In the Matter of the Involuntary Termination of the Parent-Child Relationship of V.G. (Minor Child), A.G. (Mother) and R.L. (Father) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Apr 04 2018, 9:38 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Leeman Law Office and Attorney General of Indiana
Cass County Public Defender
Abigail R. Recker
Logansport, Indiana Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary April 4, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of V.G. (Minor 09A05-1711-JT-2573
Child), Appeal from the Cass Circuit
A.G. (Mother) and Court
R.L. (Father), The Honorable Leo T. Burns,
Judge
Appellants-Respondents,
Trial Court Cause No.
v. 09C01-1703-JT-5

Indiana Department of
Child Services,
Appellee-Petitioner

Baker, Judge.

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[1] A.G. (Mother) and R.L. (Father) (collectively, the Parents) appeal the trial

court’s order terminating their parent-child relationship with their child, V.G.

(Child). The Parents argue that there is insufficient evidence supporting the

trial court’s conclusion that there is a reasonable probability that the

continuation of the parent-child relationship poses a threat to Child’s well-

being. Finding the evidence sufficient, we affirm.

Facts
[2] Child was born on June 9, 2016. In the days following Child’s birth, the

Department of Child Services (DCS) received multiple allegations that Child

was unsafe because of domestic violence and physical abuse.

[3] On June 21, 2016, the police were called to the Parents’ home because of a

domestic dispute. Officer Daniel Fagan noted that he had been dispatched to

deal with the Parents’ domestic disputes approximately fifteen times since

January 2016. On this day, Mother was arrested for hitting Father and charged

with Level 6 felony domestic battery. As a result of this charge, a no contact

order was put in place preventing Mother from having contact with Father and

Child. At that time, DCS did not have concerns about Child’s safety, so Child

remained placed with Father.

[4] On July 5, 2016, DCS received a new report alleging that Mother had violated

the no contact order. When law enforcement and DCS arrived at Parents’

home, Mother and some family friends were inside with Child. Father was

outside walking across the parking lot. Father stated that he was unable to care

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 for Child and made some comments about harming himself. Mother was

arrested and charged with Class A misdemeanor invasion of privacy. DCS

removed Child from the care and custody of the Parents.

[5] On July 6, 2016, DCS filed a petition alleging that Child was a child in need of

services (CHINS) based on multiple instances of domestic violence between the

Parents, the violation of the no contact order, and Father’s comments that he

was unable to care for Child and that he wished to harm himself. On July 11,

2016, Father was charged with Level 6 intimidation after he threatened to kill a

woman.1 On August 24, 2016, the trial court found Child to be a CHINS.

[6] On September 27, 2016, the trial court entered a dispositional decree ordering

Parents to, among other things: (1) complete a parenting assessment and

comply with any recommendations; (2) complete a substance abuse assessment

and comply with any recommendations; (3) participate with random drug and

alcohol screens; (4) meet with medical/psychiatric personnel and comply with

medications; (5) refrain from domestic violence; and (6) attend all visitations.

[7] Father participated with homebased case management. 2 There were three goals

for his participation: (1) learn to provide adequate care to and supervision of

Child; (2) complete all assessments and evaluations recommended by DCS; and

1
The female victim and Mother share the same first name but it is unclear from the record whether the
victim was, in fact, Mother.
2
Father had been participating with homebased case management even before the CHINS petition was filed.
He remained with the same case manager until he was unsuccessfully discharged in September 2016.

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 (3) display a drug and alcohol-free lifestyle. Father did not make progress in

any of these three areas. During sessions, he bragged about alcohol and

marijuana use and stated that he planned to voluntarily terminate his parental

rights. His case manager also supervised his visits, of which he had three per

week; he attended less than half. He was ultimately unsuccessfully discharged

from this service because of noncompliance.

[8] Mother completed a substance abuse assessment, which recommended therapy

because she had other underlying issues aside from substance abuse. She did

not comply with therapy.

[9] In September 2016, both parents were referred to a new service provider for

homebased case management and supervised visitation. The visitation

supervisor was concerned that the Parents did not understand basic child

development because of their unrealistic expectations during visits. Parents

only attended their appointments and visits sporadically. Between October

2016 and June 2017, the Parents cancelled or failed to show at approximately

124 visits. At the time of the termination hearing in June 2017, Mother had

been attending visits regularly for the past thirty days but Father had not seen

Child since March 2017.

[10] Both parents have mental health issues. Father testified that he has been

diagnosed with bipolar disorder, attention deficit hyperactivity disorder, and

“something to do with like, my mood changes.” Tr. p. 101. He admitted that

he is supposed to be taking medication but does not take it. Father did not

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 participate with recommended mental health treatment during the CHINS case.

Mother has also been prescribed medication for mental health needs but does

not take it.

[11] Mother was referred for a parenting assessment. It took four months to get

Mother to attend the first of three appointments to complete the assessment.

The results of the assessment indicated a high risk of child abuse, low parenting

awareness skills, and low results regarding communication, involvement, and

autonomy. Mother’s score on the Parenting Stress Index was so significant that

the test and the assessor concluded that “‘we need rapid intervention, we need

intensive therapy, we need supervision of that parent-child relationship.’” Id. at

42. The assessor concluded that Child needs to be protected from Mother and

recommended that Mother participate in case management, mental health

treatment, psychiatric treatment, and substance abuse treatment. The assessor

believed, however, that there was a low probability of success because “there’s a

combination of personality disorder issues and cognitive issues that make it

very difficult for there to be a change or an ability to change.” Id. at 46-47.

Father was also referred to a parenting assessment but failed to complete it.

[12] During the underlying CHINS case, Parents repeatedly engaged in criminal

behavior that resulted in them being incarcerated:

• On July 5, 2016, Mother was charged with Class A misdemeanor
invasion of privacy; she later pleaded guilty.
• On July 11, 2016, Father was charged with Level 6 felony intimidation;
he later pleaded guilty.

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 • On November 6, 2016, Mother was charged with Class B misdemeanor
false informing; she later pleaded guilty.
• On November 6, 2016, Father was charged with Class B misdemeanor
false informing; this charge was later dismissed.
• On November 24, 2016, Father was charged with Class C misdemeanor
operating a motor vehicle without ever receiving a license; he later
pleaded guilty.
• On December 16, 2016, Father was charged with Level 6 felony auto
theft; he later pleaded guilty.
• On April 29, 2017, Father was charged with Class B misdemeanor
disorderly conduct; this charge had not yet been resolved at the time of
the termination hearing.

In part because of their frequent incarcerations, the Parents were unable to

maintain stable housing. They lived at approximately five different places and

had periods of homelessness during the underlying CHINS case. At the time of

the termination hearing, Mother was living in her own apartment and had been

there for several months. At that time, she and Father were no longer together

and she stated that he would not be allowed to move in with her when he was

released from incarceration.

[13] Child has been placed in the same foster home since his removal and is doing

well in that placement. He is not bonded to either of his parents. DCS and

Child’s guardian ad litem (GAL) believe that termination is in Child’s best

interests.

[14] On March 29, 2017, DCS filed a petition to terminate the parent-child

relationship between Parents and Child. The termination hearing took place on

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 June 27, 2017, and on October 5, 2017, the trial court issued its order

terminating the relationship. The Parents now appeal.

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

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:
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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

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 (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. Child’s Well-Being
[17] The Parents’ sole argument on appeal is that the trial court erred by

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

parent-child relationship poses a threat to Child’s well-being.3

A. Findings of Fact
[18] In making this argument, they also challenge several of the trial court’s findings

of fact. We will consider each in turn. First, the trial court found that “Mother

states she never completed therapy as recommend by [the substance abuse

assessor] and as required by this court and [DCS].” Appealed Order p. 3. The

Parents insist that the record shows that Mother requested mental health

therapy on her own. But the record also shows that therapy was recommended

following her substance abuse assessment, that she was required to comply with

that recommendation, that she admitted she only went to therapy “a couple of

3
This element of the statute and the element related to the reasons for removal are phrased in the disjunctive,
but the trial court did not make a finding with respect to the likelihood of the remedy of the reasons for
Child’s removal.

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 times,” and that she admitted that she failed to comply with “[t]herapy or

something.” Tr. p. 114-15, 118. We find the evidence supports this finding.

[19] Next, the Parents take issue with the trial court’s finding that Father testified

that he “has previously been diagnosed with Bipolar Disorder, Attention Deficit

Hyperactive [sic] Disorder and Mood Disorder.” Appealed Order p. 3. They

insist that Father did not testify that he had been diagnosed with a mood

disorder. While it is true that Father did not specifically testify that he had a

mood disorder, he did testify that he was diagnosed with “something to do with

like, my mood changes.” Tr. p. 101. It was reasonable for the trial court to

infer that Father meant that he had been diagnosed with a mood disorder. And

in any event, Father concedes that he testified as to diagnoses of bipolar

disorder and attention deficit hyperactivity disorder, meaning that the inclusion

or exclusion of a mood disorder would not affect the trial court’s ultimate

conclusions regarding Father’s mental health.

[20] Next, the Parents direct our attention to findings 49 through 52:

49. [Family Case Manager (FCM)] Reeser witnessed the
parents[’] unwillingness to accept advice from other[s] on
parenting and the volatile reactions of Father when
questioned about his plans for the future.

50. Father told FCM on one occasion that where he saw
himself a year down the road was none of the FCM[’]s
business.

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 51. When reunification is a priority, parents should be willing
and able to voice their plans for the future, especially those
plans that will have a direct impact on their ability to
provide for their child.

52. Father[’]s unwillingness to speak about the future shows
the inability of Father to comprehend the responsibility
inherent in being a parent.

Appealed Order p. 5. The Parents insist that Father has “some mental health

and cogitative [sic] disabilities” and that these disabilities “resulted in Father

having difficulty processing and answering generic questions posed to him by a

DCS caseworker.” Appellants’ Br. p. 16. This argument is merely a request

that we reweigh evidence and second-guess the trial court’s assessment of the

credibility of various witnesses, which we may not and will not do. The record

supports these findings.

[21] Finally, the Parents quarrel with the trial court’s finding that “[t]here have been

no efforts, by either parent, to make themselves available on a consistent basis

for visits with the infant child or to place themselves in a position to provide

care to this little boy on a full time basis.” Appealed Order p. 6. The Parents

argue that, although Father was incarcerated in the months leading up to the

termination hearing, Mother had been visiting regularly in the previous thirty

days and, as such, had made efforts to reunify. The trial court, however, is

entitled to disregard changes in a parent’s behavior made only shortly prior to

the termination hearing, weighing the parent’s habitual pattern of conduct

throughout the case more heavily. K.T.K., 989 N.E.2d at 1234. Here,

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 throughout the entire case until the thirty days before the termination hearing,

the attendance of both Parents at visitation was wildly inconsistent. Therefore,

this finding is supported by the evidence in the record.

B. Threat to Child’s Well-Being
[22] The Parents’ sole focus in making this argument is that there was not “clear and

convincing evidence that Parents posed a menace to do bodily harm” to Child.

Appellants’ Br. p. 18. It is well established, however, that neither actual

physical abuse nor a physical threat to a child is required to find that

continuation of the parent-child relationship poses a threat to the child’s well-

being. In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005). Indeed, the trial

court “need not wait until a child is irreversibly influenced by a deficient

lifestyle such that her physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship.” In re E.S., 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002). Instead, when the emotional and/or

physical development of a CHINS is threatened, termination is appropriate. Id.

[23] Here, the Parents were in and out of jail multiple times during the CHINS case,

resulting in unstable housing and inconsistent participation with services and

visits. They missed approximately 124 visits with Child over the life of the

CHINS case, resulting in a lack of a bond. The results of Mother’s parenting

assessment were so concerning that the assessor determined that Mother was

“at the highest risk of abuse,” tr. p. 39, that Child needed to be protected from

Mother, and that Mother needed rapid intervention and intensive therapy.

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 Indeed, more than one service provider recommended therapy for Mother, but

she never participated with that service. Both Parents have untreated mental

health needs and neither is taking prescribed medication for their respective

mental health diagnoses. We find that this evidence supports the trial court’s

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

child relationship poses a threat to Child’s well-being.

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

Kirsch, J., and Bradford, J., concur.

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