MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 27 2017, 10:06 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
Jerry Drook Curtis T. Hill, Jr.
Marion, Indiana Attorney General of Indiana
Robert J. Henke
Marjorie Newell
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 27, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of L.S. (Minor Child) 27A02-1609-JT-2282
J.S. (Mother), Appeal from the Grant Superior
Court
Appellant,
The Honorable Dana J.
v. Kenworthy, Judge
Trial Court Cause No.
The Indiana Department of 27D02-1511-JT-22
Child Services,
Appellee.
Pyle, Judge.
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Statement of the Case
[1] J.S. (“Mother”) appeals the involuntary termination of her parent-child
relationship with her son, L.S. Mother argues that the Indiana Department of
Child Services (“DCS”) did not present sufficient evidence proving that there
was a reasonable probability that the conditions that resulted in L.S.’s removal
from or reasons for placement outside the home would not be remedied. She
also argues that DCS did not present sufficient evidence to show that the
continuation of the parent-child relationship posed a threat to the child’s well-
being. Concluding that there was clear and convincing evidence to support the
termination of Mother’s parental rights, we affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether there was clear and convincing evidence to support the
termination of Mother’s parental rights to L.S.
Facts
[3] L.S. was born in August 2007. DCS became involved with Mother and L.S. on
December 9, 2011, after receiving a report regarding poor living conditions at
Mother’s home. The prior day, the Marion Police Department (“the police”)
had gone to Mother’s house after receiving a report that L.S.’s father (“Father”)
had died in the family’s house. Upon arriving at the house, the police had
found the house filled with piles of trash, food, clothing, rodents, and rodent
excrement. The house was later condemned and torn down by the city.
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[4] During DCS’s initial interview with Mother, the DCS caseworker noticed that
four-year-old L.S. seemed to have some developmental delays, including an
inability to verbally communicate and a lack of eye contact. Mother was aware
that she should have had L.S. tested for autism, but she had never had an
evaluation performed. Mother also told DCS that she had various medical
conditions that made it difficult for her to maintain her house.1 Mother agreed
to have L.S. evaluated to determine his needs, and she agreed to participate in
recommended services.
[5] At that time, DCS left L.S. in Mother’s care and placed her on a six-month
Informal Adjustment program. As part of this Informal Adjustment program,
Mother was required to do the following: keep in contact with the DCS family
case manager (“FCM”); allow the FCM to visit Mother’s home to monitor
compliance; provide appropriate care for L.S. and ensure that he was attending
services and school; meet all of L.S.’s medical and mental health needs; provide
L.S. with a safe home environment; participate in an intensive family
preservation program; complete a parenting assessment and follow all
recommendations; and complete a psychiatric evaluation and follow all
recommendations.
[6] During the Informal Adjustment period, DCS assisted Mother with having L.S.
evaluated, and he was diagnosed with autism. After being diagnosed, L.S.
started to receive services, such as occupational, physical, and speech therapies.
1
For example, Mother had back pain, kidney problems, high blood pressure, and fibromyalgia.
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In March 2012, L.S. began to receive Social Security disability benefits. DCS
provided services to aid Mother in obtaining suitable housing and meeting
L.S.’s special needs. Specifically, Melissa Helton (“Helton”) provided home-
based services to Mother and worked with her on finding a job, obtaining
housing, and parenting a child with special needs. Helton met with Mother on
a weekly basis.
[7] Mother was generally compliant with services, such as participating in home-
based services and completing her psychiatric evaluation and parenting
assessment. Nevertheless, DCS continued to have concerns about Mother’s
supervision and care of L.S. Additionally, Mother had not provided a stable
home environment, as Mother and L.S. had been living in a shelter since the
beginning of the Informal Adjustment period. Also, Mother had not obtained
employment and had no source of income other than L.S.’s disability benefits.
At times, she had difficulty budgeting these funds.
[8] By May 2012, Mother had not yet completed the requirements of the Informal
Adjustment program, and DCS had continued concerns about Mother’s care
and supervision of L.S. For example, service providers who provided home-
based services reported that Mother was frequently lying around, was feeding
L.S. only junk food, was not bathing him regularly, was allowing him to
wander around, and was not working with L.S. on his therapeutic skill-building
activities. L.S.—who was almost five years old—was still not potty-trained,
could not speak, and did not know how to use utensils to eat. DCS was also
concerned about Mother’s apparent lack of motivation to budget her money
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and move out of the shelter, despite the assistance that service providers had
offered. DCS requested to extend Mother’s Informal Adjustment program for
an additional three months, and the trial court granted DCS’s request.
[9] Prior to the expiration of the Informal Adjustment extension, DCS filed a
petition alleging that L.S. was a child in need of services (“CHINS”) in August
2012. In the petition, DCS alleged, in part, that Mother was not consistently
supervising L.S. or working with him to help him with his autism; was unable
to provide housing and had been living in a shelter with L.S.; and had failed to
follow up on recommendations from her parenting assessment and psychiatric
evaluation and seemed unmotivated to do so. The trial court then appointed a
court-appointed special advocate (“CASA”) to represent L.S.’s best interests.
[10] During the CHINS hearing held in November 2012, Mother admitted that L.S.
was a CHINS and that she needed assistance in providing for his needs. The
trial court determined that then five-year-old L.S. was a CHINS and allowed
him to stay in Mother’s care. At that time, Mother had just moved out of the
shelter and into an apartment. The trial court ordered that L.S. was to continue
receiving physical, occupational, and speech therapies. The trial court also
ordered Mother to, among other things: maintain safe and appropriate
housing; cooperate and maintain contact with DCS and service providers;
continue home-based services; allow DCS to make unannounced visits to her
home to ensure the safety of L.S.; secure and maintain a stable source of
income; ensure that L.S. was enrolled in and attending school; meet L.S.’s
medical and mental health needs in a timely manner; obey the law; and
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continue to actively participate in home-based services, parenting education,
and counseling.
[11] A few months later, in February 2013, DCS removed L.S. from Mother’s care
on an emergency basis due to her lack of appropriate supervision of L.S. and
failure to meet his needs. Specifically, on two occasions, Mother had failed to
answer the door when the school bus driver brought L.S. home and to the door,
resulting in L.S. being taken back to school. Mother told DCS that she had
taken some cold medicine and did not wake up. DCS placed L.S. in relative
care and later in foster care. DCS allowed Mother to continue to receive
payment of L.S.’s disability benefits, which were her only source of income, so
that she could use it to work toward reunification with L.S.
[12] Thereafter, Mother was compliant with services, attended her visits with L.S.,
worked on skill-building activities with L.S., moved into an apartment and
child-proofed it for L.S., and cooperated with DCS. Mother also attended
individual therapy and participated in home-based services to work on parent
education, budgeting, and nutrition. Helton, the home-based services provider,
noted in an April 2013 monthly progress report that Mother was willing to
work with services, had gotten housing and kept it clean, had been working
with L.S. on his therapy tasks, and was doing well in her supervised visits.
[13] In late May 2013, DCS returned L.S. to Mother’s care, and the CHINS case
remained open with all previous services and requirements in place. At that
time, Mother agreed to set up a safety plan for L.S., which was set up to address
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DCS’s ongoing concerns regarding Mother’s care of L.S. The safety plan
included obtaining safety equipment for Mother’s apartment, keeping the
bathroom door closed so that L.S. would not get into the toilet water, putting a
deadbolt on the top of the front door so that L.S. could not leave the apartment
alone, supervising L.S. at all times, ensuring that he attended school and all
therapies, and working with L.S. on skill-building activities.
[14] However, thereafter Mother did not consistently take L.S. to his required
therapy appointments. Also, Mother was living with a woman, T.K., who had
a DCS case of her own. DCS told Mother that T.K. was not an appropriate
person to be living in the same home as L.S. and warned Mother that T.K.
should not live with Mother because Mother was the only person on the lease.
Also, T.K. interfered with the home-based services provider’s ability to work
with Mother.
[15] Nevertheless, DCS continued to recommend that L.S. remain in Mother’s care.
Following a permanency hearing in August 2013, the trial court accepted
DCS’s recommendation but noted that it had “serious reservations regarding
continued placement with Mother.” (Ex. Vol. 61). The trial court conditioned
this continued placement on Mother’s compliance with the requirements that
she keep all appointments for L.S., not unilaterally stop services, and get T.K.
to move out of her apartment.
[16] Mother had T.K. move out of the apartment in September or October 2013.
Mother did better with home-based services after T.K. moved out. However,
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Mother continued to be unemployed and continued to have difficulties
budgeting funds. In January 2014, she was evicted from her apartment for
failing to pay her rent. Thereafter, she moved into another apartment.
[17] In March 2014, the trial court held a periodic hearing and, thereafter, removed
L.S. from Mother’s care due to her failure to comply with L.S.’s case plan and
to ensure that he received his necessary therapies. L.S. never returned to
Mother’s care. The trial court found that “Mother’s excuses for lack of
compliance with [L.S.’s] services [were] not credible” and stated that her
“efforts in this matter [were] minimal.” (Ex. Vol. 63). After L.S. was removed
from Mother’s care, DCS placed him in therapeutic foster care and stopped
L.S.’s disability benefits from going to Mother. DCS provided Mother with
visitation, individual therapy, and home-based services to assist her with
obtaining employment and housing.
[18] Thereafter, Mother had supervised visitation with L.S. Additionally, Mother
participated in services and sought out some services on her own, including
individual counseling and nutritional consulting. DCS had concerns about
Mother because she participated in services but did not seem to make any
concrete progress. Mother still had no employment and no source of income.
She had applied for Social Security on her own behalf but was denied benefits.
Also, Mother was charged with two crimes, including a “hit and run” and theft
from a Walmart. (Vol. 2 Tr. 250).
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[19] Following a February 2015 permanency hearing, the trial court issued an order,
noting that Mother had been participating in services and supervised visitation
but that she was “unable to demonstrate that she ha[d] received maximum
benefits of services with regard to providing a stable environment for [L.S.].”
(Ex. Vol. 74). The trial court also approved DCS’s plan to move towards
termination of parental rights. DCS continued to provide the same services to
Mother.
[20] In the subsequent months, Mother continued the same pattern of attending
services but failing to get the maximum benefit from them. Mother continued
to have supervised visitation with L.S., but she would occasionally doze off for
short periods during those visits. She also fell asleep for longer periods of time
during visits. For example, during a June 2015 visit, Mother fell asleep for
almost thirty minutes. While Mother was sleeping, L.S. walked around the
room, took chalk from the chalkboard, and put it in his mouth. Mother also
did not show up for all visitation sessions. Additionally, she did not obtain
employment and was unable to provide a stable environment for L.S.
[21] On December 14, 2015, DCS filed a petition to terminate Mother’s parental
rights to L.S. At that time, Mother did not have employment or housing of her
own and was living in T.K.’s apartment. DCS continued to provide Mother
with services and visitation with L.S.
[22] The trial court held termination hearings on May 4, May 13, and June 7, 2016.
At the time of the termination hearings, L.S. was eight years old. DCS had
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been involved with L.S. and Mother since December 2011, and L.S. had been
removed from Mother’s care since March 2014.
[23] At the time of the first two hearings, Mother was living in a shelter and had
been living there since April 2016. Prior to moving into the shelter, Mother had
lived in her car for a short period and had also lived with friends. Mother had
not maintained independent housing since March 2015. By the time of the last
hearing in June, Mother was living in a motel, which was funded by her
parents, and she testified that she was not allowed to return to any local shelter.
Moreover, Mother was unemployed and had never obtained employment
during the course of DCS’s involvement with her. In fact, the last time Mother
had employment was in 2002. Additionally, Mother had been on probation for
a “hit and run” conviction since December 2014, and she had a pending theft
charge that she was hoping would be dismissed. (Vol. 2 Tr. 250).
[24] During these hearings, Mother’s service providers testified that Mother loved
L.S. and had a bond with him. However, they also testified regarding their
concerns with Mother’s lack of consistent employment and housing and its
effect on Mother’s ability to effectively parent L.S. and attend to his special
autism needs that required constant supervision.
[25] For example, the CASA, Ellen Schramm (“CASA Schramm”), testified that
Mother was “very loving” with L.S. (Vol. 2 Tr. 162). However, CASA
Schramm also testified that, since she had been assigned as the CASA for L.S.
in October 2015, Mother had not been able to make the overall necessary
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progress or changes to provide a stable home for L.S. CASA Schramm also
testified that L.S. was doing well in his foster home and that it was in L.S.’s best
interest to terminate the parent-child relationship.
[26] Additionally, FCM Stroup, who had been Mother’s FCM from July 2013 to
October 2014, testified that she was never concerned about whether Mother
loved L.S. and that Mother “adore[d] him.” (Vol. 2 Tr. 131). FCM Stroup’s
concern with Mother was that she had a “lack of progress despite constant
services.” (Vol. 2 Tr. 104).
[27] FCM Amy Shutters (“FCM Shutters”), who had been Mother’s FCM from
December 2011 to July 2013, testified that Mother generally participated in
services during the initial part of the CHINS proceeding but that she would
fluctuate between making progress and lacking motivation. FCM Shutters
testified that Mother attended services but did not always benefit from them.
[28] FCM Cassandra Brubaker (“FCM Brubaker”), who had been Mother’s FCM
since January 2015, testified that that L.S. requires constant supervision and
that Mother was not ready to have L.S. returned to her “[d]ue to [Mother’s]
lack of housing and financial stability and the poor decision-making of who she
allows in her life.” (Vol. 3 Tr. 122).
[29] Kami Hawke (“Hawke”), who had supervised Mother’s visits with L.S. since
August 2015, testified that Mother and L.S. were “definitely very loving
towards each other” and had a “strong bond.” (Vol. 2 Tr. 140). Hawke,
however, voiced her concern about Mother’s struggles to stay awake during
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some visits and testified that, during one visit in April 2016, Mother “actually
fell asleep for about 20 minutes of the visit[.]” (Vol. 2 Tr. 141).
[30] Julia Knapp (“Knapp”), a family consultant who provided case management
for Mother, testified that she had worked with Mother since July 2015 to help
her meet her goals of finding employment and obtaining stable housing. Knapp
testified that Mother was cooperative with services, but Knapp did not believe
that Mother could care for L.S. at that time. Knapp testified that Mother was
“frequently unable to really move around very much” and that her “motor skills
[were] kind of slow, almost like she’s tired or lethargic almost.” (Vol 3 Tr. 46).
[31] During the hearing, Mother testified that she did not have any source of
income. She testified that she had relied on her parents for money for the prior
two years. Mother also admitted that she had nodded off during visits with
L.S. and acknowledged that L.S. required constant supervision. Mother
testified that her numerous medications made her drowsy and that she
sometimes had difficulty staying awake during the day. She testified that she
had applied for Social Security disability based on a physical disability and
mental health disability, that she had been denied, and that she was appealing
that decision. She testified that her physical issues included back pain,
fibromyalgia, asthma, irritable bowel syndrome, acid reflux, insomnia, and
migraines and that she had been diagnosed with a personality disorder,
depression, anxiety, and post-traumatic stress disorder.
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[32] Following the hearing, the trial court entered a detailed order involuntarily
terminating Mother’s parental rights to L.S. In relevant part, the trial court
concluded that the conditions that resulted in L.S.’s removal or the reasons for
placement outside the home would not be remedied and that the continuation
of the parent-child relationship posed a threat to the child’s well-being. Mother
now appeals.
Decision
[33] Mother argues that the trial court erred by ordering the involuntary termination
of her parent-child relationship with L.S. “Although parental rights are of a
constitutional dimension, the law allows for termination of these rights when
parties are unable or unwilling to meet their responsibility as parents.” In re
A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). See also In re I.A., 934 N.E.2d
1127, 1132 (Ind. 2010). The purpose of termination of parental rights is not to
punish parents but to protect children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), reh’g denied, trans. denied, cert. denied.
[34] In reviewing the termination of parental rights, we will neither reweigh the
evidence nor judge the credibility of witnesses. I.A., 934 N.E.2d at 1132. We
consider only the evidence most favorable to the judgment. Id. Where the trial
court has entered findings of fact and conclusions of law, we apply a two-tiered
standard of review. Id. We must determine whether the evidence supports the
findings and then whether the findings support the judgment. Id. We will set
aside a judgment terminating a parent-child relationship only if it is clearly
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erroneous. Id. A judgment is clearly erroneous if the findings do not support
the conclusions or the conclusions do not support the judgment. Id.
[35] When DCS seeks to terminate parental rights, it must plead and prove, in
relevant part:
(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 . . . .
I.C. § 31-35-2-4(b)(2)(B). These allegations must be established by clear and
convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court “finds that the
allegations in a petition described in section 4 of this chapter are true, the court
shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a) (emphasis
added).
[36] Mother argues that DCS failed to prove that there was a reasonable probability
that: (1) the conditions that resulted in L.S.’s removal or the reasons for
placement outside the home will not be remedied; and (2) continuation of the
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parent-child relationship posed a threat to the child’s well-being.2 We note,
however, that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the disjunctive.
Thus, DCS was required to demonstrate by clear and convincing evidence only
one of the three conditions in subsection (B). See Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005). We will, therefore,
discuss only whether there is a reasonable probability that the conditions that
resulted in L.S.’s removal or the reasons for placement outside the home will
not be remedied.
[37] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then, second,
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to evaluate a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and
2
DCS argues that Mother has waived appellate review of her challenge to the trial court’s determination
under INDIANA CODE § 31-35-2-4(b)(2)(B), contending that Mother did not challenge both the conditions
remedied subsection and the threat to the well-being subsection. While Mother’s arguments on both
subsections are not the epitome of completeness or detailed arguments, we decline to find that Mother has
waived her appellate challenge to this statutory determination.
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employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind.
Ct. App. 2013), trans. denied. The trial court may also consider services offered
to the parent by DCS and the parent’s response to those services as evidence of
whether conditions will be remedied. 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.” E.M., 4
N.E.3d at 643.
[38] Our review of the evidence reveals that DCS initially became involved with
Mother and L.S. due to the deplorable condition of Mother’s home, which was
later condemned by the city and torn down. At that time, DCS worked with
Mother, who was unemployed and had moved L.S. into a shelter, to place her
on an Informal Adjustment program that allowed her to maintain care and
custody of L.S. During the Informal Adjustment period, it became clear to
DCS that L.S. needed to be evaluated for autism and needed special services.
After L.S.’s evaluation, DCS arranged for L.S. to receive physical,
occupational, and speech therapies. During the Informal Adjustment period
and the CHINS proceeding, DCS worked with Mother to provide home-based
services to assist her in obtaining housing and employment. Mother, however,
was unable to sustain stable housing or obtain employment. Indeed, as of the
last day of termination hearings, Mother still had no employment and no stable
housing and was living in a motel that was paid for by her parents.
Additionally, Mother also lacked consistency in ensuring that L.S. was getting
his required therapies.
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[39] Here, the trial court concluded, in relevant part, that the conditions that resulted
in L.S.’s removal or the reasons for placement outside the home would not be
remedied. The trial court provided numerous, detailed findings relating to this
conclusion and then summarized these findings as follows:
[L.S.]’s involvement in the system began in December 2011.
Since that time, he has been removed from Mother’s care twice.
The most recent removal has lasted for over two years. Mother
has had approximately four and one-half years to accomplish the
steps necessary to be reunified with [L.S.], but has made very
little progress. Children cannot wait indefinitely for their parents
to work toward preservation and reunification. . . . [L.S.] has
waited for four and one-half years for his Mother to make
progress, and he should not be expected to wait any longer.
(App. 39) (emphasis in original). The trial court did not err by concluding that
that there was a reasonable probability that the conditions that resulted in L.S.’s
removal or the reasons for placement outside the home will not be remedied.3
3
Mother also challenges one finding from the trial court’s fifty findings. Specifically, she challenges finding
number 41, in which the trial court stated as follows:
Mother undoubtedly loves [L.S.], and shows affection toward him. Mother and [L.S.] are
clearly bonded. However, her pattern of behavior over the past four and one-half years demonstrates that
she is either unable or unwilling to provide the consistent care and attention that [L.S.] needs to be safe and
healthy. Instead, Mother has demonstrated that she primarily depends on others to take care of
her needs.
(App. 37) (emphasis added). Mother challenges only the italicized sentence in finding number 41. She
interprets the sentence to mean that the trial court was determining that L.S. was “harmed or injured or
abandoned” while in her care, and she disputes that there was any evidence that her care ever “created any
unsafe or unhealthy situations” for L.S. (Mother’s Br. 20).
We, however, do not interpret the specific portion of finding number 41 as Mother does. In fact, the sentence
is more of a conclusion by the trial court based on the evidence that L.S. had autism—which required various
therapies and constant supervision—and that Mother—who had no employment, no consistent source of
income, and no stable housing—had not always been consistent in working on skills with L.S. and getting
him to his required therapies and had occasionally had difficulty staying awake during visitations. Mother
does not challenge the evidence supporting this conclusion. Thus, we conclude her argument is without
merit.
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[40] We conclude there was clear and convincing evidence to support the trial
court’s decision to terminate Mother’s parental rights to L.S. We reverse a
termination of parental rights “only upon a showing of ‘clear error’—that which
leaves us with a definite and firm conviction that a mistake has been made.”
Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992).
We find no such error here and, therefore, affirm the trial court.
[41] Affirmed.
Baker, J., and Mathias, J., concur.
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Termination: JS v. Indiana Department of Child Services (mem. dec.)
Combined Opinion