in-the-matter-of-the-termination-of-the-parent-child-relationship-of-pm ( 2014 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose Feb 20 2014, 10:37 am
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEES:
BRADLEY K. KAGE GREGORY F. ZOELLER
North Vernon, Indiana Attorney General of Indiana
ROBERT J. HENKE
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
P.M., M.F.E., and E.T., )
)
T.T. (Mother) and B.T. (Father of E.T.), )
)
Appellants-Respondents, )
)
vs. ) No. 40A01-1306-JT-275
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE JENNINGS CIRCUIT COURT
The Honorable Jon W. Webster, Judge
Cause No. 40C01-1109-JT-245, JT-247, and
40C01-1204-JT-4
February 20, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
T.T.1 (“Mother”) appeals the termination of her parental rights to P.M., M.E., and
E.T., and B.T. (“Father”) appeals the termination of his parental rights to E.T.2 We
affirm.
Issue
Mother and Father raise one issue, which we restate as whether there was
sufficient evidence to support the termination of their parental rights.
Facts
P.M. was born on September 2, 2008, in Jennings County. The Department of
Child Services (“DCS”) became involved because P.M. was born with drugs in her
system. Mother entered into an informal adjustment and, although she did not complete
the recommended services, the informal adjustment was closed in July 2009.
DCS became involved with Mother again in January 2010 because she tested
positive for marijuana when she arrived at the hospital to give birth to M.E., who was
born with morphine and marijuana in his body. Although the children remained in
Mother’s care, DCS filed a petition alleging P.M. and M.E. were children in need of
services (“CHINS”), and they were found to be CHINS. Mother was ordered to, among
1
Mother is also referred to as T.E.
2
P.M. and M.E.’s father’s parental rights were also terminated. He does not appeal.
2
other things, maintain suitable housing, find and maintain a legal and stable source of
income, refrain from using illegal controlled substances or unprescribed medication,
participate in home-based services, complete parenting and substance abuse assessments
and all recommendations, submit to drug screens, and obtain a GED or high school
diploma.
In June 2010, DCS moved to modify the dispositional decree because Mother had
not been compliant with services, continued to use marijuana, and had been arrested on
warrants from Jennings and Jackson Counties. The allegations were found to be true, and
the children were removed from the home.
E.T. was born on May 2, 2011, and DCS filed a petition alleging that E.T. was a
CHINS because he was born with marijuana in his body. Mother and Father admitted the
allegations, and E.T. was placed in foster care with P.M. and M.E. Mother and Father
married in July 2011. Mother and Father were ordered to participate in the same services
that had previously been ordered as well as to complete a psychological evaluation and to
complete all recommendations and attend all scheduled visitations.
Mother’s participation in services was sporadic and, on September 6, 2011, DCS
filed a petition to terminate Mother’s parental rights to P.M. and M.E. Services were still
being provided to Mother and Father because of E.T.’s ongoing CHINS case. DCS filed
a petition to terminate Mother’s and Father’s parental rights to E.T. on April 23, 2012, at
which point DCS stopped providing services.
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On September 19, 2012, a hearing was held on the petitions to terminate Mother’s
and Father’s parental rights and, on February 7, 2013, the trial court issued an order
terminating Mother’s and Father’s parental rights. The trial court found in part:
21. Neither [Mother] nor [Father] completed or benefited
from any services offered during the time services were
provided. [Mother] began, but never completed, a
psychological evaluation. Mental health counseling was
recommended pursuant to the unfinished evaluation, but
[Mother] still failed to even begin such counseling. [Father]
also failed to complete a psychological evaluation or begin
mental health counseling in lieu of completing the evaluation.
As transportation had previously been an issue for [Mother]
and [Father], supervised visitation was moved to their home,
yet the parents still attended less than 62% of the scheduled
visits. The parents were inconsistent with home-based case
management services for resourcing and parenting education.
[Mother] testified positive for THC in September, October,
and November 2011 and then refused a drug test in December
2011.
22. [P.M., M.E., and E.T.] are children with severe
developmental issues and special needs. [P.M.] has learning
disabilities, ADHD and severe anxiety issues, and Reactive
Attachment Disorder. She has bowed legs that will require
surgery in 2013 to correct. [M.E.] has Pica, an eating
disorder that causes him to eat items such as plaster, feces,
and garbage. He has been diagnosed with Long QT
Syndrome, which causes heart issues and, potentially, sudden
death. [M.E.] also has undescended testicles that put him at
risk for childhood testicular cancer. [E.T.] had feeding issues
at birth and at sixteen (16) months of age, was still eating
baby food and formula. He is developmentally delayed in
motor, social, and cognitive skills. [E.T.] suffers from grand
mal seizures and white brain matter loss and must be
transferred to Riley Children’s Hospital upon any sign of
seizure.
23. The children’s special needs require a great deal of
medical attention. [Foster Mother] testified that [P.M.] sees a
psychologist in Indianapolis every week and an occupational
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therapist in Columbus every week. [P.M.] also has to see an
eye doctor every few weeks as she destroys eyeglasses.
[M.E.] sees a developmental and occupation therapist every
week and an allergist every three (3) months. [E.T.] sees a
neurologist at Riley every three (3) months and gets blood
work every six (6) weeks. He also receives occupational,
developmental, and physical therapy every week. The
various medical/therapist appointments for the children
require [Foster Mother] to be in Columbus two (2) days and
Indianapolis one (1) day each week. At the time of the
termination trial, neither [Mother] nor [Father] had driver’s
licenses or stable employment. They own a vehicle, but it has
no valid license plate.
24. Throughout the underlying CHINS’s cases, none of the
parents demonstrated an ability to parent the children,
especially the children with the extent of special needs that
[P.M., M.E., and E.T.] have . . . [Mother] and [Father],
although partially compliant from time to time, failed to
complete services and/or failed to demonstrate an ability to
benefit from services they had received.
25. No service provider was ever able to recommend that
any of the children be reunified with [Mother] and/or [Father]
. . . . This was either because the parents failed to improve
his/her parenting abilities and demonstrate he/she was able to
care for the children, or because he/she failed or refused to
follow through with services and appointments, thereby
limiting the service provider’s ability to make an informed
decision as to that parent.
26. Based on each parent’s lack of progress, and each’s
refusal or inability to improve his/her ability to provide
proper care and nurturing for the children, DCS Family Case
Manager, Deborah K. Satterfield, testified that termination of
parental rights and adoption was in children’s best interests.
The CASA, Patricia Park, also filed a written report with the
Court on September 19, 2012, which is made a part hereof by
reference, and which recommends termination of the parental
rights . . . . Ms. Park testified that she does not feel the
children could ever return to the home due [sic] their
behaviors and medical conditions. [Mother] is employed.
5
App. pp. 46-48. The trial court concluded there is a reasonable probability that the
conditions resulting in removal and continued placement outside the home will not be
remedied and that the continuation of the parent-child relationship poses a threat to the
children’s well-being. The trial court also concluded that termination of parental rights is
in the children’s best interests. Mother and Father now appeal.
Analysis
Mother and Father contend that the evidence is insufficient to support the
termination of their parental rights. “When reviewing the termination of parental rights,
we do not reweigh the evidence or judge witness credibility.” In re I.A., 934 N.E.2d
1127, 1132 (Ind. 2010). We consider only the evidence and reasonable inferences most
favorable to the judgment. Id. “We must also give ‘due regard’ to the trial court’s
unique opportunity to judge the credibility of the witnesses.” Id. (quoting Indiana Trial
Rule 52(A)). Where a trial court enters findings of fact and conclusions thereon, as the
trial court did here, we apply a two-tiered standard of review. Id. “First, we determine
whether the evidence supports the findings, and second we determine whether the
findings support the judgment.” Id. We will set aside the trial court’s judgment only if it
is clearly erroneous, which occurs if the findings do not support the trial court’s
conclusions or the conclusions do not support the judgment. Id.A petition to terminate a parent-child relationship must allege:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
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(ii) A court has entered a finding under IC 31-34-21-
5.6 that reasonable efforts for family preservation or
reunification are not required, including a description
of the court’s finding, the date of the finding, and the
manner in which the finding was made.
(iii) The child has been removed from the parent and
has been under the supervision of a local office or
probation department for at least fifteen (15) months of
the most recent twenty-two (22) months, beginning
with the date the child is removed from the home as a
result of the child being alleged to be a child in need of
services or a delinquent child;
(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.
Ind. Code § 31-35-2-4(b)(2). DCS has the burden of proving these allegations by clear
and convincing evidence. I.A., 934 N.E.2d at 1133.
I. Threat to Well-Being3
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Mother and Father argue there is insufficient evidence to support the findings that the conditions
resulting in the children’s removal will not be remedied and that the continuation of the parent-child
relationship poses a threat to the children’s well-being. Because Indiana Code Ssection 31-35-2-
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As an initial matter, Mother and Father do not provide separate arguments
addressing the trial court’s findings that the conditions resulting in removal would not be
remedied and that the continuation of the parent-child relationship posed a threat to the
children’s well-being. Instead, they argue generally that the trial court must judge a
parent’s fitness to care for his or her child at the time of the termination hearing and take
into consideration evidence of changed conditions. See In re A.B., 924 N.E.2d 666, 670
(Ind. Ct. App. 2010). Mother and Father contend that, because no services were provided
from April 2012 until the September 2012 hearing, the trial court could not have
considered their fitness at the time of the hearing. To the extent this is relevant to the
consideration of whether the continuation of the parent-child relationship poses a threat to
the children’s well-being, we disagree. Although services were not provided during that
time, Mother’s and Father’s testimony allowed the trial court to consider any
improvements from April until September. Further, it is clear that the trial court
considered Mother’s and Father’s testimony when it found that, at the time of the hearing,
Mother was employed but neither one of them had a driver’s license. Thus, Mother and
Father have not established that the trial court failed to consider their circumstances at the
time of the final hearing.
Regarding the sufficiency of the evidence, the evidence supports the trial court’s
finding that there is a reasonable probability that the continuation of the parent-child
4(b)(2)(B) is written in the disjunctive, the trial court only had to find that one of the three requirements
had been met before terminating Mother’s and Father’s parental rights. See B.H. v. Indiana Dep’t of
Child Servs., 989 N.E.2d 355, 364 (Ind. Ct. App. 2013). Because the evidence supports the finding that
the continuation of the parent-child relationship poses a threat to the children’s well-being, we need not
address the trial court’s finding that the conditions resulting in removal will not be remedied. See id.8
relationship poses a threat to the children’s well-being. There was extensive testimony
regarding the children’s numerous and serious health issues and developmental delays
and the necessary medical treatment, including weekly doctor’s appointments in
Indianapolis and Columbus. There was evidence of Mother and Father having
transportation issues throughout the proceedings and, at the time of the hearing, neither
Mother nor Father had a driver’s license or a car with a valid registration. The inability
to transport the children to their numerous appointments would be harmful to their well-
being.
The evidence also showed that four of Mother’s five children were born with
drugs in their systems and, although Mother completed portions of the substance abuse
programs, she did not complete an entire program. Moreover, there was evidence that
Mother used marijuana to treat her mental health issues but did not participate in any of
the mental health services offered by DCS other than to begin, but not complete, a
psychological evaluation. Likewise, Father did not complete the required psychological
evaluation. Finally, at the time of the hearing, although Mother had been hired, she had
not started her job, and Father was unemployed. Based on this evidence, the trial court
properly found that the continuation of the parent-child relationship posed a threat to the
children’s well-being.
To the extent Mother directs us to evidence that she visited regularly with the
children and acted appropriately during the visits, completed an intensive-outpatient
treatment program, had some negative drug screens, had stable housing for over a year,
was drug-free at the time of the final hearing, only had misdemeanor convictions, and
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was starting a job, she is asking us to reweigh the evidence. We cannot do this. See I.A.,
934 N.E.2d at 1132. Similarly, Father’s request that we consider his lack of drug use, his
lack of criminal history, and his stable housing is a request to reweigh the evidence, we
decline to do so. See id.
II. Best Interests
Mother and Father assert generally that, in determining whether termination is the
children’s best interests, the trial court must look beyond the factors identified by DCS
and look to the totality of the evidence. See A.J. v. Marion Cnty. Office of Family &
Children, 881 N.E.2d 706, 717 (Ind. Ct. App. 2008), trans. denied. Although this is
correct statement of the law, Mother and Father do not provide a specific argument
regarding the children’s best interests. In light of the trial court’s findings and the
evidence discussed above, Mother and Father have not established that termination was
contrary to the children’s best interests.
Conclusion
Mother and Father have not established that the evidence is insufficient to support
the termination of their parental rights. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
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