MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), this Mar 28 2017, 10:12 am
Memorandum Decision shall not be regarded CLERK
Indiana Supreme Court
as precedent or cited before any court except Court of Appeals
and Tax Court
for the purpose of establishing the defense of
res judicata, collateral estoppel, or the law of
the case.
ATTORNEY FOR APPELLANT MOTHER ATTORNEYS FOR APPELLEE
Erin L. Berger Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT FATHER Robert J. Henke
Deputy Attorney General
Adam J. Farrar Indianapolis
Van Haaften & Farrar
Mt. Vernon, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- March 28, 2017
Child Relationship of: Court of Appeals Case No.
65A04-1610-JT-2393
T.T., K.T., and L.T. (Minor Appeal from the Posey Circuit Court
Children), The Honorable James M. Redwine,
Judge
S.J.-T. and K.T.,
Trial Court Cause Nos.
65C01-1601-JT-10,
Appellants-Respondents, 65C01-1601-JT-11, and
65C01-1601-JT-12
v.
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Indiana Department of Child
Services,
Appellee-Petitioner.
Najam, Judge.
Statement of the Case
[1] S.J.-T. (“Mother”) and K.T. (“Father”) separately appeal1 the trial court’s
termination of their parental rights over their minor children, T.T., K.T., and L.T.
(“Children”). Mother raises one issue on appeal, in which Father joins, which we
restate as follows: whether the trial court committed clear error when it adjudicated
Children to be Children in Need of Services (“CHINS”), thereby making its
subsequent termination of their parental rights also clearly erroneous. Father raises
an additional issue on appeal, which we restate as follows: whether the trial court
committed clear error when it terminated his parental rights rather than establishing
a permanent guardianship.
[2] We affirm.
Facts and Procedural History
[3] Mother and Father (collectively, “Parents”) are the biological parents of T.T., born
May 2, 2001; L.T., born February 8, 2010; and K.T., born March 14, 2013. On
1
Father specifically “concurs and joins in the Mother’s argument, including her Statement of Issue, Statement of
Case, Statement of Facts, Summary of Argument, Argument, and Conclusion in her Appellant’s Brief . . . .”
Father’s Br. at 4 n.1.
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September 12, 2014, Parents placed Children with family members because Parents
were concerned about their ability to provide for Children financially. On September
16, 2014, the Indiana Department of Child Services (“DCS”) investigated allegations
of neglect against Parents toward Children. The allegations included that the
Parents’ home was dirty and unsanitary; one or both Parents had a staph infection
while caring for K.T., who was diagnosed with neuroblastoma cancer and had a port
that needed to be kept clean and properly maintained; the Parents engaged in
domestic violence in the home in the presence of Children; the Parents had untreated
mental illnesses; and the Parents engaged in drug use. On October 6, Children’s
maternal aunt and uncle, A.H. and K. H., and Children’s maternal grandparents,
C.J. and R.J.,2 (collectively, “Guardians”), filed petitions for guardianships of
Children. The aunt and uncle were granted temporary guardianship over T.T. and
L.T. and the grandparents were granted temporary guardianship of K.T.
[4] On October 14, 2014, DCS filed petitions alleging Children to be CHINS. On
October 21, 2014, the trial court held a hearing on the guardianship petitions and the
CHINS petitions. The court granted the emergency petitions for guardianships of
Children. The court also determined Children were CHINS based on Parents’
ongoing domestic violence, untreated mental health issues, ongoing substance abuse,
and failure to provide adequate medical treatment for Children.
2
Children’s maternal aunt, B.J., lives with maternal grandparents and was later added as a Guardian in the
guardianship case involving K.T.
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[5] On January 25, 2016, DCS filed petitions to terminate Parents’ parental rights to
Children. The trial court held a termination fact-finding hearing on April 25, 26, and
27, 2016, and July 20 and 22, 2016. The termination hearing and hearing on the
guardianships were consolidated by agreement of all parties. At that time, Children
remained subject to the guardianships and were in the care of Guardians.
[6] On September 21, 2016, the trial court issued a Judgment Terminating Parental
Rights in which it issued the following relevant Findings of Fact and Conclusions of
Law:
FINDINGS OF FACT
[On] September 16, 2014, the Department investigated an allegation of
neglect against the Mother and the Father toward their three (3)
children: [T.T.]; [L.T.]; and [K.T.] (collectively the “Children”).
At that time, [T.T.] was l3 years old, [L.T.] was 4 years old, and
[K.T.] was one (1) year old.
The allegations included, but were not limited to the Mother and
Father maintaining a dirty and unsanitary home, one (1) or both
having staph infection while caring for [K.T.], who was diagnosed
with neuroblastoma cancer and who had a port which needed to be
kept clean and properly maintained, domestic violence in the home
between the Mother and the Father[,] most of which occurred in the
children’s presence, mental illness, and drug use (namely[,] synthetic
marijuana).
[On] September 29, 2014, the Mother filed for and obtained a
Protective Order against the Father. The allegations included that the
Father “smashed [the Mother’s] head into the wall” and “kicked [the
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Mother] in the head and back.” The Mother alleged the Father then
kicked her out of the home.
On the same day, the Father allegedly attempted to set the parties’
house on fire.
The next day, September 30, 2014, the Father attempted to commit
suicide. Officers attempted to provide assistance after they discovered
blood all over the Father’s vehicle. Despite the Protective Order, the
Father was located at the parties’ residence with the Mother.
***
The Children have been removed from the Mother’s and Father’s care
and custody since October 10, 2014.
The Department determined that the Mother and Father had
substantiated allegations of neglect in 2009 and 2011 as a result of
domestic violence and substance abuse issues in the home.
Reasonable services were provided to the Mother and Father during
that time.
During the CHINS, and specifically between March, 2015 and April,
2016—while advising the Department that they would do whatever it
takes to get the Children returned to them—the Mother and Father
both admitted to their lack of compliance with this Court’s order
regarding sobriety. In fact, the Mother and Father combined admitted
to substance abuse at least nine (9) times, had diluted tests at least 20
times, and failed to appear for their required testing at least 83 times
during this 13 month interval.
Even since April, 2016, the parents admit to their lack of compliance
with the Court’s order inasmuch as the Mother admitted she used at
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least two (2) times and they both admitted that they failed to appear
for scheduled substance abuse testing even though the parents
acknowledged it was very important to get the Children back to do so.
The Father does not have a valid driver’s license. The Father admitted
his driving privileges are suspended for life. Despite the Father having
no license, several witnesses testified to seeing the Father drive to
some of the proceedings herein.
The parents did not fully take advantage and participate in counseling.
At some point, the counselor even went to the Mother’s and Father’s
home. During at least one (1) counseling session, the Mother
admitted that both the Mother and Father had a hard time
maintaining basic functioning for themselves, much less for the
Children.
The Mother also acknowledged that the relationship between the
Mother and Father was volatile and that the counselor simply
recommended that the parties separate and/or divorce.
Nevertheless, the parents remain married and did not separate during
these proceedings—even with the Mother’s active Protective Order
against the Father.
While both parents are diagnosed with mental health impairments,
they both admitted that they do not follow prescribed treatment . . . .
The parents testified that domestic violence has been long and
reoccurring during their marriage. The Mother testified that it began
almost immediately after the marriage began and escalated to the
point that she told her counselor that she feared the Father would kill
her family.
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More importantly, the domestic violence was rampant in the house.
[T.T.] testified that she had witnessed over 50 episodes, some of which
began as verbal arguments which erupted into full physical
altercations. [T.T.] testified that both parents participated in the
physical altercations. During one (1) such episode, [T.T.] testified that
she took [L.T.] and [K.T.] into another room to protect them. The
parents would lock each other out of the house, sometimes with the
Children. The parties’ counselor confirmed [T.T.’s] testimony when
she testified that on one (1) occasion, the Mother purposefully locked
[K.T.] out of the house because she knew the Father would see her
and then come back home after the Father told the Mother that he was
leaving. The Court notes that the 2009 CHINS stemmed from the
parties’ oldest child, I.J., being injured during a domestic dispute in
the home. The Father, upon cross examination, testified that the
Children witnessed numerous incidents of verbal or physical
altercations between the Mother and the Father throughout their
lifetime and actually calculated those incid[ents] to approximate One
Thousand Three Hundred and Eighty-two (1,382).
***
[T.T.] testified that she often had to get her siblings up and ready for
school because the Mother would not—even when the Mother was
not working.
Most importantly, [T.T.] testified that she did not see her parents
changing their behavior. She noted that despite having two (2) prior
CHINS proceedings and having ample opportunity to change their
behavior during this proceeding, she did not think they could
permanently change their behavior to enable them to care for her
siblings or her. Even more egregious, [T.T.] stated that she feared for
[L.T.] and [K.T.] if returned to her parents inasmuch as she believed
they would be in danger.
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Ms. [B.T.], the Father’s mother, who lived with the family for some
time[,] testified about the verbal arguments, domestic violence, and the
fact that [T.T.]—and herself—tended to the other children’s needs
more so than either the Mother or the Father did. She believed it
would be detrimental to allow any of the Children to return to the
Mother’s or Father’s home.
The Mother’s family testified nearly the same . . . . They each believed
that if the parents had not gotten the issues resolved by now that they
likely never would resolve the issues . . . .
The Mother’s family testified that the parents[’] stability in housing,
mental health treatment, substance abuse treatment, and general
uncleanliness were ongoing issues for which [sic] the parents did not
seem able to alleviate over the years. They each testified these issues
contributed to the reasons they sought guardianship over the Children
and why they do not believe the Children’s best interests lie in
returning them to the parents.
The family, including the Father’s mother, testified that the parents
simply lack the common sense and insight necessary to properly care
for the Children . . . .
The Mother and Father oppose the termination . . . . Yet, they readily
agree that they missed appointments with their Family Case Manager,
did not attend all counseling appointments, used drugs during both
CHINS matters, did not take their medicines as prescribed, failed to
attend 83 drug screens, and showed diluted results for approximately
20 drug screens . . . .
The Father and Mother lack the necessary comprehension to
understand the nature and effect that their arguing, fighting, substance
abuse, and mental illness[es] have on the Children and their ability to
properly care for the Children.
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Two of the children, [L.T.] and [T.T.], are placed together in relative
care with a maternal aunt and uncle. The child [K.T.] is placed with
the maternal grandparents. This placement was determined to be in
the best interests of the children due to the fact that [K.T.] had
significant care needs based on her medical condition. [K.T.] was
diagnosed with cancer in 2014 at the age of six months and needed
more individualized care that the grandparents were able to provide.
The relative placements are close and provide care for all the children,
and they ensure sibling contact.
Each child is strongly bonded with the relatives.
Each child is doing well in the care of the current relative placements.
Department’s plan for each child is that they be adopted by the current
relative caregivers.
It is in the best interest[s] of each Child to be adopted due to the
inability of the parents to provide appropriate care and supervision for
the children.
The Department, Guardian Ad Litem, and the relative caregivers all
considered the possibility of a less restrictive outcome for each child,
namely that of guardianship. Due to the number of years that the
parents have engaged in domestic violence, the number of years of
substance use, and the long-term inconsistency, those parties do not
believe that guardianship is an appropriate plan for the children. The
oldest child, [T.T.], also demonstrated a desire to be adopted rather
than to be the subject of a guardianship. Despite multiple
interventions by the Department, a multitude of services, and informal
support from family, the parents have not been able to provide a stable
environment for the children during the majority of the children’s
lifetimes. The court finds the testimony of [T.T.] to be persuasive
evidence that the potentially unsettled nature of a guardianship[] and
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possibility of the parents threatening the stability of the children is not
in the best interests of the children.
As the Guardian Ad Litem noted, this case is not simply a matter of
having a “more permanent” plan in adoption than is available with
guardianship. Each time there has been a problem in the past, the
children’s extended family members have stepped in to care for them.
While it is a positive situation to have informal supports, this has
happened on numerous occasions and has caused the children a great
deal of instability. The parents in this matter have shown that they are
minimally able to care for themselves, let alone for the children.
Although the parents have tried for years to fully address the issues
that have endangered the children, the parents have never been able to
do so long term. Each time the parents have obtained some degree of
stability following the Department’s intervention, they have returned
to prior patterns of behavior that endanger the children and put the
children in the middle of violent and turbulent relationships. This is
not a pattern which should continue for the children.
The Guardian Ad Litem, Ms. Hadley, testified that the parents cannot
maintain simple care for themselves . . .[and] “are minimally able to
take care of their own needs,” much less take care of the Children’s
needs. Ms. Hadley testified that she did not believe the parents could[]
or would permanently change their behavior to care for the Children’s
best interests. Rather, Ms. Hadley stated that the parents were barely
able to function on their own.
CONCLUSIONS OF LAW
***
It is also clear and this Court is convinced from the evidence that there
is a reasonable probability that the conditions that resulted in the
Children’s removal or the reasons for placement outside the home of
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the parents will not be remedied and that there is a reasonable
probability that the continuation of the parent-child relationship poses
a threat to the well-being of the Children . . . . [T]he parents exhibited
habitual patterns of neglect which included[] suffering mental illness
which w[ere] not fully and properly treated, failing to follow
prescribed mental health treatment by failing to purchase necessary
medications, weaning oneself off prescribed medications without a
doctor, continuing to abuse illegal substances, continuing in a pattern
of verbal and physical abuse, and continuing in a pattern of criminal
conduct whereby the Father regularly drove after having his driving
privileges revoked. This behavior does not include the day-to-day
issues the parents suffered requiring their then 13 year old to provide
caretaking duties to her then 4 year old and 1 year old siblings. As a
result, [T.T.] testified that she did not feel safe and did not want to
return to her parents’ home. Moreover, she testified that she feared for
[L.T.] and [K.T.] if they were returned to her parents[’] home as she
believed they would be in danger. The parents are unable to take care
of their own needs, much less take care of the Children’s needs. The
parents also failed to complete all reasonable services provided to
them by the Department, namely mental health services and substance
abuse services. The Court notes that the services offered were fairly
simple to follow and/or complete—i.e., appear for meetings and
appear for drug screens. The parents ongoing substance abuse and
domestic violence issues have not been remedied despite repeated
services provided to the parents in each of the prior two (2) CHINS
matters. In fact, the parents each testified that they believed the
domestic violence and/or substance abuse issues were resolved after
having received services in each of the cases before this one—only to
have new charges filed with the exact same allegations of domestic
violence and/or substance abuse.
In light of the above, the Court finds that termination is in the best
interests of the Children and society.
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Although termination is intended as a last resort and typically only
when all other reasonable efforts have failed, the need for permanency
is certainly a factor in determining whether termination is in a child’s
best interests. This Court considered other reasonable efforts,
including a guardianship. As noted above, a temporary guardianship
was granted and those proceedings were set concurrently with these
proceedings to allow the parents ample time to receive and take
advantage of the services offered to them by the Department. In fact,
this Court would have preferred a guardianship. Unfortunately, the
parents did not take advantage of the services offered to them. It has
been proved by clear and convincing evidence that the guardianship
was just not workable under the facts and circumstances herein.
There is a satisfactory plan for the care and treatment of the Children,
namely adoption through the Guardians. It has been proven by clear
and convincing evidence that termination is appropriate herein and
that terminating the parent-child relationship is in the Children’s best
interest[s].
IT IS THEREFORE ORDERED, ADJUDGED, and DECREED
that the parent-child relationship between the children, [T.T.], [L.T.],
and [K.T.] and the parents, [S.J.-T.] and [K.T.], is hereby terminated.
Mother’s App. Vol. II at 46-55. This appeal ensued.
Discussion and Decision
[7] Parents maintain that the trial court’s order terminating their parental rights was
clearly erroneous. We begin our review of this issue by acknowledging that “[t]he
traditional right of parents to establish a home and raise their children is protected by
the Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
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denied. However, a trial court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding a termination. Schultz v.
Porter Cty. Ofc. of Family & Children (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App.
2001). Termination of a parent-child relationship is proper where a child’s emotional
and physical development is threatened. Id. Although the right to raise one’s own
child should not be terminated solely because there is a better home available for the
child, parental rights may be terminated when a parent is unable or unwilling to meet
his or her parental responsibilities. Id. at 836.
[8] Before an involuntary termination of parental rights can occur in Indiana, 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) [and] that termination is in the best interests of the child . . . .
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Ind. Code § 31-35-2-4(b)(2) (2016). DCS need establish only one of the requirements
of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.
DCS’s “burden of proof in termination of parental rights cases is one of ‘clear and
convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257,
1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).
[9] When reviewing a termination of parental rights, we will not reweigh the evidence or
judge the credibility of the witnesses. Peterson v. Marion Cty. Ofc. of Family & Children
(In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we
consider only the evidence and reasonable inferences that are most favorable to the
judgment. Id. Moreover, in deference to the trial court’s unique position to assess
the evidence, we will set aside the court’s judgment terminating a parent-child
relationship only if it is clearly erroneous. Judy S. v. Noble Cty. Ofc. of Family &
Children (In re L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999). trans. denied.
[10] Here, in terminating Parents’ parental rights, the trial court entered specific findings
of fact and conclusions thereon. When a trial court’s judgment contains special
findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake
Cty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine
whether the evidence supports the findings and, second, we determine whether the
findings support the judgment. Id. “Findings are clearly erroneous only when the
record contains no facts to support them either directly or by inference.” Quillen v.
Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the
trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
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[11] Parents do not specifically challenge the trial court’s findings of fact or legal
conclusions. Therefore, “[t]o the extent that [they] argue[] that the trial court’s
findings or conclusions are clearly erroneous, [they] ha[ve] waived th[at] issue by
failing to make a cogent argument.” Runkel v. Miami Cty. Dep’t of Child Servs. (In re
B.R.), 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied; see Ind. Appellate Rule
46(A)(8)(a). Rather, Parents contend that the trial court erred when it adjudicated
Children to be CHINS in the first place and, therefore, the termination of their
parental rights was also clearly erroneous.
[12] Essentially, Parents argue that a court cannot find children to be CHINS when the
children are under a guardianship. However, Parents cite no legal authority and
make no cogent argument for such a proposition. Therefore, they waive that
argument for our review. App. R. 46(A)(8)(a); see also Pierce v. State, 29 N.E.3d 1258,
1267 (Ind. 2015). Moreover, Parents did not challenge the CHINS allegations when
they were initially made or at the termination hearing. In fact, at the July 30, 2015,
permanency hearing, Parents “agree[d] that their children remain[ed] children in
need of services.” Mother’s App. Vol. II at 16. They may not raise a challenge to
the CHINS determination for the first time on appeal. 3 See, e.g., Smith v. Marion Cty.
3
Parents cite McKinney v. Greene Cty. Office of Family and Children (In re C.M.), 675 N.E.2d 1134 (Ind. Ct. App. 1997),
as support for their right to challenge the CHINS adjudication for the first time on appeal. However, In re C.M.
stands for no such proposition. Rather, in that case we held that a parent is not precluded from contesting CHINS
allegations in a subsequent termination proceeding. Id. at 1138. Here, Parents were not prevented from challenging the
initial CHINS allegations at the termination hearing; they merely failed to do so.
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Dep’t of Public Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994), trans. denied. The
challenge to the CHINS adjudication is waived.
[13] Father raises an additional issue in his appeal. He contends that, even if the CHINS
adjudication is appropriate, the trial court erred in terminating parental rights rather
than placing Children in permanent guardianships. In other words, he challenges the
trial court’s legal conclusions that termination is in Children’s best interests and that
the plan of adoption was a satisfactory plan. However, because he does not contend
that any of the specific findings of fact are unsupported by the record, “we do not
look to the evidence but only to the findings to determine whether they support the
judgment.” Smith v. Miller Builders, Inc., 741 N.E.2d 731, 734 (Ind. Ct. App. 2000).
[14] Here, the trial court clearly considered the option of permanent guardianships and,
in fact, stated its preference for such placements over termination. However, given
the uncontested findings in this case, the trial court held that guardianships were
unworkable and termination of parental rights and adoption by Guardians was in
Children’s best interests. That determination was supported by the uncontested
findings that Parents had engaged in years of domestic violence, substance abuse,
and inconsistency in caring for Children; Parents failed to benefit from years of
offered services; neither DCS, the Guardian Ad Litem, the relative caregivers, nor
the oldest child, T.T., believed Parents would ever be able to provide safe and
adequate care for Children; Children needed stability and permanency; Children
were doing well in their current relative placements and were strongly bonded with
the relatives; and guardianships are potentially unsettled by nature and involve the
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possibility of Parents threatening the stability of Children. Those findings support
the trial court’s conclusions that Parents’ parental rights should be terminated and
adoption by Guardians was a satisfactory plan. The trial court did not commit clear
error.
[15] Affirmed.
Riley, J., and Bradford, J., concur.
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