MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Sep 08 2017, 6:43 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT D.S. ATTORNEYS FOR APPELLEE
Ernest P. Galos Curtis T. Hill, Jr.
Public Defender Attorney General of Indiana
South Bend, Indiana
Abigail R. Recker
ATTORNEY FOR APPELLANT T.S. Deputy Attorney General
Indianapolis, Indiana
Mark S. Lenyo
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary September 8, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of D.S. Jr. and J.S. 71A03-1704-JT-823
(Minor Children) and Appeal from the St. Joseph Probate
D.S. (Father) and T.S. (Mother), Court
The Honorable James N. Fox,
Appellants-Respondents,
Judge
v. The Honorable Graham C.
Polando, Magistrate
The Indiana Department of Trial Court Cause Nos.
Child Services, 71J01-1607-JT-44, -45
Appellee-Petitioner
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Crone, Judge.
Case Summary
[1] D.S. (“Father”) and T.S. (“Mother”) (collectively “Parents”) each appeal the
involuntary termination of their parental rights to their children, D.S. Jr. and
J.S. (collectively “the Children”). Mother and Father both take issue with the
trial court’s conclusion that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the Children’s
well-being. Father separately contends that the trial court clearly erred in
concluding that termination of the parent-child relationship is in the Children’s
best interests. Finding no error, we affirm.
Facts and Procedural History
[2] The facts most favorable to the termination orders show that D.S. Jr. was born
in January 2007 and J.S. was born in August 2009. In May 2015, after the
family was evicted from their home for undisclosed reasons, Father was living
in a homeless shelter, and Mother was living in a hotel with eight-year-old D.S.
Jr. and five-year-old J.S. The Indiana Department of Child Services (“DCS”)
received a report that the Children were living in a “disgusting” hotel room,
Mother was using crack cocaine in the Children’s presence, J.S. had untreated
ringworm on his forehead, and Mother and Father were involved in a domestic
dispute in Children’s presence. DCS Ex. 1 at 10.
[3] A DCS family case manager visited Mother at the hotel and deemed the hotel
room unsuitable for the Children. The room was cluttered with bags of
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clothing and other items, there were old cigarette butts scattered throughout the
bathroom, and there were no clean towels, no clean clothes, and no food for the
Children. J.S. had ringworm on his forehead. The family case manager
learned that the Children were not attending school. Mother stated that she did
not send the Children to school because she did not want them raised by the
“devil.” Id. Mother began to scream at the case manager and called her a
“devil.” Id. The case manager feared for her safety and called for police
assistance.
[4] DCS removed the Children from Mother’s care. At some point, DCS
attempted to contact Father and learned that he was living in the homeless
shelter, had not been in communication with Mother, and thought that Mother
and the Children were living at the YWCA and that the Children were
attending school.
[5] DCS filed petitions alleging that the Children were children in need of services
(“CHINS”) and placed the Children in foster care. A child therapist evaluated
the Children. The therapist diagnosed D.S. Jr. with generalized anxiety
disorder. Tr. at 72. In addition, D.S. Jr.’s doctor diagnosed him with ADHD.
Id. The therapist diagnosed J.S. with generalized anxiety disorder and
disruptive behavior disorder. Id. at 74. The therapist began weekly therapy
with the Children.
[6] While the CHINS petition was pending, DCS offered Mother and Father
supervised visitation. Almost immediately, Mother’s visitation was suspended
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due to her inappropriate and disturbing behavior. In August 2015, Mother was
attending supervised visitation at a DCS-selected facility when she told the
Children not to listen to their foster parents and referred to the Children’s foster
parents and the DCS service providers as the “devil” and called them liars.
DCS Ex. 1 at 24. Mother became increasingly aggressive and belligerent,
disrupting other families in the facility. Ultimately, her behavior required the
intervention of other staff members and requests to the police for assistance. Tr.
Vol. 2 at 91. Thereafter, DCS filed a motion to suspend Mother’s visitation,
which the trial court granted.
[7] In October 2015, following a hearing, the trial court adjudicated the Children
CHINS. In November 2015, the trial court held a dispositional hearing and
issued a dispositional decree ordering Mother and Father to participate in the
following services: begin home-based counseling; undertake parenting
assessments and follow all recommended services; undertake psychological
evaluations and follow all recommended services; and participate in supervised
visitation. Mother was also ordered to complete a substance abuse assessment
and follow all recommended treatment and submit to random drug screens.
[8] Initially, Mother was noncompliant with the dispositional decree. At the end of
2015, she was incarcerated for trespass and conversion. Father also initially
failed to comply with the dispositional decree, although he did continue to
exercise visitation with the Children. While Father’s visitations initially went
well, over the course of 2015 he stopped attending visits or confirming that he
was going to attend, and his visitation dropped from twice a week to once a
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week. Id. at 91. In addition, the visitation supervisor observed that the
Children did not want to go to visitation and D.S. Jr. would become anxious
and say, “[M]aybe we should go back … maybe we shouldn’t be coming.” Id.
at 92. In January 2016, Father was very late to arrive at a visitation. When he
did arrive, he was visibly intoxicated, and smelled strongly of alcohol, and the
supervisor saw an empty beer can roll out of his car. Id. at 97-98. As a result,
the supervisor cancelled that day’s visit, and DCS filed a motion for
modification of the dispositional decree seeking to have Father’s sobriety
monitored. DCS Ex. 1 at 68. In February 2016, the trial court modified the
dispositional decree and ordered Father to submit to random drug and alcohol
screens.
[9] In February 2016, Father completed a psychological parenting evaluation with
Dr. Leroy Burgess. Father’s test results showed low parenting function. Dr.
Burgess recommended that Father receive substance abuse education, parenting
education, supervised visitation, and home-based case management.
Immediately following Father’s evaluation, Dr. Burgess would not have been
able to recommend reunification and would have had concerns about Father’s
parenting functions if he did not follow the recommendations.
[10] In April 2016, Mother submitted to psychological parenting evaluation with Dr.
Burgess. He diagnosed her with bipolar disorder, stimulant use disorder in
early remission, unspecified personality disorder, and bipolar type
schizoaffective disorder. He recommended that she receive psychotherapy and
undergo a medical evaluation to determine the appropriateness of psychotropic
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medication, refrain from substance abuse, undergo substance abuse treatment,
and participate in supervised visitation and homebased case management.
[11] In June 2016, Mother and Father established a home together, and they began
to comply with some of the requirements in the dispositional decree. They
began home-based case management, and their home was determined to be
appropriate. In addition, they began home-based therapy, but their
participation was poor. Father attended only two or three times and was
transferred to a parenting group, which he attended only once or twice. Tr. at
111. Mother attended home-based therapy only once or twice in the first three
months, although her attendance became more consistent after October 2016
and after DCS filed its petition to terminate her parental rights.
[12] In July 2016, DCS filed petitions for the involuntary termination of Mother’s
and Father’s parental rights to the Children, which it subsequently amended.
Father’s App. Vol. 2 at 35, 50.
[13] In July 2016, Mother finally completed two assessments required by the
dispositional decree, but they were unproductive. She submitted to a substance
abuse assessment, during which she admitted to using cocaine and revealed that
she viewed it as “a natural substance to be used as medication” and felt that it
was “perfectly okay and that nobody had a right to interfere with it.” Tr. Vol. 2
at 29-30. When the addictions coordinator recommended that Mother undergo
an intensive outpatient addictions treatment program, Mother became
“furious” and accused the coordinator of “tricking” her. Id. at 29. Mother also
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failed to take responsibility for her actions and spent much of the appointment
“verbally bashing DCS.” Id. at 31. She stated that DCS was “acting as a devil
or demon to torture her,” and “her children were hers” and “DCS was not
within their rights to interfere.” Id. at 29. Mother failed to attend any more
appointments with the addictions counselor.
[14] Mother also submitted to a psychosocial intake with a licensed clinical social
worker. Mother reported a history of bipolar disorder and cocaine use, and that
she had been hospitalized four times for manic behavior and had taken
psychiatric medications but had not had any psychiatric treatment for the last
seven years. Id. at 86. The clinician diagnosed Mother with unspecified bipolar
disorder and cocaine use disorder and referred Mother for a psychiatric
evaluation to determine whether medications would be helpful in treating her
mental health issues. Id. at 87. Mother never followed through with
completing the psychiatric evaluation. Id.
[15] In September or October 2016, Father was scheduled to have weekly supervised
visitation. Over the course of four months, about half the visits were cancelled
due to Father’s failure to confirm the appointment or show up on time or
because he cancelled due to lack of transportation. During visitation, Father
said inappropriate things to the Children such as, “[I]f I had a stick I would hit
you with it,” and “[Y]ou’re going to go to hell.” Id. at 76. The visits made both
Children “very upset” and “worried about their physical safety because those
are things that have happened to them in the past.” Id. The foster parents
observed that D.S. Jr. did not want to go to visitations and would cry and try to
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get out of attending them. Id. at 19. As for J.S., “most of the time he did not
want to go” and would say he hoped that there would be no visitation. Id. at
19-20.
[16] In January 2017, the trial court held a termination hearing. By the time of the
hearing, Father had not completed a substance abuse assessment and had
refused all requests for drug screens. Mother had refused twenty-one requests
for drug screens and had also refused screens every time she appeared for a
hearing. Father testified that he knew nothing about Mother’s cocaine use. Id.
at 167. The Children’s therapist testified that the Children had not seen Mother
in over a year and were “very happy” about not seeing her, and she
recommended that Father’s visitation be discontinued because it causes “a lot
of distress” for the Children. Id. at 76-77. The guardian ad litem (“GAL”)
testified that D.S. Jr. had consistently expressed resistance to ever returning to
his Parents. Id. at 123. The GAL also recommended that Father’s visitation be
discontinued and opined that placing the Children with either parent is a threat
to their well-being and that termination of parental rights is in the Children’s
best interests. Id. at 124, 129, 131-32. The family case manager recommended
that Father’s visitation be discontinued and opined that termination was in the
Children’s best interests. Id. at 106-07.
[17] In March 2017, the trial court issued orders terminating Mother’s and Father’s
parental rights, concluding that the Children had been removed from Parents
for at least six months under a dispositional decree, DCS established that there
is a reasonable probability that the continuation of the parent-child relationship
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poses a threat to the Children’s well-being, termination is in the Children’s best
interests, and DCS has a satisfactory plan for the Children’s care and treatment.
Father’s App. Vol. 2 at 20-25.1 These appeals ensued. Additional findings
supporting the termination orders will be provided.
Discussion and Decision
[18] In appeals involving the termination of parental rights, we have long employed
a highly deferential standard of review. C.A. v. Ind. Dep’t of Child Servs., 15
N.E.3d 85, 92 (Ind. Ct. App. 2014).
When reviewing the termination of parental rights, we do not
reweigh the evidence or judge witness credibility. We consider
only the evidence and reasonable inferences that are most
favorable to the judgment. …. When reviewing findings of fact
and conclusions of law 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. We will set aside the trial court’s judgment only if it is
clearly erroneous. A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do
not support the judgment.
In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009) (citations, quotation marks, and
brackets omitted). Here, neither Parent challenges the trial court’s findings of
fact, and therefore we will accept them as true. See McMaster v. McMaster, 681
1
We note that the trial court entered separate termination orders regarding each child. However, because the
trial court’s findings of fact and conclusions thereon in each order are essentially identical, we cite to the
order regarding D.S. Jr.
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N.E.2d 744, 747 (Ind. Ct. App. 1997) (“Father does not challenge these
findings and we accept them as true.”). Therefore, if the unchallenged findings
support the judgment, we will affirm. Kitchell v. Franklin, 26 N.E.3d 1050, 1059
(Ind. Ct. App. 2015) (affirming where unchallenged findings supported trial
court’s judgment), trans. denied.
[19] We observe that “although parental rights are of a constitutional dimension, the
law provides for the termination of these rights when the parents are unable or
unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799,
805 (Ind. Ct. App. 2008). Involuntary termination of parental rights is the most
extreme sanction, and therefore “termination is intended as a last resort,
available only when all other reasonable efforts have failed.” Id.
[20] A petition to terminate a parent-child relationship involving a CHINS must
allege, 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.
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(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).
[21] DCS must prove by “clear and convincing evidence” each element set forth in
Section 31-35-2-4(b)(2). G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2.
“‘Clear and convincing evidence need not reveal that the continued custody of
the parents is wholly inadequate for the child’s very survival.’” G.Y., 904
N.E.2d at 1261 (quoting Bester v. Lake Cty. Office of Family & Children, 839
N.E.2d 143, 148 (Ind. 2005)). “‘Rather, it is sufficient to show by clear and
convincing evidence that the child’s emotional and physical development are
threatened by the respondent parent’s custody.’” Id. (quoting Bester, 839
N.E.2d at 148).
[22] Here, Mother and Father challenge the sufficiency of the evidence supporting
Section 31-35-2-4(b)(2)(B). We note that subparagraph (B) is written in the
disjunctive and therefore requires the trial court to find that only one of the
alternatives is supported by clear and convincing evidence. In re Termination of
Parent-Child Relationship of L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003).
Because we conclude that clear and convincing evidence supports the trial
court’s conclusion regarding (B)(ii), we need not address Parents’ challenges to
(B)(i). Father also challenges the sufficiency of the evidence supporting Section
31-35-2-4(b)(2)(C).
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Section 1 - The trial court did not clearly err in concluding that
there is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the Children’s well-
being.
[23] Mother’s and Father’s arguments regarding whether the parent-child
relationship poses a threat to the Children’s well-being are very similar. Mother
argues that her participation in services and cooperation with the home-based
therapist demonstrate that she no longer poses a threat to the Children’s well-
being. She also points out that she has maintained a stable residence, reunited
with Father, who is employed, and even though her visitation was suspended,
he has been visiting with the Children regularly. Father contends that he has
appropriate housing, is gainfully employed, and although he missed or was late
for approximately half his visitations, his visits with the Children have gone
very well.
[24] As previously noted, neither party challenges the trial court’s findings.
Regarding Mother, the trial court made findings related to her participation in
services, her drug use, her failure to address her mental health issues, and her
flawed understanding of the parent-child relationship. Specifically, the trial
court found that “it would be difficult to overstate the lack of interest Mother
displayed in complying with [the dispositional] decree” and “her lack of
compliance was active and intentional.” Father’s App. Vol. 2 at 21-22. The
trial court found that Mother has a substance abuse issue and that although she
met with the addictions coordinator to undergo a substance abuse assessment,
the meeting was unproductive and Mother never attended any further meetings
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or sought any other treatment for her substance abuse issues. Id. at 22. The
trial court further found that she continues to use cocaine, justifies her use as
“natural,” and “categorically refused to submit to drug screens.” Id. The trial
court found that Mother’s continued cocaine abuse was an obvious concern for
her ability to care for the Children, and that her “failure to see them as people,
not property, is of even greater concern and poses an obvious threat.” Id. at 23.
It further found that Mother’s mental health poses a threat because she suffers
from bipolar disorder, made disturbing allegations about DCS being the “devil”
and “evil,” and “had not been medication compliant for many years.” Id.
[25] As to Father, the trial court found that Father appears to enable Mother’s
behavior, and specifically found that at the termination hearing, Father
minimized Mother’s mental health issues and “incredibly stated a lack of
awareness of Mother’s cocaine abuse—a disturbing denial given how openly
Mother abuses the substance.” Id. at 24. The trial court also found that Father
has a “significantly elevated lack of empathy for the Children,” and “likely sees
his children as an emotional support for him, rather than supporting them.” Id.
Most significantly, the trial court recognized D.S. Jr’s “profound fear” of being
reunited with his parents and found that the Children’s behavior was markedly
different following visitation in that they were aggressive and irritable. Id. The
trial court found that “Father makes comments to D.S., Jr. that would distress
anyone, much less a child, e. g., ‘If I had a stick I would hit you with it,’ and
‘You’re going to go to hell.’” Id. These findings support the conclusion with
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respect to both Mother and Father that there is a reasonable probability that the
parent-child relationship poses a threat to the Children’s well-being.
Section 2 – The trial court did not clearly err in concluding
that termination of Father’s parental rights is in the
Children’s best interests.
[26] Father separately challenges the trial court’s conclusion that termination of the
parent-child relationship is in the Children’s best interests.
[I]n determining what is in the best interests of a child, the trial
court is required to look beyond the factors identified by the
Department of Child Services and to consider the totality of the
evidence. In so doing, the trial court must subordinate the
interests of the parent to those of the child. The court need not
wait until a child is irreversibly harmed before terminating the
parent-child relationship. Moreover, we have previously held
that the recommendations of the case manager and court-
appointed 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.
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted); see also
In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999) (“[C]hildren should not be
compelled to suffer emotional injury, psychological adjustments, and instability
to preserve parental rights.”), trans. denied (2000), cert. denied (2002).
[27] Father argues that his case is like In re V.A., 51 N.E.3d 1140 (Ind. 2016), in
which our supreme court concluded that termination of the father’s parental
rights was not in the child’s best interests. Id. at 1153. There, the mother
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requested DCS’s help because she felt overwhelmed in caring for V.A. and
wanted her removal. DCS involvement revealed that the mother had an
untreated schizoaffective disorder. The father did not want V.A. removed and
“complied” with all court-ordered services and the safety plan that DCS put in
place so V.A. would be safe when with mother. Id. at 1152. V.A. lived with
both mother and father for a month, but DCS thought that mother was not
capable of caring for V.A. Id. at 1147. DCS told the father that if he did not
decide to live without mother, DCS would attempt to remove V.A. from his
custody and place her in foster care. Id. Our supreme court concluded that
“[f]ather’s unwillingness to live separately from a mentally ill spouse, without
more, is an insufficient basis upon which to terminate his parental rights.” Id.
[28] In addition, our supreme court found inadequate the trial court’s basis for
concluding that termination was in V.A.’s best interests. The trial court had
concluded that termination was in V.A.’s best interests so that she could be
“freed for adoption.” Id. at 1152. The V.A. court explained that under the
circumstances, being freed for adoption was not in V.A.’s best interests:
[I]t is clear that at the time of the termination hearing, DCS has
not yet found an adoptive home for V.A. Consequently, it
cannot be the case that relegating V.A. as a permanent ward of
the State for an undetermined period of time until a special needs
adoptive placement is identified clearly and convincingly shows
that termination is in V.A.’s best interests by establishing
permanency.
[T]he goal of permanency may best be served by allowing V.A. to
remain with her current foster family while DCS pursues the goal
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of reunification with Father as he receives the appropriate
services that enable him to better understand how to parent his
child while simultaneously caring for his mentally ill wife. This is
particularly so considering Father has maintained an appropriate
relationship with his daughter throughout the CHINS proceedings,
provided for her throughout the foster care placement,
maintained consistent employment, acquired suitable housing,
complied with the requirements that DCS mandated for him in the
Parent Participation Plan, and has already taken steps to understand
how to better care for Mother’s mental health needs.
Id. at 1152-53 (emphases added) (footnotes omitted).
[29] Here, although it is true that Mother suffers from a mental illness and DCS has
not yet identified pre-adoptive parents for the Children, the similarities between
this case and V.A. end. Father’s relationship with the Children is not
appropriate, he has not complied with the requirements in the dispositional
decree, he was not even aware of Mother’s cocaine use, and he does not
recognize the seriousness of Mother’s mental illness. We observe that the trial
court’s conclusion that termination is in the Children’s best interests is not
based solely on a need for permanency. The trial court found that “Father did
display some positive traits” but “has proven either unable or unwilling to
address his own shortcomings, and more significantly, continues to enable
Mother’s.” Father’s App. Vol. 2 at 25. As discussed earlier, Father failed to
consistently participate in and benefit from services. See In re T.F., 743 N.E.2d
766, 776 (Ind. Ct. App. 2001) (parents’ failure to demonstrate ability to
effectively use recommended services was significant factor in establishing that
termination was in child’s best interests), trans. denied. The trial court also
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found that “the Children themselves have been the best evidence of their
interests, having greatly improved their behavior now that they have been
exposed to routines and stability,” and “the Children have now learned basic
life skills they should have learned long ago—regularly bathing and attending
school, for example.” Father’s App. Vol. 2 at 25. Father failed to attend
approximately half the visits with his Children in the four months preceding the
termination hearing, he made inappropriate statements to the Children during
visitation, D.S. Jr. consistently demonstrated that he was opposed to visitation,
and the Children’s behavior was aggressive after visitation. The Children’s
therapist, the GAL, and the family case manager all recommended that
Father’s visitation be discontinued. We further note that the GAL and the case
manager both opined that termination of parental rights is in the Children’s best
interest. We conclude that the trial court did not clearly err in concluding that
termination of Father’s parental rights is in the Children’s best interests.
[30] Based on the foregoing, we affirm the trial court’s termination of Mother’s and
Father’s parental rights to the Children.
[31] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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In the Matter of the Involuntary Termination of the Parent-Child Relationship of D.S. Jr. and J.S. (Minor Children) and D.S. (Father) v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion