in-re-matter-of-taa-tra-and-am-minor-children-ra-v-the ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Mar 27 2015, 9:56 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Deidre L. Monroe Gregory F. Zoeller
Gary, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
Donald W. Wruck
Wruck Paupore, PC
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re Matter of: March 27, 2015
Court of Appeals Case No.
Ta.A., Tr.A., and A.M. (Minor 45A03-1410-JT-361
Children):
Appeal from the Lake Superior
R.A., Court.
Appellant-Respondent, The Honorable Thomas P.
Stefaniak, Jr., Judge.
v. Cause Nos. 45D06-1307-JT-150,
45D06-1307-JT-160, & 45D06-1307-
JT-161
The Indiana Department of Child
Services and Lake County Court
Appointed Special Advocate,
Appellees-Petitioners.
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Riley, Judge.
STATEMENT OF THE CASE
[1] Appellant-Respondent, R.A. (Mother), appeals the trial court’s Order
terminating her parental rights to her minor children, Ta.A., Tr.A., and A.M.
(collectively, Children).
[2] We affirm.
ISSUE
[3] Mother raises one issue on appeal, which we restate as follows: Whether the
Indiana Department of Child Services (DCS) presented sufficient evidence to
support the termination of her parental rights.
FACTS AND PROCEDURAL HISTORY
[4] Mother and T.J. are the biological parents of Ta.A, born May 5, 2005; Mother
and T.H. are the biological parents of Tr.A., born October 14, 2006; and
Mother and R.M. are the biological parents of A.M., born October 30, 2008. 1
In addition, Mother has three older children: R.A., born December 23, 1995;
W.A., born August 14, 1998; and L.A., born June 6, 2002.2
1
Throughout these proceedings, the whereabouts of T.J. and T.H. were unknown, so their paternity was
never conclusively established. Nevertheless, on September 18, 2014, the parental rights of T.J., T.H., and
R.M. were terminated. None of the fathers are party to this appeal.
2
Although DCS removed R.A., W.A., and L.A. from Mother’s custody concurrent with the other three
Children, their wardship cases have proceeded separately. R.A., W.A., and L.A. are not part of this appeal,
but facts pertaining to them will be provided as necessary.
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[5] On July 6, 2011, the DCS office in Lake County, Indiana, received a request for
assistance from the Gary Police Department regarding a twenty-nine-year-old
Mother and her six children. The report indicated that Mother was being
evicted because the home she shared with her mother, C.G. (Grandmother),
had been condemned. Mother stated to the police officer that she wanted to
“give up” four of the children because she could no longer take care of them.
(DCS Exh. A). DCS arrived a short time later, but Mother’s sister and a family
friend had already agreed to each take three of the children while Mother
moved into a new house. DCS scheduled an appointment to inspect the new
home once the children had returned to Mother’s custody.
[6] Before DCS could inspect the new house, on July 20, 2011, Mother contacted
DCS and reiterated that she was unable to care for her children. Per Mother’s
request, DCS took the children into custody and placed them in foster care.
DCS learned that all six children had been sharing a bedroom with Mother;
that Grandmother smokes crack cocaine and forced the children to “hustle” the
money to pay for her drugs; and that Grandmother would hit the children with
a broomstick and was verbally abusive. (Tr. p. 18). Mother also admitted to
DCS that she used marijuana. The next day, DCS filed a petition alleging each
of the Children to be a child in need of services, and the trial court subsequently
adjudicated them as such.
[7] At the dispositional hearing on August 17, 2011, the trial court ordered Mother
to participate in the services recommended by DCS and to have supervised
visitation with the Children. As part of its plan to reunify Mother and the
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Children, DCS referred Mother for a substance abuse assessment and
counseling, random drug screens, and both individual and family counseling.
DCS also provided home based case management services to assist Mother with
securing appropriate housing and employment and to ensure that Mother had
transportation for visitation and other appointments. Initially, Mother fully
cooperated with her case plan. She completed parenting classes, and by the
beginning of 2012, Mother had moved into her own apartment. Thereafter,
Mother received unsupervised visitation privileges with the Children.
[8] Despite her early progress, on April 17, 2012, Mother tested positive for
cocaine. As a result of the failed drug screen, DCS requested that her visitation
with the Children be supervised. The next month, Mother passed all of her
drug screens, so DCS restored unsupervised visitation at the beginning of June
2012. Less than three months later, Mother was evicted from her apartment.
She moved back into Grandmother’s home, but it was not long before
Grandmother also kicked her out. On September 18, 2012, Mother informed
DCS that she had relocated to Indianapolis, Indiana. However, Mother
returned to Lake County the following month and resumed her services with
DCS. On October 26, November 14, and November 27, 2012, Mother’s drug
screens yielded positive results for marijuana. In addition, Mother was again
living with Grandmother and had not made any progress in finding her own
housing. Thus, on December 19, 2012, the trial court changed the permanency
plan from reunification to termination of Mother’s parental rights.
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[9] Between their removal in July of 2011 and February of 2013, DCS kept the
Children placed together. This resulted in the Children being shuffled to
numerous foster homes because of the aggressive and disturbing behaviors they
exhibited. In addition to physically fighting with each other, attacking their
foster parents, destroying property, and misbehaving in school, the Children
engaged in inappropriate behavior of a sexual nature. On February 8, 2013, the
Children were individually placed with separate foster families. The Children
still visit with each other twice per month, but since their separation, they have
made drastic improvements behaviorally, emotionally, and academically. The
Children are currently placed with foster parents who intend to adopt them.
[10] Following the change in her permanency plan from reunification to
termination, Mother began encouraging the Children to disobey their foster
parents. As a result, on March 14, 2013, DCS requested that all of Mother’s
services, including visitation, be discontinued, which the trial court granted on
April 10, 2013. After her services were terminated, Mother did not maintain
contact with DCS. Two years after the Children’s removal, on July 17, 2013,
DCS filed a petition to terminate Mother’s rights. On September 17, 2014, the
trial court held a termination hearing. On September 18, 2014, the trial court
issued its Order, stating that “[i]t is in the best interest of the [Children] and
their health, welfare and future that the parent-child relationship between the
[Children] and their parents be forever fully and absolutely terminated.”
(Appellant’s App. p. 3).
[11] Mother now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
[12] Mother claims that DCS presented insufficient evidence to support the
termination of her parental rights.3 It is well established that “[a] parent’s
interest in the care, custody, and control of his or her children is ‘perhaps the
oldest of the fundamental liberty interests.’” In re G.Y., 904 N.E.2d 1257, 1259
(Ind. 2009) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)), reh’g denied.
Accordingly, the Fourteenth Amendment to the United States Constitution
safeguards “the traditional right of parents to establish a home and raise their
children” against undue government interference. Id. However, when a parent
is “unable or unwilling to meet” his or her parental duties, it may become
necessary for a court to terminate his or her rights to the child. Id. at 1259-60.
[13] The involuntary termination of a parent’s rights “is the most extreme sanction a
court can impose” because it permanently severs the parent-child relationship.
S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013).
Nevertheless, the ultimate purpose of termination is to protect the children
involved—not to punish the parents. Id. Therefore, the termination of parental
rights is meant to be a last resort, available only after “all other reasonable
efforts have failed.” Id.3
As noted by the State, Mother’s argument is devoid of any citations to the record and contains insufficient
citations to authority pursuant to Indiana Appellate Rule 46(A)(8)(a). Waiver notwithstanding, because of
the significant interests at stake in a termination of parental rights, we will address the merits of this case.
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I. Standard of Review
[14] When reviewing a termination of parental rights, our court does not reweigh
evidence or assess the credibility of witnesses. K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1229 (Ind. 2013). We will consider only the evidence and
any inferences which may reasonably be derived therefrom that are most
favorable to the trial court’s judgment. Id. Where, as here, a trial court enters
specific findings of fact and conclusions thereon, we will “not set aside the
findings or judgment unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.” Ind.
Trial Rule 52(A). To evaluate whether the trial court’s decision to terminate
Mother’s parental rights is clearly erroneous, we must consider “whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment.” K.T.K., 989 N.E.2d at 1229-30.
II. Sufficiency of the Evidence
[15] In order to support the involuntary termination of a parent’s rights, DCS was
obligated to prove, in pertinent 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;
(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.
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[16] Ind. Code § 31-35-2-4(b)(2). DCS must establish each of these elements by
clear and convincing evidence. In re M.W., 943 N.E.2d 848, 854 (Ind. Ct. App.
2011), trans. denied. “Clear and convincing evidence need not reveal that the
continued custody of the parents is wholly inadequate for the child’s very
survival. 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.” K.T.K., 989 N.E.2d at 1230.
A. Conditions Resulting in Removal Not Remedied
[17] First, Mother contends that there is insufficient evidence to support the trial
court’s conclusion that there is a reasonable probability that the conditions
resulting in the Children’s removal and placement in foster care will not be
remedied. In making this determination, a trial court should assess the
“parent’s fitness to care for his children at the time of the termination hearing,
taking into consideration evidence of changed conditions.” In re J.T., 742
N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. This entails an evaluation
of “the parent’s habitual patterns of conduct to determine the probability of
future neglect or deprivation of the child.” Id. The trial court “may properly
consider evidence of a parent’s prior criminal history, drug and alcohol abuse,
history of neglect, failure to provide support, and lack of adequate housing and
employment[,]” as well as the parent’s response to any services offered by DCS.
McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct.
App. 2003).
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[18] In this case, DCS removed the Children from Mother’s care due to her unstable
housing, substance abuse, and admitted inability to provide adequate care and
supervision. Mother now contends that the trial court erroneously concluded
that there is a reasonable probability that these conditions will not be remedied
because she “complied in totality with her case plan.” (Appellant’s Br. p. 10).
We disagree.
[19] In its Order terminating Mother’s parental rights, the trial court acknowledged
that the Children “were to begin transitioning home in early 2012” based on
Mother’s initial compliance with her DCS services. (Appellant’s App. p. 2).
The trial court also found that Mother subsequently tested positive for cocaine
and marijuana, lost her housing, and
[s]ince that time, [M]other stopped complying with any of the services.
Mother was having inappropriate contact with the [C]hildren. Mother
was encouraging the [C]hildren to act out in their foster homes.
Mother violated the rules and actually slipped [L.A.] a cell phone and
was encouraging the child to call [M]other’s boyfriend. Mother
became verbally abusive to the service providers. Mother was again
unstable and not participating in the services offered. All services were
stopped for [M]other in April 2013, after two years of attempted
services. Mother did not progress in her services and continues to this
day to lack stability. Mother still does not have appropriate housing.
(Appellant’s App. p. 2). Mother argues that several of the court’s findings are
unsupported by the evidence “under the requisite evidentiary standards.”
(Appellant’s Br. p. 9).
[20] First, Mother asserts that the trial court erroneously “failed to give any weight
to [her] honesty, and although she had been submitting to random drug screens
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for two (2) years she only tested once admittedly for marijuana, and a disputed
positive cocaine test.” (Appellant’s Br. p. 9). Our deference for the trial court’s
determinations of evidentiary weight and witness credibility is long settled;
thus, to the extent that Mother’s argument is a request that we reweigh evidence
in her favor, we decline. See In re B.J., 879 N.E.2d 7, 14, 19 (Ind. Ct. App.
2008), trans. denied. Considering the evidence most favorable to the judgment, it
is clear that Mother tested positive for cocaine in April of 2012, and for
marijuana on October 26, November 14, and November 27, 2012. Mother
conceded that she smoked marijuana but disputed the validity of the cocaine
result. Notwithstanding that it was a hair follicle drug screen that yielded the
positive cocaine result, she speculated that her urine sample must have been
switched because she had “never used drugs a day in [her] life.” (Tr. p. 51). As
the trial court clearly disbelieved Mother, we find that the evidence sufficiently
establishes that she did not remedy her substance abuse problem.
[21] Second, as to the trial court’s finding that Mother had inappropriate contact
with the Children and was verbally abusive to service providers, Mother asserts
that the trial court “failed to take into consideration the stress [she] was under
with the constant involvement of the DCS without any progress being made in
the returning of her [C]hildren.” (Appellant’s Br. pp. 9-10). We find little merit
in Mother’s attempt to use stress as an excuse to sabotage the Children’s
progress in foster care and to shout obscenities at service providers. Our court
has previously found that “[a] pattern of unwillingness to deal with parenting
problems and to cooperate with those providing social services, in conjunction
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with unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” In re B.J., 879 N.E.2d at 18. Here,
DCS’ ongoing involvement and the lack of progress were the direct result of
Mother’s non-compliance with her case plan.
[22] Lastly, regarding Mother’s inadequate housing, she asserts that the trial court
“ignored the testimony by [M]other and the case manager regarding the money
she receives from Social Security, and her inability to pay rent and utilities,
especially without having the custody of her [C]hildren.” (Appellant’s Br. p.
10). At the termination hearing, Mother testified that she lost her apartment
because her rent exceeded her Social Security disability benefits, which is her
sole source of income. In turn, DCS explained that Mother’s
main issue was unstable housing. And when we put in the home
based case management, they help with all of those things. With the
transportation, . . . they take you to the different housing places that
work with you according to your income, so even though if she is on a
fixed income of social security benefits from disability, there are
housing options out there for you, because they base your rent off of
what your income is. So, the home based services put in place were
designed specifically to address her main issue which was not being
able to provide housing for herself or her [Children].
(Tr. pp. 63-64).
[23] Ultimately, the trial court found that DCS’ goal
was to obtain stability for the [M]other. Mother was given rental
assistance and still [M]other could not maintain stable housing. . . .
Home based services were put into place to help [M]other obtain
housing and stability. Mother questioned the need for any of the
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services. Mother often times would refuse services. Numerous
attempts were made to get [M]other vested in the services.
(Appellant’s App. p. 2). The evidence establishes that at the time of the
termination hearing, Mother was living with Grandmother. Mother testified
that Grandmother is “not on drugs no more and we gets (sic) along fine now.”
(Tr. p. 109). However, the trial court specifically found no credibility in
Mother’s assertion that she and Grandmother have improved their relationship.
Furthermore, DCS stated that Mother’s current housing would not be an
appropriate placement for the Children “[b]ecause of the [G]randmother’s past
cocaine/crack abuse and the allegations of the [C]hildren with her physically
and emotionally abusing them while living in her home.” (Tr. p. 74).
[24] While the fact “of low or inconsistent income” does not, by itself, demonstrate
unfitness, it is not an excuse to neglect a child or expose a child to a dangerous
home environment. In re B.D.J., 728 N.E.2d 195, 202-03 (Ind. Ct. App. 2000).
Mother testified that she “can’t get a job” because she receives Social Security
disability, but it is Mother’s responsibility to supplement her income in order to
support her Children. (Tr. p. 48). She cannot reasonably expect that DCS will
financially support her and the Children for the rest of their lives. Moreover,
we are unpersuaded by Mother’s attempt to shift the blame for her instability,
arguing that DCS “set [her] up for failure by putting her into a rental unit that
exceeded her only income.” (Tr. p. 78). “[T]he law concerning termination of
parental rights does not require [DCS] to offer services to the parent to correct
the deficiencies in childcare.” In re B.D.J., 728 N.E.2d at 201. DCS offered to
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help Mother find suitable housing, but it was ultimately Mother’s duty to
ensure that she could maintain a stable environment for the Children.
[25] Despite her initial compliance, and despite a multitude of services offered to
Mother over a twenty-month span, Mother did not comply “in totality with her
case plan” because she did not have stable housing for the Children, she had
not pursued any other means for supplementing her income; and she did not
achieve sobriety. (Appellant’s Br. p. 10). Therefore, we find that the evidence
sufficiently supports the trial court’s determination that the conditions resulting
in the Children’s removal from Mother’s custody are unlikely to be remedied.4
B. Best Interests of the Children
[26] Next, Mother contends that DCS failed to prove that termination of her
parental rights was in the best interests of the Children. In evaluating a child’s
best interests, the trial court must consider the totality of the evidence,
“look[ing] beyond the factors identified by [DCS].” In re B.J., 879 N.E.2d at 22.
The trial court need not postpone termination of the parent-child relationship
until after a child has been irreversibly harmed, “such that the child’s physical,
mental and social development is permanently impaired.” K.T.K., 989 N.E.2d
at 1235. “When assessing the child’s physical, emotional and mental well-
4
Having found that DCS met its burden to prove that the conditions resulting in the Children’s removal will
not be remedied, we need not address whether the continuation of the parent-child relationship poses a threat
to the Children’s well-being. See K.T.K., 989 N.E.2d at 1234 (citing I.C. § 31-35-2-4(b)(2)(B)(ii)).
Additionally, Mother concedes that DCS has established a satisfactory plan for the Children’s care and
treatment. See I.C. § 31-35-2-4(b)(2)(D).
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being, the trial court may consider a myriad of factors. We acknowledge that
among those factors contemplated, ‘[p]ermanency is a central consideration in
determining the [child’s] best interests. . . .’” Id. (alterations in original)
(quoting In re G.Y., 904 N.E.2d at 1265).
[27] During the termination hearing, both the DCS case manager and the Children’s
therapist recommended that termination of Mother’s parental rights was in the
Children’s best interests because of their need for structure and stability.
Specifically, DCS described that
[Tr.A.] has been in seven different foster homes. [Ta.A.] has been in
seven different foster homes. [A.M.] has been in six. And these
[C]hildren are nine, seven and five years old. They are all in pre-
adoptive homes who have . . . gotten them kind of stabilized. The
[C]hildren’s behaviors have diminished tremendously, if not
completely, in the homes that they are in and they need to be in homes
where they could have a permanent, stable home environment for
them to grow into mature and productive adults.
(Tr. p. 69). The trial court agreed, further finding:
None of the parents are providing any emotional or financial support
for the [C]hildren. . . . Mother continues with her instability and is in
no position to properly parent these [C]hildren. The [C]hildren have
been in placement since July 2011 and have never been returned to
parental care or custody. The [C]hildren are bonded and thriving in
their placements.
. . . Additionally, the [C]hildren deserve a loving, caring, safe, stable
and drug free home.
(Appellant’s App. p. 3). Mother’s basis for error on appeal is that “the trial
court failed to address the pain and suffering that the [C]hildren will have to
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suffer when they realize[] that they will not have any further contact with . . .
[M]other.” (Appellant’s Br. p. 11).
[28] This court is ever mindful “that children should not be compelled to suffer
emotional injury, psychological adjustments, and instability to preserve parental
rights.” In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999), trans. denied; cert.
denied, 534 U.S. 1161 (2002). What Mother fails to recognize is the pain and
suffering that the Children have already endured because of her actions. In
particular, the trial court found that
[t]he [C]hildren have a lot of behavior[al] issues that are currently
being addressed. The [C]hildren cannot be placed together due to the
extreme behaviors of the [C]hildren. The [C]hildren have sexual abuse
issues and physical abuse issues. The [C]hildren cannot be placed
together due to the sexual abuse issues the [C]hildren have portrayed.
(Appellant’s App. p. 2). A review of the record reveals that “the [C]hildren
reported to their therapist at one point[] that they had been subjected to sexual
abuse and physical abuse while in the home with their [M]other . . . . And also
that they had been witness to sexual acts between their [M]other and different
male visitors.” (Tr. pp. 72-73). The Children’s therapist, who observed the
Children acting out “sexualized behaviors” and making sexually inappropriate
comments, opined that they were exhibiting symptoms of past abuse and
neglect. (Tr. p. 94). Although Mother denied the allegations, postulating that
“it probably happened [when] they got into foster care[,]” the trial court was
free to discredit her testimony. (Tr. p. 117).
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[29] Between July of 2012 and October of 2013, the Children met individually with
a therapist on a weekly basis in order to address their anger and other issues.
The therapist reported that the Children “didn’t have a lot of structure, they
didn’t recognize boundaries, and they were a little defiant and sometimes they
could be disrespectful.” (Tr. p. 91). However, by the time of the termination
hearing, they “had more initiative, wanted to try to do better in school and get
along with others.” (Tr. p. 96). Ta.A. “indicated that she would be willing to
stay long term” with her foster parent. (Tr. p. 70). Tr.A.’s grades and behavior
had improved, “and he has developed a nurturing and loving bond with [his
foster parent]. And he intends to stay there, if you ask [Tr.A.]. He’s happy
where he’s at.” (Tr. pp. 70-71). As for A.M., she is happy and thriving and
“has a great bond with [her foster] parents.” (Tr. p. 71).
[30] In addition to the Children’s need for permanency and structure, the record
reflects that Mother exposed the Children to dangerous and inappropriate
situations, which “detrimentally impacted [their] psychological, emotional, and
physical development.” K.T.K., 989 N.E.2d at 1235. The therapist expressed
concern that if the Children “go back to a life where there’s no structure, they
don’t know where their next meal, or where they are going to lie their head,
then I believe their behaviors will increase. And they will go back to doing the
things that they were doing before.” (Tr. p. 97) She noted that they would be
subject to “an increased risk of getting into criminal activities, possible early
pregnancies, it could just hinder their emotional stability.” (Tr. p. 97).
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Accordingly, we find that sufficient evidence supports the trial court’s
conclusion that termination of Mother’s rights is in the Children’s best interests.
[31] As a final note, we must address Mother’s diatribe that
DCS’[] objective should not be to cause measurable pain and suffering
on young children. These young [C]hildren should be afforded the
opportunity to be raised or at least have a relationship with their
natural [M]other. Moreover, [Mother] has older children and may
have other children. The siblings should have the fundamental right to
have a relationship with their older siblings. The [c]ourt must make a
stance in ruling that parents have fundamental rights that are protected
by the U.S. Constitution. The continued destruction of the family
structure should not be tolerated by this [c]ourt. This [M]other has a
right to raise her [C]hildren. . . . The [c]ourt must stop the direct
assault on the rights of parents in the State of Indiana.
(Appellant’s Br. p. 11). Our holding in this case does not undermine the fact
that parents have a fundamental liberty interest in raising their children.
Nonetheless, parental rights must be subordinated to the State’s interest in
protecting a child’s welfare. In re G.Y., 904 N.E.2d at 1259.
Here, Mother was afforded with three years and ample assistance from DCS to
achieve stability, but she selfishly refused to make the needs of her Children a
priority. Instead of accepting responsibility for her own actions, Mother has
placed the blame everywhere except for where it truly lies, which is with her.
We are unsympathetic to Mother’s portrayal of herself as the victim because it
is the Children who have paid the price for her poor choices. Mother—not DCS
or the courts—is responsible for the destruction of her family.
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CONCLUSION
[32] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the termination of Mother’s parental rights to the Children.
[33] Affirmed.
[34] Vaidik, C. J. and Baker, J. concur
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