Term. of Parent-Child Rel. of: Z.G. (Minor Child), and D.G. (Father), and T.S. (Mother) v. The Indiana Dept. of Child Services

• Court: Indiana Court of Appeals
• Decided: September 11, 2012
• Docket: 79A02-1202-JT-102
• Status: Unpublished

Opinion

FILED Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Sep 11 2012, 9:09 am any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court

ATTORNEY FOR APPELLANT D.G.: ATTORNEYS FOR APPELLEE: HAROLD E. AMSTUTZ CRAIG JONES Lafayette, Indiana DCS, Tippecanoe County Office Lafayette, Indiana ATTORNEY FOR APPELLANT T.S.: MICHAEL B. TROEMEL ROBERT J. HENKE Lafayette, Indiana DCS Central Administration Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF ) THE PARENT-CHILD RELATIONSHIP OF: ) Z.G. (MINOR CHILD), AND D.G. (FATHER), ) AND T.S. (MOTHER), ) Appellants-Respondents, ) ) vs. ) No. 79A02-1202-JT-102 ) THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner. )

APPEAL FROM THE TIPPECANOE SUPERIOR COURT The Honorable Loretta H. Rush, Judge The Honorable Faith A. Graham, Magistrate Cause No. 79D03-1111-JT-125

September 11, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

In this consolidated appeal, T.S. (“Mother”) and D.G. (“Father”) separately appeal

from the trial court’s decision terminating each parent’s parent-child relationship with Z.G.

We affirm as to each parent.

Issue

Mother and Father each raise several issues for our review, which we restate as

whether there was sufficient evidence to support the trial court’s order terminating their

separate parental rights as to Z.G.1

Facts and Procedural History

Z.G. was born in 2005 to Mother and Father, who were unmarried and were no longer

engaged in a relationship by the time of Z.G.’s birth. Mother had two sons, J. and I., from

prior relationships. J. had been diagnosed with juvenile diabetes and made regular use of

insulin and an insulin pump. J. and I. both exhibited significantly escalated aggressive

behavior toward one another. As Z.G. grew older, the other boys turned their aggression

against him as well. Each boy would eventually be diagnosed with a number of

psychological conditions.

Z.G. had only occasional contact with Father due to Father’s repeated incarceration

for various offenses. Most of these terms of imprisonment were related to Father’s use or

possession of illegal drugs, and Father also abused alcohol. Mother had a very limited

1 Each parent also raises for our review whether termination of their parental rights as to Z.G. is in the child’s best interest. Neither Mother nor Father provides coherent argument or citation to authority to support their arguments, however, and thus these issues are waived on appeal. See Ind. Appellate Rule 46(A)(8).

2 criminal history, consisting of a single misdemeanor conviction in 1998, but acknowledged a

long-term problem with marijuana use. Members of Mother’s family and network of friends

also had substance abuse issues.

On August 26, 2009, I. pushed Z.G. from a second-story window in Mother’s

residence; Z.G. did not suffer significant injuries and was released from the hospital soon

after. While at the hospital with Z.G., Mother left J. and I. in the care of her mother

(“Grandmother”). Two days later, while still in Grandmother’s care, J. suffered an overdose

of insulin from an ultimately unknown cause; J. was comatose for a period, and suffered from

ongoing mental health problems because of the insulin overdose. The Tippecanoe County

Department of Child Services (“DCS”) filed a Child in Need of Services (“CHINS”) petition

as to all three children on August 28, 2009 and removed the children from the home.

Because of I.’s behavior at school, at the time of the CHINS petition Mother and the

children had already been engaged in some counseling and mental health services through

Wabash Valley Alliance (“Wabash Valley”), and on at least one prior occasion I. had

received extensive inpatient mental health care. After DCS filed the CHINS petition, the

services extended to Mother, the three children, and eventually were expanded to Father.

During much of the pendency of the CHINS case, Mother resided in a house that she

was unable to keep clean and free of excessive clutter. The house had a severe cockroach

infestation. The upper floor smelled strongly of urine, and the scent became almost

overpowering during hot weather. Dishes were unwashed and mold grew in places. Knives

and needles for J.’s insulin were often left within reach of all three children.

3 Mother made efforts to improve the home. During a trial home visit with J. and Z.G.,

however, conditions began to decline again, and DCS terminated the trial home visit with

Z.G. Conditions in Mother’s home improved again after she moved to a different residence

in West Lafayette, but soon after the move, clutter and a general lack of cleanliness at the

home recurred. Eventually, DCS again removed J. from the home. Consequently, Mother

lost her voucher for housing assistance and thereafter lacked a stable residence. Instead she

began sleeping on friends’ couches, at Grandmother’s residence, or on a few occasions in a

van parked underneath a bridge.

During the pendency of the CHINS proceedings, Mother did not obtain any stable

part-time or full-time employment. Mother usually relied on Social Security, child support

payments, charities, and social service organizations to support the family. After J.’s final

removal from Mother’s care, Mother lacked most of these sources of income. Mother also

tested positive for marijuana on numerous occasions throughout the course of the CHINS

action.

At the beginning of the CHINS proceeding, and intermittently through much of its

pendency, Father was incarcerated. He was also serving probation throughout almost the

entirety of the CHINS action. At the beginning of the CHINS case, Father was imprisoned

for narcotics offenses and violation of a probation order. Father tested positive for use of

synthetic marijuana in October 2010. Later that year, Father came to Mother’s home and,

while intoxicated, battered Mother with J. present in the home. As a result, Father was again

incarcerated, and was released from jail in late May 2011.

4 After Father’s release from jail in May 2011, he obtained housing and employment.

In November 2011, however, Father again tested positive for use of synthetic marijuana.

On November 4, 2011, DCS filed its petition to terminate the parent-child relationship

of Mother and Father as to Z.G.

On December 22, 2011, the trial court conducted a hearing on DCS’s petition and took

the matter under advisement. On January 26, 2012, the trial court entered its order granting

DCS’s petition and terminating the parental rights of Mother and Father as to Z.G.

Mother and Father now appeal.

Discussion and Decision

Legal Standard

Mother and Father each contest the trial court’s termination of their parental rights.

Our standard of review is highly deferential in cases concerning the termination of parental

rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set aside

the trial court’s judgment terminating a parent-child relationship unless it is clearly

erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the

sufficiency of the evidence to support a judgment of involuntary termination of a parent-child

relationship, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.

We consider only the evidence that supports the judgment and the reasonable inferences to be

drawn therefrom. Id.

Parental rights are of a constitutional dimension, but the law provides for the

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

5 responsibilities. Bester v. Lake County Office of Family & Children, 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.

Indiana Code Section 31-35-2-4(b)(2) sets out the elements that the DCS must allege

and prove by clear and convincing evidence in order to terminate a parent-child relationship:

(A) That one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree. (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made. (iii) The child has been removed from the parent and has been under the supervision of a county office of family and children for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(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.

If the court finds that the allegations in a petition described in Section 4 of this chapter

6 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). 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 trial court also must “evaluate

the parent’s habitual patterns of conduct to determine the probability of future neglect or

deprivation of the child.” Id. 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 County Office of Family &

Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

Termination of Mother’s Parental Rights

In her appeal of the trial court’s decision terminating her parental rights, Mother

argues that DCS did not provide sufficient evidence to satisfy the requirements of

subsections 31-35-2-4(b)(2)(B)(i) and (ii). See supra. This statute “is written in the

disjunctive” so that only one of the requirements of subsection (B)—here, either that there is

a reasonable probability the conditions necessitating a child’s removal will not be remedied

or that continuation of the parent-child relationship poses a threat to the child’s well-being—

need be proved by clear and convincing evidence. In re L.S., 717 N.E.2d at 209.

The evidence produced at the termination hearing indicated that Mother’s relationship

with several DCS and Wabash Valley caseworkers had deteriorated in the latter part of 2011,

and even before then Mother’s relationships with caseworkers was inconsistent—she got

along well with some but was hostile toward others. In one incident, Mother threw one of

7 Z.G.’s coats at a caseworker, slightly injuring that individual and frightening Z.G. In

September 2011, Mother ceased attending her own counseling sessions at Wabash Valley and

was terminated as a client. She put little effort into restarting these services. Mother also

tested positive for marijuana on numerous occasions during the CHINS proceeding, and

insisted that she did not use marijuana but rather that the samples or test results were tainted.

Mother’s living situation also deteriorated over the course of 2011. Mother rarely

worked at any job and was unable to maintain any form of even part-time employment, so

that most of the household income came from Social Security payments and child support

payments. Once J. was removed from the home so that Mother’s HUD housing waiver was

discontinued, Mother was unable to continue to pay rent and thereafter lacked a stable

residence. Instead, Mother stayed with friends, Grandmother,2 and on at least two occasions

in a van under a bridge.

While Z.G.’s removal from Mother’s care came after he was pushed from a second-

story window in the residence, the trial home visit was discontinued because of Mother’s

inability to supervise Z.G. and deteriorating conditions at Mother’s home. Mother’s

arguments on appeal that she made efforts at counseling and therapy that give reasonable

hope of a successful reunion with Z.G. request that we reweigh evidence, which we cannot

do. See In re A.A.C., 682 N.E.2d at 544. Given the deteriorating conditions of Mother’s

interaction with numerous caseworkers, her inconsistent income, lack of housing appropriate

for herself and even one child, and her continued use of marijuana, we cannot conclude that

2 Grandmother had drug problems herself, had used drugs with Father during the early years of Z.G.’s life, and had been diagnosed with mental retardation.

8 there was insufficient evidence from which the trial court could conclude that the conditions

necessitating Z.G.’s removal from the home would not be remedied. The trial court’s

termination of Mother’s parental rights as to Z.G. is supported by sufficient evidence.

Termination of Father’s Parental Rights

Like Mother, Father argues on appeal that there was insufficient evidence to establish

that the conditions leading to Z.G.’s removal were unlikely to be remedied.

At the termination hearing, DCS presented evidence that Father had a significant

criminal history related to his use of drugs and alcohol, including convictions for possession

of methamphetamine and marijuana. As a result of these convictions, Father has been in and

out of prison and has not maintained a consistent residence for more than six months since

2006. Father’s interactions with Mother escalated toward violence at least once in 2010,

when he arrived at Mother’s home while intoxicated and battered her in front of J. Father

also testified that he had only been caught engaging in violent conduct toward Mother when

intoxicated, giving rise to an inference that he has engaged in violent conduct toward Mother

on other occasions.

Wabash Valley caseworkers and Father acknowledged that Father’s success in life and

as a parent would depend upon his ability to remain clean of drugs. Yet in November 2011,

approximately one month prior to the termination hearing, Father tested positive for use of

synthetic marijuana that he consumed in a snack cake.

Father argues that the trial court’s decision was erroneous because it failed to take into

account his participation in drug rehabilitation programs and other court-ordered services,

9 improvements in his employment and housing situation, and his display of good parenting

skills during supervised visitation. But Father’s situation is unlike the facts in recent cases

upon which he now relies. In H.G. v. Ind. Dep’t of Child Servs, 959 N.E.2d 272 (Ind. Ct.

App. 2011), trans. denied, the children involved had developed strong bonds with a

frequently-incarcerated father, caseworkers testified that separation from their father would

be devastating for the children, and both parents were fully engaged in services while

incarcerated to shorten their prison terms and improve their parenting skills. In In re I.A.,

934 N.E.2d 1127 (Ind. 2010), our Supreme Court reversed a trial court’s termination of

parental rights where there was not clear and convincing evidence that a reasonable

probability that the reason for a child’s placement outside of his father’s care would not be

remedied and that continuation of the parent-child relationship posed a threat to the child.

The trial court is required to look beyond the statutory factors and at the entirety of the

evidence in reaching its decision, and “‘must subordinate the interests of the parent to those

of the child.’” H.G., 959 N.E.2d at 289-90 (quoting In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

App. 2009)). Thus, as Father notes, this Court and our Supreme Court have reversed trial

courts that entered orders terminating parental rights where an affected parent has taken

significant, unqualified good-faith steps to improve parenting skills and financial

circumstances.

Yet we cannot agree with Father that the trial court erred in its contrary assessment of

him or of the risk posed by placing Z.G. with him permanently. Here, Father was

incarcerated at the time of Z.G.’s removal from the home. Thus, Father’s absence due to his

10 criminal activities, taken together with Mother’s failure to properly supervise Z.G. and his

siblings necessitated Z.G.’s placement into foster care. Evidence presented at the termination

hearing indicated that Z.G. “very much wanted a forever home,” understood that this would

likely not be with either Mother or Father, had not yet fully emotionally recovered from

Father’s incarceration after he battered Mother in 2010, and would be “devastated” and likely

never recover if he was placed with Father on a seemingly permanent basis only to be

dislocated once again. (Tr. at 143-144.)

Father availed himself of services and made improvements in his life after his release

from jail in May 2011. Yet Father also has a history of probation violations associated with

relapses into drug and alcohol use. In the course of the CHINS case he tested positive for the

use of synthetic marijuana on two occasions, did not comply with the steps of his relapse plan

when he used synthetic marijuana in late 2011, and was incarcerated during the CHINS case

after he battered Mother in front of another of her children while he was intoxicated.

All together, then, we cannot conclude that there was insufficient evidence that the

reasons for placement of Z.G. outside Father’s home were unlikely to be remedied, nor that

Z.G.’s well-being would not be placed at risk by placing him with Father. We therefore

affirm the trial court’s order terminating Father’s parental rights as to Z.G.

Conclusion

We cannot conclude there was insufficient evidence for the trial court to terminate

Mother’s and Father’s parental rights as to Z.G. We therefore affirm the trial court’s order as

to each parent.

11 Affirmed.

RILEY, J., and CRONE, J., concur.