In the Matter of the Involuntary Termination of the Parent-Child Relationship of: G.P. and G.B. (Minor Children) and H.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 06 2018, 8:36 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
Glen E. Koch II Curtis T. Hill, Jr.
Boren, Oliver & Coffey, LLP Attorney General of Indiana
Martinsville, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary February 6, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 55A04-1709-JT-2117
G.P. and G.B. (Minor Children), Appeal from the Morgan Circuit
and Court
The Honorable Matthew G.
H.P. (Mother), Hanson, Judge
Appellant-Respondent, Trial Court Cause Nos.
55C01-1605-JT-206
v. 55C01-1605-JT-207

The Indiana Department of
Child Services,
Appellee-Petitioner

Baker, Judge.
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[1] H.P. (Mother) appeals the trial court’s order terminating the parent-child

relationship between Mother and her two children. She argues that there is

insufficient evidence supporting the termination order. Finding the evidence

sufficient, we affirm.

Facts
[2] Mother and J.B. (Father)1 were married and had two children: G.P., born May

13, 2011, and G.B., born April 3, 2013. On April 1, 2013, the parents were

arrested for theft and neglect of a dependent after they were shoplifting while

G.P. was present.

[3] G.B. tested positive for amphetamines, methadone, and benzodiazepines at the

time of his birth. That day—April 3, 2013—the Department of Child Services

(DCS) removed the children from the parents’ care and custody because of

G.B.’s positive drug screen and because Mother and Father had engaged in

domestic violence while G.P. was present. The police department had been

called out to their home four times in the preceding three months for domestic

violence incidents. On April 5, 2013, DCS filed a petition alleging that the

children were children in need of services (CHINS). The parents eventually

admitted that the children were CHINS because they were both incarcerated

following the shoplifting incident. On June 12, 2013, the trial court issued a

dispositional decree ordering Mother to complete a substance abuse assessment

1
Father does not participate in this appeal.

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 and comply with any recommendations, submit to random drug screens,

complete all terms of her probation, and attend all supervised visitation.

[4] Mother was found guilty of the charges stemming from the April 1, 2013,

shoplifting incident. She was initially incarcerated at the Indiana Women’s

Prison, and in June 2014, she was transferred to a work release program, where

she participated in a parenting group and a relapse prevention program. In

August 2014, the children began a trial home visit with Father, but when DCS

caught Mother attempting to visit the children at Father’s home on August 20,

2014, the trial home visit was ended.2 On September 29, 2014, she was

returned to the Indiana Women’s Prison after she refused a drug screen. On

May 14, 2015, she was released from the Department of Correction.

[5] On May 26, 2015, Mother completed a substance abuse assessment. At that

time, she tested positive for alcohol. It was recommended that she participate

in, among other things, intensive outpatient treatment (IOP), homebased case

management, and individual therapy. Mother successfully completed IOP and

individual therapy. She then began participating with recovery coaching and

individual skills coaching.

2
The children began a second trial home visit with Father in December 2014. In February 2015, Father was
arrested at his residence for being intoxicated and getting into a car accident. He had left the children home
alone and was arrested for neglect of a dependent. The trial home visit ended that day.

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[6] Beginning in June 2015, Mother began participating with supervised visits. She

struggled to discipline the children consistently. At times, Father was also

present, and the parents began to have tension during the visits in August 2015.

[7] On September 25, 2015, the trial court authorized Mother to have unsupervised

visits with the children. In February 2016, the parents began to have

unsupervised overnight visits. On March 18, 2016, the children began a trial

home visit with both parents. On May 21, 2016, Mooresville Police officers

were dispatched to the home after receiving a report of domestic violence.

When police arrived, both parents were intoxicated and both parents had fresh

injuries to their faces. Mother reported that Father had physically harmed her

and she had to fight to get him off her. The children were present in the home

when the incident occurred and G.P. indicated that he had seen the altercation.

Father was arrested for domestic battery and DCS removed the children from

the parents’ care and custody. A no contact order was put in place between the

parents, but the children’s paternal grandmother saw the parents together more

than once despite that order.

[8] On June 1, 2016, DCS filed a petition to terminate the parent-child relationship

between Mother, Father, and the children. The factfinding hearing on DCS’s

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 petition spanned five separate days between August 29, 2016, and August 11,

2017.3

[9] In the months during the termination hearings, G.B. was combative before

visits, stated he did not want to see Mother, and often had “a frightened look on

his face, glossy, kind of glazed over eyes” during the visits. Tr. Vol. II p. 58-59.

The visitation supervisor noted that G.B. was not emotionally attached to

Mother. At times Mother was combative with the visitation supervisor, who

recommended that Mother’s visits with the children remain supervised.

[10] Since the termination petition was filed, Mother has participated in and

successfully completed a recovery group, domestic violence services, and a

psychological evaluation. She participated with drug screens but had multiple

failures to appear and multiple screens that were positive for alcohol. In May

2017, Mother began participating with homebased case management to help

her find employment and stable housing. She remained unemployed

throughout the proceedings.

[11] At some point during the termination proceedings, Mother filed a petition to

dissolve her marriage; the divorce became final in February 2017. The Family

Case Manager (FCM) testified that while Mother and Father “are trying to give

the impression that they’re not going to be together,” it was “clearly evident”

3
At one point when visits and services were going well, the trial court put the termination proceedings “on
hold” to give the parents more time. Appealed Order p. 21.

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 that “they have no intention of separating themselves . . . .” Tr. Vol. III p. 213-

14. Indeed, at a team meeting on June 28, 2017, Mother stated that she was

done with Father and would only have contact with him for co-parenting

purposes, but three days later, the parents were arrested together.

[12] On July 1, 2017, the Mooresville Police Department was dispatched to

Mother’s home because of complaints regarding a loud car stereo. When police

arrived, they noticed that Mother was “highly intoxicated” and had an “abusive

attitude” towards the officers. Id. at 79. The officers told Mother to go inside

her house and left the scene. A couple of hours later, the police department

received a call about a domestic disturbance at Mother’s home. When police

arrived, Mother was on the porch crying and reported that she and Father had

gotten into a physical altercation. The officer noted that Mother had signs of

being battered around her neck and that her face was very red. Father also had

marks on his neck and hands. Both parents were arrested. When the FCM

asked Mother about the arrest, Mother stated that it was not a big deal because

it was “only a misdemeanor . . . .” Id. at 212. Mother never recognized the

effects that her alcohol use or instances of domestic violence have on the

children.

[13] Both children have struggled because of their parents’ behavior. At the time of

the initial removal, G.P. was skinny and frail; at one point, his weight was at

the .8 percentile on the growth chart. He has been diagnosed with reactive

attachment disorder and post-traumatic stress disorder, and he participates with

individual therapy, family therapy, skills training, and case management.

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 During play therapy sessions, G.P. has expressed themes including destruction,

drowning, killing, putting people in jail, and burying, which the therapist

associates with children who have witnessed abuse or have been abused. G.P.

avoids talking about Mother and Father. G.B. was born prematurely and had

to be placed on a medication taper for neonatal withdrawal symptoms at the

time of his birth. He has also had periodic severe respiratory distress issues.

G.B. has motor delays and developmental delays, and participates with physical

therapy, speech therapy, and occupational therapy. At the time of the

termination hearing, the children were thriving in their preadoptive foster

placement, were bonded with their foster parents, and were participating with

all needed services.

[14] On August 14, 2017, the trial court issued an order terminating the parents’

relationships with the children. The trial court’s order is thorough and detailed.

In relevant part, it found as follows:

386) In this case, the children were removed originally due to
allegations of neglect and/or abuse, more particularly due
to the presence of a drug in the youngest child’s system
when he was born, arrests of both parents, as well as
several contacts with police regarding domestic violence
between the parents in previous weeks.

387) That during a good portion of this early case the mother
was incarcerated and was both in local jail and prison.
Most recently she was arrested for disorderly conduct with
father.

***
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 389) That prior to removal of the children, the DCS attempted
to address the matters of domestic violence that were
prevalent between mother and father.

***

391) That early on there were some drug issues with the
mother, however those have seemingly been remedied.

392) That it [was] apparent early on that alcohol was the main
culprit that thereafter led to acts of violence between the
parties.

***

394) That while it is true the parents have been clean from
drugs and more often than not clean from alcohol use
during this case, they have sudden and very apparent
issues of violence that surround their use about every year
or so when they are out of jail and can get together.

395) The parents did take substantial steps at times to get
involved with addictions counseling as well as domestic
violence counseling over the years.

396) The mother has been very successful in her services, when
she was out of jail.

***

426) That to add to these incidents of domestic violence that
keep occurring, it is apparent that the divorce between the
parties was a sham.

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 427) Not only have the parties violated no contact orders
between one another during the life of this case, but also
ignored instructions from the DCS to not permit the
mother to visit the children when she was [on work
release].

428) Likewise, the mother did not file for divorce from the
husband until right after the termination [petition was]
filed and clearly even after the divorce was granted has no
intentions of staying away from the husband.

***

431) . . . [T]hese parties are exactly where they were when this
case started.

432) Simply, they get together, decide to drink, get violent with
one another and sometimes someone goes to jail.

***

436) That there is no question that throughout this case the
parents have visited with the children and have been
appropriate almost one-hundred percent of the time.

***

438) That on the other hand it is apparent that these parents
have not shown the ability to do what is necessary to
ensure there are no future threats to these children.

439) As stated above, these children have been around domestic
violence with these parents multiple times.

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 ***

443) Both parents still, even after all of the successful
counseling sessions and therapy appointments refuse to see
anything wrong with drinking and then hitting . . . each
other and finding this acceptable.

444) Likewise, even when ordered to stay away from one
another, or even after being divorced, they continue this
fatal attraction that poses a serious and ongoing threat to
the children.

445) Even though the parents have shown an ability to carry
out counseling, to work at times and even to provide
homes with the help of other relatives, they are a danger to
these children.

446) That the danger that still exists today for these children is
the same danger that has existed over the life of this case.

Appealed Order p. 26-31. Mother now appeals.

Discussion and Decision
I. Standard of Review
[15] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s
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 opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[16] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

(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

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 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.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

II. Termination Order
A. Remedy of Reasons For Removal
[17] Mother first argues that DCS did not prove by clear and convincing evidence

that there is a reasonable probability that the conditions that resulted in the

children’s removal or the reasons for placement outside her home will not be

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 remedied. In addressing this prong of the statute, DCS need not rule out all

possibilities of change; instead, it must establish a reasonable probability that

the parent’s behavior will not change. In re B.J., 879 N.E.2d 7, 18-19 (Ind. Ct.

App. 2008).

[18] The reasons for the children’s initial and continued removal from the parents’

care and custody can be summarized as: domestic violence and substance

and/or alcohol abuse, which are often inextricably linked for these parents.

[19] It is undeniably true, as Mother asserts, that she has participated in—and

successfully completed—many court-ordered services throughout this case.

And it is also true, as the trial court noted, that there is no evidence that she has

an ongoing drug abuse issue.

[20] Despite her participation with services, however, Mother has not been able to

remedy the underlying problems. She continues to spend time with Father.

And when they are spending time together, she continues to consume alcohol.

Time and time again, that combination leads to physical violence between the

two. While she went so far as to divorce Father, the trial court concluded that

the divorce was a sham. We see no reason to second-guess that conclusion, as

Mother and Father were arrested together following a violent incident during

which she was heavily intoxicated, and this occurred during the termination

proceedings and months after their divorce was finalized.

[21] This case has been open for nearly five years. Mother has participated with

nearly every imaginable service and has been given numerous chances to fix the

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 situation. But despite time and opportunity, very serious issues remain. Under

these circumstances, we find that the trial court did not err by finding that DCS

proved by clear and convincing evidence that there is a reasonable probability

that the reasons for the children’s removal from Mother’s care and custody will

not be remedied.

B. Harm to Children’s Well-Being
[22] Mother’s only other argument on appeal is that DCS failed to prove that there

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

poses a threat to the children’s well-being. This prong of the statute and the

prong related to the remedy of the reasons for the children’s removal are

phrased in the disjunctive. I.C. § 31-35-2-4(b)(2)(B). As we have found that the

evidence supports the latter, we need not also consider the former. But we will

do so briefly.

[23] The record reveals that the children have been present during more than one

violent incident between the parents. And during the CHINS case, they were

placed on a trial home visit with one or both parents on three occasions, and on

each of those three occasions, had to be removed yet again. Our Supreme

Court has acknowledged the trauma caused to children who witness domestic

violence:

“[M]any people assume that very young children are not affected
at all” by violence between their parents, “erroneously believing
that they are too young to know or remember what has
happened.” Joy D. Osofsky, The Effects of Exposure to Violence on

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 Young Children, 50 Am. Psychologist 782, 783 (1995). But “even
in the earliest phases of infant and toddler development, clear
associations have been found between exposure to violence and
post-traumatic symptoms and disorders.” Id. Indeed, “[t]he
developing brain is most vulnerable to the impact of traumatic
experiences” before age one—and during the first three years, those
experiences actually change the organization of the brain’s neural
pathways. Abigail Sterne et al., Domestic Violence and Children: A
Handbook for Schools and Early Years Settings 19 (2010) (citations
omitted); Allan N. Schore, The Effects of Early Relational Trauma
on Right Brain Development Affect Regulation, and Infant Mental
Health, 22 Infant Mental Health J. 201, 209-10 (2001).

A lack of beatings therefore does not equate to a lack of abuse,
nor does the children’s tender age equate to a lack of harm.
Infants as young as fifteen months exhibit behavioral
disturbances from spousal violence. Charles H. Zeanah, et al,
Disorganized Attachment Associated with Partner Violence: A Research
Note. 20 Infant Mental Health J. 77, 82–83 (1999).

In re E.M., 4 N.E.3d 646, 644 (Ind. 2014) (emphases original).

[24] Indeed, in this case, both children were already being negatively affected by the

upheaval and violence they had experienced in their short lives. G.P. was

diagnosed with post-traumatic stress disorder and reactive attachment disorder,

and wove disturbing and violent themes into his play therapy sessions. When

he was originally removed from the parents’ care and custody, he was

dangerously skinny and frail. G.B. became combative when he visited with

Mother, said that he did not want to see her, and during visits he frequently

appeared frightened. Both children are participating in multiple services to

address developmental delays and emotional issues.

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[25] Given the record of ongoing domestic violence between the parents, as well as

the harm that the children have already suffered as a result, we find that the trial

court did not err by concluding that DCS had proved by clear and convincing

evidence that there is a reasonable probability that the continuation of the

parent-child relationship poses a threat to the children’s well-being.

[26] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

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