Pursuant to Ind. Appellate Rule 65(D), this Aug 14 2013, 5:35 am
Memorandum Decision shall not be
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:
MICHAEL B. TROEMEL CRAIG JONES
Lafayette, Indiana DCS, Tippecanoe County Local Office
Lafayette, Indiana
ROBERT J. HENKE
DCS, Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF )
)
J.B. (Minor Child), )
)
and )
)
T.S. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 79A02-1211-JT-891
)
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. 79D03-1206-JT-63
August 14, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this termination of parental rights appeal, appellant-respondent, T.S.1 (Mother),
challenges the decision of the juvenile court terminating her parental rights with regard to
J.B. (Child), born September 6, 2001. Mother contends that the appellee-petitioner
Department of Child Services (DCS) presented insufficient evidence to show that the
conditions leading to the Child’s removal would not be remedied, that Mother posed a
threat to the Child’s well-being, and that the termination of Mother’s parental rights is in
the Child’s best interest.
The evidence established that there was a reasonable probability that the
conditions that resulted in the Child’s removal would not be remedied. The DCS also
showed that termination of Mother’s parental rights was in the Child’s best interest. As a
result, we find that there was sufficient evidence to support the termination of Mother’s
parental rights, and affirm the judgment of the juvenile court.
1
There is a discrepancy in the mother’s name, but we will refer to her initially as T.S., then subsequently
as Mother.
2
FACTS
Tippecanoe County Child Protective Services (CPS) received a report on July 26,
2009, that the Child’s brother, I.A., had pushed the Child’s youngest brother, Z.G., out of
an upstairs window. Based on this report, CPS commenced an investigation.
During the investigation, CPS received a second report on July 28, 2009, that the
Child had been transported via life-line to St. Vincent Hospital in Indianapolis as a result
of a nearly fatal dose of insulin. CPS’s investigation yielded that the reports were true
and that Mother’s apparent lack of supervision was complicated by a lack of anger
management and parenting skill as well as substance abuse. The Child and his siblings 2
were removed from the Mother’s care and placed in a foster home on July 28, 2009. The
children were determined to be Children In Need of Services (CHINS) and placed in
protective custody on July 31, 2009. A Court Appointed Special Advocate (CASA) was
appointed to represent the best interest of the Child, who remained in foster care between
July 28, 2009, and August 19, 2009. However, the Child was transferred to various
facilities and placed in foster care.
On December 2, 2009, the Child displayed erratic behavior during a medical
appointment and was admitted for a psychiatric evaluation at Valle Vista Hospital.
However, he was released on December 9, 2009, “on a continued trial home visit.”
2
Although Mother’s rights to each of these children were ultimately terminated, this appeal concerns only
the Child. Therefore, we recite facts relating to the other children only as necessary to address the
termination of the parent-child relationship between Mother and the Child.
3
Appellant’s App. p. 11. However, the Child was later transported to other medical
facilities, with occasional home visits.
On January 25, 2010, the CASA, Dennis Davidson, visited Mother’s residence and
found the home to be “a complete mess with the smell of urine permeating the air.” Ex.
C-1. While helping Mother clean the Child’s room in May 2010, the service providers
discovered feces, urine stained clothing, rotten food and maggots” in the house. DCS Ex.
3.
On May 27, 2010, the Child was again admitted to Valle Vista Hospital, causing
him to be removed for a second time from Mother’s care and placed in foster care until
June 29, 2010. He was released from the hospital on July 9, 2010, and began a second
trial home visit with Mother. However, the Child was removed from Mother’s care for
the third time on May 24, 2011, and placed in another treatment center. The Child was
ultimately diagnosed with a number of ailments including juvenile diabetes, mood
disorder, ADHD, Borderline Intellectual Functioning, and PTSD.
Pursuant to dispositional orders that the juvenile court had issued, the DCS offered
Mother various services, including psychological and psychiatric evaluations, medication
evaluation and management, substance abuse evaluation and treatment, and individual
and family therapy. Mother was also required to undergo random drug screening.
It was later determined that Mother suffers from several mental health issues.
Mother had experienced extensive trauma as a child and young adult but failed to follow
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through with treatment after she turned eighteen. Mother has been diagnosed with
cannabis dependence and PTSD, with signs of depression.
Mother made only intermittent progress in individual counseling and had difficulty
managing stress, anxiety, and depression. Mother also displayed frequent anger
outbursts. It was further established that Mother has ongoing difficulties with aggression
as evidenced by threatening a DCS case worker and striking one of the department
facilitators in the presence of her children. Mother has also refused to take her
medication.
Mother struggled to maintain appropriate conditions in the home, and the
residence remained infested with cockroaches and maggots. Mother eventually left that
house and moved to another HUD home in March 2011. However, she later lost
eligibility for HUD and was homeless for an extended period of time. Mother reportedly
resided in various locations with friends, in a van under a bridge, and with her maternal
grandmother on occasion. Mother eventually obtained a two-bedroom trailer on July 1,
2012.
Even though Mother was employed in July 2012, at Construction Cleaning
Services, she still displayed a lengthy history of instability. Mother’s employment has
been sporadic at best, and she has a history of criminal behavior and drug abuse,
including a conviction for operating a vehicle while intoxicated in October 1998. Mother
was also incarcerated in February 2012 for driving on a suspended license.
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During the CHINS proceedings, Mother displayed periods of progress followed
by instances of non-compliance or resistance. In fact, towards the end of the CHINS
proceedings, it became difficult to reach Mother for scheduling purposes. Eventually,
Mother refused to participate in further case management services, despite the juvenile
court’s admonishment that Mother’s failure to do so would hinder reunification with the
Child.
The Child ultimately transitioned to foster care on February 23, 2012. At the
hearing on the petition to terminate Mother’s parental rights that was held on August 17,
2012, Davidson testified in support of terminating Mother’s parental rights as being in the
Child’s best interests. In fact, Davidson had recommended termination of parental rights
for all of Mother’s three children for some time.
The evidence established that Mother and her children have been involved in the
system since 2002, when the Child’s sibling tested positive for marijuana at birth, and
Mother failed to successfully complete a service referral agreement and continued to use
marijuana. Davidson noted that Mother has continued to use marijuana since the time of
her children’s placement in foster care, that she lacks stability, and has never made
sustainable progress in managing the children’s behaviors and maintaining the household.
Furthermore, the evidence established that the Child responded positively to a structured
environment after being placed in foster care. His diabetes is under control and his
behaviors have stabilized.
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Lindsay Schilling, a child welfare specialist, Melissa Adamson, a community
support case manager, and Luann Horton, a therapist who provided individual therapy for
the Child, all testified that they had seen positive changes in the Child because of the
support that he was getting from his foster parents. Horton specifically testified that
Child will thrive in his new environment because he will have a home with parents who
are steadily employed and can provide the love and care that he needs.
The juvenile court issued an order terminating Mother’s parental rights, having
found that there is a reasonable probability that the conditions that resulted in the removal
of the Child from Mother’s care will not be remedied because Mother has yet to
demonstrate the ability or willingness to make lasting changes from past behaviors. The
juvenile court also found no reasonable probability that Mother will be able to maintain
stability and remain substance free to adequately care for the Child. The juvenile court
also found that the continuation of the parent-child relationship poses a threat to the
Child’s well-being. Finally, the juvenile court concluded that terminating Mother’s
parental rights were in the Child’s best interests. Mother now appeals.
DISCUSSION AND DECISION
I. Termination of Parental Rights—Standard of Review
The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to raise their children. Troxel v. Granville, 530 U.S. 57, 65
(2000); Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind.
2005). But parental rights are not absolute and must be subordinated to the child’s
7
interest in determining the proper disposition of a petition to terminate parental rights. In
re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004). Thus, “parental rights may be
terminated when the parents are unable or unwilling to meet their parental
responsibilities.” Id. at 265. The purpose of terminating parental rights is not to punish
parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App.
2004).
When reviewing the termination of parental rights, we neither reweigh the
evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260
(Ind. 2009). Instead, we consider only the evidence and reasonable inferences that are
most favorable to the judgment below. Id. Here, the juvenile court made specific
findings of fact and conclusions of law in its order terminating parental rights.
Where the juvenile court enters specific findings and conclusions, we apply a two-
tiered standard of review. Bester, 839 N.E.2d at 147. We first determine whether the
evidence supports the findings, and then whether the findings support the judgment. Id.
We will not set aside the juvenile court’s judgment unless it is clearly erroneous. In re
A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). A judgment is clearly erroneous
when the evidence does not support the findings, or the findings do not support the result.
In re S.F., 883 N.E.2d 830, 834 (Ind. Ct. App. 2008).
The elements that the DCS must allege and prove by clear and convincing
evidence to effect the termination of parental rights are set forth in Indiana Code section
3l-35-2-4(b)(2), which provides:
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(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 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.
(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.
I.C. § 31-35-2-4(b)(2).
We note that Indiana Code section 31-35-2-4 (b)(2)(B) is written in the
disjunctive, which requires that only one of the sub-elements, under subsection (B), be
proven true by clear and convincing evidence. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct.
App. 1999).
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II. Sufficient Evidence
A. Conditions Leading to Removal
Mother asserts that the termination order must be set aside because the DCS failed
to adequately establish that the conditions resulting in the Child’s removal would not be
remedied and that the continuation of the parent-child relationship poses a threat to the
Child.
As noted above, because Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive, the juvenile court need only find either that the conditions resulting in
removal will not be remedied or that the continuation of the parent-child relationship
poses a threat to the children. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003). As a
result, “where, as here, the [juvenile] court specifically finds that there is a reasonable
probability that the conditions which resulted in the removal of the [child] would not be
remedied, and there is sufficient evidence in the record supporting the [juvenile] court’s
conclusion, it is not necessary for [DCS] to prove or for the [juvenile] court to find that
the continuation of the parent-child relationship poses a threat to the [child].” In re
S.P.H., 806 N.E.2d at 882.
When determining whether the conditions that led to a child’s removal will not be
remedied, the juvenile court must judge a parent’s fitness to care for his or her child at the
time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
However, the juvenile court’s inquiry must also evaluate a parent’s habitual patterns of
conduct to determine the probability of future neglect or deprivation of the child. Id.
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The juvenile court may properly consider a parent’s history of neglect, criminal
history, failure to provide support, lack of adequate housing, and lack of employment,
among other things. McBride v. Monroe Cnty. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App.
2003). The juvenile court may also consider the services that the DCS has offered to a
parent and the response to those services. In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App.
2008). The DCS is not required to rule out all possibilities of change; rather, it need
establish “only that there is a reasonable probability that the parent’s behavior will not
change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). Parental rights may be
terminated when parties are unable or unwilling to meet their responsibilities. Ferbert v.
Marion Cnty., OFC, 743 N.E.2d 766, 776 (Ind. Ct. App. 2001).
In this case, the evidence established that the Child was removed from Mother’s
home after he was transported via life-line to St. Vincent Hospital as a result of a nearly
fatal overdose of insulin that caused him to be unconscious with potentially serious brain
damage. Mother’s lack of supervision over the Child was complicated by her lack of
anger management, lack of parenting skills, and substance abuse. Appellant’s App. p. 11.
Although Mother does not expressly challenge the juvenile court’s findings, she
maintains that the juvenile court should have taken into account the severe challenges and
needs of the Child and that she should have been granted an extended period of time to
learn to deal with these challenges before her parental rights were terminated.
Appellant’s Br. p. 18-19. Notwithstanding this contention, the termination statutes do not
require the court to give a parent additional time to meet his or her obligations under the
11
parent participation plan. See Prince v. Dept. of Child Serv., 861 N.E.2d 1223, 1230
(Ind. Ct. App. 2007) (citing Ind. Code § 31-35-2-6, which states that “a hearing requested
on a petition to terminate rights following a CHINS determination must be commenced
within 90 days and completed within 180 days”). Moreover, the record shows that
Mother was given ample time to comply with the juvenile court’s orders and DCS’s plans
of participation.
In this case, the clear and convincing evidence establishes that the allegations of
the petition to terminate Mother’s parental rights were true. And prior to the filing of that
petition, it was established that Mother has been involved in the system since 2002, when
the Child’s sibling tested positive for marijuana at birth. Appellant’s App. p. 14. The
Child and his sibling were removed from Mother’s home and placed in foster care
between February 20, 2003, and July 14, 2003. Id. Mother failed to successfully
complete a service referral agreement at that time, and she continued to use marijuana.
Id. Also, as discussed above, the evidence established that Mother’s lack of supervision
over her children was complicated by her inability to control her anger and continued
substance abuse.
In light of the evidence described above, it is apparent that the DCS, CASA, and
the juvenile court, all made numerous attempts to facilitate the preservation of Mother’s
family by affording Mother several chances to remedy her conditions and by offering
Mother exhaustive services that are designed to address her difficulties. Id.
12
Indeed, at the outset of the CHINS proceedings, Mother participated in the
services that were offered on a regular basis, but she later became reluctant to schedule
appointments. And toward the end of the CHINS proceedings, Mother became difficult
to reach and eventually refused further parenting services. Id. at 13. As previously
discussed, Mother failed to participate in services after the November 2011 permanency
hearing, despite the juvenile court’s admonishment that her failure to do so would impede
reunification. Id. Despite all efforts, the problems that continue to plague Mother and
the Child always returned.
In sum, Mother’s inability to successfully complete the court-ordered services and
programs demonstrates unwillingness on her part to make lasting changes from past
behaviors. In other words, the DCS established that there is no reasonable probability
that Mother will be able to maintain stability and remain substance free to care for the
Child. In short, Mother lacked the ability to meet the Child’s needs. Thus, we decline to
disturb the juvenile court’s ruling on this basis.
B. Child’s Best Interest
Mother also contends that the juvenile court erred when it determined that
termination of her parental rights is in Child’s best interest. Mother argues that just
because there is a prospective adoptive family that may be better suited to satisfy the
Child’s needs, such “does not mean that it is in the Child’s best interest to be stripped of
all contact with her.” Appellant’s Br. p. 16.
13
In determining what is in the best interest of a child, the juvenile court is required
to look beyond the factors identified by the DCS and to consider the totality of the
evidence. McBride, 798 N.E.2d at 203. In so doing, the trial court must subordinate the
interests of the parent to those of the child. Id. The court need not wait until a child is
irreversibly harmed before terminating the parent-child relationship. Id. Moreover, we
have previously held that the recommendations of the case manager and the CASA to
terminate parental rights, in addition to evidence that the conditions resulting in removal
will not be remedied, is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App.
2009).
Here, in addition to the findings set forth above, the juvenile court determined that
termination of Mother’s parental rights is in the Child’s best interests because the Child
had been repeatedly transported back and forth between Mother’s home and foster care
placement since he was a year old. Appellant’s App. p. 14. Additionally, it is certainly
in the Child’s best interest to grow up in a stable home that is free of drugs with no verbal
or physical aggression. It was established that the Child’s foster home was clean and free
of maggots and roaches. There was also no stench of urine and excrement in the foster
residence.
Also, during the termination hearing, Davidson testified that since the Child had
been placed outside Mother’s care, his diabetes was under control and the Child’s
behaviors have stabilized. Appellant’s App. p. 14. Davidson acknowledged that the
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Child is happy in his new environment. Even more compelling, the child requested in
May 2012, that visits with Mother cease. Id.
Also, Lindsay Schilling, a child welfare specialist, Melissa Adamson, a
community support case manager and Luann Horton, a therapist that provided individual
therapy for the Child, testified that the Child has progressed tremendously and changed in
a positive way with the help and support that he was getting from his foster parents. Tr.
p. 14- 39. Horton specifically testified that Child will thrive in his new environment,
because he will have parents who are steadily employed and who can provide him with
the love and medical needs that he requires. Id. at 39.
Under these facts and circumstances, we conclude that the DCS proved by clear
and convincing evidence that termination of Mother’s parental rights was in the Child’s
best interest. As a result, we decline to set aside the termination order on this basis.
The judgment of the juvenile court is affirmed.
MAY, J., and MATHIAS, J., concur.
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