In the Matter of the Involuntary Termination of the Parent-Child Relationship of N.D., J.G., and S.D. (Minor Children) and S.D. (Mother) v. Indiana Department of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
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:

AMY KAROZOS GREGORY F. ZOELLER
Greenwood, Indiana Attorney General of Indiana

ROBERT J. HENKE
DAVID E. COREY
Deputy Attorneys General
Indianapolis, Indiana

Oct 22 2014, 9:51 am

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE )
INVOLUNTARY TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF )
N.D., J.G., and S.D. (Minor Children) and )
)
S.D. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1402-JT-125
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn Moores, Judge
The Honorable Larry Bradley, Magistrate
Cause Nos. 49D09-1303-JT-11681, 49D09-1303-JT-11682, and 49D09-1303-JT-11683

October 22, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
 Case Summary

S.D. (“Mother”) appeals a trial court judgment terminating her parental relationship

with her minor children N.D., J.G., and S.D. (collectively “the children”). Finding the

evidence sufficient to support the trial court’s determination, we affirm.

Facts and Procedural History1

The facts most favorable to the judgment indicate that on October 3, 2011, Mother

gave birth to S.D., who tested positive for opiates at birth. Mother had two older children,

N.D. and J.G. (born in 2006 and 2009 respectively), who were in the care of relatives. On

November 11, 2011, the Department of Child Services (“DCS”) received a report concerning

S.D.’s positive opiates test and failure to thrive. S.D. was placed with his paternal

grandparents, and N.D. and J.G. were placed in foster care. On November 15, 2011, DCS

filed a petition alleging that the children were children in need of services (“CHINS”) based

on Mother’s unstable housing, her inability to care for S.D. when he tested positive for

opiates at birth, and her failure to provide accurate information concerning N.D. and J.G.2

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Four fathers were involved in proceedings concerning the children. J.G.’s father was the subject of
the same termination order as Mother; S.D.’s father consented to adoption and was thereafter granted
dismissal; and two others (one legal and one putative father of N.D.) were the subjects of separate termination
orders. Because none of the fathers are part of this appeal, we address only the trial court’s findings pertaining
to Mother.

2
When DCS ordered Mother to bring N.D. and J.G. to DCS offices to be placed in foster care, she
said that they were in Missouri at her mother’s home, when in fact they were in Lebanon, Indiana, at her
grandfather’s home.

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 In February 2012, Mother admitted to the allegations in the CHINS petition. At a

March 2012 dispositional hearing, the children were made wards of DCS, and the trial court

ordered Mother to maintain appointments with DCS and the guardian ad litem (“GAL”);

maintain safe and stable housing; secure and maintain a legal and stable source of income;

refrain from using illegal controlled substances; take medications only as prescribed; submit

to random drug screens; complete a parenting assessment; participate in home-based

counseling; consent to release of psychiatric records; and attend scheduled visitation sessions

with the children. The court later ordered her to complete a substance abuse assessment.

In March 2013, DCS filed a petition to terminate Mother’s parental relationship with

the children, changing the permanency plan to adoption by paternal grandparents (S.D.) and

by the pre-adoptive foster parents (N.D. and J.G.). The trial court conducted evidentiary

hearings and issued an order terminating Mother’s parental rights. In its findings, the trial

court emphasized Mother’s pattern of instability in the areas of housing, employment, and

personal relationships, her inconsistency in attending visitation sessions, her mental health

and substance abuse issues, and her failure to complete many of the required services.

Mother now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Mother challenges the sufficiency of evidence to support the trial court’s judgment

terminating her parental relationship with the children. When reviewing a trial court’s

findings of fact and conclusions thereon in a case involving the termination of parental rights,

we review for clear error, applying a two-tiered standard of review wherein we first

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determine whether the evidence supports the findings and then whether the findings support

the judgment. In re M.W., 943 N.E.2d 848, 853 (Ind. Ct. App. 2011), trans. denied. We will

set aside the trial court’s judgment only if it is clearly erroneous. Bester v. Lake Cnty. Office

of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We neither reweigh evidence nor

judge witness credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005), trans. denied.

Rather, we consider only the evidence and inferences most favorable to the judgment. Id.

In Bester, our supreme court stated,

The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. A
parent’s interest in the care, custody, and control of his or her children is
perhaps the oldest of the fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture. We
recognize of course that parental interests are not absolute and must be
subordinated to the child’s interests in determining the proper disposition of a
petition to terminate parental rights. Thus, parental rights may be terminated
when the parents are unable or unwilling to meet their parental responsibilities.

Id. (citations, quotation marks, and alteration omitted).

To obtain a termination of the parent-child relationship between Mother and the

children, DCS was required to establish:

(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

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 department for at least fifteen (15) months of the most recent twenty-
two (22) months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need of
services or a delinquent child;

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in
the child’s removal or the reasons for placement outside the home of
the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the child.

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

(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).

In recognition of the seriousness with which we address parental termination cases,

Indiana has adopted a clear and convincing evidence standard. Ind. Code § 31-37-14-2;

Castro v. State Office of Family & Children, 842 N.E.2d 367, 377 (Ind. Ct. App. 2006),

trans. denied. “Clear and convincing evidence need not reveal that the continued custody of

the parents is wholly inadequate for the child’s survival. Rather, it is sufficient to show by

clear and convincing evidence that the child’s emotional and physical development are

threatened by the respondent parent’s custody.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.

2013) (citation omitted).

When assessing whether there is a reasonable probability that conditions that led to a

child’s removal will not be remedied, we must consider not only the initial basis for the

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child’s removal, but also the bases for continued placement outside the home. A.I., 825

N.E.2d at 806. Moreover, “the trial court should judge a parent’s fitness to care for [her]

children at the time of the termination hearing, taking into consideration evidence of changed

conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. “Due to the

permanent effect of termination, the trial court also must evaluate the parent’s habitual

patterns of conduct to determine the probability of future neglect or deprivation of the child.”

Id. For example, the court may properly consider evidence of a parent’s substance abuse,

criminal history, lack of employment or adequate housing, history of neglect, and failure to

provide support. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185,

199 (Ind. Ct. App. 2003). In making its case, “DCS need not 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). “[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 is permanently impaired before terminating

the parent-child relationship.” Castro, 842 N.E.2d at 372.

Here, the trial court’s findings include the following:3

5. CHINS petitions were filed on the children on November 15, 2011 …
based on allegations that S.D. was born opiate positive, that Mother
lacked stable housing and appeared unable to take care of S.D.

….

3
Throughout the findings, the trial court refers to Mother and the children by their proper names. We
refer to them as Mother, N.D., J.G., and S.D.

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7. The children were ordered detained outside the home at the Initial
Hearing held on November 15, 2011.

8. The children were found to be in need of services as to their mother on
February 27, 2012, after admitting that S.D. tested positive for opiates
at birth and she had not demonstrated to medical professionals’
satisfactions the ability to appropriately feed and care for S.D.

….

17. Services were ordered and referred for Mother toward reunification.

18. Mother completed a substance abuse assessment and urine screens.

19. Mother completed one of the two parenting assessment sessions. The
assessor could not get in contact with Mother to complete the
assessment.

20. Home based therapy commenced in March of 2012 to address mental
and emotional issues, parenting skills. This referral closed as
unsuccessful in November of 2012 due to Mother not showing or
canceling sessions.

21. Mother’s mental issues included depression and anxiety. Her emotional
issues to be addressed included impulse control and behavior
management, and positive coping skills.

22. At the time the therapy referral closed, no progress was made on goals
due to inconsistent sessions.

23. Around the time therapy services were closed, Mother informed the
therapist that she was done with services and visits and she was going
to Kansas City.

24. The therapist could not recommend placement of the children back with
Mother, there being some issues in parenting skills and Mother having
to take care of three children at once.

25. A subsequent home based therapy referral ended in March of 2013 as
unsuccessful, also due to Mother being inconsistent.

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26. Mother has had unstable housing, living in several places during the
CHINS case including outside of Indiana. She has lived with family,
friends, and fiancées [sic] and in hotels.

27. On the first day of trial in this matter, Mother was not interested in a
lease because she wanted to leave Indiana with her children. On the
second day, she and her current fiancée [sic] were looking for places to
rent, and staying part-time with her grandfather. The fiancée [sic] was
in the process of moving to Indiana.

28. Mother has had unstable employment, relying on others to support her.
Her last job was approximately three months prior to the first day of
trial in this matter as an entertainer two nights in Florida.

29. Mother’s mental health issue presents as a major problem. She goes to
stress centers when needed and was told she needed to be inpatient
shortly before trial in this matter. On the second day of trial she
testified her mental health issues were being addressed by her
gastroenterologist.

30. Mother’s mental health issues may be keeping her from realizing what
needs to be addressed before reunification can happen. This is apparent
in her testimony that she was forced to admit to the CHINS, her
children were never in need of services, and that home based providers
“quit on her”.

31. Visitation between the children and Mother was suspended by the
CHINS Court in June of 2013. Providers never recommended
unsupervised visitation during the CHINS case.

32. There is a reasonable probability that the conditions that resulted in the
children’s removal and continued placement outside the home will not
be remedied by Mother given the lack of progress in services between
the filing of the CHINS action in November 2011 to the change of the
permanency plan to adoption on March 21, 2013, and Mother’s lack of
insight.

….

34. N.D. and J.G. have remained in the same foster home since their
removal on [sic] November of 2011. This home is pre-adoptive and the

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 children have been observed as being bonded with their caregivers.
The environment provides structure which is important for N.D.

35. S.D. is placed with his paternal grandmother who is wishing to adopt
him. He is bonded and he visits his two siblings.

36. Termination of the parent-child relationship is in the best interests of
the children. Termination would allow the children to obtain
permanency in the homes they have become accustomed to, and where
their needs will be safely met…. Although Mother loves her children
and has a bond with N.D. and J.G., she has been unable to make the
needed progress in services to have unsupervised visitation in the ample
time given.

Appellant’s App. at 121-24.

Mother asserts that the evidence is insufficient to support the trial court’s conclusion

that a reasonable probability exists that the conditions that led to the children’s removal will

not be remedied.4 She challenges Findings 19, 21, 22, and 28-30 as clearly erroneous. With

respect to Finding 19, she asserts that she did not complete the second parenting assessment

because her then-fiancé called the sheriff and kicked her out of his home during the interview

phase of the second assessment. She claims that when this occurred, the home-based

therapist told her that she did not need to complete the second assessment due to its overlap

with the psychological evaluation. Tr. at 137. Even so, the record shows that despite the

overlap, Mother failed to complete many of the overlapping services. Findings 21, 22, 29,

and 30 concern Mother’s mental health issues. While she claims that Findings 21 and 22

4
Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
continuation of her relationship with the children poses a threat to their well-being. Indiana Code Section 31-
35-2-4(b)(2)(B) requires DCS to prove only one of the three circumstances listed. Because we find no error
concerning the reasonable probability of unremedied conditions, we need not address the threat to the
children’s well-being.

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both are clearly erroneous, her challenge essentially addresses the portion of Finding 22

stating that she made no progress on her goals due to inconsistent attendance at sessions. She

admits that her therapy services were closed due to her nonattendance, but she now asserts

that the reason for her lack of progress was that the providers were social workers, not

psychologists or psychiatrists. However, she never complained that the therapists were

unqualified and instead, simply chose not to attend. “If the 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).

With respect to Findings 29 and 30, Mother challenges the trial court’s determination

that her mental health issues amounted to a major problem that kept her from realizing the

issues that she needed to address before reunification could happen. The record shows that

Mother was not forthcoming with respect to her psychological records. For example, when

DCS requested that Mother sign a release form to contact her psychiatrist, she delayed and

signed the release only when she was no longer a patient there and was allegedly seeing

another psychiatrist. Finding 30 encapsulates the trial court’s concern that Mother’s actions

throughout the proceedings indicated that she was not facing up to her own issues and their

effect on the children and that she instead diverted blame to DCS when services were closed

due to her own failures. She admitted to the CHINS determination, but later said that she

was forced to do so and that she never thought her children were in need of services.

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 Mother also challenges Finding 28, which characterizes her employment as unstable

and notes that she relies on others for financial support. At the termination hearing, she

admitted that her third fiancé supports her, but testified that she had a twelve-year history as a

dancer. In this vein, we note that the trial court’s focus was not on the duration of her

dancing career, but rather on the frequency of her recent dancing jobs, that is, “Her last job

was approximately three months prior to the first day of trial in this matter as an entertainer

two nights in Florida.” Appellant’s App. at 44. Also notable is that she failed to provide any

verification of income to DCS as requested.

In short, most of Mother’s challenges implicate the weight assigned to her mental

health and employment issues. We decline her invitations to reweigh evidence, which we

may not do. The extensive unchallenged findings paint a portrait of a parent who is either

unable or unwilling to address her own personal challenges, let alone her obligations

attendant to parenting. She has a pattern of unstable adult relationships, having named four

men as legal or putative fathers of her three children and having had three fiancés. Likewise,

her housing has consisted of numerous stints in hotels, living with friends, relatives, and

fiancés, and moving from state to state for short periods of time, often without informing

DCS of her whereabouts. Her employment has been spotty at best, and she was not

forthcoming when it came to income verification. Her inconsistent attendance and tardiness

for scheduled visitation sessions with the children is indicative of her scattered, undisciplined

approach to obligations. Simply put, she has failed to demonstrate clear error in the trial

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court’s determination that there is a reasonable probability that the conditions that led to

removal will not be remedied.5

Mother also challenges the trial court’s conclusion that termination of her parental

relationship with the children is in the children’s best interests. Again, we recognize her

fundamental liberty interests in parenting the children, but we are also mindful that her

parental interests are not absolute, must be subordinated to the children’s interests, and may

be terminated if she is unable or unwilling to meet her parental responsibilities. In re G.Y.,

904 N.E.2d 1257, 1259-60 (Ind. 2009). Although not dispositive, permanency and stability

are key considerations in determining the best interests of a child. Id. at 1265. A

determination of a child’s best interests should be based on the totality of the circumstances.

In re A.P., 981 N.E.2d 75, 84 (Ind. Ct. App. 2012).

While Mother couches her argument in terms of the children’s best interests, she

essentially objects to their permanency plans, arguing that the children should all be placed

with her mother. In doing so, she conflates two separate points of inquiry under the

termination statute. The determination of the children’s best interests requires an evaluation

of how Mother’s personal and parenting issues impact the children’s best interests.

5
In the statement of facts section of her brief, Mother claims, “The record does not show whether
DCS developed a case plan with [Mother].” Appellant’s Br. at 7. Indiana Code Section 31-34-15-1 requires
that DCS develop a case plan for every CHINS. If Mother’s assertion is accurate, “we caution DCS to be more
cognizant of the statutory framework by which it is to abide, which includes providing a case plan to each
parent.” C.A. v. Indiana Dep’t of Child Servs., 15 N.E.3d 85, 93. Notably, however, Mother failed to raise the
procedural irregularity either during the termination proceedings below or in the argument section of her brief.
Thus, she has waived the issue for consideration by this Court. Runkel v. Miami Cnty. Dep’t of Child Servs.,
875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied; Ind. Appellate Rule 46(A)(8). Waiver
notwithstanding, even if a case plan was not developed, both Mother’s brief and the record of proceedings
indicate that Mother was aware of the services that she was required to complete as part of the CHINS order.

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However, with respect to the permanency plan, the statute only requires DCS to establish that

there is “a satisfactory plan for the care and treatment of the child.” Ind. Code § 31-35-2-

4(b)(2)(D). “[A]doption is a ‘satisfactory plan’ for the care and treatment of a child under

the termination of parental rights statute.” In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App.

2009). Although issues such as permanency and stability are generally considered in both

inquiries, the satisfactory plan inquiry does not require that the trial court adopt the parent’s

view concerning which placement is best for which child. See In re B.M., 913 N.E.2d 1283,

1287 (Ind. Ct. App. 2009) (finding no clear error where DCS established plan for adoption by

godparents rather than taking father’s recommendation of placement with his sister as

guardian). The trial court addressed this issue specifically when it denied Mother’s request

for placement with the maternal grandmother.

Neither the foster parents’ adoption of N.D. and J.G. nor the paternal grandmother’s

adoption of S.D. runs afoul of the “satisfactory plan” requirement found in the statute. To

the extent that these placements implicate best interests, they are not analyzed in comparison

with other possible placements. Rather, the analysis concerns whether termination of

Mother’s rights is in the children’s best interests. With respect to S.D., the record is replete

with evidence that he never bonded with Mother, having been born with opiates in his system

and immediately removed from Mother for placement outside the home. As for N.D. and

J.G., the record indicates that they had developed a bond with Mother before they were

removed from her care. However, Mother’s sporadic attendance at visitation sessions caused

the children, especially N.D., to suffer anxiety. In contrast, the foster parents, with whom

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N.D. and J.G. have resided since November 2011, provide a structured and stable

environment, and the record shows that N.D. and J.G. have developed a bond with them.

Moreover, both the DCS family case manager and the GAL testified that termination

is in the children’s best interests. Given the trial court’s discretion to determine the

credibility of witnesses, we cannot say that the trial court erred in giving credence to the

professional opinions regarding the children’s best interests. See In re A.K., 924 N.E.2d 212,

224 (Ind. Ct. App. 2010) (“the testimony of service providers may support a finding that

termination is in the child’s best interests.”), trans. dismissed.

In sum, Mother has a pattern of instability that has continued for many years and has

manifested itself in many areas, including housing, employment, and personal relationships.

Her lack of personal discipline has manifested itself negatively in her parenting and does not

bode well for her future parenting prospects. Throughout the proceedings, she was

inconsistent in her participation and failed to complete most of the services outlined in the

participation plan. The most troubling indicator of her parenting prospects was her poor

attendance at visitation sessions. Her arguments concerning the children’s best interests are

more aptly characterized as attempts to dictate their placement. Based on the foregoing, we

conclude that Mother has failed to establish clear error in the trial court’s decision to

terminate her parental relationship with the children. Consequently, we affirm.

Affirmed.

RILEY, J., and MATHIAS, J., concur.

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