MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 14 2015, 9:53 am
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
Nathaniel S. Connor Gregory F. Zoeller
Winchester, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 14, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of J.M., Mother, and C.W., 68A01-1408-JT-342
Child, Appeal from the
Randolph Circuit Court
J.M.,
The Honorable Jay L. Toney, Judge
Appellant-Respondent, Cause No. 68C01-1311-JT-154
v.
Indiana Department of Child
Services,
Appellee-Petitioner.
Kirsch, Judge.
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[1] J.M. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her child, C.W. (“Child”). She raises two issues on appeal, which we
consolidate and restate as: whether sufficient evidence was presented to
support the termination of Mother’s parental rights.
[2] We affirm.
Facts and Procedural History
[3] On June 5, 2004, Child was born to Mother. K.B. was the legal father of Child
and voluntarily terminated his parental rights on December 11, 2013. V.W.
was Mother’s live-in boyfriend for approximately twenty-three years, including
at the time that Child was removed from the home; V.W. may also be the
biological father of Child.
[4] On March 15, 2012, Child and a sibling were removed from the care of Mother
by the Indiana Department of Child Services (“DCS”) based on allegations of
unsanitary and unsafe conditions in the home due to the presence of dog feces,
piles of trash, piles of laundry and dirty dishes, numerous electrical items in the
bathroom sink, and numerous holes in the bathroom wall. Additionally, there
were allegations that V.W. had sexually abused Child’s sibling. Child was
placed in foster care after removal from the home.
[5] On March 16, 2012, DCS filed a Child in Need of Services (“CHINS”) petition,
alleging unsanitary and unsafe living conditions, V.W.’s ownership of
unregistered guns, and V.W.’s threats of suicide if the children did not do what
V.W. wanted. On July 11, 2012, the juvenile court adjudicated Child to be a
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CHINS. On August 16, 2012, the juvenile court issued its dispositional order,
which, in relevant part, ordered Mother to participate in services and to:
maintain suitable, safe, and stable housing and keep home structurally sound,
sanitary, and safe; assist in formulating and enacting a plan to protect children
from abuse or neglect; actively participate in home-based counseling and
demonstrate positive results as a result; complete a parenting assessment and
successfully complete all recommendations developed as a result; attend all
scheduled visitations and comply with all visitation rules; and provide Child
with a “safe, secure, and nurturing environment that is free from abuse and
neglect and be an effective caregiver who possesses the necessary skills,
knowledge, and abilities to provide [Child] with this type of environment on a
long-term basis to provide [Child] with permanency.” Appellant’s App. at 37-38.
On November 20, 2013, DCS filed its petition to terminate Mother’s parental
rights. Evidentiary hearings were held on March 19 and 20, 2014 and April 14,
2014.
[6] During the hearing dates, the following testimony and evidence was presented.
Prior to Child’s removal, in February 2012, the family received home and
school based services through Centerstone, which were initially directed toward
the older children and later toward Child due to the behaviors of Child. DCS
became involved when it was reported that Child’s older sibling disclosed to her
therapist that V.W. sexually abused her. Before removal, Child interacted
poorly with peers, had boundary issues, lacked focus, failed to do her
homework, and had poor hygiene. Immediately after being placed in foster
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care, Child exhibited behaviors such as extreme tantrums, refusing to shower,
bed wetting, and urinating and defecating in her pants, even in public. Child’s
therapist attributed such behaviors to Child having experienced trauma while
living in Mother’s home and stated that Child had disclosed that V.W. watched
the children touch themselves or masturbate, the older siblings instructed Child
to masturbate, and Child would masturbate in front of her family members.
When Child was first removed, she was placed in foster care from March 15,
2012 to mid-August 2012. As she became more familiar with her foster home
and the foster parents’ routine, she was easier to direct, had better hygiene, and
completed her homework on time. Structure, discipline, and routine greatly
impacted her improvement.
[7] Supervised visits between Mother and Child began in April 2012, occurred in
Mother’s home, and included parenting instruction during the visits. Mother
would generally apply the instruction during the visit, but would not retain or
apply it to future visits. Sometimes after these supervised visits, Child’s
behavior would regress, but not significantly. However, in April 2013, the visits
became unsupervised, and Child’s behaviors again became severe and included,
throwing fits and screaming, stealing, kicking and hitting doors and walls,
picking her skin until she bled and wiping blood on the walls, spitting, pulling
her hair out, wetting the bed, and going to the bathroom in closets and other
inappropriate places. By mid-June 2013, the behaviors became so severe that
the foster parents had trouble finding babysitters.
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[8] During this time, Mother told Child that she knew where the foster parents
lived and could come over at any time. Foster mother saw Mother drive past
the house on several occasions, and one time, Mother parked in a parking lot
across the street from the foster home and was visible from Child’s room.
Because of this, Child would stare out the window and exhibit anxious
behaviors such as picking at her hair and skin.
[9] Throughout the CHINS case, Mother had several service providers who offered
parenting instruction to Mother. Early in the case, a service provider wanted
Mother to have additional parenting education instead of just during visitations.
Mother, however, claimed she would get additional education on her own.
Mother did not retain the instruction she received during the visitations, and
although she had an understanding of parenting, she was not able to apply what
she knew. Mother’s progress was inconsistent, and there was never any
resolution of the things that the service providers worked on with her. For
example, Mother was aware that Child was allergic to red dye in food and that
it adversely affected Child’s behavior, but Mother did not limit Child’s intake of
food containing red dye. Although Mother was informed about additional
parenting services, she refused to participate, citing work, visitations, and lack
of time. During visitation, Mother would not make time to help Child with her
homework and would often distract her. Additionally, although Mother knew
the rules, she did not apply them consistently and often fell back to old
behaviors.
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[10] In August 2013, Child returned to Mother for a trial home visit, which was
supported by several service providers because they believed that Mother
needed an opportunity to demonstrate if she could succeed with parenting
Child after participating in services for a year. Not long after the trial home
visit began, DCS was alerted that Child’s behaviors worsened, particularly at
school. Child was not able to function in a regular classroom and exhibited
behaviors such as rolling on the floor, picking off pieces of the bulletin board,
and scribbling violently on paper. During this time, Child lost weight, came to
school unkempt, often fell asleep in the classroom, and stole food and other
things from other children. Child also had bathroom issues, including spending
long periods of time in the restroom and wiping feces on the toilets and
restroom walls.
[11] On September 10, 2013, Child had a psychological evaluation, and she was
diagnosed with anxiety disorder not otherwise specified and disruptive disorder.
Child had previously been diagnosed with attention deficit disorder and was
taking medications for ADHD and anxiety. At the time of her evaluation, the
doctor did not see any signs that would cause him to believe that Child had
autism spectrum disorder.
[12] In late September 2013, the trial home visit with Mother ended out of concern
for Child’s well-being and safety. After her removal from Mother’s home, DCS
placed Child with a second foster family due to the original foster parents’ belief
they could no longer care for Child because of her anxiety about Mother’s visits
and driving by the foster home. Child lived continually in the second foster
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home until the time of the termination hearing. However, two days after she
first moved there, Child removed all her clothing and said, “Look at me,” and
at other times, she pulled down her pants and said, “Bite me.” Tr. at 130, 132.
Child also defecated in her hand and smeared feces “everywhere,” urinated
behind her bed, swore, and ignored people and talked over them. Id. at 131.
Child’s behaviors improved shortly after moving into her new foster home, and
these behaviors stopped by the end of December 2013. Child responds well to
the parenting style and structure of her foster home.
[13] When the trial home visit ended, the juvenile court ordered therapeutically
supervised visitation with Mother and Child. Amber Moody (“Moody”), a
therapist with Centerstone who supervised these visits, observed that Child had
very little attachment to Mother. Child did not show much excitement in
seeing Mother, there was little engagement during the visits, and Child was not
sad when the visits ended. Mother was not very welcoming and warm toward
Child and would sometimes fall asleep or be on her phone during the visits. As
the visitations progressed, Child still seemed estranged from Mother, and due to
this, Moody recommended that the visits be reduced due to lack of progress.
When Moody informed Mother, Mother did not ask why or request more
visitations.
[14] Barbara Bush (“Bush”), also from Centerstone, supervised seven visits with
Mother and Child. At one of these supervised visits, Child went to the
bathroom, locked herself in a stall, and would not unlock the door when Bush
asked her to do so. Bush observed Child over the stall partition to be having a
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bowel movement and inserting her fingers in her anus and wiping feces on the
rail in the stall. Bush described Child as being “zoned out.” Id. at 288. Both
Bush and Mother told Child to stop, but Child did not respond. Bush crawled
under the stall to get Child. Mother had little reaction to the situation and
asked to go outside to smoke.
[15] At the time of the termination hearing, Child had been removed from Mother’s
home for over two years, except for the seven weeks during the trial home visit,
and had not seen Mother for at least ten weeks prior to the hearing. Child had
been in two different foster homes and showed improvement in her behaviors
not long after moving into each one. Child’s behaviors worsened when Child
visited with Mother. The DCS plan for Child was adoption by her foster
parents. On July 9, 2014, the juvenile court issued its detailed findings,
conclusions, and order1 terminating Mother’s parental rights. Mother now
appeals.
Discussion and Decision
[16] We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental
rights. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When
reviewing a termination of parental rights case, we will not reweigh the
1
We commend the juvenile court for the thoroughness of its findings, which greatly aided in our appellate
review.
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evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence
and reasonable inferences that are most favorable to the judgment. Id.
Moreover, 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 B.J., 879 N.E.2d at 14.
[17] Here, in terminating Mother’s parental rights to Child, the juvenile court
entered specific findings and conclusions. When a trial court’s judgment
contains specific findings of fact and conclusions thereon, we apply a two-tiered
standard of review. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005). First, we determine whether the evidence supports the
findings, and second, we 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.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1156 (Ind. Ct. App. 2013), trans. denied.
[18] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution. In
re C.G., 954 N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are
not absolute and must be subordinated to the child’s interests when determining
the proper disposition of a petition to terminate parental rights. In re J.C., 994
N.E.2d 278, 283 (Ind. Ct. App. 2013). In addition, although the right to raise
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one’s own child should not be terminated solely because there is a better home
available for the child, parental rights may be terminated when a parent is
unable or unwilling to meet his or her parental responsibilities. Id.
[19] Before an involuntary termination of parental rights may occur, 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.
(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). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).
Moreover, if the court finds that the allegations in a petition described in section
4 of this chapter are true, the court shall terminate the parent-child relationship.
Ind. Code § 31-35-2-8(a) (emphasis added).
[20] Mother argues that DCS failed to prove the required elements for termination
by sufficient evidence. Specifically, Mother contends that DCS failed to present
sufficient evidence that the conditions that resulted in Child being removed
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would not be remedied. She asserts that the initial reasons for removal of Child
from the home have been remedied, and the only condition not remedied is
Child’s mental health issues, which were not evaluated and monitored
sufficiently by DCS prior to termination. Mother also argues that DCS failed to
present sufficient evidence that the continuation of the parent-child relationship
posed a threat to Child. She alleges that, because Child’s mental health issues
were not adequately and appropriately evaluated, any correlation between
Child’s behavior and Mother’s visits was “superficial.” Appellant’s Br. at 17.
Mother, therefore, claims that the juvenile court’s judgment was clearly
erroneous.
[21] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would be
remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what conditions
led to their placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (citing In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second
step, the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions and
balancing a parent’s recent improvements against “ ‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
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N.E.2d at 1231). “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. Although trial courts are required to give due
regard to changed conditions, this does not preclude them from finding that
parents’ past behavior is the best predictor of their future behavior. Id.
[22] Here, the evidence showed that Child was removed from Mother’s home based
on allegations of unsanitary and unsafe conditions in the home due to the
presence of dog feces; piles of trash, laundry, and dirty dishes; numerous
electrical items in the bathroom sink; and many holes in the bathroom wall.
There were also allegations that V.W. had sexually abused Child’s sibling.
Additionally, before removal, services were offered to Child due to reported
behaviors of interacting poorly with peers, having boundary issues, lacking
focus, failing to do her homework, and having poor hygiene.
[23] Although Mother moved away from V.W. and into a home that was clean and
appropriate for children during the underlying proceedings, Child’s main need
was structure. Mother was provided services during the CHINS proceedings,
but was unable to retain or apply the instruction given to future visits with
Child. Child’s behavior improved significantly when subjected to the structure
and routine of her foster homes, but would worsen after visits with Mother,
particularly during the seven-week trial home visit. The importance of
parenting instruction was highlighted early in the underlying case, and Mother
was provided with parenting instruction from at least four service providers.
Despite being told to obtain more education than what was provided during
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visitations, Mother refused offered help from the service providers, instead
indicating she wished to get it on her own. Mother failed to address her
parenting issues.
[24] Mother’s ability to parent Child did not improve even with the instruction given
by the service providers. During visitations with Child, Mother did not show
any progress and was resistant to the instruction. Additionally, Mother’s
relationship with Child did not improve. Mother was not warm and welcoming
to Child and would sometimes fall asleep during visits or be on her phone.
Child showed very little attachment to Mother, and the two were not bonded.
[25] Mother’s argument focuses on Child’s emotional and psychological issues and
her contention that DCS failed to sufficiently evaluate and monitor these issues
prior to termination. The evidence showed that Child’s behaviors were
developed while in Mother’s care and worsened when Mother had contact with
Child. Such behaviors were being dealt with and corrected when Child was in
foster care and away from Mother’s care and custody. Based on the evidence
presented, we conclude that the juvenile court did not err in finding that there
was a reasonable probability that the conditions that resulted in the removal
and the reasons for continued placement of Child outside Mother’s home
would not be remedied.
[26] Mother also contends that DCS failed to prove by clear and convincing
evidence that there was a reasonable probability that the continuation of the
parent-child relationship posed a threat to the well-being of Child. However,
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we need not address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is
written such that, to properly effectuate the termination of parental rights, the
juvenile court need only find that one of the three requirements of subsection
(b)(2)(B) has been established by clear and convincing evidence. A.D.S., 987
N.E.2d at 1156. Therefore, as we have already determined that sufficient
evidence supported the conclusion that the conditions that resulted in the
removal of Child from Mother’s care would not be remedied, we will not
address any argument as to whether sufficient evidence supported the
conclusion that the continuation of the parent-child relationship posed a threat
to the well-being of Child. Additionally, Mother has a section in her brief
contending that the “juvenile court’s judgment violated [her] Fourteenth
Amendment rights.” Appellant’s App. at 19. Mother’s argument, however,
focuses on the basis for the termination of her parental rights and not a separate
due process violation. We, therefore, treat her argument as a part of her
challenge to the sufficiency of the evidence and do not separately address it.
[27] We 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 716, 722 (Ind. Ct. App. 1997)
(quoting In re Egly, 592 N.E.2d 1232, 1235 (Ind. 1992)). Based on the record
before us, we cannot say that the juvenile court’s termination of Mother’s
parental rights to Child was clearly erroneous. Further, Mother’s arguments
are merely a request for us to reweigh the evidence and judge the credibility of
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the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at 265.
We therefore affirm the juvenile court’s judgment.
[28] Affirmed.
Friedlander, J., and Crone, J., concur.
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In the Matter of the Termination of the Parent-Child Relationship of J.M., Mother, and C.W., Child, J.M. v. Ind. Dept. of Child Services (mem. dec.)
Combined Opinion