C. She subsequently pled guilty to battery causing
physical injury and was sentenced to probation.
[3] The three children were removed from Mother and placed in foster care after a
failed family placement. Shortly thereafter, all three children were adjudicated
to be Children in Need of Services (“CHINS”). The trial court ordered Mother
to: (1) participate in substance abuse and mental health treatment; (2) remain
alcohol and drug free; and (3) secure and maintain adequate and stable housing.
[4] Despite the trial court’s order, Mother continued to use alcohol, opiates, and
methamphetamine. She was also unable to maintain stable employment. Her
probation was revoked and she was incarcerated for five months.
[5] In July 2015, DCS filed a petition to terminate Mother’s parental rights. At the
two-day termination hearing held in February and March 2016, Mother
testified that she had “never really been able to hold employment” and at one
time had seven jobs in ten months. (Tr. 12). She also testified that she had
“mental issues” and that she had “been an addict all [her] life.” (Tr. 12, 13).
She further admitted that she had used marijuana two weeks before the
termination hearing. In addition, according to Mother, she was living with her
brother and his family, who lived beyond their means and were frequently
evicted.
[6] DCS Family Case Manager Dashea Head (“FCM Head”), who worked with
Mother until June 2015, testified that Mother had lived in various places from
the time the children were removed until DCS filed the termination petition.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 3 of 10 Specifically, Mother had lived with her brother, been homeless, and lived at the
YWCA. She had also “been in and out of jail.” (Tr. 54). According to FCM
Head, Mother had never been “able to hold down a job,” and she was
dismissed from mental health treatment services because she had not complied
with the psychiatrist’s recommendations and had refused to take her prescribed
medication. (Tr. 55).
[7] CASA Jennifer Bromm (“CASA Bromm”) testified that Mother’s living
situation with her brother and his family was “chaotic and . . . dysfunctional.”
(Tr. 68). Bromm further testified that “even given the extra time with this case,
I don’t think there’s been any progress with providing a stable home for these
children with the mother. She’s not shown that.” (Tr. 68-69). Further,
according to Broom, Mother’s lack of participation in the mental health services
“showed more instability because [Mother] was not able to attend on any
regular basis.” (Tr. 69). Bromm recommended termination of Mother’s
parental rights and testified that this was in the children’s best interest.
[8] In May 2016, the trial court issued an order terminating Mother’s parental
rights. Specifically, the trial court found that Mother was “unable to provide a
long-term safe, secure, stable environment for the children due to her continued
lack of housing stability, on-going substance abuse, and unresolved mental
health issues.” (App. 54). Based upon this finding, the trial court concluded
that there was a reasonable probability that the conditions that resulted in the
children’s removal and the reasons for their continued placement outside the
home would not be remedied because “the mother lack[ed] stability,
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 4 of 10 inappropriately self-medicate[d] and suffer[ed] from chronic mental health
issues, which continue[d] to be untreated.” (App. 55). The trial court further
concluded that the continuation of the parent-child relationship posed a threat
to the children’s well-being because “the children lack[ed] stability and their
mother [could] not adequately provide for their emotional and physical needs.”
(App. 55).
[9] Mother timely filed motions to correct error and for a new trial wherein she
argued that “[f]ollowing the close of evidence in the trial, the Mother secured
housing and employment and was successfully participating in other services.”
(App. 56, 57). In the motion to correct error, Mother asked the trial court to
issue new findings of fact which would “take into account [Mother’s] housing,
employment, and efforts towards services.” (App. 57). In her motion for a new
trial, Mother argued that evidence of Mother’s housing and employment and
efforts to participate in services “would likely produce a different result at trial.”
(App. 56). At the hearing on the motions, the State asked the trial court to deny
the motions, which were not supported by affidavits. The State further argued
that “based on the evidence at trial with her long history of instability and
mental health issues . . .
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 19 2017, 10:58 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Erin L. Berger Curtis T. Hill, Jr., Evansville, Indiana Attorney General of Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- January 19, 2017 Child Relationship of: Court of Appeals Case No. G.C., A.R., and B.R. (minor 82A05-1607-JT-1753 children); Appeal from the Vanderburgh E.R. (mother) Superior Court The Honorable Brett J. Niemeier, Appellant-Respondent, Judge v. Trial Court Cause Nos. 82D04-1507-JT-1274 The Indiana Department of 82D04-1507-JT-1275 82D04-1507-JT-1276 Child Services, Appellee-Petitioner.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 1 of 10 Statement of the Case [1] E.R. (“Mother”) appeals the termination of the parental-relationship with her
children, G.C. (“G.C.”), A.R. (“A.R.”), and B.R. (“B.R.”), (collectively “the
children”), claiming that: (1) the trial court erred in denying her motions to
correct error and for a new trial; and (2) the Department of Child Services
(“DCS”) failed to prove by clear and convincing evidence that there is a
reasonable probability that the conditions that resulted in the children’s removal
or the reasons for placement outside Mother’s home will not be remedied.
Concluding that the trial court did not err in denying the motions and that there
is sufficient evidence to support the trial court’s decision to terminate the
parent-child relationship, we affirm.
Issues 1. Whether the trial court erred in denying Mother’s motions to correct error and for a new trial.
2. Whether there is sufficient evidence to support the termination of the parent-child relationship.
Facts [2] Mother is the parent of G.C., who was born in August 2001; A.R., who was
born in September 2008; and B.R., who was born in May 2012. In September
2013, Mother and the three children had recently been evicted from their home
and were living without electricity or water. Mother, who was suffering from
mental health issues and abusing alcohol and methamphetamine, physically
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 2 of 10 abused twelve-year-old G.C. She subsequently pled guilty to battery causing
physical injury and was sentenced to probation.
[3] The three children were removed from Mother and placed in foster care after a
failed family placement. Shortly thereafter, all three children were adjudicated
to be Children in Need of Services (“CHINS”). The trial court ordered Mother
to: (1) participate in substance abuse and mental health treatment; (2) remain
alcohol and drug free; and (3) secure and maintain adequate and stable housing.
[4] Despite the trial court’s order, Mother continued to use alcohol, opiates, and
methamphetamine. She was also unable to maintain stable employment. Her
probation was revoked and she was incarcerated for five months.
[5] In July 2015, DCS filed a petition to terminate Mother’s parental rights. At the
two-day termination hearing held in February and March 2016, Mother
testified that she had “never really been able to hold employment” and at one
time had seven jobs in ten months. (Tr. 12). She also testified that she had
“mental issues” and that she had “been an addict all [her] life.” (Tr. 12, 13).
She further admitted that she had used marijuana two weeks before the
termination hearing. In addition, according to Mother, she was living with her
brother and his family, who lived beyond their means and were frequently
evicted.
[6] DCS Family Case Manager Dashea Head (“FCM Head”), who worked with
Mother until June 2015, testified that Mother had lived in various places from
the time the children were removed until DCS filed the termination petition.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 3 of 10 Specifically, Mother had lived with her brother, been homeless, and lived at the
YWCA. She had also “been in and out of jail.” (Tr. 54). According to FCM
Head, Mother had never been “able to hold down a job,” and she was
dismissed from mental health treatment services because she had not complied
with the psychiatrist’s recommendations and had refused to take her prescribed
medication. (Tr. 55).
[7] CASA Jennifer Bromm (“CASA Bromm”) testified that Mother’s living
situation with her brother and his family was “chaotic and . . . dysfunctional.”
(Tr. 68). Bromm further testified that “even given the extra time with this case,
I don’t think there’s been any progress with providing a stable home for these
children with the mother. She’s not shown that.” (Tr. 68-69). Further,
according to Broom, Mother’s lack of participation in the mental health services
“showed more instability because [Mother] was not able to attend on any
regular basis.” (Tr. 69). Bromm recommended termination of Mother’s
parental rights and testified that this was in the children’s best interest.
[8] In May 2016, the trial court issued an order terminating Mother’s parental
rights. Specifically, the trial court found that Mother was “unable to provide a
long-term safe, secure, stable environment for the children due to her continued
lack of housing stability, on-going substance abuse, and unresolved mental
health issues.” (App. 54). Based upon this finding, the trial court concluded
that there was a reasonable probability that the conditions that resulted in the
children’s removal and the reasons for their continued placement outside the
home would not be remedied because “the mother lack[ed] stability,
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 4 of 10 inappropriately self-medicate[d] and suffer[ed] from chronic mental health
issues, which continue[d] to be untreated.” (App. 55). The trial court further
concluded that the continuation of the parent-child relationship posed a threat
to the children’s well-being because “the children lack[ed] stability and their
mother [could] not adequately provide for their emotional and physical needs.”
(App. 55).
[9] Mother timely filed motions to correct error and for a new trial wherein she
argued that “[f]ollowing the close of evidence in the trial, the Mother secured
housing and employment and was successfully participating in other services.”
(App. 56, 57). In the motion to correct error, Mother asked the trial court to
issue new findings of fact which would “take into account [Mother’s] housing,
employment, and efforts towards services.” (App. 57). In her motion for a new
trial, Mother argued that evidence of Mother’s housing and employment and
efforts to participate in services “would likely produce a different result at trial.”
(App. 56). At the hearing on the motions, the State asked the trial court to deny
the motions, which were not supported by affidavits. The State further argued
that “based on the evidence at trial with her long history of instability and
mental health issues . . . we don’t think that she’s able to provide a long term
safe environment for her children.” (Tr. 103-04). The trial court denied both
motions. Mother appeals the denial of these motions as well as the termination
of her parental rights.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 5 of 10 Decision 1. Denial of Mother’s Motions
[10] Mother first argues that the trial court erred in denying her motions to correct
error and for a new trial. However, DCS correctly points out that Mother has
not developed a separate argument specifically addressing the denial of these
motions. She has also failed to support this issue with citations to authority.
Mother has therefore waived appellate review of it. See Reel v. Clarian Health
Partners, 855 N.E.2d 343, 345, n.1 (Ind. Ct. App. 2006) (explaining that
plaintiffs’ failure to develop their argument in their appellate brief or support it
with citations to authority waived appellate review of that issue).
[11] Waiver notwithstanding, we find no error. We review a trial court’s ruling on
motions to correct error and for a new trial for an abuse of discretion.
Wortkoetter v. Wortkoetter, 971 N.E.2d 685, 687 (Ind. Ct. App. 2012) (motion to
correct error); Deree v. All American Shipping Supplies, Inc., 718 N.E.2d 1214,
1215 (Ind. Ct. App. 1999), trans. denied, (motion for a new trial). An abuse of
discretion occurs when the trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court including the reasonable
inferences therefrom. Wortkoetter, 971 N.E.2d at 687.
[12] Our review of the evidence reveals that these motions were based on Mother
apparently finding housing and employment after the trial court issued its
termination order. However, trial courts have discretion to weigh a parent’s
prior history more heavily than efforts made only shortly before, or, in this case,
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 6 of 10 after termination, and courts may find that a parent’s past behavior is the best
predictor of his or her future behavior. See In re E.M., 4 N.E.3d 636, 643 (Ind.
2014). The trial court did not abuse its discretion in denying Mother’s motions.
2. Sufficiency of the Evidence
[13] Mother also argues that there is insufficient evidence to support the termination
of her parental rights. The Fourteenth Amendment to the United States
Constitution protects the traditional right of parents to establish a home and
raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,
the law provides for termination of that right when parents are unwilling or
unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147
(Ind. 2005). The purpose of terminating parental rights is not to punish the
parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[14] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 7 of 10 [15] A petition to terminate parental rights must allege:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well- being of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of the child.
IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[16] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that the conditions
that resulted in her children’s removal or the reasons for their placement outside
her home will not be remedied. However, the trial court also concluded that
there was a reasonable probability that a continuation of the parent-child
relationship posed a threat to the children’s well-being. Because the statute is
written in the disjunctive, it requires the trial court to find only one of the
subsection (B) requirements by clear and convincing evidence. In re L.S., 717
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 8 of 10 N.E.2d 204, 209 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied.
Standing alone, the trial court’s conclusion that there was a reasonable
probability that a continuation of the parent-child relationship posed a threat to
the child’s well-being satisfies the subsection (B) requirement, and we need not
address Mother’s argument.
[17] However, because of the great interests at stake in termination proceedings, we
choose to address Mother’s contention on the merits. In determining whether
the conditions resulting in a child’s removal or placement outside the home will
not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636,
643 (Ind. 2014). We first identify the conditions that led to removal or
placement outside the home and then determine whether there is a reasonable
probability that those conditions will not be remedied. Id. The second step
requires trial courts to judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions and
balancing any recent improvements against habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or
deprivation. Id.
[18] Here, our review of the evidence reveals that the children were removed from
Mother because she was unable to provide them with safe and secure housing.
She also had mental health issues and abused alcohol and drugs. At the time of
the hearing, Mother was living with her brother and his family in a chaotic and
dysfunctional environment. She had been dismissed from mental health
treatment services because she had not complied with the psychiatrist’s
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 9 of 10 recommendations and had refused to take her prescription medication. Lastly,
Mother was still using illegal drugs shortly before the termination hearing. This
evidence supports the trial court’s conclusion that DCS proved by clear and
convincing evidence that there is a reasonable probability that the conditions
that resulted in the children’s removal or the reasons for placement outside
Mother’s home will not be remedied. There is sufficient evidence to support the
termination.
[19] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[20] Affirmed.
Baker, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 82A05-1607-JT-1753 | January 19, 2017 Page 10 of 10