C.N. and G.N. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 26 2016, 8:52 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly S. Lytle Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana

Robert J. Henke
Deputy Attorney General

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

C.N. and G.N., October 26, 2016
Appellant-Defendant, Court of Appeals Case No.
27A04-1602-JT-438
v. Appeal from the Grant Superior
Court
Indiana Department of Child The Honorable Dana J.
Services, Kenworthy, Judge
Appellee-Plaintiff. Trial Court Cause No.
27D02-1504-JT-10

Altice, Judge.

Case Summary

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[1] C.N. (Mother) and G.N. (Father) (collectively, Parents) appeal the involuntary

termination of their parental rights to D.N. (Child). Parents challenge the

sufficiency of the evidence supporting the termination of their rights.

[2] We affirm.

Facts & Procedural History

[3] This family first came to the attention of the Department of Child Services

(DCS) in 2009, when Mother’s daughter from a prior relationship, H.M.

(Sister), was adjudicated a Child in Need of Services (CHINS) due to parental

neglect.1 That CHINS case was closed in November 2010 and resulted in

reunification.

[4] Meanwhile, Child was born in October 2010. On July 5, 2012, DCS removed

Child from Parents’ care and filed a petition alleging that Child was a CHINS

after Child was treated at a local hospital for a broken femur and Parents were

unable to provide a plausible explanation as to how the injury occurred. Father

was subsequently charged with class B felony battery resulting in serious bodily

injury for causing Child’s injury, and he ultimately pled guilty and was

sentenced to six years, with one year executed and the remainder suspended.

1
Sister is not a subject of this appeal. Accordingly, we discuss the proceedings involving Sister only to the
extent they are relevant to the termination of Parents’ rights to Child.

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[5] On August 2, 2012, while the CHINS petition remained pending, Child was

returned to Mother’s care on the conditions that Father was to have no contact

with Child and Mother was to comply with a safety plan. Parents both

admitted that Child was a CHINS, and he was adjudicated as such on August

31, 2012. On September 27, 2012, the trial court held a dispositional hearing

and issued its dispositional decree ordering Parents to participate in services.

[6] On May 1, 2013, Sister was removed from Parents’ home due to allegations of

child abuse and neglect, and she was subsequently adjudicated a CHINS. On

May 9, 2013, just days after Sister’s removal, Child was also removed and

placed in foster care after a DCS caseworker discovered Father at Mother’s

home while Child was present, in violation of the CHINS court’s orders.

Neither Child nor Sister has been returned to Parents’ care.

[7] At a periodic case review on August 22, 2013, the CHINS court found that

Parents were in compliance with Child’s case plan, but had not enhanced their

ability to fulfill their parental obligations.2 Accordingly, Child was continued in

foster care. At a permanency hearing on January 30, 2014, the CHINS court

found that Parents were no longer consistently complying with court-ordered

2
We have not been provided with transcripts of the hearings in the underlying CHINS cases, and although
the CHINS court’s orders were submitted into evidence, they contain few factual details. It is therefore
difficult for us to elaborate on which services Parents were or were not participating in at the time each
specific CHINS order was entered. Instead of attempting to do so, we will summarize the evidence presented
at the TPR hearing below.

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 services. At that time, the CHINS court approved a permanency plan of

termination of parental rights and adoption.

[8] On April 24, 2014, however, the CHINS court found that Parents were again

compliant with Child’s case plan and had enhanced their ability to fulfill

parental obligations. Child was continued in foster care, but the CHINS court

authorized increased supervised visits in Parents’ home. Approximately one

month later, the CHINS court changed the permanency plan back to

reunification.

[9] Unfortunately, the improvement was short-lived. On September 25, 2014,

following a periodic case review, the CHINS court found that Parents had not

complied with Child’s case plan, cooperated with DCS, or enhanced their

ability to fulfill parental obligations, and that although Parents had visited with

Child, they had not done so consistently. By the same order, the CHINS court

restricted Parents’ visitation with Child to one supervised visit per month and

changed the permanency plan to termination of parental rights.

[10] At a February 26, 2015 periodic case review, the CHINS court again found that

Parents had not complied with Child’s case plan and had not enhanced their

ability to fulfill their parental obligations. At a May 19, 2015 permanency

hearing, the court found that Parents had not obtained suitable housing and

their participation in court-ordered services had been minimal.

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[11] DCS filed its termination petition on April 6, 2015. 3 A fact-finding hearing was

held on July 23, August 13, September 15, and October 7, 2015, at which DCS

presented evidence that Parents had not fully participated in the court-ordered

services and had benefitted only marginally, if at all, from the services in which

they did engage. Specifically, the CHINS court had ordered Parents to

participate in home-based case management and therapy. For the five months

preceding the termination hearing, Parents worked with home-based case

manager Tina Caines. Caines testified that Parents refused to work on creating

a budget and had not met their goal of maintaining stable housing.

Additionally, Parents told Caines that they were unable to afford food and they

had to use a food bank as recently as one month before the termination hearing.

According to Caines, Parents were cooperative to the extent that they would

attend sessions with her; however, they did not complete the tasks required by

DCS and have indicated that they do not need help and can handle things

themselves.

[12] Parents were also referred to home-based therapist Wendy King-Green in

December 2014. King-Green was assigned to conduct therapy with Parents as

well as therapeutic supervised visitation. King-Green testified that Parents

regularly attended the visits and that Mother interacted well with Child, but

that Father did not interact with Child, except during the last visit King-Green

3
DCS also filed a petition to terminate Mother’s rights to Sister. On the third day of the fact-finding hearing,
Mother’s counsel indicated that Mother wished to sign a consent to the voluntary termination of her rights to
Sister. It is unclear from the record whether she ever did so.

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 supervised prior to the termination hearing. Parents did not participate in

therapy for several months. They first started showing up for therapy in April

2015—after the termination petition was filed. Even then, Parents said they

had no problems and did not need to work on anything. King-Green testified

that Parents did not begin working on their issues until just a few weeks before

the termination hearing.

[13] Parents were also referred to therapist Taylor Stephens for individual and

couples counseling. Stephens worked with Parents from November 2013 until

June 2014, when services were stopped due to a conflict between DCS and

Stephens. Parents’ goals included family reunification, working on coping

skills, improving communication, and decreasing conflict. Stephens testified

that Parents were unsuccessful in meeting these goals and had only benefitted

marginally from counseling.

[14] The CHINS court also ordered Father to complete the Fatherhood Engagement

Program (FEP). Father began services with FEP case manager Andy Lykens in

July 2013. Lykens provided counseling for Father as well as supervised visits.

Although Parents consistently attended visits, Father did not interact much

with Child. Father showed up for only approximately half of his counseling

sessions with Lykens. Father did not successfully complete FEP, and services

were discontinued in August 2014 after Father indicated at a Child and Family

Team Meeting (CFTM) that he no longer wanted to work with Lykens.

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[15] Parents were also ordered to complete parenting assessments and follow all

recommendations made as a result thereof, but they failed to do so. When

Therapist Jeanette Hoeksema went to Parents’ home to conduct the

assessments, Parents denied her access to most of the home and asked her to

limit the information she shared with DCS. Hoeksema conducted the interview

portion of the assessment, and before leaving, informed Parents that the next

phase of the assessment would be an observation of Parents with Child.

Hoeksema testified that she told Parents to call her and set up a time for her to

observe a visit, but Parents did not follow through. As a result, Hoeksema was

unable to conduct a complete parenting assessment.

[16] DCS also presented evidence that Parents had exhibited hostile and aggressive

behavior toward service providers and other individuals. Parents were asked to

leave a July 22, 2014 CFTM after they began cursing and screaming at service

providers. They left, but when the CFTM ended, they followed Lykens in his

car, blaring their horn and attempting to run him off the road and into

oncoming traffic. On several occasions, Parents followed Child’s foster father

in his vehicle after visits ended. As a result, the foster father stopped

transporting Child to visits. On another occasion, when Lykens was

conducting a supervised visit at Parents’ home, the front door was open and

Parents saw a neighbor walk by. Despite Child’s presence, Parents wanted to

go outside to confront the neighbor. Lykens told Parents that he would end the

visit if they did so. They were argumentative, but they ultimately complied

with Lykens’s request to close the door and resume the visit. On other

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 occasions, Parents threatened to kick Lykens out of their home and said he

“better stop trying to interfere with them.” Transcript at 163.

[17] Moreover, evidence was presented that, despite having a steady income,

Parents had been unable to maintain stable housing. Specifically, Mother

receives $659 per month in disability income and occasionally makes additional

money by working through a temp agency. Five months before the termination

hearing, Father obtained full-time temporary employment, from which he

earned $290 per week in take-home pay. Nevertheless, during those same five

months, Parents had lived in four separate residences—including a shelter, a

motel, and with Mother’s mother. By the first day of the fact-finding hearing,

Parents were living in an apartment, and although they had lived there for only

approximately three months, eviction proceedings had already been filed

against them. By the third day of the hearing, Parents had left their apartment

and were again residing in a motel. Evidence was also presented that at various

points earlier in the CHINS proceedings, Parents had been evicted from another

apartment and had lived in a car and a storage unit.

[18] At the conclusion of the evidence, the trial court took the matter under

advisement. On January 29, 2016, the trial court issued its order terminating

Parents’ parental rights. This appeal ensued.

Discussion & Decision

[19] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

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 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

and reasonable inferences most favorable to the judgment. Id. In deference to

the juvenile court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous.

In re L.S., 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[20] The trial court entered findings in its order terminating Parents’ parental rights.

When the trial court enters 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). A judgment is clearly erroneous

only if the findings do not support the court’s conclusions or the conclusions do

not support the judgment thereon. Id.

[21] We recognize that 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 M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those
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 of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

[22] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, 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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child and that there is a

satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

4(b)(2)(C), (D).

[23] On appeal, Parents argue that the evidence is insufficient to support the

involuntary termination of their parental rights. Parents first challenge the trial

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 court’s findings as to subsection (b)(2)(B)(i) and (ii). We note that DCS was

required to establish only one of the three requirements of subsection (b)(2)(B)

by clear and convincing evidence before the trial court could terminate parental

rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Here, the trial

court found that DCS presented sufficient evidence to satisfy two of those

requirements, namely, that there is a reasonable probability the conditions

resulting in Child’s removal or continued placement outside Parents’ care will

not be remedied and that the continuation of the parent-child relationship poses

a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our

inquiry on the requirements of subsection (b)(2)(B)(i)—that is, whether there

was sufficient evidence to establish a reasonable probability that the conditions

resulting in Child’s removal or continued placement outside Parents’ care will

not be remedied.

[24] In determining whether there is a reasonable probability that the conditions that

led to a child’s removal and continued placement outside the home will 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 the child’s placement and retention in foster care, and, second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. In 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

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 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). In doing so, the

court may consider the parent’s history of neglect and response to services

offered through DCS. McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003). “A pattern of unwillingness to deal with

parenting problems and to cooperate with those providing social services, in

conjunction with unchanged conditions, support a finding that there exists no

reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

at 210.

[25] Additionally, DCS need not provide evidence ruling out all possibilities of

change; rather, it need establish only that there is a reasonable probability the

parent’s behavior will not change. In re Involuntary Termination of Parent-Child

Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “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.”

In re E.M., 4 N.E.3d at 643. Although trial courts are required to give due

regard to changed conditions, this does not preclude them from finding that a

parent’s past behavior is the best predictor of their future behavior. Id.

[26] On appeal, Parents focus solely on whether the conditions leading to Child’s

initial removal on July 5, 2012, and his second removal on May 9, 2013, have

been remedied. However, the language of Indiana’s termination statute makes

it clear that it is not only the basis for the Child’s removal that may be

considered, but also the reasons for the Child’s continued placement outside of

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 the home. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.

Although Father’s physical abuse of Child and Mother’s violation of court

orders prohibiting her from allowing Father to have contact with Child formed

the basis for Child’s removal from the home, Child’s continued placement

outside the home was based on Parents’ failure to maintain stable housing and

their failure to consistently participate in and benefit from services to address

their parenting problems.4

[27] Having identified the conditions resulting in Child’s removal and continued

placement outside the home, we proceed to the second step of the analysis—

determining whether there is a reasonable probability that those conditions will

not be remedied. As set forth above, DCS presented significant evidence of

Parents’ persistent and ongoing housing instability despite having a steady

income. DCS also presented extensive evidence establishing that Parents had

not consistently participated in reunification services and had not demonstrated

4
Parents devote a significant portion of their argument on the issue of whether the conditions resulting in
Child’s removal and continued placement outside the home will be remedied to the question of whether there
was, in fact, a court order in place on May 9, 2013 that prohibited Mother from allowing Father to have
contact with Child. According to Parents, the “relevant portion” of the parental participation order required
Mother to “abide by the terms of any no-contact order and/or protective order”. Appellants’ Brief at 18-19.
Parents correctly note that the no-contact order entered in Father’s criminal case was dismissed prior to May
9, 2013, and argue that as a result, no court order was violated. We find this argument disingenuous.
Parents ignore other relevant language from the parental participation order providing that “[Mother] shall
not permit [Father] to have any access to or communication with her and [Child]”. Exhibit Volume at 25.
They also ignore the language of the CHINS court’s August 9, 2012 order, which provided that Child’s
placement in Mother’s care was conditioned upon Mother’s compliance with a safety plan implemented by
DCS and that “[s]hould Father be released from jail, Father shall not return to the home, nor have any
contact with [Child] outside of supervised visitation as established by DCS, pending further order.” Id. at 21.
It is therefore apparent that the CHINS court ordered that Mother was not to allow Father any contact with
Child irrespective of whether any other court had imposed a no-contact order.

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 an ability to benefit significantly from the services in which they did participate.

See In re J.S., 906 N.E.2d 226, 234 (Ind. Ct. App. 2009) (explaining that “simply

going through the motions of receiving services alone is not sufficient if the

services do not result in the needed change, or only result in temporary

change”). Indeed, Parents were on several occasions hostile and aggressive

toward service providers and they often claimed that they did not need help.

Given the seriousness of the parenting issues giving rise to the CHINS finding

in this case—Father’s physical abuse of Child resulting in a broken femur and

Mother’s defiance of a court order prohibiting her from allowing Father to have

contact with Child—Parents’ resistance to services and refusal to acknowledge

their need for help is particularly troubling.

[28] In sum, Parents have had ample time within which to demonstrate their ability

to provide a safe and stable home for Child, and they have made virtually no

progress toward that goal. We therefore conclude that the trial court’s finding

that there is a reasonable probability that the conditions resulting in Child’s

removal and continued placement outside the home will not be remedied is

supported by sufficient evidence.

[29] Parents also challenge the trial court’s conclusion that termination of their

rights is in Child’s best interests. In determining whether termination of

parental rights is in the best interests of a child, the juvenile court is required to

look beyond the factors identified by DCS and consider the totality of the

evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the

juvenile court must subordinate the interest of the parent to those of the child,

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 and the court need not wait until a child is irreversibly harmed before

terminating the parent-child relationship. McBride, 798 N.E.2d at 199.

“Moreover, we have previously held that the recommendations of the case

manager and court-appointed 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.” In re J.S., 906 N.E.2d at 236.

[30] As set forth above, the trial court’s finding that the conditions resulting in

Child’s removal and continued placement outside Parents’ care will not be

remedied is supported by the evidence. Additionally, both the CASA and the

DCS Family Case Manager testified that they believed termination of Parents’

rights was in Child’s best interests. Accordingly, the trial court’s finding to that

effect was supported by sufficient evidence.

[31] Finally, Parents challenge the trial court’s conclusion that there is a satisfactory

plan for Child’s care and treatment. To be “satisfactory” for the purposes of the

termination statute, a plan “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) (quoting Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

375 (Ind. Ct. App. 2007), trans. denied), trans. denied. A plan of adoption is

satisfactory even if DCS has not identified a specific adoptive family. Id. “In

other words, 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.

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[32] In this case, the trial court found that DCS’s plan of adoption was satisfactory

for the purposes of the adoption statute. In light of the foregoing case law,

Parents’ argument that the plan of adoption was unsatisfactory because no

specific adoptive family had been identified is without merit.5

[33] Judgment affirmed.

[34] Bradford, J. and Pyle, J., concur.

5
Parents’ reliance on In re V.A., 51 N.E.3d 1140 (Ind. 2016), in support of this argument is misplaced
because that case did not address the question of whether there was a satisfactory plan for the care and
treatment of the child.

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