MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Sep 11 2018, 8:00 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
Danielle Sheff Curtis T. Hill, Jr.
Sheff Law Office Attorney General of Indiana
Indianapolis, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination September 11, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of: Ka.C., R.W., A.W. and L.C., 18A-JT-646
Minor Children, Appeal from the Marion Superior
K.C., Mother, Court
The Honorable Gary Chavers,
Appellant-Respondent,
Judge Pro Tem
v. The Honorable Larry Bradley,
Magistrate
The Indiana Department of
Trial Court Cause Nos.
Child Services, 49D09-1706-JT-520
Appellee-Petitioner, 49D09-1706-JT-521
49D09-1706-JT-522
and 49D09-1706-JT-523
Child Advocates, Inc.,
Court of Appeals of Indiana | Memorandum Decision 18A-JT-646 | September 11, 2018 Page 1 of 14
Guardian Ad Litem.
Brown, Judge.
[1] K.C. (“Mother”) appeals the involuntary termination of her parental rights with
respect to Ka.C., R.W., A.W., and L.C. (the “Children”). We affirm.
Facts and Procedural History
[2] Ka.C. was born in October 2003, R.W. was born in December 2007, A.W. was
born in August 2009, and L.C. was born in May 2011. On June 12, 2017, the
Indiana Department of Child Services (“DCS”) filed a petition for termination
of Mother’s parental rights as to the Children. On January 31, 2018, the court
held an evidentiary hearing.
[3] On February 27, 2018, the court entered an order terminating Mother’s parental
rights as to the Children which provided in part:
2. [Ka.C.’s] father is unknown.
3. The father of [R.W.], [A.W.], and [L.C.] has had his parental
rights involuntarily terminated.
*****
6. In August of 2015, the children were detained and placed in
kinship care where they remain.
7. On October 30, 2015, the children were found to be in need of
services after [Mother] filed an admission that [Ka.C.] had made
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allegations of sexual abuse by extended family members and the
family needed services to address those allegations.
*****
12. Home based case management was referred multiple times to
address issues of housing, employment, transportation, and to
access community resources. [Mother] failed to successfully
complete case management due to her inconsistent participation.
13. Housing has not been adequately addressed as [Mother] and
her husband have been residing in a hotel for the past two to
three months. They had lived with [Mother’s] mother prior to
the hotel.
14. [Mother] has failed to obtain independent, appropriate
housing in the two and one half years the children’s CHINS case
has been pending.
15. Transportation has been an issue for [Mother] who failed to
obtain her driver’s permit.
l6. [Mother] has reported being employed at Walmart.
17. [Mother] does not feel she needs further case management
services because she has employment.
18. Home based therapy has been in place consistently for a little
over one year to address neglect and keeping her children safe,
anger, and education toward the children’s mental health needs.
19. Jessica Gordon is the current therapist.
20. [Mother] has made a big improvement in her mood and
anger management.
21. After a year in therapy, [Mother] still does not totally grasp
the mental health needs of her children, although Therapist
Gordon believes with continued consistent participation,
[Mother] could meet this goal.
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22. The main barrier in keeping her children safe is [Mother’s]
underlying lack of accepting that [Ka.C.] was molested and the
extent of it. She continues to minimize her role in the
involvement with the IDCS, and fails to take responsibility.
23. At trial in this matter, [Mother] acknowledged that she did
not believe [Ka.C.’s] cousin abused her.
24. On the day of trial [Mother] told her therapist she wanted the
whole family to take a lie detector test.
25. At an early provider meeting in August of 2015, [Mother]
did describe seeing molestation but not pursuing it because she
thought her family would be “put out on the street”.
26. [Mother’s] therapist believes [Mother] needs to continue in
therapy and that she is capable of improving.
27. [Mother] has recently started meeting with her therapist two
times a month instead of weekly because of her work schedule.
28. [Mother] did not attend three child and family team
meetings held in December of 2017, and January of 2018.
29. Due to [Mother’s] aggressive and negative behavior, her
parenting was stopped by the IDCS in 2015, and the Court
ordered the suspension of parenting time on January 27, 2016,
when the Guardian ad Litem reported to the CHINS Court that
the children expressed concerns during their parenting time, and
although they miss their mother, they were being traumatized by
having contact with her.
30. On May 24, 2017, the CHINS Court changed the children’s
permanency plan to adoption and finding, in part, that [Mother]
had failed to address untreated mental health needs, she had not
reached a point in treatment to where providers recommended
parenting time resume, and that further delay in achieving
permanency for the children was likely to cause additional
emotional distress.
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31. The children have resided together in the same kinship care
placement since their removal.
32. This placement is pre-adoptive.
33. The children are very bonded with one another, and have a
close relationship to their caregivers.
34. [Ka.C.] had believed her caregiver . . . was her father and she
looks to him as her father.
35. All four children have been involved in therapy with Deidre
Lloyd [sic] for approximately fourteen months.
36. [Ka.C.] is involved in individual therapy and with her sisters
due to trauma from physical and sexual abuse. A specialist in
sexually maladaptive behavior has also been referred.
37. [L.C.] and [R.W.] receive therapy for separation trauma.
38. [A.W.] has a learning disability and receives therapy for
anxiety and depression.
39. The children’s special needs are being met by their caregivers
who are aware of what the girls need and provide consistency.
40. The children have always been together, and their Therapist
Lloyd [sic] would be concerned if they were separated.
41. The children have stated to the therapist their desire to
remain where they are.
42. After Therapist Lloyd [sic] recently spoke with [Mother’s]
therapist, Ms. Gordon, she did not have the impression that
[Mother] was getting better.
43. There is a reasonable probability that the conditions that
resulted in the children’s removal and continued placement
outside the home will not be remedied by their mother. [Mother]
may have made progress in therapy but it [is] unknown whether
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she can apply skills in real life. After two and one-half years, she
has not reached the stage of having visits recommended. Most
concerning is [Mother’s] lack of acceptance for the reason (and
lack of accepting responsibility) why the children became wards.
[Mother] has not been able to provide a home appropriate for her
children during the pendency of the CHINS matter.
44. There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the children’s well-
being in that it would pose as a barrier to obtaining permanency
for them through an adoption into the home in which they wish
to remain. Without addressing unstable or inappropriate
housing, and not accepting the molestation, and truly
understanding its impact, [Mother] would not be able to
maintain the children in a safe and stable environment.
45. Jill English-Cheatham has served as the children’s Guardian
ad Litem since the beginning of the CHINS action in July of
2015. Based on lack of safety, and the children’s wishes, Ms.
English-Cheatham recommends adoption as a satisfactory plan
for the children and believes termination of [Mother’s] parental
rights would be in the children’s best interests.
46. Guardian ad Litem English-Cheatham does not believe
[Mother] should be given more time as she has had multiple
providers and the children have been in limbo for two and one-
half years. She believes the children would be harmed if
removed from their placement.
47. Termination of the parent-child relationship is in the best
interests of the children. Termination would allow them to be
adopted into a stable and permanent home where their needs will
be safely met.
48. There exists a satisfactory plan for the future care and
treatment of the children, that being adoption.
Appellant’s Appendix Volume II at 34-37.
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Discussion
[4] The issue is whether the evidence is sufficient to support the termination of
Mother’s parental rights. In order to terminate a parent-child relationship, DCS
is required to allege and prove, 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;
(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). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[5] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
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consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[6] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
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when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary
termination statute is written in the disjunctive and requires proof of only one of
the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
[7] Mother contends the trial court’s order is not supported by clear and convincing
evidence, her failure to protect the Children from abuse was being addressed,
and, although she had not resolved her housing, the time needed to obtain
suitable housing should not be the determining factor. She also asserts
termination is not in the Children’s best interests and the plan of adoption by P.
and M. would be detrimental to the Children.
[8] DCS maintains that Mother failed to fully engage in reunification services,
denied home-based case management was necessary despite not having stable
housing, demonstrated she is unable to provide the Children with a safe
environment, and was aware Ka.C. was being sexually molested but failed to
protect her. DCS also argues that termination is in the Children’s best interests
and that it has a satisfactory plan for their care and treatment.
[9] In determining whether the conditions that resulted in the Children’s removal
will not be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at
642-643. First, we identify the conditions that led to removal, and second, we
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. In the second step, the trial court must judge a
parent’s fitness as of the time of the termination proceeding, taking into
consideration evidence of changed conditions, balancing a parent’s recent
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improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. 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. Id.
Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that a parent’s past behavior is the best predictor of
her future behavior. Id.
[10] The statute does not simply focus on the initial basis for a child’s removal for
purposes of determining whether a parent’s rights should be terminated, but
also those bases resulting in the continued placement outside the home. In re
N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may consider
evidence of a parent’s prior criminal history, history of neglect, failure to
provide support, lack of adequate housing and employment, and the services
offered by the DCS and the parent’s response to those services. Id. Where
there are only temporary improvements and the pattern of conduct shows no
overall progress, the court might reasonably find that under the circumstances
the problematic situation will not improve. Id.
[11] To the extent Mother does not challenge the trial court’s findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied.
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[12] The court found that Ka.C. had made allegations of sexual abuse by extended
family members, home-based case management was referred multiple times to
address housing, employment, and transportation, and Mother failed to
successfully complete case management due to her inconsistent participation.
With respect to housing, the court found that Mother failed to obtain
independent, appropriate housing during the two and one-half years the CHINS
cases were pending and that she and her husband were residing in a hotel for
the prior two to three months. The court also found that transportation has
been an issue for Mother and she failed to obtain her driver’s permit. It found
that home-based therapy to address neglect had been in place for over a year
and that Therapist Gordon believed Mother made improvement in her mood
and anger management, but that Mother still does not totally grasp the mental
health needs of the Children although she could meet the goal with continued
consistent participation. It also found that the primary barrier in keeping the
Children safe is Mother’s failure to accept the extent to which Ka.C. was
molested, that Mother continues to fail to take responsibility, that she
acknowledged she did not believe Ka.C.’s cousin abused her, that Mother told
her therapist she wanted the whole family to take a lie detector test, and that
she described seeing molestation but not pursuing it because she thought her
family would be on the street. Therapist Gordon testified that Mother lived in a
motel with her husband and did not have a vehicle. Jill English-Cheatham, the
Children’s Guardian ad Litem, (“GAL English-Cheatham”) testified that at one
point Mother discussed sexual abuse she witnessed Ka.C. endure with Mother’s
brother and that Mother “described that the family was living with her mother
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at the time and that she did not pursue it because her mother threatened that if
she did that she would put the family out on the streets.” Transcript Volume II
at 116.
[13] Based upon the court’s findings and the record, we conclude that clear and
convincing evidence supports the trial court’s determination that there is a
reasonable probability that the conditions leading to the Children’s removal will
not be remedied or that the continuation of the parent-child relationship poses a
threat to the well-being of the Children.
[14] In determining what is in the best interests of a child, the trial court is required
to look beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification and courts need not wait until the child is irreversibly harmed such
that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. However, focusing on permanency, standing alone, would
impermissibly invert the best-interests inquiry. Id. at 648. The testimony of a
child’s guardian ad litem regarding the child’s need for permanency supports a
finding that termination is in the child’s best interests. McBride, 798 N.E.2d at
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203. Recommendations by both the case manager and child 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. A.D.S. v. Ind. Dep’t of
Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013).
[15] The record reveals that Jonquil Pettigrew, a family case manager, (“FCM
Pettigrew”) testified that termination of Mother’s parental rights is in the
Children’s best interests. Also, GAL English-Cheatham testified that it was in
the Children’s best interests that Mother’s parental rights be terminated, she did
not believe Mother should be given additional time to complete services, and
“[w]e’ve been working at this for two and a half years with little to no progress”
and the Children “need to be able to process with a direction.” Transcript
Volume II at 128. Based on the testimony, as well as the totality of the
evidence in the record and set forth in the court’s termination order, we
conclude that the court’s determination that termination is in the best interests
of the Children is supported by clear and convincing evidence.
[16] In addition, adoption is a “satisfactory plan” for the care and treatment of a
child under the termination of parental rights statute. In re B.M., 913 N.E.2d
1283, 1287 (Ind. Ct. App. 2009). “This 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 Termination of Parent-Child
Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied.
FCM Pettigrew and GAL English-Cheatham testified that adoption is a
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satisfactory plan for the Children’s care and treatment. To the extent Mother
argues that P. and M. are not suitable potential adoptive parents, we observe
that we have found that a plan for a child to be adopted by current foster
parents or another family may constitute a suitable plan for the child’s future
care. See id. The termination order here does not require that adoption by P.
and M. be pursued, and any petition for adoption will be adjudicated in a
subsequent proceeding. See Ind. Code §§ 31-19. Deidra Loyd, the Children’s
therapist, testified that the Children “have shared with me and expressed with
me in session stating that they desire to stay where they are.” Transcript
Volume II at 84. The record reveals support for the court’s determination that
adoption is a satisfactory plan for the care and treatment of the Children.
Conclusion
[17] We conclude that the trial court’s judgment terminating the parental rights of
Mother is supported by clear and convincing evidence. We find no error and
affirm.
[18] Affirmed.
Altice, J., and Tavitas, J., concur.
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In the Matter of the Termination of the Parent-Child Relationship of: Ka.C., R.W., A.W. and L.C., Minor Children, K.C., Mother v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion