In the Matter of the Term. of the Parent-Child Rel. of: A.B. & P.B. and E.B. v. The Indiana Dept. of Child Services

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
Jan 23 2013, 9:30 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
of the supreme court,
court of appeals and
estoppel, or the law of the case. tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JUSTIN R. WALL CHRISTINE REDELMAN
Wall Legal Services Indiana Department of Child Services
Huntington, Indiana Indianapolis, 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: )
)
A.B. & P.B. (Minor Children), )
)
AND )
)
E.B. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 35A05-1206-JT-298
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
)

APPEAL FROM THE HUNTINGTON JUVENILE COURT
The Honorable Thomas M. Hakes, Judge
Cause Nos. 35C01-1103-JT-6 & 35C01-1103-JT-7
 January 23, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary

E.B. (“Mother”) appeals the involuntary termination of her parental rights to her

children, A.B. and P.B. Concluding that clear and convincing evidence supports the trial

court’s judgment, we affirm.

Facts and Procedural History

Mother is the biological mother of A.B., born in January 2007, and P.B., born in

September 2009.1 The local Huntington County office of the Indiana Department of

Child Services (“HCDCS”) became involved with Mother in 2008 after receiving a

referral that the family home was in an unsafe and unsanitary condition. HCDCS

caseworkers visited the home and observed: (1) “numerous piles of dog feces in every

room upstairs”; (2) “trash, clothing, dirty diapers, and cigarette butts” littering the

“entire” kitchen and living-room floors; and (3) the only toilet in the home was “full of

human waste and not functioning.” Petitioner’s Ex. 1.1.2 In addition, there was no

electricity in the lower level of the house, so an extension cord was being utilized to

supply power for a toaster and hot plate on the lower level. By the next day, the house

1
K.B. is A.B.’s biological father. K.M. is P.B.’s biological father. Both fathers voluntarily
relinquished their parental rights to their respective child during the underlying proceedings. In addition,
neither father participates in this appeal. We therefore limit our recitation of the facts to those pertinent
solely to Mother’s appeal.
2
Unfortunately, the pages of the Volume of Exhibits submitted on appeal were not enumerated.
We therefore cannot cite to any specific page numbers throughout this Opinion.
2
had been cleaned, but the toilets remained non-functioning. In addition, Mother assured

caseworkers that the family was moving that weekend.

Approximately one week later, HCDCS received another referral that the family

had not moved and that the home was once again in an unsafe and unsanitary condition.

A second assessment of the home revealed that the electrical and plumbing issues had not

been resolved, dog feces was smeared on the kitchen floor, trash, clothing and other

debris covered the living room floor, and the home now had a condemnation notice

posted on the door. Additionally, it was reported that Animal Control had taken the

family dogs to a local shelter.

As a result of its assessment, HCDCS filed a petition alleging A.B. was a child in

need of services (“CHINS”). The child was so adjudicated in December 2008. Although

the trial court allowed A.B. to remain in Mother’s physical custody as an in-home

CHINS, preliminary services were offered to the family. In January 2009, the trial court

issued a dispositional order formally removing A.B. from Mother’s legal custody and

directing Mother to participate in and successfully complete a variety of services

designed to help her maintain the safety, stability, and sanitary conditions of the family

home. The court’s dispositional order also directed Mother to participate in individual

counseling to address her historical pattern of dating sex offenders, equip her with

appropriate discipline techniques, and help her learn how to deal with stress. In addition,

psychological testing for Mother was ordered to rule out any mental illnesses and to

further address Mother’s parenting deficiencies.

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 For the next several months, Mother refused to participate in court-ordered

reunification services on a regular basis. P.B. was born in September 2009. The next

month, following another verified report of unsafe and unsanitary conditions in the

family home, P.B. was adjudicated a CHINS. Although HCDCS petitioned the trial court

to remove both children from Mother’s physical care at that time, the request was denied.

Mother’s participation in reunification services continued to be sporadic and

ultimately unsuccessful. For example, Mother refused to complete a psychological

evaluation for approximately eighteen months after the trial court’s initial order to do so.

Although there were brief periods of time during which Mother cooperated with

caseworkers and service providers, she was unable to consistently demonstrate an ability

to implement the parenting techniques she was being taught. In addition, the family

moved frequently and experienced several periods of homelessness, and Mother

continued to engage in an on-and-off-again relationship with her domestic partner despite

repeated episodes of domestic violence that oftentimes occurred in the presence of the

children.

In January 2010, HCDCS again petitioned the trial court to modify its

dispositional order and to remove the children from Mother’s physical care. The trial

court denied HCDCS’s request. In April 2010, however, the children were removed from

Mother and placed in foster care due to the ongoing lack of stability in the family home.

Although a three-month trial home visit was later attempted in September 2010, Mother

returned the children to foster care later the same month after being involved in a

domestic dispute and losing her housing.

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 In January 2011, another domestic dispute between Mother and her domestic

partner occurred in the family home. Mother was arrested for Class A misdemeanor

battery. Mother was later convicted and remained incarcerated until July 2011.

Meanwhile, in March 2011, HCDCS filed petitions under separate cause numbers

seeking the involuntary termination of Mother’s parental rights to both children.

A consolidated evidentiary hearing on the termination petitions was held in

September 2011. During the hearing, HCDCS presented considerable evidence regarding

Mother’s failure to successfully complete a majority of the court-ordered reunification

services, including individual counseling and home-based services, and that she remained

unable to demonstrate she was capable of providing the children with a safe and stable

home environment. Among other things, HCDCS presented evidence establishing that

Mother remained unemployed, never took responsibility for her role in the removal of the

children from her care, and continued to struggle with anger-management issues. In

addition, Mother had resided in approximately twelve different locations, including the

Huntington County Jail, during the underlying proceedings. Although the evidence

reveals that Mother eventually secured housing in October 2010 that appeared to be

suitable for the children, the residence belonged to Mother’s domestic partner, whom

Mother continued to live with and be financially dependent upon despite significant past

incidents of domestic violence. Mother also never completed court-ordered home-based

counseling and intensive family preservation services, but she continued to participate in

at least some of these services at the time of the termination hearing.

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 As for the children, Guardian ad Litem (“GAL”) Joseph Wiley indicated he was

concerned about the pattern of violence in the family home, as well as Mother’s anger

issues and the potential for future neglect and abuse should the children be returned to

Mother’s care. Nevertheless, GAL Wiley declined to offer an opinion as to whether

termination of parental rights was appropriate due to his recent appointment to the case.

HCDCS family case manager Bobbie Lamb, on the other hand, did recommend

termination of Mother’s parental rights as in the children’s best interests. Family

Preservation Counselor Rosella Stouder likewise testified that she had numerous

concerns pertaining to the lack of safety and sanitary conditions found in the various

residences Mother had lived in throughout this case. Stouder further confirmed that she

remained concerned about the “underlying anger” and “control issues” that were

prevalent in the family home. Tr. p. 39. In addition, Stouder testified that Mother had

informed her on “two or three occasions” that Mother’s domestic partner had been

“abusing” Mother and “the girls” and that three-year-old A.B. had been observed

“masturbating.” Id. at 42.

At the conclusion of the termination hearing, the trial court took the matter under

advisement. In November 2011, the trial court issued its judgment terminating Mother’s

parental rights to both children. Mother appealed, claiming there were insufficient

factual findings to support the trial court’s judgment. On May 9, 2012, another panel of

this Court reversed the trial court’s termination order in an unpublished Memorandum

Decision and remanded this cause for further proceedings. See A.B. v. Ind. Dep’t of Child

Servs., 968 N.E.2d 341 (Ind. Ct. App. 2012). In so doing, this Court noted that although

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the trial court had made thirty-one specific findings concerning Mother’s failure to

consistently participate in and benefit from court-ordered reunification services, inability

to retain and implement the parenting techniques being taught to her by service providers,

refusal to disengage from unhealthy and physically violent personal relationships, and

ongoing inability to provide a safe and sanitary home environment, the trial court had

neglected to make any findings whatsoever specifically pertaining to the requisite

statutory elements delineated in Indiana’s involuntary termination statute.

On May 25, 2012, the trial court entered an amended judgment terminating

Mother’s parental rights to A.B. and P.B. Mother now appeals.

Discussion and Decision

The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. In re I.A., 934

N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of

his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting

Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Indeed[,] the parent-child relationship is

‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty.

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parental

rights are “not absolute and must be subordinated to the child’s interests when

determining the proper disposition of a petition to terminate parental rights.” Id. (citing

In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans. denied). Thus, parental

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

responsibilities. Id.

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

evidence or judge the credibility of the witnesses. D.D., 804 N.E.2d at 265. Instead, we

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

judgment. Id. Here, the trial court made specific findings and conclusions in its

termination order. When a trial court enters specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. First, we determine whether the

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

the judgment. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

(Ind. 2005). 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied;

see also Bester, 839 N.E.2d at 147. Clear error is 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).

In Indiana, before parental rights may be involuntarily terminated, the State 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.

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 (iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the
child.

Ind. Code § 31-35-2-4(b)(2).3 In addition, HCDCS has the burden of pleading and

proving each element of Indiana Code § 31-35-2-4(b) by ‘“clear and convincing

evidence’” before the trial court can involuntarily terminate parental rights. In re G.Y.,

904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Mother

challenges the sufficiency of the evidence supporting the trial court’s judgment as to

subsections (B), (C), and (D) of the termination statute detailed above. See Ind. Code §

31-35-2-4(b)(2)(B)-(D).

I. Conditions Remedied/Threat to Well-Being

Indiana Code section 31-35-2-4(b)(2)(B) requires a trial court to find only one of

the three elements of subsection (b)(2)(B) has been established by clear and convincing

evidence before properly terminating parental rights. See L.S., 717 N.E.2d at 209. Here,

the trial court determined that subsection (b)(2)(B)(i) was established by clear and

convincing evidence, that is to say that HCDCS proved by clear and convincing evidence

there is a reasonable probability the conditions resulting in A.B.’s and P.B.’s removal

and/or continued placement outside of Mother’s care will not be remedied. See I.C. § 31-

35-2-4(b)(2)(B)(i).

3
Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff.
July 1, 2012). The changes to the statute became effective after the filing of the termination petition
involved herein and are not applicable to this case.
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 In making such a determination, a trial 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, 511 (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, 13 (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, 1251 (Ind. Ct. App. 2002), trans.

denied. The trial court may also consider the services offered to the parent by a county

office of the Indiana Department of Child Services and the parent’s response to those

services, as evidence of whether conditions will be remedied. Id. at 1252. Finally, 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

Here, in determining that there is a reasonable probability the conditions resulting

in the children’s removal and/or continued placement outside of Mother’s care will not be

remedied, the trial court made detailed findings in its termination order regarding

Mother’s unresolved parenting, housing, and employment issues, as well as her lack of

progress in improving her ability to provide a safe and stable home environment for the

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children. With regard to Mother’s history of domestic violence, the trial court noted that

domestic disputes had occurred in the family home in September 2010, December 2010,

and again in January 2011, after which Mother was arrested and incarcerated for

misdemeanor battery. The court also specifically acknowledged the testimony of several

service providers who confirmed Mother had “resided in twelve (12) different locations[,]

including the Huntington County Jail” during the history of this case, “failed to complete

home-based counseling [and] home-based services,” “routinely” failed to have utilities in

her various residences, “disclosed that her domestic partner had ‘molested’ the minor

child, [A.B.]” and “failed to show a transfer of learning” of the parenting and discipline

techniques Mother had been taught by service providers. Appellant’s App. p. 20. Based

on these and other findings, the trial court concluded that “Mother’s actions and failures

throughout this period show[] that there is a reasonable probability that the reasons for

placement will not be remedied.” Id. at 22. Our review of the record leaves us convinced

that these findings and conclusions are supported by abundant evidence.

During the termination hearing, case manager Lamb confirmed that she had been

working with Mother and the family for just under three years. Lamb further testified

that notwithstanding the wealth of services available to Mother throughout the underlying

CHINS and termination proceedings, Mother had failed to (1) complete home-based

counseling, (2) complete home-based caseworker services designed to help Mother

maintain the condition of her home and work on parenting skills, budgeting, and self-

sufficiency, and (3) maintain weekly contact with HCDCS. Lamb also informed the trial

court that Mother had failed to obtain her GED, never obtained employment, oftentimes

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did not have electricity or heat in the home she was living in at the time, and refused to

take her prescription medication as prescribed. When asked whether she believed there

was a reasonable probability that the conditions resulting in the children’s removal would

be remedied, Lamb answered, “No.” Tr. p. 25.

Family Preservation Counselor Stouder also testified during the termination

hearing. When asked to describe her observations of Mother and the children during

home visits, Stouder reported that there was “a lot of uh, arguing and fighting” and

“animosity between the members of the family.” Id. at 51. Stouder went on to state that

the household seemed to be “in constant turmoil” with family members “erupting” into

daily “screaming arguments” and that despite her attempt to help, there was “very little

effect on changing that behavior.” Id. at 51, 54. Stouder further explained:

After two[-]and[-]a[-]half years of home[-]based services, [Mother] failed
to show a transfer of learning in the area of understanding her children’s
needs, how to discipline consistently and appropriately, and most
importantly . . . [how] to maintain a safe environment for her [children] and
provide basic necessities. [Mother] often failed to put her [children’s]
needs first as evidenced through relationships she entered.

Id. at 58-59. In addition, concerns regarding Mother’s unresolved parenting issues,

housing and income instability, and potential for future neglect of the children were

likewise indicated in the testimony of GAL Wiley.

As previously explained, a trial court must judge a parent’s fitness to care for his

or her children at the time of the termination hearing, taking into consideration the

parent’s habitual patterns of conduct to determine the probability of future neglect or

deprivation of the children. D.D., 804 N.E.2d at 266. Where a parent’s “pattern of

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conduct shows no overall progress, the court might reasonably find that under the

circumstances, the problematic situation will not improve.” In re A.H., 832 N.E.2d 563,

570 (Ind. Ct. App. 2005). Moreover, a trial court need not wait until a child is

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

social growth are permanently impaired before terminating the parent-child relationship.

In re E.S., 762 N.E.2d 1287 (Ind. Ct. App. 2002).

Throughout the underlying proceedings, Mother has demonstrated a persistent

unwillingness and inability to take the actions necessary to show she is capable of

refraining from engaging in abusive relationships and providing A.B. and P.B. with the

safe and stable home environment the children need. Based on the foregoing, we

conclude that that there is clear and convincing evidence to support the trial court’s

findings set forth previously, as well as the court’s ultimate determination that there is a

reasonable probability the conditions leading to A.B.’s and P.B.’s removal and continued

placement outside of Mother’s care will not be remedied. Mother’s arguments to the

contrary amount to an impermissible invitation to reweigh the evidence. See D.D., 804

N.E.2d at 265.

II. Best Interests

We next consider Mother’s assertion that HCDCS failed to prove termination of

her parental rights is in the children’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

Indiana Department of Child Services and look to the totality of the evidence. McBride

v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).

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In so doing, the trial court must subordinate the interests of the parent to those of the

child. Id. A trial court need not wait until a child is irreversibly harmed such that his or

her physical, mental, and social development is permanently impaired before terminating

the parent-child relationship. Id. at 199.

In addition to the specific findings and conclusions previously cited, the trial court

made several additional pertinent findings and conclusions in determining that

termination of Mother’s parental rights is in A.B.’s and P.B.’s respective best interests.

Specifically, the court found that Mother had “disclosed” to Stouder that her domestic

partner “had ‘molested’ the minor child, [A.B.].” Appellant’s App. p. 20. The court

further found that A.B.’s behavior “worsened when visitation [with Mother] increased

but improved after visitation was ended due to [M]other’s incarceration,” and that A.B.

continues to have “problems that will need continued attention.” Id. Based on these and

other findings, the trial court concluded, “Mother’s actions have placed the children in

positions of danger[.] . . . Mother has not attempted to correct the issues that would

remedy the out[-]of[-]home placement. . . . [T]ermination is therefore in the children’s

best interests.” Id. at 22. These findings and conclusions, too, are supported by the

evidence.

The record reveals that A.B. suffers with several mental-health issues including

Disruptive Behavior Disorder, Post-Traumatic Stress Disorder, and Reactive Attachment

Disorder. A.B. also meets the criteria for Adjustment Disorder. During the termination

hearing, A.B.’s therapist, Lynn Baker, described A.B.’s behaviors as “aggressive” and

“inappropriate.” Tr. p. 71. Baker also relayed episodes of “unprovoked rage,” “spitting,”

14
and “biting” in the foster home. Id. at 71, 75. When describing A.B.’s conduct during

play therapy, Baker testified that A.B.’s play therapy “is highly revolved around the

trauma that [A.B.] has been through.” Id. at 71. Baker further explained that A.B.’s play

characters are “aggressive” with each other, use “vicious mean voices,” and that A.B.

“identifies the abuser as ‘mom’ and has it yelling at the kids and locking them in rooms.”

Id. Baker thereafter informed the trial court that A.B.’s behavior “indicates a child with

very deep emotional scarring from very poor parenting in the past.” Id. at 72. When

asked whether she had any concerns for the future of A.B., Baker responded, “I have

grave concerns for [A.B.] if [the child is placed] back in the environment she’s been in

before.” Id. at 77.

Case manager Lamb and home-based therapist Patricia Fox likewise both

recommended termination of Mother’s parental rights as in the children’s best interests.

In so doing, Fox reported that “not much has changed” as far as Mother’s lack of

progress in services and unwillingness to take “personal responsibility” for “the position

she’s gotten in to.” Id. at 94. Fox further testified that A.B.’s behavior had regressed

following the trial home visit such that the “[v]ulger language, anger, [and] acting out

started slowly coming back” to the point that Fox had to refer A.B. for more evaluation.

Id. at 95.

Based on the totality of the evidence, including Mother’s unresolved parenting,

domestic violence, and housing instability issues, coupled with the testimony from Baker,

Lamb, and Fox recommending termination of Mother’s parental rights, we conclude that

15
clear and convincing evidence supports the trial court’s determination that termination of

Mother’s parental rights is in A.B.’s and P.B.’s respective best interests.

III. Satisfactory Plan

Finally, we consider Mother’s allegation that HCDCS failed to show by clear and

convincing evidence that it had a satisfactory plan for the future care and treatment of the

children. Indiana Code section 31-35-2-4(b)(2)(D) provides that before a trial court may

terminate a parent-child relationship, it must find that there is a satisfactory plan for the

future care and treatment of the child. D.D., 804 N.E.2d at 268. It is well established,

however, that this plan need not be detailed, so long as it offers a general sense of the

direction in which the child will be going after the parent-child relationship is terminated.

Id. HCDCS’s plan for A.B. and P.B. is adoption. This plan provides the trial court with

a general sense of the direction of the children’s future care and treatment. HCDCS’s

plan is therefore satisfactory. See id. (concluding that the State’s plan for child to be

adopted by current foster parents or another family constitutes a suitable plan for future

care of child).

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 at 722 (quoting Egly v. Blackford Cnty. Dep’t of

Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find no such error here.

Affirmed.

BAILEY, J., and BROWN, J., concur.

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