In the Matter of the Termination of the Parent-Child Relationship of: A.S. and B.S. (Minor Children) and D.J. (Mother) and H.S. (Father) v. The Indiana Department of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Nov 13 2014, 10:54 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

JERRY T. DROOK GREGORY F. ZOELLER
Marion, Indiana Attorney General of Indiana

ROBERT J. HENKE
CHRISTINA D. PACE
Deputies Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
A.S. and B.S. (MINOR CHILDREN) and )
D.J. (MOTHER) and H.S. (FATHER) )
Appellants-Respondents, )
)
vs. ) No. 85A02-1403-JT-209
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
Appellee-Petitioner. )

APPEAL FROM THE WABASH CIRCUIT COURT
The Honorable Robert R. McCallen, III, Judge
Cause No. 85C01-1307-JT-8
Cause No. 85C01-1307-JT-9

November 13, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
Case Summary
 H.S. (“Father”) and D.J. (“Mother”) (collectively, “Parents”) appeal the termination of

their parental rights upon the petition of the Wabash County Department of Child Services

(“DCS”). We affirm.

Issue

Parents present one issue for review, which we restate as: whether DCS established,

by clear and convincing evidence, the requisite statutory elements to support the termination

decision.

Facts and Procedural History

On July 16, 2012, DCS received a report that two-year-old twin boys, A.S and B.S.

(collectively, “Children”), were living with their paternal grandmother in a home that was

unfit for human habitation. That day, DCS and the Wabash County Health Department

investigated the home, after which the home was condemned. During the investigation, DCS

determined that Parents knew of the conditions and allowed Children to stay there. Children

were taken into custody and placed in foster care. Based on the report and investigation,

DCS filed a petition alleging that Children were Children in Need of Services (“CHINS”).

Parents appeared at the initial CHINS hearing on July 26, 2012, and admitted to the

allegations. Children were adjudicated CHINS on July 30, 2012.

DCS’s predispositional report, filed August 6, 2012, showed that Children had serious

developmental delays affecting their speech, motor, and social skills. After an August 17,

2012, hearing, the court entered its dispositional decree on August 22, 2012. The court

ordered that Children remain in foster care, undergo genetic testing, and receive services to

address their developmental delays. The court ordered Parents to participate in home-based

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services, a parenting assessment, psychological assessments, and supervised visitation.

Following the parenting assessment, Parents were referred to individual and couples

counseling. Father was referred to father engagement services.

DCS filed a ninety-day progress report on June 28, 2013, covering the period of

January 25, 2013, to May 30, 2013. The report showed that Parents inconsistently

participated in ordered services and visitation and therefore were not in compliance with the

dispositional order. DCS’s permanency report, filed July 17, 2013, reaffirmed Parents’

noncompliance with the treatment plans and detailed concerns about the suitability of

Parents’ home. After a hearing on July 26, 2013, the court approved a permanency plan that

called for reunification, with a concurrent plan of termination of parental rights and adoption

if continuing reunification efforts failed.

DCS filed a verified petition for involuntary termination of parental rights on July 17,

2013. Hearings on the petition were conducted on January 14 and 22, 2014. On February

24, 2014, the court issued an order terminating Parents’ parental rights. Parents now appeal.

Discussion and Decision

Standard of Review

Our standard of review is highly deferential in cases concerning the termination of

parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set

aside the trial court’s judgment terminating a parent-child relationship unless it is clearly

erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the

sufficiency of the evidence to support a judgment of involuntary termination of a parent-

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child relationship, we neither reweigh the evidence nor judge the credibility of the witnesses.

Id. We consider only the evidence that supports the judgment and the reasonable inferences

to be drawn therefrom. Id.

Requirements for Involuntary Termination of the Parent-Child Relationship

Parental rights are of a constitutional dimension, but the law provides for the

termination of those rights when the parents are unable or unwilling to meet their parental

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

(Ind. 2005). The purpose of terminating parental rights is not to punish the parents, but to

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

Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege and

prove by clear and convincing evidence in order to terminate a parent-child relationship:

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

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

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 (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.

If the court finds that the allegations in a petition described above are true, the court shall

terminate the parent-child relationship. I.C. § 31-35-2-8(a).

Analysis

Parents contend that insufficient evidence supports the trial court’s termination order.

They do not challenge the court’s determinations under Indiana Code sections 31-35-2-

4(b)(2)(A) (removal), (C) (best interests),1 or (D) (satisfactory plan). Rather, Parents

challenge the determination under Section (B), raising objections under both subsections (i)

(reasonable probability that the conditions of removal or reasons for placement outside the

home will not be remedied) and (ii) (reasonable probability that the continuation of the

parent-child relationship poses a threat to the child’s well-being).

Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and therefore

the court need only find that one of the three requirements of subsection (b)(2)(B) has been

established by clear and convincing evidence. See L.S., 717 N.E.2d at 209. Because we find

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Parents briefly mention “best interests” in their Conclusion; however, Parents do not develop an argument or
cite any authority related to this prong. Accordingly, this argument is waived. See In re A.N.J., 690 N.E.2d
716, 720 (Ind. Ct. App. 1997).

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it dispositive under the facts of this case, we review only whether DCS established, by clear

and convincing evidence, that there is a reasonable probability that the conditions that

resulted in Children’s removal or the reasons for placement outside the home of Parents will

not be remedied. See I.C. § 31-35-2-4(b)(2)(B)(i).

We engage in a two-step analysis to determine whether the conditions that led to

Children’s placement outside Parents’ home likely will not be remedied. In re K.T.K., 989

N.E.2d 1225, 1231 (Ind. 2013). First, we ascertain what conditions led to their placement

and retention in foster care, and second, we determine whether there is a reasonable

probability that those conditions will not be remedied. Id. In making these decisions, 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 E.M., 4 N.E.3d 636,

643 (Ind. 2014). However, the court must balance any recent improvements against a

parent’s habitual patterns of conduct to determine whether there is a substantial probability

of future neglect or deprivation. Id. “We entrust that delicate balance to the trial court,

which has discretion to weigh a parent’s prior history more heavily than efforts made only

shortly before termination.” Id. (citing K.T.K., 989 N.E.2d at 1234).

Initially, DCS removed Children because of the deplorable conditions of their

grandmother’s home, of which Parents were aware. Soon after, DCS became aware of the

significant developmental delays Children exhibited, described by Children’s foster mother –

an early-childhood developmental therapist with over fourteen years of experience – as “the

worst case of . . . delays related . . . to neglect I’ve ever seen.” (Tr. at 85.) Children’s Court

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Appointed Special Advocate (“CASA”) also opined that their delays were environmental,

not genetic.

Yet, Parents did not engage in the court-ordered services with any regularity. Neither

Mother nor Father was ever in compliance with the dispositional order. Mother initiated

some counseling services, but attended sporadically. Father attended a few individual

counseling and father engagement sessions beginning in December 2013 (just prior to the

termination hearing), but otherwise failed to engage these services during the year and a half

that Children had been removed. Overall, Parents missed forty percent of their supervised

visits with Children between July 2012 and July 2013, and attended only three to five visits

each from July 2013 until the termination hearing. Over the course of Children’s removal,

DCS at times went without contact from Parents for approximately two months.

As to the effect of Parents’ noncompliance, DCS Family Case Manager Sara Cole

testified that “with the little compliance that we have had, we have not been . . . able to

ensure that the parents understand what led to those conditions [that resulted in removal] and

understand the ways to make sure that that’s not going to happen again with their kids . . . .”

(Tr. at 103-04.) The evidence thus shows that Parents have not complied with court-ordered

services that were specifically designed to remedy the environmental factors that contributed

to Children’s severe developmental delays. To the extent Parents point to changes in the

house and their belated engagement in services, we decline their request to reweigh evidence.

See K.T.K., 989 N.E.2d at 1234; E.M., 4 N.E.3d at 643. There is clear and convincing

evidence to support the court’s conclusion that there is a reasonable probability that the

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conditions that led to removal or reasons for placement outside Parents’ home will not be

remedied.

Conclusion

DCS established, by clear and convincing evidence, the requisite elements of Indiana

Code section 31-35-2-4(b)(2). Accordingly, the trial court’s judgment of involuntary

termination of the parent-child relationship was not clearly erroneous.

Affirmed.

NAJAM, J., and PYLE, J., concur.

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