MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Dec 08 2017, 9:01 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT, ATTORNEYS FOR APPELLEE
T.B. Curtis T. Hill, Jr.
John T. Wilson Attorney General of Indiana
Anderson, Indiana
David E. Corey
ATTORNEY FOR APPELLANT,
Deputy Attorney General
J.L. Indianapolis, Indiana
William Byer, Jr.
Byer & Byer
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re: Termination of the Parent- December 8, 2017
Child Relationship of: Court of Appeals Case No.
L.B. (Minor Child), 48A05-1703-JT-719
Appeal from the Madison Circuit
and, Court
The Honorable G. George Pancol,
T.B., (Mother) and J.L. (Father), Judge
Appellants-Respondents, Trial Court Cause No.
48C02-1606-JT-46
v.
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Indiana Department of Child
Services,
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] T.B. (“Mother”) and J.L. (“Father”) appeal the termination of their parental
rights to their daughter, L.B. We affirm.
Issue
[2] The combined restated issue is whether there is sufficient evidence to support
the termination of Mother’s and Father’s parental rights.
Facts
[3] L.B. was born in July 2014. At the hospital, L.B.’s meconium tested positive
for marijuana. On August 25, 2014, the Madison County Office of the
Department of Child Services (“DCS”) filed a petition alleging L.B. was a child
in need of services (“CHINS”). L.B. was left in Mother’s care at that time;
Father had not yet established his paternity. On September 2, 2014, DCS filed
an amended CHINS petition after Mother allegedly tested positive for
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methamphetamine.1 L.B. was removed from Mother’s care at this time. Father
declined to take custody of L.B., and DCS placed her with her maternal
grandmother (“Grandmother”). On October 22, 2014, L.B. was found to be a
CHINS after Mother admitted that L.B. was born with marijuana in her
system. At this time, Father refused to undergo paternity testing and did not
believe he was L.B.’s father.
[4] L.B. has severe special needs. She has a genetic condition called Bardet-Biedl
Syndrome. Because of this condition, L.B. has frequent breathing difficulties,
which causes her to be hospitalized three to four days every month. She must
be fed through a gastric tube. She has developmental delays, as well as an extra
finger on one hand and one extra toe on each foot. In the future, L.B. may
develop kidney, heart, and liver problems. At one point, L.B. was scheduled to
have surgery to remove her extra digits but became too ill for the surgery to
occur. Grandmother has undergone training to care for L.B., who visits six
different medical specialists and has therapy appointments five days a week. A
home health nurse also assists with L.B.’s care. Neither Mother nor Father
have ever had training on how to care for L.B.
[5] The original CHINS dispositional order for Mother required her, among other
things, to participate in supervised visitation, complete a substance abuse
assessment and any recommended treatment, submit to random drug screens,
1
Mother and Father dispute the accuracy of this test result, and, in fact, sued the hospital that administered it
for medical malpractice.
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and obey the law. DCS referred Mother to a substance abuse program in early
2015. Mother completed the assessment but did not complete any of the
resulting recommendations, and the referral was closed out in June 2015.
Between June 2015 and August 3, 2016, Mother was drug tested at least
seventy-one times; on at least fifty-one occasions she tested positive for
methamphetamine and positive for THC on seven occasions. Mother was
pregnant with another child during some of this period. This child was born in
December 2015.
[6] Mother’s drug use caused her legal difficulties. On February 29, 2016, she was
charged with Level 6 felony possession of methamphetamine, Level 6 felony
maintaining a common nuisance, Level 6 felony possession of a syringe, and
Class C misdemeanor possession of paraphernalia. Mother remained in jail
and was not permitted to bond out until she underwent a substance abuse
evaluation. On June 27, 2016, Mother bonded out of jail and began undergoing
substance abuse treatment. On August 1, 2016, Mother pled guilty as charged.
She received an aggregate sentence of two years, all suspended to probation.
Two days after pleading guilty, Mother tested positive for methamphetamine.
At some point, Mother was arrested and jailed again while awaiting resolution
of a probation violation notice. Eventually, the criminal court ordered Mother
to participate in an inpatient treatment program rather than revoking her
probation. On November 4, 2016, the court ordered Mother transported from
jail to the treatment program, and on December 12, 2016, Mother was released
from the program and went into a halfway house. Mother obtained
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employment after going into the halfway house and paid rent. Children are not
allowed to live there. In all, Mother was incarcerated for approximately 200
days in 2016.
[7] Mother had supervised visitation with L.B. from the outset of the CHINS case
until early 2015, when it was terminated because of Mother’s cancellations.
Visitation was resumed shortly thereafter and continued until March 2016,
when it was terminated again because of Mother’s arrest and incarceration.
Mother again had supervised visitation in July and August 2016 after she was
released from jail, but it again was terminated when she was reincarcerated and
it was not resumed. However, Mother claimed to have seen L.B. once, a
couple of weeks before Christmas 2016, but then was informed by
Grandmother that she was not allowed to have contact with L.B.
[8] As for Father, he finally agreed to undergo DNA paternity testing in early 2015
after having to be convinced to do so, and it was confirmed that he is L.B.’s
father. DCS made six referrals for Father to have visitation with L.B., but he
never consistently saw her, even when she was hospitalized and Father was
allowed to have unsupervised visitation. Father underwent a court-ordered
mental evaluation on April 16, 2015, which recommended that he undergo
further psychological evaluation and comply with any DCS recommendations.
The “Diagnostic Impressions” from the evaluation were, “Rule Out Personality
Disorders [and] Intermittent Explosive Disorder [and] Substance Use
Disorders.” Ex. A. The CHINS dispositional order following this evaluation
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did not explicitly require Father to undergo further psychological evaluation,
but it did require him to participate in individual counseling.
[9] On September 12, 2015, Father went to Grandmother’s house, walked in
without permission, and threatened to take L.B. Grandmother insisted that
Father leave but he refused to do so, saying that Mother was lying in the
backyard dead with his unborn child and that “they” were trying to kill him.
Tr. p. 140. Grandmother called the police to have Father removed, and he had
an altercation with officers when they arrived. As a result of this incident,
Father was charged with Level 6 felony battery against a police officer, Level 6
felony residential entry, Class A misdemeanor resisting law enforcement, and
Class B misdemeanor disorderly conduct. After the charges were filed, the
criminal court entered a no-contact order for Grandmother’s and L.B.’s
protection, and Grandmother also obtained a civil protective order against
Father. The no-contact and protective orders precluded Father having
visitation with L.B., although he apparently did see her in December 2015 in
violation of those orders.
[10] Father repeatedly refused to comply with or participate in services referred to
him by DCS. He did not complete a requested domestic violence assessment.
He was required to submit to random drug screens as part of the CHINS
dispositional order; however, after submitting to three screens in December
2015, all of which were negative, Father refused to submit to any more. DCS
repeatedly referred Father to a Fatherhood Engagement program. Father
finally completed an assessment for that program in February 2016. Thereafter,
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Father failed to comply with recommended services for the program, and at one
point threatened to sue the program counselor.
[11] On March 2, 2016, Father was charged with Level 4 felony dealing in
methamphetamine, Level 6 felony maintaining a common nuisance, Level 5
felony possession of a syringe, and Class C misdemeanor possession of
paraphernalia. The record indicates that these charges were related to Mother’s
similar charges at the same time.2 Father’s bond for these charges was revoked
on March 28, 2016. About two months later, the criminal court held a hearing
on Father’s request to be put in work release pending trial. During the hearing,
Father testified that he had recently accused a DCS attorney of using cocaine
and personally administered a drug test to the attorney. After this testimony,
the prosecutor requested that Father undergo a psychological examination, and
defense counsel asked the court not to rule on his work release request until the
exam was complete. The DCS attorney then testified that, in a recent CHINS
hearing, Father had accused her in February 2016 of using cocaine, of having a
white powder under her nose, and of testing positive for cocaine. However, the
attorney testified that Father, in fact, had been banned from coming to the DCS
office since late fall 2015 and that the drug test never occurred.
[12] After the requested psychological examination was performed, Father was
found competent to stand trial. On October 16, 2016, Father pled guilty to
2
Mother is listed as Father’s co-defendant on the CCS.
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Level 6 felony residential entry with respect to the September 12, 2005 incident
involving Grandmother, Level 6 felony possession of a legend drug and Level 6
felony maintaining a common nuisance with respect to the March 2, 2016
charges, and Class B misdemeanor practice of law by a nonattorney in a
separate case. The plea agreement provided for a sentencing cap of five years,
with sentencing to be stayed pending Father’s successful completion of the
Madison County Veteran’s Court program. However, on December 9, 2016,
that program filed a notice with the court opining “that defendant is beyond
Veteran’s Court ability to treat i.e. Explosive Personality Disorder;
Manipulative Practices; Intimidation; and eradicate [sic] and violent responses
to life in general. Request for participation is therefore DENIED.” Ex. 8(a) at
18. Father then sought to be evaluated by the Marion County Veteran’s Court
program instead. This request was still pending at the end of January 2017.
[13] On June 9, 2016, DCS filed a petition to terminate Mother’s and Father’s
parental rights to L.B. The trial court held hearings on the petition on
December 6, 2016, and January 27, 2017. At the January hearing, Mother’s
substance abuse counselor testified as to the progress she was making in her
treatment, but recognized the possibility that she could relapse. Grandmother
also acknowledged Mother’s recent progress but also said she did not trust
Mother because of her history of going “back and forth” in the past. Tr. p. 146.
On March 2, 2017, the trial court entered an order terminating Mother’s and
Father’s parental rights, accompanied by extensive findings. Mother and
Father now appeal.
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Analysis
[14] Mother and Father contend there is insufficient evidence to support the
termination of their parental rights. The Fourteenth Amendment to the United
States Constitution protects the traditional right of parents to establish a home
and raise their children. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A
parent’s interest in the care, custody, and control of his or her children is
‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed the parent-child
relationship is ‘one of the most valued relationships in our culture.’” Id.
(quoting Neal v. DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285
(Ind. 2003)). We recognize that parental interests are not absolute and must be
subordinated to the child’s interests when determining the proper disposition of
a petition to terminate parental rights. Id. Thus, “‘[p]arental rights may be
terminated when the parents are unable or unwilling to meet their parental
responsibilities.’” Id. (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied). Courts need not wait until a child is irreversibly influenced
by a deficient lifestyle such that his or her physical, mental, and social growth is
permanently impaired before terminating the parent-child relationship. Castro
v. State Office of Family & Children, 842 N.E.2d 367, 372 (Ind. Ct. App. 2006),
trans. denied. “Rather, when the evidence shows that the emotional and
physical development of a child in need of services is threatened, termination of
the parent-child relationship is appropriate.” Id.
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[15] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re I.A., 934 N.E.2d at 1132. We
consider only the evidence and reasonable inferences that are most favorable to
the judgment. Id. We must also give “due regard” to the trial court’s unique
opportunity to judge the credibility of the witnesses. Id. (quoting Ind. Trial
Rule 52(A)). Here, the trial court entered findings of fact and conclusions
thereon in granting DCS’s petition to terminate Father and Mother’s parental
rights, as required by Indiana Code Section 31-35-2-8(c). See In re N.G., 61
N.E.3d 1263, 1265 (Ind. Ct. App. 2016). When reviewing findings of fact and
conclusions thereon entered in a case involving a termination of parental rights,
we apply a two-tiered standard of review. First, we determine whether the
evidence supports the findings, and second, we determine whether the findings
support the judgment. In re I.A., 934 N.E.2d at 1132. We will set aside the trial
court’s judgment only if it is clearly erroneous. Id. A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.
[16] Indiana Code Section 31-35-2-8(a) provides that, “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(B) that one (1) of the following is true:
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(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 establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
[17] Here, the trial court found that continuation of the parent-child relationship
posed a threat to L.B. Mother and Father both challenge that finding.3 When
considering whether there is sufficient evidence to support such a finding, trial
courts must “consider a parent’s habitual pattern of conduct to determine
3
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only
one of the requirements of subsection (B). We conclude there is sufficient evidence that continuation of the
parent-child relationship posed a threat to L.B.’s well-being and need not consider whether there is a
reasonable probability that the conditions resulting in L.B.’s removal from Mother’s care (and nonplacement
with Father) would not be remedied.
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whether there is a substantial probability of future neglect or deprivation.”
Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 152 (Ind. 2005).
“At the same time, however, a trial court should judge a parent’s fitness to care
for his child as of the time of the termination proceeding, taking into
consideration evidence of changed conditions.” Id.
[18] The trial court extensively detailed in its findings Mother’s history of severe
drug use and related criminal problems, which resulted in Mother having very
limited contact with L.B. for most of the entire year preceding the termination
hearings and being unable (or unwilling) to participate in visitation and DCS
reunification services. Mother contends the trial court improperly overlooked
evidence of and should have entered findings regarding changed conditions,
namely her completion of an inpatient treatment program and placement in a
halfway house shortly before the termination hearing(s), and the testimony of
her substance abuse counselor that she appeared to be making progress. The
trial court did in fact address this evidence in its findings:
24.) Mother has not completed any court ordered services,
reunification services or otherwise demonstrated during
pendency of the underlying CHINS case and life of the Child that
she has put forth any earnest and sincere effort to acknowledge
and overcome her substance abuse addiction or otherwise
eliminated substance abuse and addiction or criminal activity as
her lifestyle notwithstanding her very recent and limited
successful completion of an inpatient program at Life Springs
and participation in court ordered treatment at Stepping Stones.
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25.) Mother’s ongoing substance abuse and her constant re-
incarceration for violation(s) of probation due to noncompliance
with treatment services and continued positive drug screens as
outlined in paragraph 22 establishes a pattern of conduct by
Mother that makes her recent and brief participation in Stepping
Stones Halfway House meaningless to the Court as evidence of a
successful recovery sufficient for Mother to regain any ability to
parent this Child or remedy the conditions that led to the Child’s
removal and continued placement in that her recent compliance
and sentence to Stepping Stones is court ordered as a
consequence and sentence for her probation violations, and
Mother is facing even more incarceration if she violates her
probation again.
Appellant Mother’s App. Vol. II p. 30. We cannot say these findings are clearly
erroneous. They represent the trial court’s weighing of the entirety of the
evidence, going back nearly two-and-a-half years, and the judging of witness
credibility, which we cannot second guess.
[19] As for Father, he displayed little interest in doing anything to reunify with L.B.
during the entirety of the CHINS proceedings, repeatedly refusing to cooperate
in any way with DCS or its service providers, including refusing to undergo
regular drug testing. Father’s erratic behavior led to the incident at
Grandmother’s house that caused him to be prohibited from having contact
with L.B. and also to curtailing his ability to communicate with the DCS local
office. Father seems to suggest that, after his April 2015 mental evaluation, the
trial court and/or DCS should have offered or required him to participate in
further psychological evaluation and mental health treatment. However, “the
responsibility to make positive changes will stay where it must, on the parent.
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If the parent feels the services ordered by the court are inadequate to facilitate
the changes required for reunification, then the onus is on the parent to request
additional assistance from the court or DCS.” Prince v. Dep’t of Child Servs., 861
N.E.2d 1223, 1231 (Ind. Ct. App. 2007).
[20] Of course, a large part of Father’s inability to meaningfully participate in L.B.’s
life was a result of the no-contact and protective orders obtained against him
after the incident at Grandmother’s house on September 12, 2015. Father
contends these orders should not have existed throughout the remainder of the
CHINS case, citing A.P. v. Porter County Office of Family & Children, 734 N.E.2d
1107 (Ind. Ct. App. 2000), trans. denied. That case addressed DCS’s
predecessor’s failure to follow clear procedural and statutory requirements in
obtaining a no-contact order against the father as part of the CHINS
proceedings. See id. at 1116-17. Here, the no-contact and protective orders
were issued in separate criminal and civil proceedings against Father because of
his illegal and threatening conduct, and there is no indication that these orders
were obtained and maintained improperly or in violation of any statute.
[21] Father also asserts that DCS somehow denied him due process of law because it
was biased against him, as revealed by the DCS attorney’s testimony at his
work release hearing regarding his false, possibly delusional accusations that
she was using cocaine and that he had personally drug tested her. It is unclear
what Father’s precise argument is, but it appears to be that the attorney’s
testimony resulted in him being incarcerated while awaiting trial, thus further
restricting him from participating in services to reunify with L.B. However,
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Father’s request at that particular hearing to participate in work release had
already been denied, and the trial court had ordered Father to undergo a
psychological examination before the attorney testified.
[22] Finally, Father’s legal status was unsettled at the time of the termination
hearing. He had pled guilty to three different incidents of criminal conduct
during the CHINS proceedings, including the incident at Grandmother’s house
and the drug case in which Mother also was involved. Although Father’s plea
agreement provided the opportunity for a completely-suspended sentence, it
was contingent upon his successful completion of the Madison County
Veteran’s Court program. He was not accepted into that program because of
his erratic behavior, which had been occurring throughout the CHINS case.
Although Father was attempting to gain entrance into the Marion County
Veteran’s Court program at the time of the termination hearing, that issue had
not been resolved yet. In any case, Father’s continued legal difficulties certainly
are relevant to his habitual pattern of conduct throughout the CHINS
proceedings.4
[23] We now consider whether the above evidence regarding Mother and Father
established that continuation of the parent-child relationship posed a threat to
L.B.’s well-being. In analyzing this issue, it is crucial to note the special needs
4
Mother and Father also reiterate arguments made during the CHINS proceedings that the original drug
testing of Mother around the time of L.B.’s birth was flawed and should not have formed the basis of the
original CHINS finding. However, that finding was made after Mother admitted that L.B. was born with
marijuana in her system and was not reliant upon the disputed drug test results.
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of this child. She requires extensive therapy, highly-specialized care, and
frequent hospitalizations. Grandmother has undergone specialized training to
learn how to care for L.B. and additionally requires the assistance of a home
health nurse. Meanwhile, for almost two-and-a-half years, while L.B. was
receiving extensive medical treatment and Grandmother was caring for her,
Mother and Father continued using drugs heavily, and engaging in illegal or
erratic behavior, and making little to no progress in stabilizing their own lives.
They also never learned how to care for L.B. Under such circumstances, it
would be extremely difficult for either parent to adequately care for a child with
no health problems, let alone one with L.B.’s special needs. It is not difficult to
see how allowing continuation of the parent-child relationship could very
directly threaten harm to L.B. The trial court’s findings on this point were not
clearly erroneous.
[24] Mother and Father also contend that termination is not in L.B.’s best interests.
When considering whether there is sufficient evidence that termination of
parental rights is in a child’s best interests, we consider the totality of the
evidence and look beyond the factors identified by DCS. In re J.C., 994 N.E.2d
278, 289-90 (Ind. Ct. App. 2013). The interests of the parents must be
subordinated to the needs of the child. Id. at 290. Recommendations of DCS
caseworkers and court-appointed special advocates, combined with evidence
that continuation of the parent-child relationship poses a threat to the child, are
sufficient to prove by clear and convincing evidence that termination is in a
child’s best interests. Id. Children have a paramount need for permanency,
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which is a central consideration in evaluating a child’s best interests. In re E.M.,
4 N.E.3d 636, 647-48 (Ind. 2014).
[25] Both the DCS case manager and L.B.’s court-appointed special advocate
unequivocally testified that termination was in her best interests. They noted
the excellent, loving care that L.B. was receiving from Grandmother, who
wished to adopt L.B. with DCS’s blessing. The DCS case manager specifically
rejected the possibility of a guardianship for L.B., noting that it would not give
L.B. the permanency she needed. Given the minimal, if any, progress the
parents had made during the entirety of the CHINS case, it is unclear how long
L.B. would have to wait for them to improve, if they ever did. In sum, there is
sufficient evidence to support the trial court’s finding that termination of
Mother’s and Father’s parental rights was in L.B.’s best interests.
Conclusion
[26] There is sufficient evidence to sustain the termination of Mother’s and Father’s
parental rights to L.B. We affirm.
[27] Affirmed.
May, J., and Bradford, J., concur.
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In re: Termination of the Parent-Child Relationship of: L.B. (Minor Child), and T.B., (Mother) and J.L. (Father) v. Indiana Department of Child Services (mem. dec.)
Combined Opinion