in-the-matter-of-the-term-of-the-parent-child-rel-of-skw-and-dlwj ( 2013 )

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this Memorandum Decision shall not be FILED
Feb 19 2013, 9:13 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOANN M. PRICE ROBERT J. HENKE
Merrillville, Indiana Indiana Department of Child Services
Indianapolis, Indiana
EUGENE M. VELAZCO, JR.
Indiana Department of Child Services
Gary, Indiana
DONALD W. WRUCK
Wruck Paupore PC
Dyer, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF )
S.K.W. and D.L.W.J.: )
)
D.W., )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1206-JT-293
)
INDIANA DEPARTMENT OF CHILD SERVICES )
and LAKE COUNTY COURT APPOINTED )
SPECIAL ATTORNEY, )
)
Appellees-Petitioners. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Mary Beth Bonaventura, Judge
Cause No. 45D06-1101-JT-29 and 45D06-1101-JT-30
February 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
D.W. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor children S.K.W. and D.L.W.J. (“the children”). Mother raises the following
issues for our review:
1. Whether the trial court’s conclusion that continuation of the parent-
child relationships poses a threat to the children is clearly erroneous;
2. Whether the trial court’s conclusion that termination of Mother’s
parental rights over the children is in the children’s best interests is clearly
erroneous; and
3. Whether the trial court’s conclusion that the Indiana Department of
Child Services (“DCS”) has a satisfactory plan for the care and treatment of
the children is clearly erroneous.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother gave birth to S.K.W. on February 11, 1999, and to D.L.W.J. on June 18,
2006. The children’s fathers did not marry Mother, and the fathers did not participate in
the children’s lives in a consistent or meaningful way.1 In April 2009, DCS filed
petitions alleging that the children were children in need of services (“CHINS”) due to
Mother’s substance abuse and “physical neglect” and abuse of the children. Appellant’s
App. at i. The children became wards of DCS and were placed in foster care.
The trial court issued the following findings and conclusions setting out the
remaining facts and procedural history of this case:
A case plan for reunification was set up for the parents which included
psychological evaluations, psychiatric evaluation, substance abuse
1
The children’s fathers’ parental rights have also been terminated, but they do not participate in
this appeal.
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assessment, random drug screens, parenting classes, individual counseling,
supervised visitations and mother to attend A/A meetings.
Numerous contacts were initiated with mother. Mother would
schedule meetings with the service providers and case manager, but would
not show up for the meetings. Numerous attempts were made to try to
contact mother, but to no avail. Mother’s whereabouts were unknown to
the Department of Child Services. Mother knew that the Department of
Child Services had custody of her children, but [she] made no attempts to
notify the case manager or see her children until November 2009, seven
months after the children were taken into custody.
Mother admitted to having a long term substance abuse problem.
Mother was referred to Transitions for inpatient treatment. Mother was put
on the waiting list, but never attended. Transitions closed out their case
with mother because mother did not keep in contact with Transitions.
Mother did not participate in any services offered to her by the Department
of Child Services. Mother was not compliant with the case plan. Mother
moved out of Lake County and moved to Lafayette and never completed
any services for reunification. All services were closed due to mother’s
non-compliance. Mother did not have stable housing.
Mother was offered to restart services once she would submit clean
drug screens to the case manager, but mother failed to follow through.
Mother, by her own testimony, indicated that she had a very long
term substance abuse history. Mother indicated that she started counseling
in December 2011 when she was homeless, living in a shelter and had just
given birth to a third child. Mother has not established any stability in her
life. Mother has just recently obtained sobriety for the first time in her life
and that does not change the fact that the mother has a long history of
substance abuse with only a few short months of sobriety.
***
None of the parents are providing any emotional or financial support
for the children. None of the parents have completed any case plan for
reunification. None of the parents seem interested in caring for their
children. None of the parents have maintained any contact with the
children. The children have been in placement for three years and have not
been returned to parental care or custody.
Appellant’s App. at i-ii. DCS filed petitions to terminate Mother’s parental rights with
respect to the children. Following a hearing, the trial court entered the following
conclusions:
There is a reasonable probability that the continuation of the parent-child
relationship poses a threat to the well-being of the child in that: for the
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reasons stated above. Additionally, the children deserve a loving, caring,
safe, stable and drug[-]free home.
It is in the best interest[s] of the child[ren] and their health, welfare
and future that the parent-child relationship between the child[ren] and their
parents be forever fully and absolutely terminated.
The Lake County Division of Family and Children has a satisfactory
plan for the care and treatment of the child which is Adoption.
Id. at ii-iii. Accordingly, the trial court ordered that Mother’s parental rights to both
children were terminated. This appeal ensued.
DISCUSSION AND DECISION
Standard of Review
We begin our review 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. 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 Cnty. Office 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.
Before an involuntary termination of parental rights can occur in Indiana, the DCS
is required to allege and prove, among other things:
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(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.
***
(C) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2).2 That statute provides that DCS need establish only one of
the requirements of subsection (b)(2)(B) before the trial court may terminate parental
rights. The 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).
When reviewing a termination of parental rights, we will not reweigh the evidence
or judge the credibility of the witnesses. Peterson v. Marion Cnty. Office 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 Cnty. Office of Family & Children (In re
L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999). trans. denied.
2
Indiana Code Section 31-35-2-4(b)(2)(B) also allows the DCS to allege that “[t]he child has, on
two (2) separate occasions, been adjudicated a child in need of services.” But that additional, alternative
provision is not relevant here.
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Here, in terminating Mother’s 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 Cnty.
Office 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.
Mother does not challenge the trial court’s findings of fact in its order terminating
her parental rights. Rather, Mother challenges only the court’s legal conclusions that, on
these facts, termination of her parental rights is justified because a continuation of the
parent-child relationships poses a threat to the children’s well-being,3 that the termination
of her parental rights is in the children’s best interests, and that DCS has a satisfactory
plan for the care and treatment of the children. We address each argument in turn.
Issue One: Whether Continuation of the Parent-Child
Relationship Poses a Threat to the Children
We first consider Mother’s assertion that continuation of the parent-child
relationships does not pose a threat to the children. A trial court need not wait until a
child is irreversibly influenced by a deficient lifestyle such that his physical, mental, and
social growth is permanently impaired before terminating the parent-child relationship.
3
Mother also asserts that the DCS’s evidence fails to show that Mother will not remedy the
conditions that resulted in the children’s removal, but we need not consider that argument given the
disjunctive nature of Indiana Code Section 31-35-2-4(b)(2)(B) and our holding that the trial court’s
conclusion is justified under on subsection (b)(2)(B)(ii).
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Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290
(Ind. Ct. App. 2002). When the evidence shows that the emotional and physical
development of a child in need of services is threatened, termination of the parent-child
relationship is appropriate. Id.In support of her contention on this issue, Mother directs us to evidence showing
that she has “gone through the well-established and accepted steps to secure sobriety”
and has become “independent and established on her own.” Brief of Appellant at 10.
Mother further points out that she has made “substantial therapeutic strides” since court-
ordered services were terminated. Id. at 11. Thus, she maintains that the trial court’s
“findings here are insufficient and do not make a plausible connection between Mother’s
present fitness to parent her children and the likelihood that her state, at the time of fact
finding, would expose the children to hurt, harm or danger.” Id.
But Mother’s contention on this issue amounts to a request that we reweigh the
evidence, which we will not do. Indeed, Mother does not challenge any of the trial
court’s findings on appeal. The evidence shows that Mother was non-compliant with the
case plan for reunification and only recently made any effort to comply with services.
Mother’s participation in individual therapy was sporadic, at best, and that therapy was
terminated for her non-compliance; Mother did not maintain contact with the DCS case
worker for months at a time; and Mother did not complete substance abuse treatment.
Moreover, Mother had ceased visitation with the children. Mother’s supervised visits
with S.K.W. had been ordered terminated as of May 2010, as a result of Mother’s
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noncompliance with the case plan. And at the time of the termination hearing in April
2012, Mother had not seen D.L.W.J. for approximately eighteen months.
Again, the trial court need not wait until a child is irreversibly influenced by a
deficient lifestyle such that his physical, mental, and social growth is permanently
impaired before terminating the parent-child relationship. Shupperd, 762 N.E.2d at 1290.
Given Mother’s long history of substance abuse and inability to maintain stable housing
or employment, the lack of certainty as to whether Mother’s sobriety would be
maintained, as well as Mother’s failure to visit the children for well over a year prior to
the final hearing, Mother cannot show that she will be able to provide adequate care or
permanency for the children in the future. Indeed, while Mother reported that she had
recently maintained sobriety and sought treatment for her substance abuse, she was
unable to produce documentation of those assertions when asked to do so. Mother has
not demonstrated that the trial court’s conclusion that continuation of the parent-child
relationships poses a threat to the children’s well-being is clearly erroneous.
Accordingly, we agree with the trial court that the termination of Mother’s parental rights
over the children was appropriate under Indiana Code Section 31-35-2-4(b)(2)(B)(ii).
Issue Two: Whether Termination is in
the Children’s Best Interests
Mother also argues that the DCS failed to show that termination of the parent-
child relationships is in the children’s best interests. In determining what is in the best
interests of a child, the trial court is required to look beyond the factors identified by the
DCS and to consider the totality of the evidence. Stewart v. Ind. Dep’t of Child Servs.
(In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). We have previously held that the
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recommendations of the case manager and CASA to terminate parental rights, in addition
to evidence that the continuation of the parent-child relationship poses a threat to the
child, is sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. M.M. v. Elkhart Office of Family & Children (In re M.M.), 733
N.E.2d 6, 13 (Ind. Ct. App. 2000).
Here, in addition to the evidence described above in Issue One, Wanda Clemmons,
a DCS case manager, testified that termination of Mother’s parent-child relationships
with the children was in the children’s best interests. In particular, Clemmons stated that
termination was in the children’s best interests because she feels they need “stability,
nurturing[,] and. . .a drug-free environment.” Transcript at 130. Accordingly, the trial
court’s conclusion that termination of Mother’s parental rights over the children is in the
children’s best interests is not clearly erroneous. See id.Issue Three: Satisfactory Plan
Finally, Mother contends that the trial court erred when it concluded that DCS has
a satisfactory plan for the care and treatment of the children. In order for the trial court to
terminate the parent-child relationship the trial court must find that there is a satisfactory
plan for the care and treatment of the child. In re Termination of Parent-Child
Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004). This plan need not be
detailed, so long as it offers a general sense of the direction in which the child will be
going after the parent-child relationship is terminated. Id.Here, Mother maintains that placing the children in separate adoptive homes is
detrimental to their well-being. But the evidence supports the trial court’s determination
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that DCS has a satisfactory plan for the care and treatment of the children, namely,
adoption. And DCS presented testimony indicating that the children visit one another on
a weekly basis. Finally, the evidence shows that the children’s foster parents intend to
continue visitation between the siblings post-adoption. The trial court’s determination on
this issue is not clearly erroneous.
Conclusion
In sum, the trial court’s order terminating Mother’s parental rights over the
children is not clearly erroneous. The trial court concluded that continuing the parent-
child relationships would pose a threat to the children and is not in the children’s best
interests. In addition, the trial court concluded that DCS has a satisfactory plan for the
care and treatment of the children. The court’s conclusions are supported by its findings
and its findings are supported by the evidence. Accordingly, we affirm the trial court’s
termination of Mother’s parental rights over the children.
Affirmed.
FRIEDLANDER, J., and BRADFORD, J., concur.
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