In the Matter of the Termination of the Parent-Child Relationship of J.W. (Minor Child), and B.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 26 2017, 7:10 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan B. Quirk Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana

Robert J. Henke
Marjorie Newell
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 26, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of J.W. (Minor Child), and 18A05-1606-JT-1396
Appeal from the Delaware Circuit
Court
B.W. (Mother),
The Honorable Kimberly S.
Appellant-Respondent, Dowling, Judge

v. Trial Court Cause No.
18C02-1508-JT-11

The Indiana Department of
Child Services,
Appellee-Petitioner

Crone, Judge.
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 Case Summary
[1] B.W. (“Mother”) appeals the trial court’s order involuntarily terminating her

parental relationship with her minor daughter, J.W. We affirm.

Facts and Procedural History
[2] The Department of Child Services (“DCS”) initially removed four-year-old

J.W. from Mother’s care in September 2014 due to allegations that Mother and

her then-husband were sexually and physically abusing J.W., and that Mother

was using drugs and failing to provide adequate housing. Specifically, J.W.

reported that Mother had touched her inappropriately and had burned her with

cigarettes. Mother was subsequently incarcerated and J.W. was adjudicated a

child in need of services (“CHINS”) based upon Mother’s admissions that she

was unable to care for J.W. Although J.W. was originally placed into relative

care, her placement was changed shortly thereafter to foster care.

[3] After Mother was released from incarceration in November 2014, her visitation

with J.W. was quickly suspended after J.W. expressed to caseworkers and her

foster parent that she had an “extreme fear” of Mother. State’s Ex. 5. The trial

court entered a dispositional order in January 2015 which required Mother to

complete services including a parenting assessment, a substance abuse

assessment, a psychological evaluation, home-based case management, as well

as additional services. Mother was also required to submit to drug screens.

After services began, the trial court found that Mother continued to test positive

(at least seventeen times) on her drug screens, and failed to participate in

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 services in such a way as to enhance her parenting skills. The record indicates

that during the pendency of the CHINS proceedings, Mother continued to be

unable to maintain housing, and that her psychological state was considered

unstable, with high levels of anxiety, depression, and a propensity for psychosis.

Mother was referred to mental health counseling as well as to an intensive

outpatient substance abuse treatment program due to her history of addiction

and drug abuse which included marijuana, heroin, and methamphetamine.

Mother failed to complete and was dropped from the substance abuse program

at the end of February 2015. Mother suffered a drug relapse in early March

2015. She began intensive substance treatment again in May 2015, but failed to

complete the treatment. Mother attended only a few mental health counseling

sessions. By July 2015, Mother had stopped communicating with her family

case manager and was no longer participating in any services.

[4] On August 25, 2015, DCS filed a petition to terminate Mother’s parental rights

to J.W. On December 2, 2015, Mother pled guilty to level 5 felony battery and

level 5 felony neglect of a dependent resulting in bodily injury in which J.W.

was the victim, in addition to three other unrelated felonies. 1 Mother is

currently incarcerated with a projected release date of April 24, 2018, and an

earliest possible release date of January 2017.

1
Mother originally faced numerous charges under five separate trial court cause numbers. In exchange for
Mother’s guilty plea to five felonies, the State dismissed eight additional felony charges, and one
misdemeanor charge.

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[5] The termination factfinding hearing was held on April 5, 2016, and the trial

court issued its termination order in May 2016. In addition to extensive

findings regarding Mother’s failure to complete services, the trial court found

that J.W. had suffered substantial physical and emotional trauma at the hands

of Mother. The court found that because of J.W.’s “severe psychological

trauma and the status of her therapeutic situation, neither [of J.W.’s therapists]

ever recommended visitation between [J.W.] and her mother.” Appellant’s

App. at 114. Thus, Mother had not visited with J.W. since she was originally

removed from Mother’s care in 2014. The trial court further found that J.W.

needs a safe, stable, secure, and permanent environment in order to thrive and

that Mother had shown no inclination or ability to provide J.W. with such

environment.

[6] Based upon the findings of fact, the trial court concluded that: (1) there is a

reasonable probability that the conditions that resulted in J.W.’s removal from

and continued placement outside the home will not be remedied by Mother; (2)

there is a reasonable probability that the continuation of the parent-child

relationship between J.W. and Mother poses a threat to the well-being of J.W;

(3) termination of the parent-child relationship between Mother and J.W. is in

J.W.’s best interests; and (4) DCS has a satisfactory plan for the care and

treatment of J.W., which is adoption. Accordingly, the trial court determined

that DCS had proven the allegations of the petition to terminate parental rights

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 by clear and convincing evidence and therefore terminated Mother’s parental

rights. This appeal ensued. 2

Discussion and Decision
[7] “The purpose of terminating parental rights is not to punish the parents but,

instead, to protect their children. Thus, although parental rights are of a

constitutional dimension, the law provides for the termination of these rights

when the parents are unable or unwilling to meet their parental

responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation

omitted). “[T]ermination is intended as a last resort, available only when all

other reasonable efforts have failed.” Id. A petition for the involuntary

termination of parental rights must allege in pertinent part:

(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;

2
J.W.’s father’s parental rights were terminated by default in a separate action in June 2016. He is not a
party to this appeal.

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 (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). DCS must prove “each and every element” by

clear and convincing evidence. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009);

Ind. Code § 31-37-14-2. If the trial court finds that the allegations in a petition

are true, the court shall terminate the parent-child relationship. Ind. Code § 31-

35-2-8(a).

[8] “We have long had a highly deferential standard of review in cases involving

the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d

85, 92 (Ind. Ct. App. 2014).

We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.

Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings

do not support the trial court’s conclusions or the conclusions do not support

the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).

[9] Mother’s sole contention on appeal is that the trial court “erred in determining

the State of Indiana met its burden in fully complying with Indiana Code

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 Section 31-35-2-4(b)(2)(B).” Appellant’s Br. at 5. Specifically, Mother argues

that DCS failed to prove all three statutory requirements provided in that

subsection. However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

disjunctive, such that, to properly effectuate the termination of parental rights,

the trial court need only find that one of the three requirements of that

subsection has been established by clear and convincing evidence. A.D.S. v. Ind.

Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.

Accordingly, we turn to address the evidence supporting, and the trial court’s

conclusion regarding, only one of the three requirements.

[10] In terminating Mother’s parental rights, the trial court concluded that there is a

reasonable probability that the conditions that led to J.W.’s removal and

continued placement outside of Mother’s care will not be remedied. 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 not 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.” Id. Second, “we

‘determine whether there is a reasonable probability that those conditions will

not be remedied.’” Id. (quoting 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

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 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). “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.” Lang v. Starke Cty. Office of Family

& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.

[11] The evidence indicates that J.W. was originally removed from Mother’s care

based on allegations that Mother was sexually and physically abusing J.W.,

using drugs, and failing to provide adequate housing. At the time of the

CHINS hearing, Mother was incarcerated on various charges and she admitted

to being unable to care for J.W. After her release from incarceration, Mother’s

visitation with J.W. was suspended due to J.W.’s extreme fear of Mother

caused by the physical and emotional trauma that Mother had inflicted upon

J.W. Thereafter, despite the best efforts of the family case manager, counselors,

and therapists, Mother failed to fully comply with and benefit from court-

ordered services, eventually stopping her participation altogether by July 2015.

Mother failed to secure stable housing or employment, and she continued to

abuse drugs and engage in criminal behavior. Mother has not seen J.W. since

the child’s initial removal from her care and, by all accounts, Mother seemed

wholly disinclined to take the necessary steps to even attempt to earn back her

visitation rights. At the time of the termination hearing, Mother was again

incarcerated following her convictions on multiple felonies, including crimes

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 committed against J.W. Mother’s habitual pattern of conduct and

unwillingness to change demonstrates a substantial probability of future neglect

or deprivation. The record supports the trial court’s conclusion that there is a

reasonable probability that the conditions that resulted in J.W.’s removal and

continued placement outside of Mother’s care will not be remedied.

[12] As Mother does not challenge the trial court’s conclusions that termination of

her parental rights is in J.W.’s best interests or that adoption is a satisfactory

plan for the care and treatment of J.W., we need not also address those

conclusions. The trial court’s termination of Mother’s parental rights to J.W. is

affirmed.

[13] Affirmed.

Riley, J., and Altice, J., concur.

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