Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of FILED Mar 16 2012, 9:13 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
MICHAEL J. KYLE ELIZABETH A. GAMBOA Baldwin Adams Knierim & Kamish, P.C. Indiana Department of Child Services Franklin, Indiana
ROBERT J. HENKE Indiana Department of Child Services Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
R.F. and I.A., ) ) Appellants-Respondents, ) ) vs. ) No. 41A05-1107-JT-376 ) INDIANA DEPARTMENT OF CHILD SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE JOHNSON CIRCUIT COURT The Honorable K. Mark Lloyd, Judge Cause Nos. 41C01-1101-JT-1, 41C01-1101-JT-2, 41C01-1101-JT-3, 41C01-1101-JT-4, 41C01-1101-JT-5 and 41C01-1101-JT-6
March 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge STATEMENT OF THE CASE
R.F. (“Mother”) and I.A (“Father”) appeal the involuntary termination of their
parental rights to their children, claiming there is insufficient evidence supporting the
trial court‟s judgment. We affirm.
FACTS AND PROCEDURAL HISTORY
Mother is the biological mother of N.F., J.W., C.W., M.F., I.F., and A.F. Father is
the biological father of N.F. and A.F.1 The facts most favorable to the trial court‟s
judgment reveal that in December 2008, the Johnson County office of the Indiana
Department of Child Services (“JCDCS”) took all the children, except A.F. who was not
yet born, into emergency protective custody. At the time, six-week-old N.F. had been
taken to Community South Hospital for a fever when hospital personnel discovered the
infant was suffering with severe, life-threatening injuries. The child was transported to
Riley Hospital in Indianapolis where further testing confirmed that the “left side of
[N.F.‟s] brain was infracted with overlying subdural hematoma.” Appellant‟s App. at 3.
Moreover, the presence of “new blood” demonstrated that the subdural hematoma was a
recent injury. Id. An abdominal CT scan further revealed that N.F. was also suffering
with numerous rib fractures that were at least ten days old, including right rib fractures to
posterior ribs 4-8 and lateral ribs 3-7 as well as left rib fractures to posterior ribs 4-8 and
lateral ribs 6-9. Additional injuries included fractures to both distal tibias and corner
1 R.W. is the biological father of J.W. and C.W. R.W. appeared at the initial hearing on the termination petition, and the trial court granted R.W.‟s request to continue the termination proceedings as to R.W. and his two children (J.W. and C.W.). J.J. is the biological father of M.F. G.A. is the biological father of I.F. None of these fathers participate in this appeal. Consequently, we shall limit our recitation of the facts to those pertinent solely to Father‟s appeal of the involuntary termination of his parental rights to N.F. and A.F., as well as to those facts pertinent to Mother‟s appeal of the involuntary termination of her parental rights to all six children. 2 fractures, a distal radius torus fracture in the right forearm, and a first metatarsal fracture
in the right foot, totaling of approximately twenty-one injuries since birth. The next day,
N.F. stopped breathing, was placed on a ventilator, and was transferred to Riley
Hospital‟s Intensive Care Unit.
During its investigation of the matter, a JCDCS assessment case worker spoke
with Mother and Father. Neither parent was able to provide an explanation as to how
N.F. sustained what experts described as “non-accidental” injuries. Transcript at 576. In
addition, while at the hospital both parents repeatedly informed police detectives and
hospital personnel that no one ever “holds” or “watches” N.F. except for the parents. Id.
at 4. Within days of removing the children from the family home and placing them in
foster care, JCDCS filed petitions under separate cause numbers alleging N.F., J.W.,
C.W., M.F., and I.F. were children in need of services (“CHINS”). In March 2009, the
children were adjudicated CHINS.
Following a dispositional hearing in April 2009, the trial court entered an order
formally removing the children from Mother‟s and Father‟s care and adjudicating the
children wards of JCDCS. The court‟s dispositional order further directed both parents to
participate in and successfully complete a variety of tasks and services designed to
improve their parenting abilities and to facilitate reunification with the children.
Specifically, the parents were ordered to, among other things: (1) maintain safe, stable,
and sanitary housing with functioning utilities and an adequate supply of nutritious food;
(2) successfully participate in and complete home-based counseling services including
parenting education classes; (3) meet all of the children‟s medical and mental health
3 needs in a timely and complete manner, attend all of the children‟s doctors‟
appointments, and administer all medications as prescribed; (4) participate in all
scheduled supervised visits with the children and avoid using any physical discipline
during visits; (5) establish paternity of the children; and (6) refrain from using alcohol or
illegal drugs and prohibit any such use from occurring in the family home.
Following the dispositional hearing, both parents began participating in court-
ordered reunifications services. Their participation, however, was inconsistent and
ultimately unsuccessful. The parents moved from Greenwood to the west side of
Indianapolis in January 2010. The children, however, remained wards in Johnson
County. In February 2010, A.F. was born in Marion County. Because of the open
CHINS cases pertaining to A.F.‟s five older siblings in Johnson County and both parents‟
lack of progress in reunification services, A.F. was taken into immediate protective
custody by the local Marion County office of IDCS upon the child‟s birth.
Several days later, a detention hearing was held in Marion County. The Marion
County Superior Court ordered A.F.‟s continued detention and then transferred A.F.‟s
case to Johnson County to be consolidated with the ongoing CHINS cases relating to
A.F.‟s siblings. In July 2009, both Mother and Father admitted to the allegations of the
CHINS petition pertaining to A.F., and the child was so adjudicated. The trial court
proceeded to disposition the same day, and both parents agreed that the court‟s previous
dispositional orders entered in A.F.‟s siblings‟ CHINS cases should also be incorporated
into A.F.‟s case.
4 Mother and Father continued to sporadically engage in services. Neither parent,
however, was ever able to maintain his or her progress in their ability to provide the
children with a safe and stable home environment. For example, Mother exercised
regular visitation with the children, submitted to a psychological assessment, and
completed two parenting education programs. Nevertheless, Mother was unable to
successfully implement the new parenting techniques that she had learned while visiting
with the children. She also failed to demonstrate consistency in setting boundaries for the
children and/or disciplining the children, oftentimes yelled during visits, and continued to
resist all suggestions from visit supervisors. As a result, visits continued to be chaotic
and stressful for the children, and although Mother achieved periodic increases in
parenting time including some overnight visits, visitation privileges always reverted back
to supervised visits. Mother also regularly missed and/or was late for the children‟s
scheduled doctors‟ appointments, consistently denied any responsibility for N.A.‟s
injuries, and was generally hostile and uncooperative toward every service provider
involved with the family.
Although Father was generally more cooperative with service providers and
affectionate toward all the children, he oftentimes failed to attend scheduled visits and/or
home-based counseling appointments. Father also tested positive for marijuana. He
thereafter completed an intensive outpatient drug treatment program (“IOP”) in
November 2010, but then tested positive for cocaine the next month. Father began a
second IOP, but failed to complete the program by the time of the termination hearing. In
addition, Father failed to establish legal paternity of N.F. and A.F., refused to intervene
5 when Mother acted inappropriately during visits with the children, and never indicated
that he was willing to care for the children on his own should Mother‟s parental rights be
terminated.
Meanwhile, JCDCS filed petitions seeking the involuntary termination of
Mother‟s and Father‟s parental rights to their respective children in January 2011. A
four-day evidentiary hearing took place during the months of May and June, 2011.
During the termination hearing, JCDCS presented substantial evidence concerning both
parents‟ failure to successfully complete and/or benefit from a majority of the trial court‟s
dispositional orders, including achieving employment, successfully completing home-
based counseling services, incorporating newly learned parenting techniques into their
daily lives, demonstrating they are capable of providing for the children‟s medical and
emotional medical needs, and maintaining a safe and stable home environment. CCDCS
also presented evidence regarding Father‟s unresolved substance abuse issues, failure to
establish paternity of N.F. and A.F., and history of criminal activities including a prior
conviction for possession of marijuana in the State of Illinois, as well as new, pending
charges for check deception and Class C felony burglary.
Regarding the children, CCDCS presented evidence establishing that J.W., C.W.,
M.F., and I.F. were placed together in pre-adoptive foster care. A.F. and N.F. were
likewise living together in a second, pre-adoptive foster home. All the children remained
bonded to one another, and their respective care-givers, who had a good working
relationship, allowed the children to visit one another on a regular basis. In addition,
6 evidence submitted by JCDCS established that J.W. and C.W. had both expressed a
desire to remain in their current foster home and not be returned to their parents.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. On July 12, 2011, the trial court entered its judgment terminating Mother‟s
parental rights to all six children and terminating Father‟s parental rights to N.F. and A.F.
Both parents now appeal.
DISCUSSION AND DECISION
We begin our review by acknowledging that when reviewing a termination of
parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.
In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider
only the evidence and reasonable inferences that are most favorable to the judgment. Id.
Moreover, in deference to the trial court‟s unique position to assess the evidence, we will
set aside the court‟s judgment terminating a parent-child relationship only if it is clearly
erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
“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 M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), 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. K.S., 750 N.E.2d at 837. 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
7 terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
Before an involuntary termination of parental rights can occur in Indiana, the State
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.
Ind. Code § 31-35-2-4(b)(2)(B) (2010). The State‟s “burden of proof in termination of
parental rights cases is one of „clear and convincing evidence.‟” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). Moreover, Indiana
Code section 31-35-2-8(a) provides that if a trial court finds that the allegations in the
termination petition to be true, the court shall terminate parental rights.
Mother‟s and Father‟s sole allegation of error on appeal is that JCDCS failed to
prove, by clear and convincing evidence, the requirements of subsection (b)(2)(B) of
Indiana‟s termination statute cited above. See Ind. Code § 31-35-1-4(b). In so doing,
neither parent purports that any particular finding made by the trial court is unsupported
by the evidence. Rather, Mother and Father simply assert they are entitled to reversal
because “[g]iven the significant progress the parents made, the statutory elements for
termination have not been proven by clear and convincing evidence.” Appellant‟s Brief
at 8.
8 We begin our review by observing that Indiana‟s termination statute requires
JCDCS to establish only one of the requirements of subsection (b)(2)(B) by clear and
convincing evidence before terminate of parental rights may occur. Because we find it to
be dispositive under the facts of this particular case, we shall only consider whether clear
and convincing evidence supports the trial court‟s determination that there is a reasonable
probability the conditions resulting in the children‟s removal or continued placement
outside the family home will be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
When making such a determination, a trial court must judge a parent‟s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),
trans. denied. The court must also “evaluate the parent‟s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. Pursuant to
this rule, courts have properly considered evidence of a parent‟s prior criminal history,
drug and alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children,
762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also
consider any services offered to the parent by the local Indiana Department of Child
Services office (here, JCDCS) and a parent‟s response to those services, as evidence of
whether conditions will be remedied. Id. Moreover, JCDCS is not required to provide
evidence ruling out all possibilities of change; rather, it need establish only that there is a
reasonable probability the parent‟s behavior will not change. In re Kay L., 867 N.E.2d
236, 242 (Ind. Ct. App. 2007).
9 In the present case, the trial court‟s judgment contains ninety-two detailed findings
regarding Mother‟s and Father‟s unresolved parenting issues. In addition to describing
the specific circumstances surrounding N.F.‟s “severe, non-accidental, life-threatening
injuries” which occurred while N.F. was in the family home and under the constant care
and supervision of Mother and Father, the court also detailed both parents‟ failure to
benefit from the wealth of reunification services available to them for approximately two-
and-one-half years. Appellant‟s App. at 2. For example, although the trial court
acknowledged that Mother and Father had maintained housing, were able to provide the
children with “adequate” food during supervised visits, and “reported having various jobs
throughout the proceedings,” the court went on to observe that Mother never provided
“[JCDCS] or the service providers with proof of income” and that Father‟s only proof of
employment was “a copy of a check indicating the number of hours worked.” Id. at 5-6.
The trial court also found that Mother and Father “did not meet all the children‟s
medical and mental health needs,” emphasizing N.A.‟s significant on-going medical
conditions as a result of the injuries she suffered as an infant, including her diagnosis of
hemiplegic cerebral palsy and use of a G-tube to ensure proper nutrition. Id. at 6.
Specifically, the court noted that throughout the underlying proceedings, Mother refused
to follow all of the directions of the doctors and nurses in feeding, medicating, and caring
for N.A. Additionally, the court found that both parents had repeatedly failed to attend
scheduled doctor‟s visits for all of the children.
Regarding Mother‟s and Father‟s participation in a home-based counseling
program, the trial court found that Mother and Father “did not accomplish this goal.” Id.
10 at 7. The court further explained that Mother continued to “project blame on others for
[N.J.‟s] injuries,” and did not “respond well” to the service providers who “attempted to
help her improve her parenting skills” due to her “oppositional posture.” Id. As for
Father, the trial court found Father had not completed a parenting education program,
“was not always in attendance at the home-based appointments and the visits,” and failed
to “demonstrate[]” and/or “verbally indicate[]” a willingness or ability to parent his
children independent of [Mother].” Id.
The court ultimately determined that although “the parents have accomplished
some of the goals, the parents have made very little progress on the most significant
goals.” Id. at 5. In so doing, the trial court concluded as follows:
There is a reasonable probability the conditions that resulted in [the children‟s] removal will not be remedied. . . . In summary, the children were removed due to the extensive injuries to [N.F.] as well as the failure by the parents to provide the children with a safe environment. Both [Mother] and [Father] have been provided with extensive parenting education and extensive family support services to assist them in providing a safe environment for their children. The parents have not demonstrated they are able to provide the children with a safe home environment on any sustained basis. In addition, [Mother] continues to deny personal responsibility for [N.A.‟s] injuries or the [family‟s] circumstances, despite the overwhelming evidence - as well as a finding of this court - to the contrary. The Court finds it is therefore unlikely the conditions that resulted in the children‟s removal will be remedied.
Id. at 17-18. A thorough review of the record leaves us satisfied that abundant evidence
supports the trial court‟s findings and conclusions cited above, which in turn support the
court‟s ultimate decision to terminate both Mother‟s and Father‟s parental rights to their
respective children.
11 The record makes clear that at the time of the termination hearing, Mother and
Father had made little, if any, progress in their ability to provide the children with a safe
and stable home environment. Specifically, both parents‟ employment status remained
unknown, neither parent had successfully completed home-based counseling services,
and neither parent was able to demonstrate an ability to consistently use appropriate
boundary setting and discipline techniques with the children. Additionally, Father had
failed to establish paternity of N.F. and A.F., continued to struggle with substance abuse
issues, and was facing new criminal charges.
Also significant, it was the general consensus among case workers and service
providers that Mother‟s and Father‟s circumstances and abilities to safely care for and
parent the children would likely never improve. During the termination hearing, Dr.
Alfred Barrow informed the court that he had conducted the psychological evaluations on
both parents. Dr. Barrow further testified that his assessment of Mother‟s general
personality function suggests there is a possibility she suffers from a personality disorder
and that she may have “difficulty managing her anger effectively,” especially in light of
the circumstances surrounding N.F.‟s injuries. Transcript at 19. When asked his opinion
concerning Mother‟s “ability to change,” Dr. Barrows stated that, given the psychological
test data, his clinical observations, and Mother‟s social history, Mother‟s prognosis for
“significant change in personality functioning and parenting effectiveness would appear
to be poor to guarded.” Id. at 19-20. As for Father, Dr. Barrow reported that Father‟s
test results reflected almost identical levels of “defensiveness” as was the case with
Mother. Id. at 24. Dr. Barrow further testified that Father‟s test results were consistent
12 with individuals who experience moderate levels of depression, and that his prognosis for
change was slightly better than Mother‟s, but nevertheless remained “guarded at best.”
Id. at 24, 27.
Home-based counselor Lindsey Borns reported that during the time that she
provided services to the family, Mother never took responsibility for the injuries
sustained by N.F. Borns also testified that Mother would sometimes be argumentative
and defensive during counseling sessions, and that although Mother and Father seemed to
understand the parenting techniques that were taught as part of the parenting curriculum,
both parents “struggled with implementing those skills” and were “weak on setting
boundaries and implementing consequences.” Id. at 146-47, 158. Home-based counselor
Katherine Comstock likewise confirmed that both parents were inconsistent in their
“level of engagement” in home-based counseling services and goals, stating Father
would oftentimes miss scheduled appointments to go to work and Mother would spend a
lot of time “refus[ing]” recommendations and “blam[ing]” others for her lack of progress.
Id. at 316. When asked to describe her general observations of the supervised home
visits that had just recently occurred in April 2011, Comstock described the visits as
“[v]ery chaotic” and further indicated there was a “lack of direction of any kind of
behavior” by the parents. Id. at 329.
Finally, in recommending termination of Mother‟s and Father‟s parental rights,
JCDCS case manger Deborah Chattin informed the trial court that both parents had failed
to demonstrate the positive changes necessary to safely and appropriately parent the
children. Chattin further testified that the “common thread” throughout the visitation
13 logs continued to be “a lot of yelling and screaming in the home,” Father never
consistently participated in services, and Mother‟s participation, although consistent, was
best described as “extremely resistant” and “defiant.” Id. at 606, 612.
As noted earlier, a trial court must judge a parent‟s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent‟s habitual
patterns of conduct to determine the probability of future neglect or deprivation of the
child. D.D., 804 N.E.2d at 266. “A pattern of unwillingness to deal with parenting
problems and to cooperate with those providing services, in conjunction with unchanged
conditions, supports a finding that there exists no reasonable probability that the
conditions will change.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d
366, 372 (Ind. Ct. App. 2007), trans. denied. Moreover, we have previously explained
that “simply going through the motions of receiving services alone is not sufficient if the
services do not result in the needed change.” In re J.S., 906 N.E.2d 226, 234 (Ind. Ct.
App. 2009). Based on the foregoing, we conclude that clear and convincing evidence
supports the trial court‟s findings as well as its ultimate determination to terminate
Mother‟s and Father‟s parental rights. We therefore find no error.
Affirmed.
ROBB, C.J., and VAIDIK, J., concur.