Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jul 17 2012, 9:13 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
court of appeals and
collateral estoppel, or the law of the case. tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SARAH K. MARLER SHARON R. ALBRECHT
Mishawaka, Indiana South Bend, 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: )
)
O.H. & J.M. ( Minor Children), )
)
And )
)
C.H. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 71A05-1112-JT-707
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
The Honorable Barbara J. Johnston, Magistrate
Cause No. 71J01-1011-JT-279 & 71J01-1011-JT-280
July 17, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, C.H. (Mother), appeals the trial court’s termination of her
parental rights to her minor children, J.M. and O.H.
We affirm.
ISSUES
Mother raises three issues on appeal, which we restate as the following two issues:
(1) Whether the State presented sufficient evidence to conclude that the
continuation of the parent-child relationship posed a threat to the well-being of
the children; and
(2) Whether termination of Mother’s parental rights was in the children’s best
interest.
FACTS AND PROCEDURAL HISTORY
Mother is the mother of J.M., born August 8, 2003 and O.H., born March 25,
2006. On March 17, 2009, the Indiana Department of Child Services (DCS) received a
report that the health and safety of the children was endangered. The report stated that
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Mother was smoking marijuana in the presence of the children, deliberately blowing
smoke in J.M.’s face and allowing J.M. to smoke marijuana. It was also reported that
Mother was selling J.M.’s prescription Ritalin, that the house was filthy, and that she
yelled at the children and pulled their hair when angry or just to move them out of the
way. The following day, DCS investigated the allegations of the report and interviewed
the children at the CASIE center, a child advocacy center in South Bend, Indiana. During
the interview, the children disclosed that Mother had exposed them to regular drug use
and J.M. was able to show the proper way to break up marijuana, clean it and roll it into
cigarettes, even demonstrating how to lick the paper. Having substantiated the
allegations, DCS removed the children from Mother’s care. The children were placed in
the care of their maternal grandmother (Grandmother).
On March 26, 2009, DCS filed verified petitions alleging that J.M. and O.H. were
Children in Need of Services (CHINS). During the initial hearing on March 30, 2009,
Mother admitted the allegations. On May 13, 2009, the trial court conducted a CHINS
dispositional hearing and ordered Mother to participate in the following services, among
others: regular visitation with the children, random drug screens, complete a
psychological evaluation, and cooperate with all services provided by DCS.
Mother visited with the children on a regular basis until May 13, 2009, when the
trial court placed the children back into Mother’s home on a trial basis. However, on
September 30, 2009, the trial court ordered the children removed from the home due to
Mother’s inability to stop her drug use. After DCS removed the children, Mother tested
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positive for marijuana on several occasions and on June 29, 2009, she also tested positive
for methamphetamine. Because of Mother’s unsuccessful drug screens, the trial court
ordered visitation with the children suspended on April 28, 2010 until Mother could
produce three negative drug screens. Visitation resumed in June of 2010.
Charlene Graff (Graff) of Lifeline Youth and Family Services supervised the visits
between Mother and the children. Although Mother consistently visited with the
children, there were often problems during visitation and Graff had to intervene on
several occasions because of Mother’s inappropriate actions and discipline. Graff
testified that during a visit in October 2010, Mother engaged in a “screaming match” with
four-year-old O.H. because O.H. wanted Mother to put her shoes on while Mother opined
that O.H. was big enough to do that herself. (Transcript p. 42). Similarly, Graff stated
that during a visit to the grocery store with Mother and the children in November 2010,
Mother became infuriated when Graff aided Mother in trying to corral the children who
were running in different directions. Mother began yelling that Graff was interfering
with her parenting. She raised her voice several times and began “slamming things in the
cart, and people were beginning to look.” (Tr. p. 44). Due to these continued outbursts,
DCS decided that they could no longer guarantee the children’s safety and they
suspended visitation in December 2010.
Mother’s attendance at a substance abuse program was virtually non-existent
during the first year of the proceedings and she had yet to begin treatment at the date of
the permanency hearing in April of 2010. Because the substance abuse program therapist
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thought that Mother was being “exceptionally deceptive,” Mother had to complete a
second substance abuse assessment. (DCS Exh. A, p. 34). She was very resistant to
taking another evaluation. After the trial court suspended visitation with its order of
April 28, 2010, Mother became compliant with her substance abuse treatment program.
Although Mother completed the psychological evaluation, Mother refused to
participate in individual therapy sessions. In January 2011, after DCS had filed its
petition to terminate Mother’s parental rights, Mother began attending therapy on a
consistent basis. After seeing her initial therapist for approximately six to eight sessions,
Mother requested a change in therapists. She began working with therapist Ann
Hofsommer (Hofsommer) on February 11, 2011. Hofsommer identified Mother’s
primary issues to be depression, to prevent a relapse into substance abuse, and a
personality disorder. Mother constantly believed that she was misunderstood and
displayed an unwillingness to acknowledge that she had to change. Hofsommer believed
that Mother’s personality caused her to distort the information that she received. While
Mother could make progress during a session, within a brief period Mother would return
to her beliefs that no one understood her and that their misunderstanding was the cause of
all her problems. After six weeks without any progress, Hofsommer told Mother that she
had to make some effort and indicate a willingness to change her behavior. Mother
bluntly informed Hofsommer that she would prefer to go elsewhere for therapy and she
was consequently discharged without having made any progress. Following discharge,
Mother elected to continue therapy sessions with Michelle Olsen (Olsen) and Michelle
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Haas (Haas). However, both therapists acknowledged their expertise to be in substance
abuse treatment, not individual counseling.
DCS attempted to provide family therapy through two different agencies. Both
attempts were unsuccessful. After meeting Mother, the initial family therapist found
Mother so threatening and unstable that she refused to continue to provide services. A
second attempt was made in the summer of 2011. However, prior to the start of this joint
family session, Mother refused to cooperate and to meet Grandmother, saying, “If I hurt
her, it’s going to be [DCS’] fault because [they] put me in that situation.” (Tr. p. 130).
During the pendency of the CHINS proceedings, Mother was charged with and
convicted of welfare fraud, a Class C felony, as she continued to collect social security
disability checks on behalf of J.M. while J.M. was in Grandmother’s care. Mother pled
guilty and in June 2011, she was sentenced to probation and ordered to pay $ 8,330.72 in
restitution. The Social Security Administration has garnished Mother’s entire SSI check
until the restitution is fully offset. Meanwhile, Mother earns income by doing odd jobs
such as scrapping, raking leaves, mowing yards, and babysitting.
On November 30, 2010, DCS filed its petitions to involuntarily terminate the
parent-child relationship. On November 18, 2011, the trial court conducted an
evidentiary hearing and took the matter under advisement. Thereafter, on December 8,
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2011, the trial court entered its Order to terminate the parent-child relationship between
O.H. and J.M.1, concluding that
Indiana Code [section] 31-35-2-4 sets out the elements that the Department
of Child Services must allege and prove by clear and convincing evidence
in order to terminate a parent-child relationship. That statute requires the
following:
(A) One (1) of the following exists:
(i) the child has been removed from the parent for at least six (6)
months under a dispositional decree; in the instant cause, the Order
of Disposition was entered on May 13, 2009.
(B) there is a reasonable probability that:
(ii) continuation of the parent-child relationship poses a threat to the
well-being of the children; Mother has accomplished only part of the
requirements of the service plan designed for her: she has now
shown evidence of being drug free. However, Mother has not
progressed sufficiently in the individual therapy to recognize her
shortcomings – shortcomings that stand in the way of her being an
effective and competent parent. She denies any wrongdoing; she
refuses to be held accountable, preferring to blame others. The girls
have remained with maternal grandmother. Their bond with her is
strong. Mother’s hatred of her mother therefore represents an
obstacle to any reunification. Additionally, the girls resist visiting
with Mother. They have progressed educationally and
psychologically. Continuing the parent-child relationship poses a
threat to their stability.
(C) termination is in the best interests of the children; The right of parents
to raise their children is guaranteed by our constitution. Children possess
their own rights: the right to be safe from harm, the right to be loved and
cared for by a parent. Mother’s psychological problems have not been
addressed. Her hatred of her own mother and her belief that everyone is at
fault but her has made her unable to accept help. The girls deserve more.
They deserve a parent who assumes responsibility for shortcomings and
1
The trial court issued separate orders for each child, with each order containing the same findings and conclusions
of law.
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accepts assistance to remedy the problem. Termination of the parental
rights of [Mother] is in the best interests of the children.
(D) there is a satisfactory plan for the care and treatment of the children.
The plan is adoption and/or guardianship by the maternal grandmother.
This, in the [c]ourt’s opinion, provides the greatest opportunity for these
young girls to flourish.
(Appellant’s App. pp. 34-35; 40-41).
Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
On appeal, Mother argues that the evidence was insufficient to support the
termination of her parental rights to her minor children because DCS did not prove that
that continuing the parent-child relationship posed a threat to their well-being.
We recognize that the Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their children. In re
J.S.O., 938 N.E.2d 271, 274 (Ind. Ct. App. 2010). A parent’s interest in the care,
custody, and control of his or her children is arguably one of the oldest of our
fundamental liberty interests. Id. However, the trial court must subordinate the interests
of the parents to those of the children when evaluating the circumstances surrounding a
termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App.
2009), trans. denied. Parental rights may therefore be terminated when the parents are
unable or unwilling to meet their parental responsibilities. Id.
In reviewing termination proceedings on appeal, this court must not reweigh the
evidence nor assess the credibility of the witnesses. Id. We consider only the evidence
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that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id.
Where, as here, the trial court has entered findings of fact and conclusions of law, we
apply a two-tiered standard of review. Id. First, we determine whether the evidence
supports the findings, and second, whether the findings support the conclusions of law.
Id. In deference to the trial court’s position to assess the evidence, we set aside the trial
court’s findings and judgment terminating the parent-child relationship only if they are
clearly erroneous. Id.
In order to terminate Mother’s parental rights, DCS was required to prove by clear
and convincing evidence:
(B) that one of the following [was] true:
(i) There [was] a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents [would] not be
remedied.
(ii) There [was] a reasonable probability that the continuation
of the parent-child relationship [posed] a threat to the well-
being of the child.
(iii) The child [had], on two (2) separate occasions, been
adjudicated [] in need of services[.]
(C) that termination [was] in the best interests of the child.
Ind. Code § 31-35-2-4(b)(2)(B), -(C); Bester v. Lake Cnty. Office of Family and
Children,839 N.E.2d 143, 148 (Ind. 2005). Clear and convincing evidence as a standard
of proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910
N.E.2d 851, 859 (Ind. Ct. App. 2009). It need not reveal that “the continued custody of
the parent[] is wholly inadequate for the child’s very survival.” Bester, 839 N.E.2d at
148 (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.
9
1992)). Rather, it is sufficient to show that the child’s emotional and physical
development are threatened by the parent’s custody. Id.
I. The Children’s Well-Being
Based on our review of the record, we cannot agree with Mother that there was
insufficient evidence to show that the continuation of the parent-child relationship posed
a threat to the well-being of the children.
A trial court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that her physical, mental, and social growth is permanently impaired before
terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct.
App. 2002). Instead, 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.
Here, the trial court found that:
15. On November 30, 2010, DCS filed its Petition to Involuntarily
Terminate Mother’s Parental Rights.
16. The hearing on the petition was held November 18, 2011.
17. Anne Hofsommer, a Licensed Clinical Social Worker, worked with
Mother beginning February 15, 2011. Ms. Hofsommer learned that Mother
was dealing with recurrent depression, a personality disorder, and the
possibility of relapsing into marijuana use.
18. Ms. Hofsommer determined that very complex issues existed in
Mother’s case; including serious mental health issues and a profound
distrust of others.
19. The social worker concluded that after six (6) weeks of therapy with
Mother, no progress was made. She testified that after that period, Mother
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remained unwilling to acknowledge the need to make changes. Mother still
saw herself as a good parent – one who felt unjustly accused.
20. Charlene Graff, home based parent aide with Lifeline Services, was
assigned to work with Mother beginning in July of 2010. Mother told Ms.
Graff that she was interfering with her parenting and that she would raise
her children the way she wanted. Ms. Graff also witnessed violent
outbursts by Mother with the children. Unsupervised visitation never
occurred between Mother and the girls.
21. Maternal Grandmother [] provides care for both girls currently.
[Grandmother] testified that Mother had threatened to kill her at a Child
and Family team meeting. The [c]ourt later entered a “No Contact Order.”
22. When the [c]ourt lifted the “No Contact Order” so that family therapy
could occur, Mother refused to attend.
***
24. Sheila LeSure, a Family Care Manager for DCS, became involved with
Mother’s case on October 18, 2010. Ms. LeSure was assigned after Mother
requested a new case manager. She testified that Mother’s order to
participate in individual counseling was not followed due to Mother’s
failure to actively participate and deal with her past childhood trauma.
Mother also has not maintained employment and is currently on probation
for the felony. While Mother completed her drug treatment, she failed to
begin it until June of 2010, over one (1) full year after the children were
removed initially.
(Appellant’s App. pp. 33-34; 39-40).
Although the trial court found that Mother had not progressed sufficiently in her
individual therapy, Mother contends that the evidence presented at trial failed to support
this finding. Focusing on the testimony of therapists Haas and Olsen, she asserts that
both therapists established that she was making strides in conquering her shortcomings.
While we agree with Mother that therapists Haas and Olsen were the most positive in
their report on Mother’s accomplishments, the therapists also testified to their ongoing
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concerns with Mother’s anger and distrust issues. Moreover, we note that Mother choose
therapists Haas and Olsen—therapists specialized in substance abuse issues—to help her
in her individual therapy sessions after she was discharged by Hofsommer.
Hofsommer gave a completely different account of Mother’s willingness to
participate in services. Hofsommer testified to Mother’s mood swings: while Mother
could make progress during a session, within a brief period Mother would return to her
beliefs that no one understood her and that their misunderstanding was the cause of all
her problems. After six weeks without any progress, Hofsommer informed Mother that
she had to make some effort and indicate some willingness to change her behavior.
Refusing to do so, Mother was discharged without having made any progress.
When DCS attempted to proceed with family therapy, the first family therapist felt
threatened by Mother and refused to continue. When a second attempt was made, Mother
blatantly refused to participate, threatening to hurt Grandmother instead.
Mother’s threatening and unstable behavior was also displayed in her parenting of
the children. Graff supervised the visits of Mother with her children and had to intervene
on several occasions because of Mother’s inappropriate actions and discipline. Graff
testified that on one occasion, Mother entered into a “screaming match” with four-year-
old O.H. over shoes. (Tr. p. 42). Graff also recounted a visit to the grocery store with
Mother and the children in November 2010, where Mother became so infuriated to the
point other people were beginning to take notice. Although Mother visited with the
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children, she never progressed beyond supervised visitations, and all visitation was
suspended in December 2010.
Despite Mother’s present ability to control her substance abuse issues, there is
ample evidence in the record to suggest that her habitual patterns of conduct pose a
substantial probability of future neglect and deprivation of the children. Not only did she
fail to address these shortcomings—only commencing individual therapy session after
DCS had filed its petition to terminate her parental rights—it is clear that she does not
even accept them, placing responsibility with everyone except herself. We affirm the
trial court’s conclusion that continuation of the parent-child relationship poses a threat to
the minor children. 2
II. Best Interests of the Children
Next, Mother argues that it was not in the children’s best interests for the trial
court to terminate Mother’s parental rights because “the evidence supported that Mother
had successfully participated in therapy, made progress, and actually completed therapy.”
(Appellant’s Br. p. 11). Additionally, she claims that it would not be harmful for the
children to remain in relative placement while visitation and therapy continued.
2
Although Mother also advances an argument that the conditions that resulted in the children’s removal were
remedied, we will not address this claim. First, I.C. § 31-35-2-4 is written in the disjunctive; it requires the trial
court to find only one of the requirements of subsection (B) by clear and convincing evidence. Standing alone, the
trial court’s finding that the continuation of the parent-child relationship posed a threat to the well-being of the
children satisfied the requirement listed in subsection (B). Second, the trial court based its order to terminate the
parent-child relationship on the claim we addressed above; the trial court did not formulate any conclusions with
respect to the remediation of conditions.
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In determining what is in the best interests of a child, the trial court is required to
look beyond the factors identified by DCS to the totality of the evidence. In re T.F., 743
N.E.2d 766, 776 (Ind. Ct. App. 2001). In doing so, the trial court must subordinate the
interests of the parents to those of the child involved. Id. When analyzing a child’s best
interests, we recognize that permanency is a central consideration. In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009).
Mother’s arguments are misplaced. The evidence clearly reflects that while she
completed substance abuse therapy, she has yet to complete individual therapy sessions
and to address her health and anger issues. Throughout the proceedings she has
displayed a lack of participation and absolute unwillingness to accept responsibility for
her behavior. The children have been out of Mother’s home since September 30, 2009
and she has not visited with them since DCS suspended visitation in December 2010.
The record reflects that the children are thriving in their placement with
Grandmother. Grandmother is very nurturing and able to appropriately identify the needs
of each child. The children are doing well at school, are involved in extracurricular
activities, and are happy in the home. Accordingly, we find that the trial court did not err
in concluding that termination of Mother’s parental rights was in the children’s best
interests.
CONCLUSION
Based on the foregoing, we conclude that (1) the DCS provided sufficient
evidence that continuation of the parent-child relationship posed a threat to the well-being
14
of the children and (2) the trial court did not err in concluding that termination of
Mother’s parental rights was in the minor children’s best interests.
Affirmed.
NAJAM, J. and DARDEN, J. concur
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