Term. of the Parent-Child Rel. of S.B.: U.D. and L.B. v. Indiana Dept. of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Apr 08 2013, 9:53 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
R. PATRICK MAGRATH ROBERT J. HENKE
Alcorn Goering & Sage, LLP Indiana Department of Child Services
Madison, Indiana Indianapolis, Indiana
LEANNA WEISSMANN AMANDA TEBBE CANESSA
Lawrenceburg, Indiana Indiana Department of Child Services
Lawrenceburg, Indiana

IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF )
S.B.: )
)
U.D. and L.B., )
)
Appellants-Respondents, )
)
vs. ) No. 15A05-1209-JT-457
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 15C01-1204-JT-10

April 8, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge
 STATEMENT OF THE CASE

U.D. (“Father”) and L.B. (“Mother”) (collectively “Parents”) appeal the trial

court’s termination of their parental rights over their minor child S.B. (“the child”).

Parents raise the following dispositive issues for our review:

1. Whether the trial court’s conclusion that continuation of the parent-
child relationships poses a threat to S.B. is clearly erroneous; and

2. Whether the trial court’s conclusion that termination of Parents’
parental rights over S.B. is in the child’s best interests is clearly
erroneous.

We affirm.

FACTS AND PROCEDURAL HISTORY

When Mother became pregnant with S.B., she and Father were unmarried, but

living together. Following an incident of domestic violence resulting in injuries to

Mother, Mother and Father ceased living together. Mother gave birth to S.B. on March

20, 2007. Father did not establish paternity of S.B. after his birth.

On August 20, 2010, DCS filed a petition alleging that S.B. was a child in need of

services (“CHINS”) due to Mother’s substance abuse and her alleged physical abuse of

S.B. The petition listed S.B.’s father as “unknown.” Appellants’ App. at 14. S.B.

became a ward of DCS and was placed in foster care.

Ultimately, DCS filed petitions to terminate Parents’ parental rights to S.B.

Following a hearing on those petitions, the trial court issued the following findings

setting out the remaining facts and procedural history of this case:

3. The father, [U.D.], was aware of the pregnancy and birth of the
child, [S.B.], but did not pursue establishing paternity of the child prior to
DCS involvement with the family. He did contact [Mother] when he heard
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through mutual friends that [S.B.] had been removed from [Mother’s] home
by DCS.
4. The father, [U.D.], had married another woman the following year
after [S.B.]’s birth, and that relationship ended due to domestic violence in
the home.
5. The father, [U.D.], admitted he had a drug problem over the years
resulting in numerous criminal convictions and times of incarceration.
While in prison, father completed numerous programs and obtained a
G.E.D. in an attempt to improve his life; however, father frequently
returned to similar behaviors once he was released from incarceration,
despite attending programs while incarcerated.
6. August 20, 2010, the Court entered an EMERGENCY CUSTODY
ORDER removing the child from the mother based upon a report that the
mother, [L.B.], had bruises on her face, appeared to be under the influence
resulting in slurred speech and half-closed eyes. The child, [S.B.], had poor
hygiene and dirty clothing.
7. October 4, 2010, the Court found the child, [S.B.], to be a [CHINS]
based upon mother’s admission.
8. October 14, 2010 a Dispositional Hearing was held and the Court
accepted the recommendations made by DCS. However, the written
Dispositional Order was not filed until September 19, 2011.
9. The Court held review hearings on January 10, 2011; April 11, 2011;
June 24, 2011; August 18, 2011; the orders from those hearings reflect that
mother and father were often not compliant with DCS or with the child’s
case plan and had not enhanced their ability to fulfill their parenting
obligations.
10. Mike Probst testified that as the family case manager he worked with
both mother and father to create child and family team meetings (CFTM)
for mother and father to work with DCS on the case plan for getting [S.B.]
back in the home. Mike worked with the parents in explaining the process
of a CFTM and inviting both the service providers working with them as
well as their own support network of family or friends. Mike worked with
the parents on finding dates and times that would work for the parents.
Despite this, both [Father and Mother] did not come to the CFTM on
multiple occasions.
11. Mike also testified that it is DCS policy to not provide services for
an alleged father prior to confirmation that the alleged father is indeed the
father. Once [Father] was found to be the father, Mike requested several
assessments through service providers. [Father] did not complete those
assessments.
12. Mother was ordered to attend dialect behavioral therapy (DBT);
individual therapy and substance abuse therapy. Mother’s attendance was
sporadic to these ordered therapies. However, mother testified that she is
now currently attending DBT.
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13. That Probst further testified that at the time he left the case in August
of 2011 that parents had made no progress toward reunification.
14. Darci Bayne, CMHC Systems of Care, testified that she worked with
mother and father through services put in place by DCS to supervise visits
for DCS. She testified that while mother and father were relatively
appropriate during those supervised visitations, the parents missed several
scheduled visits with [S.B.]
15. Becky Babst, CMHC Family Nurturing Center, testified that she was
asked by DCS to work with mother as an in-home parent aide and was also
available to provide transportation for mother. She testified that mother
asked her to be taken off the case when she and mother had an argument
over safety concerns and areas in the home that needed to be fixed. She
testified that mother did not respond well to her suggestions about mother’s
home.
16. Father, [U.D.], and mother, [L.B.], moved in together in late January
or early February 2011 in order to work together for the return of their child
and [Father] confirmed that he was the father through DNA testing in May
2011.
17. Father, [U.D.], and mother, [L.B.]’s attempt at reconciliation lasted
approximately seven (7) months. During that time, there were two
incidents of domestic violence, one on June 25, 2011 when [Father]
dragged [Mother] with his automobile. A second incident took place on
August 21, 2011 when [Father] choked [Mother]. [Father] was incarcerated
for four (4) months for the choking incident and once again completed
programs in prison for self-improvement.
18. The child, [S.B.], suffers from Reactive Attachment Disorder
(RAD), intermittent explosive disorder and post-traumatic stress disorder
(PTSD) and possible diagnosis of Attention Deficit Hyperactive Disorder
(ADHD).
19. Dr. [Gongwer] testified that [S.B.]’s PTSD is notable in that he
becomes particularly anxious when someone is injured.
20. The child’s behaviors have included punching a window; scratching
his arms; hitting himself in the head; throwing fits; grunting at people and
throwing shoes. Dr. [Gongwer] noted improvements in his behavior and
condition over time.
21. The Court finds that improvements to child’s behavior are due in
significant part to the current treatment provided and the consistent home
life provided by foster parents.
22. Due to [S.B.]’s RAD, Dr. [Gongwer] recommended that stability is
the best thing for [S.B.] She noted that reunifying him with his parents at
this point would cause a disruption that could be worked on but would take
significant time and would be detrimental to [S.B.]
23. Due to [S.B.]’s diagnoses, he requires a high level of care. [S.B.]
takes the medications Risperdal and Intuniv daily for controlling some of
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 his behaviors. Additionally, he attends therapy four times per week; music
therapy one time per week and sees Dr. [Gongwer] every three to four
weeks.
24. Dr. [Gongwer] testified that [S.B.] calls his penis “birdie” and
discusses not liking it when someone hurts his birdie and not liking being
hurt while someone plays with his butt. During this testimony, mother,
[L.B.] was smiling and father, [U.D.], also had an inappropriate expression
given the nature of the testimony. Father claimed that his expression was a
worried expression as this was the first he’d heard of [S.B.] disclosing this.
Mother claimed she was smiling because she had taught him to use the
word “birdie” in reference to his penis.
25. [L.B.]’s stepfather testified that if [Mother] was reunified with [S.B.]
that he would help her take care of [S.B.] but that he would not take care of
[S.B.] himself. He noted that [Mother] had a rough past but he believed she
was more stable now.
26. [Mother]’s boyfriend [R.M.] testified that they no longer have drugs
in their home and he is currently living with [Mother].
27. For her own part, [Mother] testified that she has borderline
personality disorder for which she is currently taking medication.
28. [Father]’s girlfriend [C.S.] testified that despite his past, [Father] has
not committed domestic violence on her and that he is currently appropriate
with her own children.
29. [Father]’s current employer testified that he and [Father] have been
in numerous disagreements in their time working together but they are
always able to work them out.
30. DCS’ plan for [S.B.] is that he be adopted; this plan is satisfactory
for Child’s care and treatment.
31. The child is in the foster care of Mr. and Mrs. [A.S. and K.S.] and
has been there for under one year. The child is very bonded with the foster
parents and they are willing to adopt the child. They noted that they realize
that [S.B.] will continue to need therapy and services even after the CHINS
case is closed. They noted some improvement to [S.B.]’s behavior from
when he first arrived in their home to now.
32. The GAL, Mark Scott, believes it is in [S.B.]’s best interest to
remain with the foster parents. He testified that [S.B.] has gone through
some significant losses in his life—he was removed from his mother and
her boyfriend in August, 2010. [S.B.] was in a previous foster placement
prior to moving in with [A.S. and K.S.] [S.B.] told the GAL that he was
worried he would have to leave [A.S. and K.S.] soon too because “every
time I wear shorts I have to leave.”

Appellants’ App. at 138-43. Following the hearing on the petitions to terminate Parents’

parental rights with respect to S.B., the trial court entered the following conclusions:
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 2. There is a reasonable probability that:
A. The conditions which resulted in Child’s removal and
continued placement outside the home will not be remedied
as shown by:
i. mother and father’s lack of participating in
treatment with services provided by the DCS;
ii. father’s treatment while incarcerated but father’s
inability to effectively change his behaviors;
iii. mother’s inability to accept help and suggestion
from service providers;
iv. mother and father’s apparent inability to
understand the grave issues their son has faced and
will face due to the trauma he has survived as
evidenced by their responses to the testimony of the
child’s psychiatrist.
B. That continuation of the parent-child relationship poses a
threat to Child’s well-being as shown by:
i. [S.B.]’s significant medical and psychological
diagnoses require a higher level of care than many
other children;
ii. [S.B.] is at risk of further trauma ever time he
moves from home to home
iii. [S.B.] has given voice to this fear through
discussion with his GAL;
iv. Neither mother nor father seem to have a good
understanding of the depth of their son’s current issues
or the past trauma he has survived.
3. Termination of parental rights is in Child’s best interests.
4. There is a satisfactory plan for the care and treatment of Child, that
being adoption.

Id. at 145-47. Accordingly, the trial court ordered that Parents’ parental rights to S.B.

were terminated. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

We begin our review by acknowledging that “[t]he traditional right of parents to

establish a home and raise their children is protected by the Fourteenth Amendment of

the United States Constitution.” Bailey v. Tippecanoe Div. of Family & Children (In re
6
M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must

subordinate the interests of the parents to those of the child when evaluating the

circumstances surrounding a termination. Schultz v. Porter Cnty. Office of Family &

Children (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a

parent-child relationship is proper where a child’s emotional and physical development is

threatened. Id. Although the right to raise one’s own child should not be terminated

solely because there is a better home available for the child, parental rights may be

terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id. at 836.

Before an involuntary termination of parental rights can occur in Indiana, the DCS

is required to allege and prove, among other things:

(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) [and] that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2).1 That statute provides that DCS need establish only one of

the requirements of subsection (b)(2)(B) before the trial court may terminate parental

rights. The DCS’s “burden of proof in termination of parental rights cases is one of

1
Indiana Code Section 31-35-2-4(b)(2)(B) also allows the DCS to allege that “[t]he child has, on
two (2) separate occasions, been adjudicated a child in need of services.” But that additional, alternative
provision is not relevant here.
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‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).

When reviewing a termination of parental rights, we will not reweigh the evidence

or judge the credibility of the witnesses. Peterson v. Marion Cnty. Office of Family &

Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead,

we consider only the evidence and reasonable inferences that are most favorable to the

judgment. Id. Moreover, in deference to the trial 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. Judy S. v. Noble Cnty. Office of Family & Children (In re

L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999). trans. denied.

Here, in terminating Parents’ parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment contains special

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

Office of Family & Children, 839 N.E.2d 143, 147 (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). If the evidence and inferences support the trial court’s

decision, we must affirm. In re L.S., 717 N.E.2d at 208.

Parents challenge some of the trial court’s findings of fact in its order terminating

their parental rights. Parents also challenge the court’s legal conclusions that, on these

facts, termination of their parental rights is justified because a continuation of the parent-

8
child relationships poses a threat to the child’s well-being2 and that the termination of

their parental rights is in the child’s best interests. We address each argument in turn.

Issue One: Whether Continuation of the Parent-Child
Relationships Poses a Threat to the Child

We first consider Parents’ assertion that continuation of the parent-child

relationships does not pose a threat to the child. A trial court need not wait until a child is

irreversibly influenced by a deficient lifestyle such that his physical, mental, and social

growth is permanently impaired before terminating the parent-child relationship.

Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290

(Ind. Ct. App. 2002). When the evidence shows that the emotional and physical

development of a child in need of services is threatened, termination of the parent-child

relationship is appropriate. Id.

Again, in support of this conclusion, the trial court noted that: S.B. has

“significant medical and psychological diagnoses requir[ing] a higher level of care than

many other children”; “S.B. is at risk of further trauma every time he moves from home

to home”; S.B. has expressed his fear of moving from home to home to the GAL; neither

parent “seem[s] to have a good understanding of the depth of their son’s current issues or

the past trauma he has survived.” Appellants’ App. at 146.

Father first contends that

[i]t is not clear why S.B.’s higher level of necessary care alone gives rise to
a threat to S.B.’s mental well-being. It is presumed that the trial court is

2
Parents also assert that DCS’s evidence fails to show that Parents will not remedy the
conditions that resulted in the child’s removal, but we need not consider that argument given the
disjunctive nature of Indiana Code Section 31-35-2-4(b)(2)(B) and our holding that the trial court’s
conclusion is justified under on subsection (b)(2)(B)(ii).
9
 implying that Father would not be able to provide the necessary care for
S.B. However, the record contains no evidence supporting this implication.

Father’s Brief at 15. And Father asserts that he “has demonstrated his desire to be an

active Father by becoming involved in the CHINS action and voluntarily participating in

parenting programs. He is employed and has a home with a support network.” Id.

But Father’s contentions amount to a request that we reweigh the evidence, which

we will not do. Father ignores the evidence that, after attending one family meeting with

DCS case manager Probst in March 2011, Father failed to appear at three subsequent

meetings, even though Father and Mother had set the dates and times of those meetings to

accommodate their schedules. Then, on June 25, 2011, Father was arrested after he

dragged Mother with his car, causing her injuries. And on August 22, Father was

arrested after he choked Mother, and Father was incarcerated with a scheduled release

date in December. Due to his criminal conduct on those occasions, Father’s efforts in

attending supervised visitation with S.B. were disrupted. Father has not demonstrated

that he is capable of providing the care S.B. needs, including a stable home environment.

To the extent Father contends that DCS failed to offer him services, Father ignores

the fact that he delayed establishing paternity of S.B. until May 2011. As we held in In re

M.R., 934 N.E.2d 1253, 1255 (Ind. Ct. App. 2010), a juvenile court may not enter a

parental participation decree against an alleged parent. DCS had no obligation to offer

Father services toward reunification until he established paternity of S.B. Still, DCS

invited Father to family meetings with service providers in an effort to “plan for the

return” of S.B. to Parents’ care. Transcript at 21. But Father failed to attend all but one

of those meetings. And, after he established paternity, Father was arrested for domestic
10
violence against Mother twice, which disrupted any efforts he may have made toward

reunification with S.B. As this court has observed, “[i]ndividuals who pursue criminal

activity run the risk of being denied the opportunity to develop positive and meaningful

relationships with their children.” In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App.

1992). Moreover, if a parent feels the services ordered by the court are inadequate to

facilitate the changes required for reunification, “then the onus is on the parent to request

additional assistance from the court or DCS.” Prince v. Dep’t of Child Servs., 861

N.E.2d 1223, 1231 (Ind. Ct. App. 2007).

In support of her contention on this issue, Mother directs us to evidence showing

that she is able to provide the necessary care for S.B. given that she has: undergone

treatment for her mental illness; has been drug-free since 2011; has a safe home for S.B.;

and can provide transportation for S.B.’s therapy. In addition, Mother points out that

S.B.’s problems with transitioning to new homes is due to incidents he experienced in

foster care, not because of anything she has done.

But Mother’s contentions on this issue also amount to a request that we reweigh

the evidence. The evidence shows that Mother was non-compliant with the case plan for

reunification. Mother missed five out of twelve Dialectical Behavior Therapy sessions

between January 4, 2011 and March 22, 2011; and she missed nine out of fourteen

substance abuse group meetings during approximately the same period of time. And, like

Father, Mother missed three family meetings with the DCS case manager in 2011.

Mother had a particularly hard time complying with home-based services. On one

occasion when Babst attempted to conduct an in-home visit, Mother expressed anger

11
towards Babst upon her arrival at the home. Mother refused to listen to Babst and would

not engage in conversation. Mother then requested a new case worker. Finally, Mother

exhibited inappropriate behavior during supervised visits in that, despite the case

worker’s instructions, Mother lingered with S.B. at the end of visits until he became

visibly upset.

Finally, both Father and Mother contend that the trial court mischaracterized their

reactions to Dr. Gongwer’s testimony regarding alleged molestation of S.B. that occurred

during prior foster care. But the trial court listened to both parents’ explanations for their

apparent inappropriate reactions to the testimony, and the court rejected those

explanations. The trial court is in the best position to assess Parents’ demeanor in the

court room, and we will not second-guess the court’s determination on this issue.

Again, the trial court need not wait until a child is irreversibly influenced by a

deficient lifestyle such that his physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship. Shupperd, 762 N.E.2d at 1290.

Given Father’s repeated incidents of domestic violence against Mother, even during the

CHINS proceedings, and his repeated failure to attend family meetings, Father cannot

show that he will be able to provide adequate care or permanency for S.B. in the future.

And given Mother’s long history of substance abuse, the lack of certainty as to whether

Mother’s sobriety would be maintained, as well as Mother’s failure to comply with

multiple services ordered in the case plan, Mother cannot show that she will be able to

provide adequate care or permanency for S.B. in the future.

12
 Parents have not demonstrated that the trial court’s conclusion that continuation of

the parent-child relationships poses a threat to the child’s well-being is clearly erroneous.

Accordingly, we agree with the trial court that the termination of Parents’ parental rights

over S.B. was appropriate under Indiana Code Section 31-35-2-4(b)(2)(B)(ii).

Issue Two: Whether Termination is in
S.B.’s Best Interests

Parents also argue that the DCS failed to show that termination of the parent-child

relationships is in the child’s best interests. In determining what is in the best interests of

a child, the trial court is required to look beyond the factors identified by the DCS and to

consider the totality of the evidence. Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). We have previously held that the

recommendations of the case manager and CASA to terminate parental rights, in addition

to evidence that the continuation of the parent-child relationship poses a threat to the

child, is sufficient to show by clear and convincing evidence that termination is in the

child’s best interests. M.M. v. Elkhart Office of Family & Children (In re M.M.), 733

N.E.2d 6, 13 (Ind. Ct. App. 2000).

Here, in addition to the evidence described above in Issue One, Mark Scott, the

GAL, testified that

given the length of time [S.B.]’s been out of the family . . . away from his
mother, the length of time he’s been with the [foster family], I really do
believe that it would be really harmful to him to be moved again. I think
he’s bonded with them, they provide for him, they’re very loving, they
provide for every need, they do what needs to be done and will continue to
do so, and I just think it would be very harmful for him to move again.

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Transcript at 71. And Dr. Gongwer, S.B.’s psychiatrist, testified that it is in S.B.’s best

interests “to remain in a stable environment,” which she identified as being in the foster

parents’ home. Id. at 126. Accordingly, the trial court’s conclusion that termination of

Parents’ parental rights over S.B. is in the child’s best interests is not clearly erroneous.

See id.

Conclusion

In sum, the trial court’s order terminating Parents’ parental rights over S.B. is not

clearly erroneous. The trial court concluded that continuing the parent-child relationships

would pose a threat to S.B. and is not in S.B.’s best interests. In addition, the trial court

concluded that DCS has a satisfactory plan for the care and treatment of S.B., namely,

adoption. The court’s conclusions are supported by its findings and its findings are

supported by the evidence. Accordingly, we affirm the trial court’s termination of

Parents’ parental rights over S.B.

Affirmed.

BAILEY, J., and BARNES, J., concur.

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