In Re The Involuntary Termination of the Parent-Child Relationship of E.M., G.M., and L.M.: B.M. v. The Indiana Department of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Aug 30 2013, 5:21 am
regarded as precedent or cited before 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:

TRENNA S. PARKER ROBERT J. HENKE
Parker & Maguire Law Firm, P.C. DCS Central Administration
Noblesville, Indiana
PATRICK M. RHODES
Indiana Department of Child Services
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN RE THE INVOLUNTARY TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF )
E.M., G.M., AND L.M.: )
)
B.M., )
)
Appellant-Respondent, )
)
vs. ) No. 29A02-1301-JT-64
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
)

APPEAL FROM THE HAMILTON CIRCUIT COURT
The Honorable Paul A. Felix, Judge
The Honorable Todd L. Ruetz, Master Commissioner
Cause No. 29C01-1112-JT-1794
Cause No. 29C01-1112-JT-1795
Cause No. 29C01-1112-JT-1796

August 30, 2013
 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Father appeals the involuntary termination of his parental rights to his children, E.M.,

L.M., and G.M. (collectively, the Children). He challenges the sufficiency of the evidence

supporting the juvenile court’s judgment.

We affirm.1

Father and Mother are the biological parents of E.M., L.M, and G.M.2 Mother and

Father were married and living with the Children in Noblesville, Indiana when the Hamilton

County Department of Child Services (DCS) became involved with the family in February

2010. At the time, the family was living in a home owned by Father’s parents, who paid the

expenses associated with the home and did not charge rent. Father was unemployed and the

primary caregiver of the children, and Mother traveled out of the state for her job.

On or about February 5, 2010, DCS investigated a report of abuse and/or neglect

regarding the Children. Upon entering the home, investigators found the home “filthy, with

the kitchen covered in trash, no visible counter tops, trash and dirty diapers overflowing a

garbage can, caked food on the kitchen table and also no clear space on the table, and feces

smeared in multiple places in the home.” Appendix at 54. Further, nearly two-year-old G.M.

had a flat spot on his head, displayed little emotion or interactive or verbal skills, and was not

1
We note that Mother has filed a separate appeal regarding the termination of her parental rights under
appellate cause number 29A02-1301-JT-89. The State has apparently prepared one brief to be filed in both
appeals. Unfortunately, the State chose to cite to only Mother’s appendix and not Father’s throughout its brief.
This has hampered our review, as only Father’s appendix is before us in this appeal.
2
The Children were born in January 2005, April 2006, and April 2008, respectively.

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walking yet. The children were also asking investigators for food. As a result of conditions

discovered in the home, the Children were immediately detained by DCS.3

On February 8, CHINS petitions were filed alleging that the conditions of the home

were unsafe, unsanitary, and unsatisfactory for the health and well-being of each child. The

Children were placed in foster care following a detention hearing. At the fact-finding

hearing on June 28, 2010, Mother and Father stipulated to facts establishing the Children to

be CHINS. That same day, the court proceeded to disposition in which the court ordered the

parents to participate in a plan of care to ensure a safe and stable home, including adequate

supervision, care, food, and shelter. In addition to the Children remaining in foster care, the

dispositional order provided that Mother and Father were to: maintain routine contact with

DCS, the GAL, and other service providers, notify DCS and the GAL of any change in living

situation, obtain/maintain housing and source of support or income sufficient for the care and

safety of the Children, and participate in and successfully complete home-based therapy, a

psychological assessment (for Father), comply with any terms of probation, and participate in

visitation with the Children as arranged by DCS. The parents were subsequently provided

with intensive services in an effort to reunify the family.

On August 4, 2010, DCS initiated the first trial home visit (THV) in which the

Children were returned to the care of Mother and Father. The THV did not last two months.

On October 1, 2010, the Children were detained by DCS because the family had been evicted

3
On March 23, 2010, the State filed criminal charges against Father relating to the findings of this
investigation. Father was charged with three counts of class D felony neglect of a dependent. He pleaded
guilty to one count of neglect on October 26, 2010 and was subsequently sentenced to 730 days incarceration
suspended to probation.

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from their home. The detention order, issued October 4, provided in part:

[Father] has not adequately participated in supporting or supervising [the
Children], nor in assisting [Mother], to enable the children and mother to
remain in the family home. Additionally, the mother and father have been
ejected from the family home by the landlords of that property, father’s own
parents, causing a lack of housing and a disruption in the schooling of the
children as well.

Exhibits, Petitioner’s Exhibit 26. The Children were placed in foster care until Mother could

secure financing sufficient to obtain housing for herself and the Children.

A second THV commenced in November 2010 in Mother’s new residence.

Permanency hearings were held the following December and June. Both parents failed to

appear in person. Following the first such permanency hearing, the court found Mother in

compliance with the case plan and the dispositional order but not Father. He had failed to

participate in home-based therapy, failed to maintain housing or source of support or income,

and had not completed a psychological evaluation.

By the time of the June 2011 permanency hearing, Father had moved back in with the

family. In its June permanency order, the court found Mother in compliance with the case

plan. The court noted, however, that Mother had reported to service providers that she was

experiencing daily hallucinations. The court found that although Father was currently in

compliance with the case plan, he had only partially completed his psychological evaluation.

The court further indicated concern that Father was overseeing the Children while Mother

worked: “[Father] has previously been convicted of criminal offenses [sic] relating to child

neglect, has left the family home for extended periods in the past, and has expressed a lack of

commitment to remaining in the family home.” Exhibits, Petitioner’s Exhibit 27. In its

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order, the court admonished the parents that they “must demonstrate continued ability to

provide appropriate care and supervision over the children as support services are reduced, in

order to maintain physical custody of the children in their home.” Id.

At the time of the June hearing, the stated plan of DCS, the GAL, and other service

providers was to gradually reduce services, which had been provided for approximately

sixteen months. It was felt that Mother and Father were demonstrating dependence on the

service providers, which could not continue indefinitely. The planned reduction in services

was designed to determine whether the parents could independently maintain the Children in

their home and fulfill parental obligations. Mother and Father were made aware of the

planned reduction of services on multiple occasions.

Just over two months later, on August 19, 2011, the Children were removed from the

parental home for a third time. This occurred after an impromptu visit by a service provider

on August 18, who returned again the following day with law enforcement. The service

provider discovered that food in the home was extremely scarce, parents had allowed their

food-stamp eligibility to lapse and had not notified or requested help from service providers,

and at least one child was complaining of being hungry. Mother and Father failed to appear

in person at the detention hearing held on August 24. In its third set of detention orders, the

court found probable cause to believe:

[The Children’s] mother and father have failed to provide adequate food and
supervision, as well as [] failed to provide a safe and stable home for the
children. The mother has not adequately addressed her own mental health
issues, including having active hallucinations observed by engaged service
providers. The [Children’s] parents did not notify DCS, the GAL, or service
providers that they did not have sufficient food on or about 8/18/11 or 8/19/11,

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 and indicated that they were going to sell house-hold items such as lamps
and/or furniture to get money for food…. [Parents] also did not have enough
money to pay their rent for the month of August, jeopardizing the ability to
provide housing the [Children].

Exhibits, Petitioner’s Exhibit 28. The children were returned to the foster family with whom

they had been placed after their first removal.

On October 6, November 28, and December 5, 2011, an extended and contested

permanency hearing was conducted. At the conclusion of the hearing, the court found that

Mother and Father were not in compliance with the case plan. The court found in part:

The [parents have] demonstrated a history of being unable to obtain or
maintain housing or source of support or income sufficient for the safe and
appropriate upbringing of the [Children]. The family has a demonstrated
history of marital instability, including the father’s seeking relationships
outside the marriage while in charge of the supervision of the [Children],
leading to failures in such supervision. This instability has also contributed to
the family having to move homes on multiple occasions, and lead to the
inability of this Court to determine what the family unit structure will be at any
given time during this extended CHINS case.
On or about 8/18/11, the third removal in this case was required because
the biological parents had either been unwilling or unable to ensure an
adequate supply of food for the children in their care….
The biological mother has had a running history of mental health
instability. This has manifested itself in active hallucinations…. [She] has
failed to stay current on her mental health medication during the CHINS case,
and has relied on the biological father, when he has been part of the family unit
structure, to provide supervision despite his own observed limitations. The
Court has specifically observed that the biological father has had difficulty
remaining awake during the permanency proceedings concluded on this date.
***
The biological parents have also been inconsistent and/or delinquent in
participating in supervised visitation sessions since the third removal on
8/19/11. This has included missed visitation sessions and cancelled sessions
because the parents have not been able to arrange transportation to attend such
sessions.

Exhibits, Petitioner’s Exhibit 29.

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 In sum, the court found that Mother and Father had been provided with twenty-one

months of intensive reunification services geared to improve their parenting skills and to

enable them to independently and appropriately provide for and raise their children. Despite

these extended services, parents had failed two THVs, and neither of them had attained the

ability to fulfill their parental obligations. Accordingly, the court approved a change in the

permanency plan from reunification to termination of the parent-child relationship.

Reunification services were suspended, although visitation was permitted to continue. On

December 29, 2011, DCS filed petitions for involuntary termination of the parent-child

relationship between Mother and Father and each of the Children.

Upon the recommendation of the GAL, DCS received court authorization in the

CHINS proceeding to suspend visitation on February 22, 2012, pending a hearing on March

26, 2012. Although they had begun visiting more often after the permanency plan was

changed to termination, the parents were now “unduly churning up the emotions of the

children causing significant adverse and negative reactions by the children after the visitation

had ended.” Exhibits, Petitioner’s Exhibit 31. Father and Mother both failed to appear in

person at the March 26 hearing, where the GAL and the Family Case Manager (FCM)

testified that it would be in the Children’s best interest to terminate visits. The court ordered

the continued suspension of visitation. The court also granted the GAL’s request for pre-

adoptive counseling for the Children and mental health assessments to address the emotional

wellbeing of the Children in conjunction with their contact with Mother and Father. In the

event that either of these services revealed that visitation would be in the Children’s best

7
interest, the court indicated that DCS or any party could request a hearing regarding

visitation.

On April 16, 2012, the court held an initial hearing in the termination case. Father

appeared in the custody of the Hamilton County Sheriff’s Department, as he had been

charged with false informing and had been recently arrested for failing to appear in that

matter.4 On May 21, 2012, a permanency plan was held in the underlying CHINS case. The

court found that neither parent was in compliance with the case plan at that time. The

permanency plan remained termination.

On October 29, 2012, the evidentiary hearing in the termination case commenced.

Mother and Father appeared approximately one hour and twenty minutes late. The hearing

concluded on a second day, November 19, 2012. In addition to many of the facts as set out

above, the current FCM testified that Mother and Father had not maintained contact with her

during the pendency of the termination proceedings. Based only on what she learned at the

last permanency hearing, the FCM believed Mother and Father were living apart and that

Father was living with his boss. The FCM explained that after two and one-half years,

neither Mother nor Father had demonstrated the ability to maintain housing or employment.

On the other hand, the foster family with whom the Children had been placed for a

combined twenty months were amply providing for the Children’s social, emotional,

physical, and economic needs. The Children were bonded with the foster family and were

4
Father pleaded guilty to class B misdemeanor false informing on May 3, 2012 and was sentenced to time
served (58 days) and fined. Father’s conviction also resulted in his probation being revoked in the child
neglect case.

8
thriving. In the FCM’s opinion, termination was in the Children’s best interest. Further, the

Children’s foster parents expressed a clear desire to adopt them.

Additionally, the GAL testified with respect to Father that she had no way to contact

him. She believed that as of October 1, he was working about two days a week at El Taco

King and did not have a permanent residence. Further, Mother was in the process of being

evicted from her current apartment. Ultimately, the GAL testified that in her opinion it was

in the Children’s best interest to become permanent members of their foster family and for

Mother and Father’s parental rights to be terminated.

During her testimony, Mother acknowledged that she had held seven short-term jobs

during the CHINS proceedings and lived in multiple residences. In fact, between the final

two hearing dates, Mother had been evicted from her apartment and was temporarily living

with her father.

Father’s own testimony, at age forty, reveals much about his lack of ability to care and

provide for the Children. He acknowledged that he had never paid support for the Children

and that during the CHINS and termination proceedings he did not work until May 2012.

Beginning in May, he worked part-time at El Taco King for about five months and then

began working at a nightclub in October. On the last day of the termination hearing in

November, Father indicated that he currently lived in a shelter and had no means to provide

for his children. He testified, “I’m trying to get back on my feet where I can and once I get

on my feet, I’d like to, whatever my first check is I’d like to give it to my wife so I can be

supportive.” Transcript at 277. Finally, Father indicated that he wanted Mother to have

9
custody of the Children.

On January 4, 2013, the juvenile court issued findings of fact, conclusions of law, and

judgment terminating the parent-child relationship between each child and Mother and

Father. Father now appeals, challenging the sufficiency of the evidence.

When reviewing the 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 (Ind. Ct. App. 2004),

trans. denied. Instead, we consider only the evidence and reasonable inferences most

favorable to the judgment. Id. In deference to the juvenile 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 (Ind. Ct. App. 1999), trans. denied.

Thus, if the evidence and inferences support the juvenile court’s decision, we must affirm.

Id.

Here, the juvenile court made detailed findings in its orders terminating Mother and

Father’s parental rights to the Children. Where the juvenile court enters specific findings of

fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty.

Office of Family & Children, 839 N.E.2d 143 (Ind. 2005). First, we determine whether the

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

judgment. Id. “Findings are clearly erroneous only when the record contains no facts to

support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind.

1996). A judgment is clearly erroneous only if the findings do not support the juvenile

court’s conclusions or the conclusions do not support the judgment thereon. Quillen v.

10
Quillen, 671 N.E.2d 98.

We recognize that 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. Although parental rights are of

a constitutional dimension, the law provides for the termination of these rights when parents

are unable or unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144

(Ind. Ct. App. 2008). A juvenile court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In re K.S., 750

N.E.2d 832 (Ind. Ct. App. 2001).

Before an involuntary termination of parental rights may occur in Indiana, the State is

required to allege and prove:

(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;

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 (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 Ann. § 31-35-2-4(b)(2) (West, Westlaw current with all 2013 legislation). The

State’s burden of proof for establishing these allegations in termination cases “is one of

‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting

Ind. Code Ann. § 31-37-14-2 (West, Westlaw current with all 2013 legislation)). “[I]f the

court finds that 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 (West, Westlaw current

with all 2013 legislation)(emphasis supplied).

Here, Father challenges the trial court’s findings only with regard to I.C. § 31-35-2-

4(b)(2)(B) and (C). In other words, he does not challenge whether the Children have been

removed for a sufficient period of time or whether there is a satisfactory plan for their care

and treatment.

With respect to subsection (b)(2)(B) of the termination statute cited above, we first

note that the State needed to establish only one of the three requirements of that subsection

by clear and convincing evidence before the juvenile court could terminate parental rights.

See In re L.V.N., 799 N.E.2d 63 (Ind. Ct. App. 2003). Here, the juvenile court found that the

State presented sufficient evidence to satisfy two of those requirements, namely, that there is

a reasonable probability the conditions resulting in the Children’s removal or continued

placement outside Mother and Father’s care will not be remedied and that the continuation of

the parent-child relationship poses a threat to the Children’s well-being. See I.C. § 31-35-2-

4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of subsection (b)(2)(B)(i) with

12
respect to Father—that is, whether there was sufficient evidence to establish a reasonable

probability that the conditions resulting in removal or continued placement outside Father’s

care will not be remedied.5

In making such a determination, a juvenile 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 (Ind. Ct. App. 2001), trans. denied. The

court must also evaluate the parent’s habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation of the child. In re M.M., 733

N.E.2d 6 (Ind. Ct. App. 2000). Similarly, courts may consider 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 (Ind. Ct. App. 2002), trans. denied. The court may also consider

the services offered to the parent by DCS and the parent’s response to those services as

evidence of whether conditions will be remedied. Id.

Father’s argument in this regard is that the State failed to prove by clear and

convincing evidence that “the original reason for removal, that being that the home was

unsanitary and that the children were hungry, would not be remedied.” Appellant’s Brief at

22. He further argues, “no one visited his home, that the Family were [sic] going to the store

as soon as the service providers left [at the time of the third removal] and that he was not

5
Accordingly, we need not address Father’s arguments with respect to the juvenile court’s finding that there
was a reasonable probability that continuation of the parent-child relationship poses a threat to the Children’s
well-being.

13
given the opportunity to have the children in his home after the second or third removal.” Id.

We remind Father that we will not reweigh the evidence or judge the credibility of

witnesses on appeal. Moreover, this court has previously explained that the language of

Indiana’s termination statute makes clear that “it is not just the basis for the initial removal of

the child that may be considered for purposes of determining whether a parent’s rights should

be terminated, but also those bases resulting in the continued placement outside of the

home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

The facts as set forth in detail above reveal that the reasons for continued placement

outside of the home encompassed a complete lack of stability beyond simply cleanliness of

the home and provision of food. Throughout the lengthy CHINS case, Father did not support

his children, barely worked, did not maintain stable housing, and did not remain in regular

contact with the FCM or the GAL. He also failed to attend a number of hearings and,

according to the juvenile court, had trouble staying awake during permanency hearings.

Moreover, Father was convicted of neglect of a dependent related to the conditions found

during the first removal and violated his probation when he committed another criminal

offense in early 2012, for which he was also convicted. Finally, Father’s own testimony from

the final day of the termination hearing reveals that he was unfit to care for the Children at

the time. As set forth above, he had only been employed for a short time and was living in a

shelter. Father claimed he needed more time to get back on his feet. He, however, had

already been afforded extensive reunification services and more than two years to do so. In

that time, he made no significant progress. See In re A.H., 832 N.E.2d 563, 570 (Ind. Ct.

14
App. 2005) (where a “pattern of conduct shows no overall progress, the court might

reasonably find that under the circumstances, the problematic situation will not improve”).

The facts favorable to the judgment clearly and convincingly support the juvenile court’s

conclusion that there was a reasonable probability that the reasons for the Children’s removal

and continued placement outside Father’s home will not be remedied.

We now turn to Father’s claim that the State failed to establish that termination is in

the best interest of the Children, as required by I.C. § 31-35-2-4(b)(2)(C). In this regard,

Father argues:

[T]he evidence before the trial court shows that despite being convicted of
Neglect of a Dependent, Father was employed and had a place to live. The
evidence showed that he consistently attended visitation with the minor
children where he fed the children. That there is a strong emotional bond
between himself and the children and that DCS never provided a report from a
mental health profession [sic] that the children did not suffer from the loss of
their contact with the parents. [sic]

Appellant’s Brief at 24.

While the evidence presented below certainly established a bond between Father and

his children, the remainder of Father’s version of the evidence finds no support in the record.

As already discussed, Father himself acknowledged that he had only been employed a short

time, was living in a shelter, and was not yet on his feet and able to support the Children,

whom he wanted returned to Mother’s custody, not his. At no time did Father contend that

he was in a position to have the care and custody of the Children in his own home, which at

the time of the termination hearing was a shelter. Moreover, he does not indicate why DCS

would have been required to provide a report from a mental health professional regarding the

15
effect on the Children of loss of contact with their biological parents.

Both the FCM and the GAL testified that termination was in the Children’s best

interest. The evidence establishes that the Children have developed a strong bond with their

long-term foster family, have received needed therapy, nurturing, and education, and have

been thriving under their care. The foster parents wish to adopt the Children and continue to

give them the stability and security they deserve.

This court will 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.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v. Blackford

Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error

here

Judgment affirmed.

BAKER, J., and VAIDIK, J., concur.

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