In the Matter of the Termination of the Parent-Child Relationship of M.F., Mother, and L.T.F., Child, M.F. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 28 2015, 10:13 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
Russell Dean Bailey Gregory F. Zoeller
Demotte, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Miller
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 28, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of M.F., Mother, and L.T.F., 37A04-1410-JT-496
Child, Appeal from the
Jasper Circuit Court
M.F.,
The Honorable John D. Potter,
Appellant-Respondent, Judge
Cause No. 37C01-1401-JT-14
v.

Indiana Department of Child
Services,
Appellee-Petitioner.

Kirsch, Judge.

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[1] M.F. (“Mother”) appeals the juvenile court’s order terminating her parental

rights to her child, L.T.F. (“Child”). She raises the following two restated

issues on appeal:

I. Whether the juvenile court abused its discretion in denying her
motion to dismiss the termination proceedings on the basis that
Mother did not have legal counsel during the underlying Child in
Need of Services case; and
II. Whether sufficient evidence was presented to support the
termination of Mother’s parental rights.
[2] We affirm.

Facts and Procedural History
[3] On January 7, 2013, the Indiana Department of Child Services (“DCS”)

received a report concerning the welfare of Child, who was two months old. A

few days before, Mother and her then-boyfriend, J.L., were traveling with Child

from Wisconsin to Florida when their RV broke down in Jasper County,

Indiana. J.L. had a diabetic seizure and had been admitted into Jasper County

Hospital on January 4, 2013. While J.L. was in the hospital, Mother wanted to

stay with him, so she gave Child to a nurse working at the hospital to take care

of for a couple of days. Mother told the nurse that she had no money for

formula or diapers for Child.

[4] DCS family case manager (“FCM”) Donald Amadei investigated the

allegations on January 8, 2013, but was unable to locate Mother. Mother was

eventually located on January 11 at a BP station in Remington, Indiana, where

she, J.L., and Child were living in the RV. At that time, FCM Amadei found

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 that there was sufficient formula, diapers, and food to care for Child. On

January 15, 2013, FCM Amadei returned for a follow-up visit to the BP station

and found the RV was being impounded and Mother was not present. An

employee of the BP station informed FCM Amadei that Child had been left in

the care of a woman living in Remington. FCM Amadei located Child at a

residence in a Remington trailer park. Mother had given temporary care and

control of Child to a woman who lived there until she and J.L. could “get on

their feet.” Appellant’s App. at 60. Child was not familiar with the caretaker,

and FCM Amadei observed that the residence was filled with cigarette smoke

and a number of people were coming in and out. Child was taken into the

custody of DCS and placed in a foster home.

[5] DCS filed a CHINS petition alleging that Mother was unable to meet Child’s

basic needs for shelter and safety, had left Child with strangers until she was

back on her feet, and that Mother had an open DCS case in Wisconsin

regarding Child’s health and lack of medical care. An initial hearing was held

on the petition; Mother was present. After being advised of her rights,

including the right to be represented by counsel, Mother told the juvenile court

that she intended to hire private counsel. On March 1, 2013, Child was

adjudicated a CHINS after Mother admitted the allegations in the petition. A

dispositional hearing was held, and Mother was ordered to participate in

services recommended by DCS, including: (1) complete a parenting and family

functioning assessment; (2) attend twice weekly visitations with Child; (3)

complete a clinical assessment and follow all recommendations; (4) maintain

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 stable housing and employment for six consecutive months; and (5) develop

and implement a workable budget. On January 30, 2014, DCS filed a petition

to terminate Mother’s parental rights.1 Mother filed a motion to dismiss the

termination proceedings, which the juvenile court denied. An evidentiary

hearing on the petition was held on August 22, 2014.

[6] During the hearing, the following testimony and evidence was presented.

There were multiple instances of domestic and other violence during the

underlying case. On March 21, 2013, Mother and J.L. threatened their

apartment manager with a baseball bat and tire iron when they were told they

needed to move out. On March 27, 2013, Mother contacted police and

reported that J.L. had battered her in their vehicle. On May 18, 2013, Mother

was involved in a domestic dispute with J.L., and they were both arrested for

disorderly conduct. One of Mother’s home-based case workers witnessed two

incidents between Mother and J.L. where the police had to be called. On April

22, 2014, the police were called because Mother and J.L. threatened their

landlord when they were evicted from their apartment. On May 22, 2014,

Mother called the police to report that she had been battered by J.L. When the

police arrived, J.L. was no longer there, but Mother had abrasions on her chest,

right arm, and right leg and a swollen eye. When J.L. was located, he had a

large scratch on his arm and was subsequently arrested. Mother broke up with

1
During the pendency of this case, it was determined via paternity testing that J.O. was the biological father
of Child. His parental rights were also involuntarily terminated concurrently with Mother’s parental rights.
However, J.O. does not join in this appeal.

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 J.L. after that incident and moved to a domestic violence shelter. However,

Mother testified that there were times in the past where she separated from him

and then changed her mind.

[7] At the dispositional hearing in March 2013, Mother was referred to home-based

therapy to address issues of domestic violence and home-based management to

address her instability issues. Initially, Mother was not compliant with these

services. One of the home-based service providers attempted to contact Mother

to schedule services and was unable to reach her. On April 30, 2013, Mother

completed a parenting assessment and a mental health assessment, which both

recommended that she: (1) participate in individual therapy to address

symptoms of anxiety, depression, mood swings, and coping mechanisms; (2)

receive case management to help in finding and maintaining stable housing and

learning parenting skills; (3) continue supervised visitation with Child; and (4)

complete a medication evaluation for anti-anxiety medication and take all

prescribed medications. When Mother began working with the home-based

service providers, she did well with the parenting curriculum, but had difficulty

maintaining stable housing and employment. As of January 2014, Mother had

failed to participate in home-based therapy as recommended, but began

scheduled appointments later that month. From January 13, 2014 through

June 25, 2014, Mother had eighteen scheduled appointments; she cancelled

eight. In June 2014, Mother was continuing with home-based services, and

while she was open to parenting education, she still struggled with maintaining

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 employment. Mother never completed a psychiatric evaluation for medication

and remained inconsistent in maintaining weekly contact with DCS.

[8] Mother attended seventy out of ninety of the scheduled visits with Child during

the underlying case. At the visits, Mother interacted appropriately with Child,

but was easily distracted by her cell phone and other issues going on in her life.

Mother also used inappropriate language during visits and had to be redirected

several times for doing so. Between January 2014 and June 2014, Mother

began having transportation issues, and struggled to make it to visitations.

During that period of time, she missed seven out of twenty-two scheduled

appointments.

[9] During the underlying case, Mother had multiple jobs and residences. Between

April 2013 and August 2013, she was employed at four different locations,

including Denny’s, a construction job, an Italian restaurant, and Pizza Hut.

From February 2014 until April 2014, Mother worked at Kokomo Cab, and in

May 2014, she began working at Allied Steel, but was let go the next month.

Shortly before the evidentiary hearing, Mother was hired at Subway and was

supposed to start work the day before the hearing, but was unable to do so

because she did not have the appropriate clothes. Mother also testified that, at

the time of the hearing, she was planning to begin employment at Chipotle, but

had not yet undergone the background check or started working. She had ten

different jobs during the underlying case.

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[10] Mother had fourteen different residences during the pendency of the underlying

case. These included living in an RV at a BP station, a Tuffy’s parking lot, the

AOK campground, the First Assembly Church parking lot, and on her boss’s

property. She also lived at a YMCA shelter, a domestic violence shelter in

Kokomo, and with a family she met at church. Mother had been evicted from

two different places since January 2013 and was kicked out of a domestic

violence shelter for threatening another shelter resident. At the time of the

hearing, Mother was living with a new boyfriend, A.S., in a trailer. She had

only been living with him for about a month and had known him for about

three or four months. Mother and A.S. lived in a two-bedroom trailer that had

no working electricity at the time of the hearing due to a past tenant not paying

the bill. A home-based case manager testified that the trailer lacked a screen in

the front door, had plywood on the floor which was unsafe for Child, was dirty,

and had fleas from animals. Mother testified that she and A.S. split the $275

per month rent equally.

[11] At the time of the hearing, Child had been removed from Mother’s care for

approximately twenty months. In that time, Mother’s DCS case manager

testified that Mother had made no progress in the goals given to her by DCS

and that there was no evidence that Mother would change her ways. Tr. at 25-

26. She further testified that Mother had failed to show that she had the ability

to provide Child with a safe and stable home environment. Id. at 26. The DCS

case manager also stated she believed that termination was in the best interests

of Child because Child had a significant bond with the foster parents and

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 needed permanency, which the foster family could provide. Id. The court

appointed special advocate (“CASA”) also recommended termination and

testified that, although Mother loved Child, she had made no real progress and

could not provide Child with a stable or permanent home. Id. at 86. The DCS

plan for Child was adoption. On September 22, 2014, the juvenile court issued

its findings, conclusions, and order terminating Mother’s parental rights.

Mother now appeals.

Discussion and Decision

I. Motion to Dismiss
[12] Mother argues that the juvenile court abused its discretion when it denied her

motion to dismiss the termination proceedings. She specifically contends that

the juvenile court should have granted her motion to dismiss because she did

not have counsel during the CHINS proceedings. Mother claims that she did

not knowingly or voluntarily waive her right to counsel during the CHINS

proceedings, and therefore, her due process rights were violated.

[13] “When the State seeks to terminate the parent-child relationship, it must do so

in a manner that meets the requirements of due process.” In re G.P., 4 N.E.3d

1158, 1165 (Ind. 2014) (quotations omitted). “Likewise, due process

protections at all stages of CHINS proceedings are vital because every CHINS

proceeding has the potential to interfere with the rights of parents in the

upbringing of their children.” Id. (quotation omitted). Our Supreme Court has,

therefore, urged that the utmost caution should be used when “interfering with

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 the makeup of a family and entering a legal world that could end up in a

separate proceeding with parental rights being terminated.” In re K.D. & K.S.,

S.S. v. Ind. Dep’t of Child Servs., 962 N.E.2d 1249, 1259 (Ind. 2012). Thus, in

termination cases when it is argued that a parent’s due process rights were

violated as to the appointment of counsel in the CHINS proceedings, we

balance the following three factors: (1) the private interests affected by the

proceeding; (2) the risk of error created by the State’s chosen procedure; and (3)

the countervailing governmental interest supporting use of the challenged

procedure. In re G.P., 4 N.E.3d at 1165-66. In the present case, both the private

and governmental interests at issue are substantial. We must, therefore,

determine the risk of error created when counsel was not appointed during the

CHINS proceedings.

[14] Mother relies heavily on In re G.P. in her argument that her due process rights

were violated when she was not appointed counsel during the CHINS

proceedings. However, that case is easily distinguished from the present case.

There, the mother first waived counsel and admitted the CHINs allegations;

however, in a later CHINS hearing, she requested the appointment of legal

counsel in her CHINS case. 4 N.E.3d at 1160. After it determined that the

mother was entitled to counsel, the trial court said it would appoint her counsel,

but never did so. Id. Later, after the termination petition was filed, and the

mother again requested that counsel be appointed, the trial court appointed her

a public defender. Id. at 1161. The mother’s public defender filed a motion to

dismiss, which was denied by the trial court, and the mother’s parental rights

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 were eventually terminated. Id. Our Supreme Court found that the mother was

denied due process because statutory law requires that an “indigent parent who

requests a court-appointed attorney in a CHINS proceeding and is found by the trial

court to be indigent” must be appointed counsel. Id. at 1163 (emphasis added).

Because the mother had requested that counsel be appointed and was told she

would receive appointed counsel, the Supreme Court determined that the trial

court erred in not appointing counsel until later in the termination proceedings.

Id. at 1166.

[15] The present case is substantially different. Here, the record is clear that Mother

was advised of her rights including the right to counsel during the initial hearing

in the CHINS case. Appellant’s App. at 16. At that time, she told the juvenile

court that she intended to hire private counsel. Id. Additionally, unlike the

mother in In re G.P., there is nothing in the record to indicate that, after waiving

the appointment of counsel, Mother ever changed her mind and ever requested

the appointment of counsel. Further, there was no indication that the juvenile

court ever denied her the appointment of counsel at any point during the course

of the proceedings. Our Supreme Court made it clear that when an “indigent

parent . . . requests a court-appointed attorney in a CHINS proceeding and is found

by the trial court to be indigent[,]” the parent must be appointed counsel. In re

G.P., 4 N.E.3d at 1163 (emphasis added). Here, the record does not reflect that

Mother ever requested appointed counsel, and therefore, she cannot show a due

process violation. Mother cannot indicate anywhere in the record where she

was not advised of her right to counsel when she should have been, where she

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 requested appointed counsel and was not appointed such, or where she

requested but was denied appointed counsel. We conclude that she has not

shown a due process violation, and the juvenile court did not abuse its

discretion in denying her motion to dismiss the termination proceedings.

II. Sufficient Evidence
[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

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

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 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

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

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 (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 only contends that DCS failed to

present sufficient evidence that the conditions that resulted in Child being

removed would not be remedied. She asserts that, although she was initially

not compliant with services, she became more compliant over time and

attended counseling and visitations. She also concedes that there were a few

incidents of domestic violence involving J.L. during the CHINS case, but by the

time of the hearing, she was no longer with him. Mother further claims that she

attended her therapy and was making progress toward her case plan objectives

at the time of the hearing.

[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

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 ‘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

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 care based

on Mother’s inability to meet Child’s basic needs for shelter and safety due to

the fact that they were living in an RV that was recently impounded and

Mother had left Child in the care of strangers until she could get back on her

feet. The case, therefore, began because of instability in Mother’s life and lack

of housing and employment, which continued throughout the duration of the

case. After Child was removed due to being left with strangers and Mother’s

admitted inability to care for Child at the time, Mother’s inconsistent living

situation was never remedied and she had fourteen different housing

arrangements during the underlying proceedings.

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[23] Pursuant to the dispositional order, Mother was ordered to maintain stable

housing and employment for six consecutive months. During the pendency of

the case, Mother’s housing included living in an RV at a BP station, a Tuffy’s

parking lot, the AOK campground, the First Assembly Church parking lot, and

on her boss’s property. She also lived at a YMCA shelter, a domestic violence

shelter in Kokomo, and with a family she met at church. Mother was evicted

from two different places and was kicked out of a domestic violence shelter for

threatening another shelter resident. At the time of the hearing, Mother was

living with a new boyfriend, A.S., in a trailer and had only been living with him

for about a month, after knowing him for about three or four months. The

home they were living in was a two-bedroom trailer that had no working

electricity and lacked a screen in the front door, had plywood on the floor

which was unsafe for Child, was dirty, and had fleas from animals.

[24] Mother’s employment during the underlying case was similarly inconsistent.

She had ten different jobs during pendency of the case, none of which lasted

more than a few months. At the time of the hearing, Mother was supposed to

have started a new job at Subway the day before, but she did not go because she

did not have the appropriate clothes. She also stated she was going to start a

second job, but had not yet undergone the background check. The evidence

presented, therefore, showed that Mother was not able to remedy the reasons

that resulted in the removal of Child from her care, her instability and inability

to meet the needs of Child.

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[25] Additionally, there was a history of domestic violence, which continued

throughout the underlying case. There were many incidents of domestic

violence and other violence reported concerning Mother and J.L. On two

different occasions, Mother and J.L. threatened a landlord when they were told

they were being evicted. The police were called several times by Mother on

reports of domestic violence by J.L. On one occasion, both Mother and J.L.

were arrested for disorderly conduct, and on at least one occasion, J.L. was

arrested for battering Mother. Mother was also asked to leave a domestic

violence shelter when she threatened another resident.

[26] There was also testimony that, although Mother attended visitations and

participated in home-based services, she was initially not compliant. The DCS

case worker assigned to Mother’s case testified that Mother complied with

services off and on, but made no progress toward the goals and objectives

established for her by DCS. 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.

[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

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 are merely a request for us to reweigh the evidence and judge the credibility of

the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at 265.

We affirm the juvenile court’s judgment.

[28] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

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