MEMORANDUM DECISION
Mar 17 2015, 10:23 am
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
MOTHER Gregory F. Zoeller
Donald E.C. Leicht Attorney General of Indiana
Kokomo, Indiana Robert J. Henke
ATTORNEY FOR APPELLANT FATHER Deputy Attorney General
Derick W. Steele David E. Corey
Deputy Public Defender Deputy Attorney General
Kokomo, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Involuntary March 17, 2015
Termination of the Parent-Child Court of Appeals Case No.
Relationship of Ja.M., X.M., 34A04-1409-JT-430
Je.M., and R.M. (Minor Appeal from the Howard Circuit
Children), and S.J. (Mother) and Court
D.M. (Father) The Honorable Lynn Murray, Judge
Appellants-Respondents, Cause Nos. 34C01-1402-JT-36,
34C01-1402-JT-37, 34C01-1402-JT-
38, 34C01-1402-JT-39
v.
The Indiana Department of Child
Services,
Appellee-Petitioner.
Mathias, Judge.
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[1] S.J. (“Mother”) and D.M. (“Father”) appeal the order of the Howard Circuit
Court terminating their parental rights to their children, Ja.M, X.M., Je.M, and
R.M. On appeal, Mother and Father both claim evidence was insufficient to
support the trial court’s decision to terminate their parental rights.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father are the biological parents of four children: Ja.M., born in
March 2000; X.M., born in August 2001; Je.M., born in November 2002; and
R.M., born in December 2003. Mother had a history of neglect of the children,
resulting in a previous finding that the children were in need of services.
According to Mother, in the previous instance, the children were removed from
her care when she was arrested and Father was already incarcerated. Mother
claimed that, in this previous instance, the children were returned to her care
within two months. Father, too, had a prior involvement with child welfare
services in Michigan who found a substantiated allegation of physical abuse.
[4] The present case began in September 2012, when Father had custody of the
children because he and Mother were “having some issues,” and Mother
needed a “break.” Tr. p. 94. Father took the children to Michigan via a bus, but
during the trip Father suffered a psychotic breakdown and was hospitalized.
Child welfare authorities in Michigan took custody of the children and placed
them with their paternal aunt, who in turn took them to back to Mother in
Kokomo, Indiana. Mother was homeless at the time and contacted the
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Department of Child Services (“DCS”) for assistance. DCS recommended that
Mother and the children stay at a homeless shelter, but Mother declined
because, at that time, she had an outstanding warrant for her arrest. Mother
was arrested on October 5, 2012, and DCS took custody of the children because
Father was still hospitalized in Michigan in a mental health facility.
[5] On October 9, 2012, DCS filed a petition alleging that all four children were
children in need of services (“CHINS”). Both parents denied the allegations in
the CHINS petition. The trial court appointed counsel for the parents and
appointed a Court Appointed Special Advocate (“CASA”) to represent the
interests of the children. A hearing was held on the CHINS petition on
November 5, 2012, at the conclusion of which the trial court found that the
children were CHINS.1 At the dispositional hearing held on December 3, 2012,
the court ordered the children to be wards of DCS and continued their
placement in foster care. The trial court also ordered the parents to:
• cooperate and maintain contact with DCS and its family case managers
and service providers and follow their recommendations;
• notify DCS of any change in the parents’ contact information;
• attend and participate in the visitation plan and follow the rules and
procedures set forth by DCS and the service providers coordinating and
supervising the visits;
• maintain contact with the case managers and service providers, including
notifying them of cancellations of appointments at least twenty-four
hours in advance;
1
Father appeared at the hearing in person and by counsel. In fact, it appears that Father appeared in person
and by counsel at all of the hearings held in this matter.
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• attend, participate in, and complete a parenting program, and provide
proof of such completion to DCS;
• maintain gainful employment and provide evidence of such employment
to DCS;
• obtain and maintain clean, suitable, and stable housing for themselves
and the children and allow DCS and the service providers access to the
home;
• refrain from all illegal activity and abide by the law so as to not hamper
their ability to care for the children;
• cooperate with and follow the recommendations of “Family Educator
Services; and
• attend all medical appointments regarding the children and follow all
recommendations of the medical personnel.
In addition, the court ordered that visitation be supervised initially, “which
visits may progress to semi-supervised or unsupervised visits at the discretion of
the DCS without further order of the Court.” Ex. Vol., DCS Ex. 6. The court
also ordered Father to attend and participate in individualized mental-health
counseling.
[6] Following the CHINS dispositional order, Mother failed to appear at any
hearing or have any contact at all with the children for a period of twenty-two
months. Father was initially cooperative, and he actively participated with the
service providers and worked with his home-based case manager to acquire
appropriate housing. He also obtained employment. Father also initially
attended all supervised visitation sessions that were scheduled. By the time of
the six-month review hearing, though, Father was not compliant with his
mental health counseling requirement; he did attend an initial intake
appointment but failed to attend any subsequent appointments.
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[7] At the September 9, 2013, permanency hearing, the evidence revealed that
Father had not been cooperative with the offered services or with DCS. In fact,
Father’s whereabouts had been unknown for a period, and he failed to respond
to the numerous attempts by DCS to contact him. Father completed his mental
health evaluation and parenting assessment but failed to follow through with
the recommendations given to him and had not attended therapy regularly.
When Father did attend the visitations, he brought food for the children but
struggled with engaging with the children; instead, he simply provided things
for them to do.
[8] By the December 9, 2013, hearing, Father had obtained housing but explained
that he would not be allowed to stay there due to a problem with documenting
his identity. Father’s participation in therapy, services, and visitation was
sporadic but improved as the hearing grew closer. Despite the children’s desire
to remain in foster care, the goal remained reunification of the family.
[9] On February 20, 2014, DCS filed a petition to terminate Mother’s and Father’s
parental rights. At a March 10, 2014, hearing, evidence was presented
indicating that Father’s participation in services, therapy, and visitation
remained inconsistent; in fact, he had not attended any therapy sessions during
December and January, although he reported that he had met with his therapist
in February. With regard to visitation, three scheduled visits had been cancelled
due to weather. Of the other scheduled visits, Father attended five but did not
appear for three.
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[10] At the termination hearing, held on June 30 and July 21, 2014, the trial court
heard evidence that Ja.M., X.M., and R.M. were all diagnosed with adjustment
disorder. Je.M. also acted out in sexually inappropriate ways. He was
diagnosed with post-traumatic stress disorder, adjustment disorder, and sexual
abuse. Father had admitted during a March 2014 Child and Family Team
meeting that, while in the parents’ care, the children had been exposed to
sexually explicit material and had even been sexually abused.2 Father admitted
that he had done nothing to protect his children from this abuse.3 Je.M. also
told his therapist that both of his parents had been physically abusive and that
often no food was in the house.
[11] Father’s case manager testified that she had helped Father secure housing but
that Father was unable to move due to overdue utility bills. Father also was
unable to maintain steady employment. He had obtained work several times,
but each time, he quit within three months, usually because he complained of
being unhappy with the job or had conflict with coworkers. Thus, Father was
employed only sporadically. He moved into his current home, a three-bedroom
trailer, which he shared with his girlfriend and her children, in February of
2014. In the prior year, Father had attended only nine therapy sessions and
attended only approximately one half of his scheduled visits with the children.
[12] At the time of the children’s removal, Mother had been arrested and was in jail
for two days. After her release, she went to Detroit, Michigan, and had no
2
According to the children’s therapist, the culprit was a cousin of the children.
3
Apparently, Father was hesitant to contact the police because he was involved in illegal activities himself.
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contact with the children for twenty-two months. Mother claimed that she had
left a telephone message for the DCS case manager the year before the
termination proceedings began, but the DCS caseworker testified that she never
received such a message. Although Mother obtained employment in May 2014,
she still did not have stable housing and lived with different friends and family
each day. Mother failed to follow through with any services offered and had no
contact with anyone involved in the case until June 2014, when she contacted
the CASA.
[13] On August 18, 2014, the trial court entered findings of fact and conclusions of
law granting DCS’s petition to terminate the parental rights of Mother and
Father. Mother and Father now appeal.
Standard of Review
[14] We have long had a highly deferential standard of review in cases involving the
termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.
2011). On appeal, we neither reweigh the evidence nor assess witness
credibility. Id. We consider only the evidence favorable to the trial court’s
judgment and the reasonable inferences to be drawn from this evidence. Id.
Where, as here, the trial court enters findings of fact and conclusions of law in
its termination of parental rights4, we apply a two-tiered standard of review.
4
Although trial courts are not statutorily required to enter findings of fact and conclusions of law when
terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision,
trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute
and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010).
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A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013),
trans. denied. We first determine whether the evidence supports the findings; we
then 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. Id. If the evidence and inferences support the trial
court’s decision, we must affirm. Id. Likewise, we will set aside the trial court’s
judgment terminating a parent-child relationship only if it is “clearly
erroneous.” Id. In this context, “clear error” is that which “leaves us with a
definite and firm conviction that a mistake has been made.” Id. (quoting J.M. v.
Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App.
2004)).
[15] “The purpose of terminating parental rights is not to punish parents but to
protect their children. Although parental rights have a constitutional dimension,
the law allows for their termination when parties are unable or unwilling to
meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.
App. 2004) (citation omitted). Indeed, parental interests “must be subordinated
to the child’s interests” in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).
[16] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental
rights must meet the following relevant requirements:
(2) The petition must allege:
(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.
[17] DCS must prove “each and every element” by clear and convincing evidence.
G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2. Clear and convincing
evidence need not establish that the continued custody of the parents is wholly
inadequate for the child’s very survival. Bester v. Lake County Office of Family &
Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is sufficient to show by
clear and convincing evidence that the child’s emotional development and
physical development are put at risk by the parent’s custody. Id. If the court
finds that the allegations in a petition are true, the court shall terminate the
parent-child relationship. Ind. Code § 31-35-2-8(a).
I. Mother’s Argument
[18] On appeal, Mother claims only that evidence was insufficient to support the
trial court’s conclusion that a reasonable probability exists 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. See I.C. § 31-35-2-4(b)(2)(i). We note
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that Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, and
therefore, the trial court is required to find that only one prong of subsection
2(b)(2)(B) has been established by clear and convincing evidence. In re A.K., 924
N.E.2d 212, 220 (Ind. Ct. App. 2010). Here, the trial court found that the first
two disjunctive requirements of subsection 2(b)(2)(B) were established: (i) that
the conditions which led to the removal of the children would not be remedied,
and (ii) that there is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the child. See Appellant
Father’s App. pp. 74-75. By not challenging this second disjunctive finding,
Mother has waived any argument thereon and effectively conceded this finding
on appeal. See In re Termination of Parent-Child Relationship of J.G., 4 N.E.3d 814,
820 n.2 (Ind. Ct. App. 2014), trans. denied. Nevertheless, the evidence before the
trial court was more than sufficient to show that the continuation of parent-
child relationship posed a threat to the well-being of the children. Mother did
not visit the children, did not participate in any of the offered services, and was
without stable housing at the time of the termination hearing. This is sufficient
to support the trial court’s determination that the continuation of the parent-
child relationship posed a threat to the well-being of the children.
[19] When making a determination as to whether a reasonable probability exists that
the conditions resulting in a child’s removal or continued placement outside of
a parent’s care will not be remedied, the trial court must judge a parent’s fitness
to care for her child at the time of the termination hearing while also taking into
consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-
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57. The trial court is also required to consider the parent’s habitual patterns of
conduct in order to determine the probability of future neglect or deprivation of
the child. Id. at 1157. The trial court 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. Id. The trial court may
also consider the services offered to the parent by DCS and the parent’s
response to those services as evidence of whether conditions will be remedied.
Id. DCS is not required to provide evidence ruling out all possibilities of change.
Id. Instead, it needs to establish only that a “reasonable probability” exists that
the parent’s behavior will not change. Id.
[20] Mother admits that she was “AWOL” during the CHINS proceedings, see
Appellant Mother’s App. at 10, but claims that this should be excused because
of her self-diagnosed depression during that time, which she likens to
imprisonment. We note, however, that DCS made service referrals for Mother,
including one for a mental-health evaluation. Instead of taking advantage of
this referral, Mother wholly failed to participate in any services and made no
effort to participate in the CHINS proceedings.
[21] Nor did Mother visit her children. “[F]ailure to exercise the right to visit one’s
children demonstrates a ‘lack of commitment to complete the actions necessary
to preserve [the] parent-child relationship.’” Lang v. Starke Cnty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (quoting In re A.L.H., 774
N.E.2d 896, 900 (Ind. Ct. App. 2002)).
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[22] Although Mother was employed, she still did not have stable housing, and in
fact, was homeless at the time of the termination hearing. Given her complete
failure to follow through with any services, her effective abandonment of the
children, and her continued inability to properly care for the children, we
cannot say that the trial court clearly erred in concluding a reasonable
probability exists that the conditions which led the children’s removal would
not be remedied.
II. Father’s Argument
A. Conditions That Led to Removal of the Children Would Not Be Remedied
[23] Father too challenges the trial court’s determination that the conditions that led
to the children’s removal would not be remedied. Although Father participated
in the services to a greater extent than did Mother, we cannot say that the trial
court’s decision was clearly erroneous. The children were removed from
Father’s care after he suffered a psychiatric breakdown. Father’s compliance
with the mental health services was sporadic at best. Father did complete a
mental health intake appointment but initially failed to attend the scheduled
follow-up appointments. Thereafter, his attendance at therapy was, at best,
sporadic. By the time of the March 2014 termination hearing, Father had not
attended any therapy sessions during December 2013 or January 2014.
[24] After initially attending the scheduled visitations with the children, Father then
missed several scheduled visitations, usually without informing DCS that he
would not be there. Father was also unable to maintain steady employment,and
had only recently moved into a three-bedroom trailer with his girlfriend and her
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two children. Under these facts and circumstances, and given our deferential
standard of review, we cannot say that the trial court clearly erred in concluding
that reasonable probability exists that the conditions that led to the children’s
removal would not be remedied.
B. Continuation of the Parent-Child Relationship Poses a Threat to the Well-
being of the Children
[25] Father also claims evidence was insufficient to support the trial court’s
conclusion that the continuation of the parent-child relationship posed a
threated to the well-being of the children. When reviewing the question of
whether continuation of the parent-child relationship poses a threat to the
child’s well-being, termination is proper when the evidence shows that the
emotional and physical development of a child is threatened. C.A. v. Ind. Dep’t of
Child Servs., 15 N.E.3d 85, 94 (Ind. Ct. App. 2014). Again, we repeat that 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. Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct.
App. 2006).
[26] In addition to the evidence referred to above regarding the parents’ inability to
properly care for the children was evidence that the children had suffered while
in the parents’ care. All four children suffered from adjustment disorder, and
Je.M. was diagnosed with attention-deficit disorder and post-traumatic stress
disorder. Both parents beat the children, did not send the children to school
regularly, and did not always have enough food for the children to eat. The
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children were not properly cared for when Father was not home, and they were
exposed to sexually explicit material and sexual abuse, yet Father did nothing
to protect them.5 Given this history and both parents’ lack of progress in
improving their parenting skills, the trial court could reasonably conclude that
the continuation of the parent-child relationship posed a threat to the well-being
of the children.
C. Termination of the Parent-Child Relationship is in the Best Interests of the
Children
[27] Father also challenges the trial court’s determination that termination of the
parent-child relationship is in the children’s best interest. In determining what is
in the best interests of a child, the trial court must look beyond the factors
identified by the DCS and to the totality of the evidence. A.D.S., 987 N.E.2d at
1158. In so doing, the court must subordinate the interests of the parent to those
of the children. Id. The court need not wait until the children are irreversibly
harmed before terminating the parent-child relationship. Id. Moreover, the
recommendation by both the case manager and child advocate to terminate
parental rights, in addition to evidence that the conditions resulting in removal
will not be remedied, is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id. at 1158-59. Permanency is a
central consideration in determining the best interests of a child. Id. at 1159.
5
Father denies that he made the statements regarding his knowledge of sexual abuse, but the trial court was
free to not believe Father’s denials.
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[28] Father’s argument that termination was not in the children’s best interest is as
follows:
Simply because the children have a better life and like their new home
better than their previous home with their father is insufficient to
overcome the constitutionally protected rights to raise one’s own
children. It seems that if [Father] has done everything that was asked
of him, then he should have the right to raise his children. Otherwise,
the Department failed [Father] by not giving him the appropriate goals
for reunification. What else is a parent supposed to do?
Appellant Father’s Br. at 5.
[29] Father’s parental rights were not terminated simply because the children have a
better home in foster care than they did with the parents. The children were
physically abused and neglected in the parents’ care. Nor did Father do
“everything that was asked of him” as he claims. Id. Specifically, Father failed
to complete his mental health therapy, attended visitations with the children
only sporadically, and did not maintain steady employment. We also cannot
overlook the fact that the children were in foster care for over twenty months.
The CASA testified that the children were in “desperate need of permanency,”
and were “ready to move on with their li[ves].” Tr. p. 97. Both the CASA and
the DCS case manager testified that, in their opinions, termination was in the
children’s best interests. See A.D.S., 987 N.E.2d at 1158 (noting that the
recommendation of a case manager or child advocate to terminate parental
rights, in addition to evidence that the conditions resulting in removal will not
be remedied, is sufficient to show that termination is in the child’s best
interests). In short, the evidence supports the trial court’s determination that
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termination of the parent-child relationship was in the best interests of the
children.6
Conclusion
[30] The trial court’s conclusion that the conditions that led to the removal of the
children would not be remedied was supported by sufficient evidence, as was
the trial court’s conclusion that the continuation of the parent-child relationship
posed a threat to the well-being of the children and that termination of the
parent-child relationship was in the best interests of the children. The parents’
arguments on appeal are little more than a request that we reweigh the
evidence, which we will not do. Accordingly, we affirm the order of the trial
court terminating both Mother and Father’s parental rights.
[31] Affirmed.
Najam, J., and Bradford, J., concur.
6
Father makes no argument that DCS failed to prove that a satisfactory plan for the care and treatment of
the children is in place, but even if he did, DCS presented evidence that the plan for the children was
adoption, and the current foster mother had expressed interest in adopting the children. This is sufficient. See
Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (holding that a plan
for adoption was a satisfactory plan for the care and treatment of the children even though there was not yet a
specific family in place to adopt the children).
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