Term. of the Parent-Child Rel. of: Se.L. N.L. G.L. J.L. Sh.L. L.L. & I.L. (Minor Children), and D.L. (Mother) v. The Indiana Dept. of Child Services

• Court: Indiana Court of Appeals
• Decided: February 1, 2013
• Docket: 48A02-1207-JT-537
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before Feb 01 2013, 10:06 am any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, court of appeals and collateral estoppel, or the law of the case. tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARIANNE WOOLBERT ROBERT J. HENKE Anderson, Indiana DCS Central Administration Indianapolis, Indiana

DONALD L. HANNAH DCS, Madison County Anderson, Indiana

IN THE COURT OF APPEALS OF INDIANA IN RE: THE TERMINATION OF THE ) PARENT-CHILD RELATIONSHIP OF: ) Se.L.; N.L.; G.L.; J.L.; Sh.L.; L.L.;& I.L. ) (Minor Children), ) ) And ) ) D.L. (Mother), ) ) Appellant-Respondent, ) ) vs. ) No. 48A02-1207-JT-537 ) THE INDIANA DEPARTMENT OF ) CHILD SERVICES, ) ) Appellee-Petitioner. )

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable G. George Pancol, Judge Cause Nos. 48C02-1112-JT-42 48C02-1112-JT-43 48C02-1112-JT-44 48C02-1112-JT-45 48C02-1112-JT-46 48C02-1112-JT-47 48C02-1112-JT-48

February 1, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Chief Judge

Case Summary and Issue

D.L. (“Mother”) appeals the juvenile court’s termination of her parental rights. She

presents one issue on appeal: whether sufficient evidence supported the termination of her

parental rights. Concluding that the termination was supported by sufficient evidence, we

affirm.

Facts and Procedural History1

In June 2010, the Indiana Department of Child Services (“DCS”) filed a petition

alleging that each of Mother’s seven children, Se.L., N.L., G.L., J.L., Sh.L., L.L., and I.L.,

was a child in need of services (“CHINS”). The petition stated that DCS visited the house

after receiving information from a police officer that children were playing outside

unattended. This was the fourth report that DCS had received on the family within the past

1 We note that Mother’s brief does not meet the requirements of Indiana Appellate Rule 46. Among other deficiencies, the statement of facts is functionally missing as it is merely a condensation of the statement of the case, and the argument section is cluttered with a witness-by-witness summary of the testimony. Counsel is reminded that the Appellate Rules are not a mere suggestion.

2 month. The petition described DCS’s arrival at the house, finding that the children were

filthy, the home was filthy with trash and dirty diapers, five of the children did not have beds

and slept on dirty couches, bugs swarmed the bathroom, and the youngest child appeared to

be undernourished. The children were emergently placed into foster care as soon as DCS

became involved. Within a couple of days, the juvenile court conducted an initial hearing at

which Mother was present with counsel and admitted to the CHINS allegations, and the

children were adjudicated to be CHINS.2 In July 2010, the court held a dispositional hearing

at which it ordered the children to remain in foster care, and, in relevant part, ordered Mother

to: visit the children each week; submit to a mental health assessment and follow all resulting

recommendations; contact a family case manager at least once a week; work with a home-

based counselor to address parenting, safety, and other issues; and maintain a safe and

sanitary home with adequate utilities and furnishings.

By January 2011, it appears that the family members were fairly on-track, with the

children improving in foster care, and Mother participating in services. The children were

placed back at home with Mother that month for a trial visit, with DCS continuing to monitor

the family. In late April or early May 2011, the children were again removed from the home

and placed back into foster care, following a domestic violence incident in which one of the

children received a black eye and bloody nose and another child was burned; there were also

concerns related to medical neglect of the youngest child, who had improved in foster care

but regressed while back at home on the trial visit, and was again considered as failure to

2 The children’s father was also involved in the case, and ultimately his parental rights were also terminated. Father does not participate in this appeal.

3 thrive. The Notification of Disruption of Trial Home Visit notes that when the children were

removed, the home was found to be filthy and cluttered with food, dirt, and trash.

In June 2011, the court held a permanency review hearing and found that Mother had

been visiting the children but was otherwise not in compliance with the plan in that she: had

not been staying in contact with the family case manager; had not been available to meet with

the home-based worker; and she had not been attending her counseling sessions. The

permanency plan at the end of the hearing was reunification.

In December 2011, at a periodic case review, the court found that Mother had not

complied with the case plan. The court found that she had not enhanced her ability to fulfill

her parental obligations, and she canceled and showed up late to visits with the children and

as a result she was discharged from visitation for non-compliance. The court set a

permanency hearing and a projected date of adoption, noting that DCS was filing a

termination of parental rights. The court ordered that services for Mother be stopped. That

same month, there was an initial hearing on the petition for involuntary termination of

parental rights, and Mother denied the allegations in the petition.

A fact-finding hearing on the petition for involuntary termination was conducted in

March and April 2012, and on May 10, 2012, the court issued findings of fact and

conclusions of law and terminated Mother’s parental rights. Among other things, the court

found that: during the underlying CHINS matter, Mother had failed to maintain a safe and

sanitary home with adequate utilities and furnishings for the children; Mother maintained

different residences, none of which was suitable for the children; Mother failed to

4 successfully complete the ordered counseling sessions and had been discharged in February

2012; Mother failed to maintain ordered contact with DCS; after the failed trial home visit,

Mother initially participated in home-based services, but was discharged when the case

worker could not contact her after repeated attempts; Mother’s supervised visits with the

children had been closed out due to Mother being chronically late; when visits did occur, they

were chaotic and Mother frequently had to be prompted and re-directed, and Mother did not

demonstrate the ability to care for the needs of all of the children at the same time; Mother

has substantial history with DCS spanning several years both in Indiana and New Mexico,

and some of the children had spent time in foster care prior to the detention in 2010 that

precipitated the underlying CHINS matter; at the time of the hearing, Mother was staying

with relatives and did not have a residence of her own, and she was unemployed and unable

to financially support the children; and the children had thrived in foster care and those who

were behind academically had progressed while in foster care. The court concluded that

there was a reasonable probability that the conditions that resulted in the children’s removal

would not be remedied. The court also concluded that there was a reasonable probability that

the continuation of the parent-child relationship posed a threat to the well-being of the

children and that Mother was not in a position to care for the children. The court concluded

that termination of the parent-child relationship was in the best interest of the children. This

appeal followed.

5 Discussion and Decision

I. Standard of Review

In determining whether the evidence is sufficient to support a judgment terminating

parental rights, we neither reweigh the evidence nor judge the credibility of the witnesses. In

re D.J., 755 N.E.2d 679, 683 (Ind. Ct. App. 2001), trans. denied. We consider only the

evidence favorable to the judgment and the reasonable inferences to be drawn therefrom. Id.

When reviewing the findings of fact and conclusions of law upon which a termination of

parental rights is premised, we engage in a two-tiered standard of review: we first determine

whether the evidence supports the findings, and second, whether the findings support the

judgment. Id. We will reverse only upon a showing of clear error. Id. A finding is clearly

erroneous when there are no facts or inferences drawn therefrom that support it. In re A.J.,

877 N.E.2d 805, 815 (Ind. Ct. App. 2007), trans. denied. A judgment is clearly erroneous

only if the findings of fact do not support the trial court’s conclusions thereon, or the

conclusions thereon do not support the judgment. Id.

In evaluating the circumstances surrounding the termination, the court must

subordinate the interests of the parents to those of the child. R.G. v. Marion Cnty. Office,

Dep’t of Family & Children, 647 N.E.2d 326, 328 (Ind. Ct. App. 1995), trans. denied.

Termination of parental rights is proper where the child’s emotional and physical

development is threatened. Id. The trial court need not wait until the child is irreversibly

harmed such that his physical, mental and social development is permanently impaired before

terminating the parent-child relationship. Id.

6 II. Sufficiency of the Evidence to Support Termination

To effect the involuntary termination of a parent-child relationship, the following

elements must be proven by clear and convincing evidence:

(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 local office or probation department 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.

Ind. Code § 31-35-2-4(b)(2); see also Ind. Code § 31-35-2-8.

Mother’s sole complaint is that there was insufficient evidence to show a reasonable

probability that the conditions that resulted in the children’s removal would not be remedied.

She does not contest that sub-sections (A), (C), or (D) of the statute were met. DCS points

out that while the court was only required to find that one of the conditions in sub-section (B)

had been met, the court concluded that both (i) and (ii) were true in this case. Because

Mother only challenges the conclusion as to (i), even if we were to agree with her, which we

7 do not, the judgment of the court would still stand supported by the court’s conclusion as to

(ii). Nonetheless, for the sake of completeness, we will address the court’s conclusion as to

the probability that the conditions that resulted in removal would not be remedied.

To determine whether there is a reasonable probability that the conditions which

resulted in the removal of the children will not be remedied, the trial court should judge a

parent’s ability to care for her children 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 children. Id. The

trial court can also reasonably consider the services offered by DCS to the parent, and the

parent’s response to those services. Id.

At the time of Mother’s hearing, it is clear that Mother was not able to properly care

for her children, and that few conditions had changed since the children were first

adjudicated to be CHINS. It is true that the father was no longer in the picture at the time of

the hearing, as he was in custody and apparently was likely to be deported; further, his

parental rights were also terminated and he did not appeal. However, while we sympathize

with Mother’s own victimization at the hands of the children’s father, it is apparent that she

is not able to provide a safe home for the children even with the father gone. At the time of

the hearing, Mother was unemployed and living with relatives. After almost two years, she

had failed to complete the counseling and services that were ordered by the court. She was

unable to properly take care of all of the children when she visited them, and the children,

8 who had been improving in foster care, regressed when a trial home visit was attempted. The

home was found to be dirty and unsanitary when the trial visit was discontinued. The record

supports the findings of the juvenile court, and those findings support the court’s conclusion.

At the time of the hearing, taking into consideration both any changes in circumstances and

Mother’s habitual patterns, the evidence supported the conclusion that there was a reasonable

probability that the conditions that resulted in the children’s removal would not be remedied

and that the children’s emotional and physical development was threatened when they were

in Mother’s care.3 Termination of Mother’s parental rights was thus appropriate.

Conclusion

Concluding that the judgment of the juvenile court was not clearly erroneous and that

the evidence supports the court’s findings and those findings support the judgment, we

Affirmed.

MAY, J., and PYLE, J., concur.

The evidence also supports the juvenile court’s uncontested conclusion that there was a reasonable 3

probability that the continuation of the parent-child relationship would pose a threat to the well-being of the children.