Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jul 07 2014, 9:31 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARIANNE WOOLBERT GREGORY F. ZOELLER
Anderson, Indiana ROBERT J. HENKE
CHRISTINE REDELMAN
Office of the Indiana Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF: J.S. (minor child); )
)
N.W. (Mother) )
)
Appellant-Respondent, )
)
vs. ) No. 48A02-1309-JT-778
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable G. George Pancol, Judge
Cause No. 48C02-1211-JT-44
July 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
N.W. (“Mother”) appeals the involuntary termination of her parental rights to her
son, J.S.
We affirm.
ISSUE
Whether the Department of Child Services (“DCS”) presented clear and
convincing evidence supporting the termination of Mother’s parental rights.
FACTS1
J.S. was born on October 27, 2005. On July 26, 2011, DCS received a report that
the home where Mother and J.S. resided contained an active methamphetamine lab. A
DCS worker arrived, and an officer told the DCS worker that the methamphetamine lab
was located in a room directly above J.S.’s bedroom. Upon entering J.S.’s bedroom, the
DCS worker observed trash, soiled clothes, cigarette butts, and cockroaches covering the
floor. J.S.’s grandmother, a double-leg amputee, was found in a room covered in her own
feces and urine. She and J.S. were transported to a hospital. At the hospital, J.S. revealed
that he knew people in the home drank alcohol and used drugs, that he often had
cockroaches crawling on him at night, and that all he had eaten that day were a pop tart and
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Mother’s Statement of Facts in her brief only contained the reasons for J.S.’s removal and the procedural
history after the petition for termination of parental rights was filed. We direct Mother’s attention to Indiana
Appellate Rule 46(A)(6) requiring, among other things, a full statement of facts relevant to the issues for
review, in narrative form, and in accordance with the standard of review appropriate to the judgment being
appealed.
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a honey bun. The DCS worker noted that J.S. was visibly dirty, having dirt on his face,
torso, and hands. Law enforcement officers arrested the remaining adults in the home,
including Mother, for the methamphetamine activity taking place. DCS took J.S. into
custody. The same day, the State charged Mother with neglect of a dependent and
possession of a controlled substance, both Class D felonies. The next day on July 27, 2011,
DCS filed a verified petition alleging that J.S. was a child in need of services (“CHINS”).
The court held a detention hearing on the same day and found J.S. to be a CHINS. The
court set the matter for a dispositional hearing on August 24, 2011.
At the dispositional hearing, the juvenile court ordered that J.S. remain in foster
placement. The court ordered Mother to participate in supervised visits with J.S., obtain
and maintain appropriate housing and income, submit to random drug screens, complete a
substance abuse and psychological evaluation, complete a parenting assessment,
participate in individual counseling, and establish paternity for J.S. The juvenile court also
ordered Mother to follow the recommendations of all service providers.
DCS filed its first progress report on February 10, 2012, covering a period beginning
on July 26, 2011. Mother completed her substance abuse and psychiatric assessments with
Aspire in August of 2011. Mother was referred to the Conquer Addictions substance abuse
program. She attended classes for one month before stopping treatment. Between the
dispositional hearing and Mother’s arrest, she tested positive three times for
methamphetamine. Mother was incarcerated at the time of the report and had been since
December 25, 2011. After posting a surety bond for her initial arrest, she failed to appear
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for her final pretrial conference, and the court issued a warrant for her arrest. Mother
consistently visited J.S. until her incarceration.
DCS filed its next report on or about August 8, 2012, covering the time period of
February 22, 2012 to August 22, 2012. On March 12, 2012, Mother pled guilty to neglect
of a dependent child and possession of a controlled substance. The trial court sentenced
Mother to three (3) years on each count to be served concurrently. The trial court
suspended the sentence and placed Mother on probation. On May 23, 2012, the probation
department filed a Notice of Violation of Probation with the court. A hearing was held on
June 4, 2012, and Mother admitted that she violated probation by failing a drug screen.
The trial court revoked her probation and ordered that she serve her suspended sentence in
the Department of Correction. DCS terminated Mother’s services due to noncompliance.
Regarding J.S., DCS reported that he exhibited troubling behavior at school. His school
reported that he experienced mood changes and intense anger and was punching and
kicking his teacher. The juvenile court ordered that the permanency plan remain as
reunification and set the case for another review hearing.
DCS filed its final progress report on February 22, 2013, which covered a period of
review beginning on August 22, 2012. DCS reported that J.S.’s behavior had improved
vastly from the previous progress report. J.S. was thriving in a new school and displayed
only minor behavior problems that were not out of the ordinary for a kindergartner. J.S.
also began calling his foster parent “mom.” Mother had no visitation with the child while
she was incarcerated. DCS filed a verified petition to terminate Mother’s parental rights
on November 30, 2012, and the juvenile court scheduled a fact-finding hearing for the
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following March. However, Mother was released from prison on February 15, 2013 and
she requested a continuance so that she could continue services. The juvenile court granted
Mother’s request and continued the fact-finding hearing until July 16, 2013.
At the fact-finding hearing, J.S.’s foster mother testified that when J.S. first came to
her home he was angry, frail, and did not eat a lot. J.S. had no daily schedule; he would
stay up all night and want to sleep during the day. Educationally, foster mother stated that
he was below normal and had difficulty following instructions. She further stated that after
visits with Mother stopped, J.S. “was thriving” and did not “seem to have any difficulty
adjusting without seeing her.” (Tr. 14). Foster mother stated that her intention was to
adopt J.S. if Mother’s parental rights were terminated.
Jill Woverton (“Woverton”), a teacher at Pendelton Elementary School, had J.S. as
a student. She stated that J.S., at five years old, did not have any of the skills a child needed
to be ready for school such as knowing the difference between numbers and letters,
counting to ten or twenty, or knowing the letters in his name. J.S. threw tantrums in her
class and would often punch or kick Woverton.
The court-appointed special advocate, Nellie Elsten (“CASA Elsten”) testified
about the initial reasons for J.S.’s removal and her observations that J.S. was an angry and
unpleasant little boy. When CASA Elsten first became involved in the case, J.S. paid little
attention to her and would scream at her and foster mother to “shut up so he could play his
game.” (Tr. 67). As J.S. progressed with recommended services geared toward his
behavior, CASA Elsten stated that J.S.’s behavior changed tremendously. J.S. became
more affectionate and personable. CASA Elsten testified that termination of Mother’s
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parental rights was in J.S.’s best interests because he had to “relearn a whole lot of life
skills” that a boy his age should have known. (Tr. 68). CASA Elsten further stated that
even had Mother complied with the recommended services for substance abuse and mental
health treatment, she would not recommend that J.S. return to any of the residences Mother
obtained during the CHINS proceeding. One house was “very tiny and cluttered [and] not
clean.” (Tr. 64) This house also had a strong odor because J.S.’s grandmother, being a
double amputee, was not well cared for by Mother. The second house, where Mother was
living at the time of the termination hearing, had no furniture except for two mattresses
placed on floors in the house. CASA Elsten tried to take pictures of the home, but Mother
did not allow her to do so. CASA Elsten stated that it did not appear that any work was
taking place on the house and that it looked as if it were abandoned. J.S. also mentioned
to CASA Elsten how dirty Mother’s first home was and that he did not like the bugs
crawling on him. J.S. told her that he liked the clean house and food he has with his foster
mother.
Brenda Rader (“Rader”), J.S.’s home based therapist, also testified that termination
of Mother’s parental rights was in J.S.’s best interests. Rader referred J.S. to a psychiatrist
for an evaluation. Based on that evaluation and the behaviors J.S. displayed, J.S. was
diagnosed with post-traumatic stress disorder attributed to his experiences with Mother.
Rader testified that when she began working with J.S., she observed a very angry, scared
boy. Along with his anger, J.S. had nightmares and found it difficult to verbalize his
feelings. Rader received phone calls from J.S.’s school and foster mother about his
behavior after visits with Mother. After visits, J.S. would disrupt class to the point that the
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school considered suspending him. Rader testified that once visits with Mother stopped,
J.S.’s behavior improved almost immediately. The improvement was so drastic that Rader
recommended that visitation with Mother not be reinstated. Rader was unsure if a time
would come where Mother could be reintroduced into J.S.’s life. However, she testified
that reunification would be detrimental to his progress.
Finally, Nicole Zielinski (“FCM Zielinski”), the family case manager, testified that
termination of Mother’s parental rights was in J.S.’s best interests. FCM Zielinski
observed many of the behaviors Rader noted. On some occasions, J.S. would threaten
FCM Zielinski and tell her to “shut up.” (Tr. 76). At the time of the termination hearing,
she noted that J.S. “was not the same child. He’s not angry. He’s outgoing. He’s
affectionate.” (Tr. 78). She further testified that termination of parental rights was in J.S.’s
best interests because he was thriving from the stability of his foster home.
After hearing evidence at the fact-finding hearing, the juvenile court issued an order
on August 13, 2013 concluding that there was a reasonable probability that the conditions
that resulted in J.S.’s removal from Mother would not be remedied because at the time of
the termination hearing, Mother still struggled with substance abuse issues as well as
securing adequate housing and income. The juvenile court further found that the parent-
child relationship posed a threat to J.S.’s well-being. Further, the juvenile court found that
termination of Mother’s parental rights was in J.S.’s best interest because of the effects
Mother’s neglect had on J.S. and the fact that he improved significantly after his removal
from Mother’s care. Mother now appeals.
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DECISION
Although parental rights are of a constitutional dimension, the law allows for
termination of these rights when parties are unable or unwilling to meet their responsibility.
In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). The purpose of termination of
parental rights is not to punish parents but to protect children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied, cert. denied.
In reviewing the termination of parental rights, we will neither reweigh the evidence
nor judge the credibility of witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). We
consider only the evidence most favorable to the judgment. Id. Where the trial court has
entered findings of fact and conclusions of law, we apply a two-tiered standard of review.
Id. We must determine whether the evidence supports the findings and then whether the
findings support the judgment. Id. We will set aside a judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. A judgment is clearly erroneous if the
findings do not support the conclusions or the conclusions do not support the judgment.
Id.
When DCS seeks to terminate parental rights pursuant to INDIANA CODE § 31-35-
2-4(b)(2), it must plead and prove, in relevant part:
(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.
****
(B) that one (1) of the following is true:
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(i) There is a reasonable probability that the conditions that resulted
in the child’s removal or the reasons for placement outside of 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 . . . .
Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only one of the
three elements by clear and convincing evidence. See Bester v. Lake Cnty. Office of Family
and Children, 839 N.E.2d 143, 153 n.5 (Ind. 2005). These allegations must be established
by clear and convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court finds the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship. I.C. § 31-35-2-8(a).
Mother argues that DCS failed to present clear and convincing evidence supporting
the termination of her parental rights. She does not challenge any factual findings of the
juvenile court. Rather, she recites the testimony of several service providers, compares it
to her own testimony, and concludes that the juvenile court erred in terminating her parental
rights because it discounted her personal struggles in complying with the dispositional
order. This is simply a request that we reweigh the evidence, which we will not do. I.A.,
934 N.E.2d at 1132. Our review of the record shows that the evidence supports the trial
court’s findings, and those findings support its conclusion to terminate Mother’s parental
rights.
1. Conditions Remedied
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To determine whether a reasonable probability exists that the conditions justifying
a child’s continued placement outside of the home will not be remedied, the trial court must
judge a parent’s fitness to care for the child at the time of the termination hearing, taking
into consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721. The
trial court must also evaluate the parent’s habitual pattern of conduct to determine whether
there is a substantial probability of future neglect or deprivation. Id. A trial court may
properly consider evidence of a parent’s prior criminal history, drug and alcohol abuse,
history of neglect, failure to provide support, and lack of adequate employment and
housing. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199
(Ind. Ct. App. 2003). Additionally, the trial court can properly consider the services offered
by DCS to the parent and the parent’s response to those services as evidence of whether
conditions will be remedied. Id. “A pattern of unwillingness to deal with parenting
problems and to cooperate with those providing social services, in conjunction with
unchanged conditions, support a finding that there is no reasonable probability that the
conditions will change.” L.S., 717 N.E.2d at 210.
Here, DCS removed J.S. from Mother’s care because their home was in poor
condition and contained an active methamphetamine lab near J.S.’s bedroom. While it
appears from the record that Mother no longer lives in a residence where she permits the
manufacture of methamphetamine, her substance abuse and ability to secure and maintain
appropriate housing remain as issues. She did complete her initial substance abuse
evaluation and began treatment, but her counselor testified that she “just stopped coming.”
(Tr. 38). Mother violated her probation because of failed drug screens and served the
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remainder of her suspended sentence in the Department of Correction. We acknowledge
that she started some services on her own after DCS stopped offering services. However,
Mother still tested positive for drugs after her release, putting her at risk of violating parole
and returning to prison. She also refused to take court-ordered drug screens unless she
could see J.S. As for securing and maintaining appropriate housing, at the time of the
hearing, Mother lived in what CASA Elsten described as a house that looked abandoned
and only had two mattresses as furniture. This evidence supports the juvenile court’s
finding that “[t]he child has been in [foster] care for approximately twenty[-]four months
and mother is no closer to having the child return to her care [than] when the child was first
removed.” (App. 34). Accordingly, the trial court did not err in concluding that the
conditions that resulted in J.S.’s removal and continued placement outside of Mother’s care
would not be remedied.
2. Best Interests
Concerning the “best interests of the child” statutory element, the trial court is
required to consider the totality of the evidence and determine whether the custody by the
parent is wholly inadequate for the child’s future physical, mental, and social growth. In
re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. denied. In making this
determination, the trial court must subordinate the interest of the parent to that of the child
involved. Id. The recommendations of the service providers that parental rights be
terminated support a finding that termination is in the child’s best interests. See A. J. v.
Marion Cnty. Office of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008),
trans. denied.
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Here, Mother argues that “[t]he evidence presented by DCS merely establishes
reasons for [J.S.’s] initial removal and it would not necessarily reflect probabilities of
future neglect or abuse.” (Mother’s Br. 15). We disagree. The evidence showed the effects
of Mother’s neglect. In Mother’s care, J.S. was a five-year-old boy without structure and
the skills to start school. The evidence also shows dramatic improvement in J.S.’s behavior
and overall outlook almost immediately upon stopping visits with Mother. The trial court
need not wait until the child is irreversibly harmed such that his or her physical, mental,
and social development is permanently impaired before terminating the parent-child
relationship. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied.
Therefore, the juvenile court did not err in concluding that the termination of Mother’s
parental rights was in J.S.’s best interests.
DCS presented clear and convincing evidence, and the juvenile court did not err in
terminating Mother’s parental rights.
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
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