MEMORANDUM DECISION
Oct 19 2015, 9:52 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 ATTORNEY FOR APPELLEE
Julianne L. Fox Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary October 19, 2015
Termination of the Parent-Child Court of Appeals Case No.
Relationship of T.N., H.N., and 87A01-1412-JT-550
S.W., Minor Children, and their Appeal from the Warrick Circuit
Mother, A.N., Court
A.N., The Honorable Jill Marcum, Special
Judge
Appellant-Respondent,
Lower Court Cause Nos.
87C01-1403-JT-49
v. 87C01-1403-JT-50
87C01-1403-JT-51
Indiana Department of Child Services,
Appellee-Petitioner,
Vaidik, Chief Judge.
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Case Summary
[1] A.N. (“Mother”) appeals the termination of her parental rights to her three
children. She argues that the trial court erred in denying her motion to
continue the termination hearing and that there is insufficient evidence to
support the trial court’s termination order. Because Mother was present in
court when the hearing was scheduled but voluntarily moved to Tennessee
shortly before it was held, the trial court did not err in denying Mother’s
motion. Further, Mother’s eleven-year history with DCS, in combination with
her current failure to comply with the trial court’s order regarding illegal drug
use, visitation, employment, and housing, leads us to conclude that there is
sufficient evidence to support the termination order. We affirm.
Facts and Procedural History
[2] Twenty-nine-year-old Mother is the parent of a twelve-year-old son, T.N., a
seven-year-old daughter, H.N., and a six-year-old daughter, S.W. Mother has
an eleven-year history with DCS, which includes substantiations of neglect of
T.N. in 2003, 2004, 2005, and of all three children in 2009.
[3] In June 2012, DCS received a report alleging that Mother’s home was
“disgusting,” and her children were not properly supervised. Intake Officer’s
Report of Preliminary Inquiry and Investigation, DCS Exhibit 1.1 When a DCS
1
We note that the court reporter has failed to paginate approximately 500 pages of exhibits, which are
contained in two volumes and has failed to include an accurate index of the exhibits as required by Indiana
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family case manager arrived at the scene, she noticed that the home contained
flies, rotting food, rodent feces, a raw piece of chicken on a mattress in the
living room, and dirty dishes on the bathroom floor. S.W. had recently been
seen running naked through the trailer park where the family lived, and H.N.
needed stitches after climbing through a window and falling on broken glass.
All of the children were covered in dirt and did not appear to have recently
bathed. Mother refused a drug screen and explained that it would be positive
for marijuana. Mother’s partner, L.P., who lived with the family, also refused a
drug screen and explained that it would be positive for cocaine and marijuana.
[4] Mother was charged with two counts of neglect of a dependent, one as a Class
D felony and one as a Class C felony. Two days later, DCS filed a petition
alleging that the three children were children in need of services (CHINS).
Following a fact finding hearing in August 2012, the trial court adjudicated the
children to be CHINS. Following a dispositional hearing, on September 5,
2012, the trial court ordered Mother and her partner to complete a parenting
assessment; submit to random drug tests within one hour of request; refrain
from using illegal substances; maintain a safe, stable, and clean living
environment; visit regularly with children; complete a mental health evaluation
and follow all recommendations; and cooperate with service providers and
follow their recommendations. Mother, however, failed to comply with the
Appellate Rule 29(A). This failure to comply with the appellate rules has impeded our review of and citation
to the record.
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court’s order, including a provision that she address her previous diagnosis of
ADHD and bi-polar disorder to better understand her children’s mental health
needs.
[5] In January 2014, DCS reported that Mother continued to be noncompliant and
that she was homeless and unemployed. On March 17, 2014, DCS filed a
petition to terminate Mother’s parental rights. The termination hearing was
originally scheduled for June 17, 2014. Mother was present in court that day
when the trial court rescheduled the hearing for August 18. By August,
however, Mother and her partner had moved to Tennessee, and Mother failed
to attend the termination hearing. Mother requested a continuance, which the
trial court denied.
[6] Testimony at the hearing revealed that Mother completed a mental health
evaluation but failed to follow through with recommendations for individual
therapy and parenting classes. From February 2013 through November 2013,
Mother had seventeen urine drug screens that tested positive for a variety of
drugs, including THC, amphetamines, methamphetamine, cocaine, bath salts,
and pentanoic acid.2 On some days, Mother refused to submit to urine drug
screens.
2
Pentanoic acid is a synthetic cannabinoid compound. See www.ameritox.com/k2-spice-drug-test-synthetic-
marijuana-urine-drug-testing/ (last visited October 7, 2015).
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[7] In addition, Mother failed to consistently visit her children. After DCS received
a report that Mother had fondled H.N. during an unsupervised visit, and that
this behavior had occurred on several occasions, Mother’s visits were ordered to
be supervised.3 In July 2014, Mother informed DCS that she was moving to
Tennessee and would not be back to Indiana for visits. Mother also failed to
demonstrate stable employment and housing. Specifically, Mother has lived
with her mother, with a family friend, in a motel, and on a park bench.
[8] Testimony about the children revealed that T.N. exhibits inappropriate sexual
behaviors, including taking off his clothes in front of his sisters and foster
siblings and kissing his five-year-old foster sister. Psychological evaluations
revealed that T.N. suffers from autism, ADHD, an anxiety disorder, an
undersocialized aggressive behavior disorder, mixed specific learning problems,
and multiple forms of child abuse. Mother failed to understand her son’s
mental health issues, and indicated to his DCS case manager that he might
“just [be] a pervert.” Tr. p. 110. At the time of the termination hearing, T.N.
had been removed from his foster home and placed in a facility.
3
In this regard, an August 30, 2013, DCS progress report stated as follows:
There have been concerns of sexual abuse between [Mother] and the girls. In addition,
both [T.N.] and [H.N.] have been sexually acting out at the foster home. [H.N.] was
licking her Barbie dolls’ “private parts” and stated she was having sex with the doll. She
went on to say that “that was how Mommy did it.”
Progress Report, DCS Exhibit 1.
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[9] As for the girls, H.N. was diagnosed with ADHD, undersocialized aggressive
behavior disorder, post-traumatic stress disorder, reactive attachment disorder,
intellectual development disorder, a learning disorder, and multiple forms of
child abuse. Similarly, S.W. has been diagnosed with ADD, neglect, physical
and sexual abuse, and academic delay. Her assessment reveals that she has
been sexually victimized by her siblings and has experienced issues with sleep
and waking up at night, which could indicate the start of post-traumatic stress
symptoms. At the time of the termination hearing, both girls lived with the
same foster family.
[10] Also at the hearing, Court-Appointed Special Advocate (CASA) Linda O’Neill
testified that she was “impressed by [] the amount of services that were offered
to help [Mother] overcome her situation that she was in at the time. She was
given plenty of opportunities to improve her situation.” Id. at 41. O’Neill
further testified that the plan for the care of the children was adoption and that
adoption was in the children’s best interests. DCS case worker Nichole
Baldwin testified that termination was in the children’s best interests.
[11] Following the hearing, the trial court issued an ordering terminating Mother’s
parental relationships with all three children on October 16, 2014. Mother
appeals.
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Discussion and Decision
[12] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
termination of that right when the parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 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.
[13] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id.
[14] A petition to terminate parental rights must allege:
(A) that one (1) of the following is true:
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(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:
(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.
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Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K.. 989 N.E.2d at 1231.
[15] Here, Mother first argues that the trial court erred in denying her motion for a
continuance. She further argues that there is insufficient evidence to support
the termination of her parental rights. Specifically, she contends that there is
insufficient evidence that 1) there is a reasonable probability that the conditions
that resulted in her children’s removal or the reasons for placement outside the
parent’s home will not be remedied; 2) termination is in her children’s best
interests; and 3) there is a satisfactory plan for the children’s care and treatment.
1. Motion for a Continuance
[16] Mother first argues that the trial court abused its discretion in denying her
motion for a continuance. Specifically, Mother claims that although she was
“present when the hearing was set, counsel’s request for the continuance should
have been granted as Mother had been present for the other CHINS hearings
and did not have a history of failures to appear on the chronological case
summaries.” Appellant’s Br. p. 6. Mother further explains that she simply
lacked transportation to the hearing from Tennessee.
[17] The decision to grant or deny a motion for a continuance rests within the sound
discretion of the trial court. Rowlett v. Vanderburgh Cnty. OFC, 841 N.E.2d 615,
619 (Ind. Ct. App. 2006), trans. denied. We will reverse the trial court only for
an abuse of that discretion. Id. An abuse of discretion may be found in the
denial of a motion for a continuance when the moving party has shown good
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cause for granting the motion. Id. However, no abuse of discretion will be
found when the moving party has not demonstrated that he or she was
prejudiced by the denial. Id. There is always a strong presumption that the trial
court properly exercised its discretion. Elmore v. State, 657 N.E.2d 1216, 1218
(Ind. 1995). The party seeking a continuance must also show that he or she is
“free from fault.” Danner v. Danner 573 N.E.2d 934, 937 (Ind. Ct. App. 1991),
trans. denied.
[18] Here, our review of the evidence reveals that Mother was aware of the hearing
date and had counsel to represent her. She nevertheless chose to move to
Tennessee shortly before the hearing. We agree with the State that “Mother
knew that when she moved to Tennessee that she would have difficulty
attending [the] hearing and staying a part of [her] [c]hildren’s lives, yet she
chose to do so anyway.” Appellee’s Br. p. 15. We further note that all of the
witnesses were ready to testify on the day of the hearing. Based on these facts,
and in light of the strong presumption that the trial court properly exercised its
discretion, the trial court did not abuse its discretion in denying Mother’s
motion for a continuance.
2. Conditions Remedied
[19] Mother next argues there is insufficient evidence that there is a reasonable
probability that the conditions that resulted in her children’s removal will not be
remedied. In determining whether the conditions that resulted in a child’s
removal or placement outside the home will not be remedied, we engage in a
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two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify
the conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions, and balancing any recent improvements
against habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. In so doing, trial courts have
discretion to weigh a parent’s prior history more heavily than efforts made only
shortly before termination, and courts may find that a parent’s past behavior is
the best predictor of his or her future behavior. Id.
[20] Here, our review of the evidence reveals that Mother, who has an eleven-year
history with DCS, failed to follow the trial court’s order regarding mental
health treatment, continued to use illegal drugs, told DCS she was moving to
Tennessee and would not return for visits with her children, and failed to obtain
stable employment and housing. In addition, all three children have multiple
diagnoses, including T.N.’s inappropriate sexual behaviors, which Mother fails
to understand. Based on this evidence, the trial court’s conclusion that there
was a reasonable probability that the conditions resulting in the children’s
removal would not be remedied is not clearly erroneous.
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3. Best Interests
[21] Mother also contends that there is insufficient evidence that termination of her
parental rights was in her children’s best interests. In determining what is in a
child’s best interests, the trial court must look to the totality of the evidence. In
re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In so
doing, the trial court must subordinate the interests of the parent to those of the
child. Id. The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Id. Additionally, a child’s need for
permanency is an important consideration in determining the best interests of a
child, and the testimony of service providers may support a finding that
termination is in the child’s best interests. In re A.S., 924 N.E.2d 212, 224 (Ind.
Ct. App. 2010), trans. dismissed.
[22] Here, both the DCS caseworker and the CASA testified that terminating
Mother’s parental rights is in the children’s best interests. In addition, the
evidence presented showed that Mother was not able to provide for her
children’s needs and to provide them with the necessary stability and
permanency. At the time of the hearing, Mother was unemployed and did not
have adequate stable housing for her children. In addition, Mother continued
to test positive for controlled substances and failed to follow the
recommendations of mental health professionals.
A parent’s historical inability to provide a suitable environment along with the
parent’s current inability to do the same supports a finding that termination of
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parental rights is in the best interests of the children. In re A.P., 981 N.E.2d 75,
82 (Ind. Ct. App. 2012). Here, DCS has proven by clear and convincing evidence
that terminating Mother’s parental relationship with her three children is in the
children’s best interests.
4. Satisfactory Plan
[23] Last, Mother contends that there is insufficient evidence of a satisfactory plan
for the care and treatment of her children. Indiana courts have traditionally
held that for a plan to be satisfactory for the purposes of the termination statute,
it need not be detailed so long as it offers a general sense of the direction in
which the child will be going after the parent-child relationship is terminated.
In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied. A plan to
attempt to find suitable parents to adopt the child is satisfactory. Id. There
need not be a guarantee that a suitable adoption will take place, only that DCS
will attempt to find a suitable adoptive parent. Id. Here, the DCS caseworker
testified that the plan for the children is adoption. This is sufficient evidence of
a satisfactory plan for children’s care and treatment, and the trial court’s
judgment is not clearly erroneous.
[24] Affirmed.
Robb, J., and Pyle, J., concur.
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In the Matter of the Involuntary Termination of the Parent-Child Relationship of T.N., H.N., and S.W., Minor Children, and their Mother, A.N., A.N. v. Indiana Department of Child Services (mem. dec.)
Combined Opinion