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

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jan 21 2014, 10:15 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK A. DELGADO GREGORY F. ZOELLER
KEVIN R. LESLIE Attorney General of Indiana
Monticello, Indiana
ROBERT J. HENKE
AARON J. SPOLARICH
Deputy Attorneys General
Indianapolis, Indiana
ALEXANDRA D. A.THOMAS
White County Department of Child Services
Monticello, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
N.I., the minor child, and K.I., the mother, )
)
K.I., )
)
Appellant-Respondent, )
)
vs. ) No. 91A04-1305-JT-244
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE WHITE CIRCUIT COURT
The Honorable Robert W. Thacker, Judge
Cause No. 91C01-1212-JT-3
January 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
K.I. (“Mother”) appeals from the involuntary termination of her parental rights to
N.I. (“the Child”). In so doing, Mother contends that the juvenile court’s judgment is not
supported by clear and convincing evidence.
We affirm.
FACTS AND PROCEDURAL HISTORY
The facts most favorable to the juvenile court’s decision reveal that Mother
conceived the Child when she was thirteen years old and gave birth to the Child out of
wedlock on October 30, 2009 when Mother was fourteen years old. Initially, Mother
identified a male over the age of twenty as the Child’s father, but later identified C.C.,
whose whereabouts were unknown, as the putative father. In late January 2010, when the
Child was four months old and Mother was fourteen years old, the Child’s maternal
grandmother, who cared for Mother, was arrested and taken into custody. Mother’s
grandparents planned to provide care for Mother, but Mother “basically [ ] ended up at”
another relative’s home. Tr. at 190. That relative, S.D., was Mother’s aunt.
Mother ran away from S.D.’s house without arranging for the Child’s care. Law
enforcement took Mother into custody in Lafayette, Indiana, when Mother contacted law
enforcement for assistance in attempting to regain physical custody of the Child. Law
enforcement officers ultimately placed Mother at the Kinsey Youth Center 1 in Kokomo.
The White County Department of Child Services (“WCDCS”) removed the Child from
1
“The Howard Circuit Court, Robert J. Kinsey Youth Center is established to provide Short-Term
Secure, Non-Secure Emergency Shelter Care, and Long-Term Residential Care for juveniles who are
ordered detained or sheltered by the court through wardships.”
(http://co.howard.in.us/kinsey/missionfp.htm) (last visited Dec. 13, 2013).
2
Mother’s care on February 11, 2010, when the Child was four months old. The Child
remained in the care of S.D. until March 2010.
On March 1, 2010, Mother admitted that the Child was a child in need of services
(“CHINS”) due to her inability to provide stable living conditions and appropriate care for
the Child, and the juvenile court adjudicated the Child as such the same day. A
dispositional hearing was held on April 5, 2010, and the order entered as a result of that
hearing provided that Mother: (1) refrain from using, possessing, and selling illegal drugs;
(2) abide by all terms of her probation; (3) complete a parenting assessment and follow all
recommendations; (4) visit with the Child as arranged by WCDCS; (5) participate in
parenting classes as arranged by WCDCS; and (6) attend counseling as arranged by
WCDCS. The Child was placed in the home of relative foster parents, cousins of Mother,
B.M. (“foster father”) and M.M. (“foster mother”), when the Child was fifteen months old
and cared for the Child for the following twenty-three months thereafter.
Mother participated in services following the entry of the dispositional order, but
tested positive on multiple drug screens from April of 2010 through March of 2011,
including: (1) a July 12, 2010 positive marijuana screen; (2) an August 11, 2010 positive
screen for marijuana and amphetamines; (3) a February 17, 2011 positive screen for
marijuana; and (4) a March 25, 2011 positive screen for marijuana and amphetamines.
More specifically, with respect to the August 11, 2010 positive drug screen, service
providers discovered that Mother took “some blue pill,” leading to an ambulance
transporting Mother to the hospital.
On April 18, 2011, WCDCS petitioned to terminate Mother’s parental rights to the
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Child. The juvenile court held an evidentiary hearing on the petition on July 22, 2011.
During the interim between the hearing and the issuance of the order, Mother ran away
from home on September 16, 2011 and on October 4, 2011. WCDCS learned in September
2011 that Mother had gotten pregnant twice since the Child’s birth, with the second
pregnancy fathered by a man over twenty years old.
The juvenile court denied the termination petition on October 6, 2011. The juvenile
court’s order included the finding that this case presented special circumstances because of
the following: (1) Mother’s young age; (2) Mother’s probable status as a CHINS herself
although never having been adjudicated as such; and (3) the good intentions of Mother and
the Child’s maternal grandmother, neither of whom possess the common sense,
understanding, or financial means to follow through with items set forth in the case plan.
WCDCS Ex. 1 at 200-03. The juvenile court noted that Mother had exhibited signs of
progress which had not yet fully culminated.
After the termination proceedings, WCDCS scheduled a meeting to discuss how to
proceed with managing Mother’s case. Although the Child’s maternal grandmother was
present, Mother failed to attend. Maternal grandmother informed WCDCS that Mother
was missing. After that meeting in October 2011, WCDCS filed a petition alleging that
Mother was a CHINS.
The juvenile court adjudicated Mother a CHINS, and as part of Mother’s
dispositional order, Mother was placed at Promising Futures, a group home for teenage
mothers. On March 19, 2012, while Mother, who was sixteen years old at the time, resided
at Promising Futures, she gave birth to another child, B.I. Mother initially identified C.B.
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as B.I.’s father, but later identified D.A., who was over twenty years old and had a history
of substance abuse, as B.I.’s father. Mother left Promising Futures in June of 2012. Mother
has resided with the Child’s maternal grandmother since that time.
After Mother left Promising Futures, Marla Rausch (“Rausch”), a home-based
family case manager and therapist for Life Line Youth and Family Services, began
providing in-home services to Mother. Rausch was concerned with Mother’s inability to
attend appointments due to scheduling other appointments at the same time. Mother would
wait until the last minute to inform Rausch of the scheduling conflicts. Mother, however,
made some progress with that issue in the fall of 2012 after Rausch informed her of the
seriousness of the situation and that her services could be terminated.
Rausch was also concerned about Mother’s environment and prior substance abuse.
Rausch stated that Mother did not begin to take her situation seriously until WCDCS filed
its second petition for the termination of Mother’s parental rights to the Child. Rausch
observed that, after that time, Mother made adjustments for herself and for B.I. Rausch
believed that if Mother could take care of B.I. then she could probably take care of the
Child.
Mother also expressed her belief that if she could care for B.I., she could also care
for the Child. However, Mother stated that, during visitation, the Child “just throws fits
all the time . . . if I tell her no, then she freaks out.” Tr. at 97. The Child would tell Mother
that, while at her foster home, her foster mother would allow her to do certain things Mother
was attempting to prohibit, and Mother would respond by saying “Well, you’re at my
house, I don’t care.” Id. A service provider who was supervising visitation in the summer
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of 2012 was concerned with the way Mother would speak to the Child. One example of
such difficulty in communication occurred when the Child was crying. Mother would tell
the Child “that she was being annoying and she was being a big baby.” Id. at 155.
On September 29, 2012, Mother was staying at her sister’s house with B.I. Mother’s
sister, A.P., was on probation for an alcohol-related offense, and Mother had previously
had to call 911 when A.P. arrived at the Child’s maternal grandmother’s home intoxicated.
Mother acknowledged that A.P. has a problem with alcohol, but “didn’t think that it was
like a problem.” Id. at 66. At approximately 2:00 a.m. on that date, Mother was sitting on
a couch in the living room of A.P.’s home with B.I. sleeping next to her. Mother earlier
had consumed a shot of vodka and a chaser. A.P. went into her bedroom where her husband
was sleeping. Mother did not know what had occurred in the bedroom, but A.P.’s husband
chased A.P. with a long, tall fan hitting A.P. Mother then saw A.P. go into the kitchen and
retrieve a knife. As Mother was leaving the house with B.I., A.P. was stabbing the bedroom
door with the knife.
Mother walked to her grandfather’s house, which was nearby, and called B.I.’s
father, D.A., to give her a ride somewhere else. D.A. came to the house even though
Mother had a protective order entered against D.A. When questioned about the events of
the evening later, Mother denied that at age sixteen she had consumed vodka on that
evening. When WCDCS Family Case Manager Gretchen Reed (“FCM Reed”) confronted
Mother with the fact that the drug screen would reveal the presence of alcohol in Mother’s
system, Mother nonetheless continued to deny that she had consumed alcohol.
On November 30, 2012, the juvenile court agreed with WCDCS’s request to change
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the permanency plan to having the Child’s current relative foster placement become the
adoptive placement of the Child. The relative foster parents were in a position to adopt the
Child, and planned to continue to facilitate a relationship between Mother and the Child
even if Mother’s parental rights to the Child were terminated. Foster mother described
Mother’s relationship with the Child as one of big sister and little sister, and the Child’s
relationship with maternal grandmother as one with a friend.
Guardian Ad Litem Rebecca Trent (“GAL Trent”) had concerns about the
following: (1) Mother’s lack of relationship with the Child and that Mother’s parenting
was the result of the overflow of feeling from her relationship with B.I.; (2) Mother’s
multiple dishonest statements to WCDCS; (3) Mother’s failure to recognize that caring for
two children is more difficult than caring for only one child; (4) Mother’s continued
deceptive behavior when she is close to reunification with the Child; and (5) Mother’s
taking a possessory interest in the Child instead of forming a parent-child bond. FCM Reed
believed that the termination of Mother’s parental rights was in the best interest of the
Child. FCM Reed also believed that Mother’s continued dishonesty about her activities
was a concern as they neared trial home visitation and reunification.
On March 12, 2013, the juvenile court held an evidentiary hearing on WCDCS’s
second petition to terminate Mother’s parental rights to the Child. After taking the matter
under advisement, the juvenile court entered its order terminating Mother’s parental rights.
Mother now appeals from that order.2
2
C.C., the Child’s putative father, was not located and his parental rights, if any, were not
terminated.
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DISCUSSION AND DECISION
We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental rights. In re
K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing a termination of parental
rights case, we will not reweigh the evidence or judge the credibility of the witnesses. 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Here, in terminating Mother’s parental rights, the juvenile court entered specific
findings and conclusions. When a juvenile court’s judgment contains specific findings of
fact and conclusions thereon, 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 juvenile court’s decision,
we must affirm. In re L.S., 717 N.E.2d at 208.
The “traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. These parental interests, however,
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are not absolute and must be subordinated to the child’s interests when determining the
proper disposition of a petition to terminate parental rights. Id. In addition, 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. In re K.S., 750 N.E.2d at 836.
Before an involuntary termination of parental rights may occur, the State is required
to allege and prove, 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;
(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). The State’s burden of proof for establishing these allegations
in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the juvenile
court finds that the allegations in a petition described in section 4 of this chapter are true,
the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis
supplied).
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At the outset, we observe that Indiana Code section 31-35-2-4(b)(2)(B) is written
such that, to properly effectuate the termination of parental rights, the juvenile court need
only find that one of the three requirements of subsection (b)(2)(B) has been established
by clear and convincing evidence. See e.g. In re L.S., 717 N.E.2d at 209. Although we
need only address one of the three requirements, we will address each of the requirements
that are challenged by Mother.
When making such a determination, a juvenile court must judge a parent’s fitness
to care for his or her child 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. The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. Pursuant to
this rule, courts have properly considered 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. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d
1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also consider any
services offered to the parent by the county department of child services, here WCDCS,
and the parent’s response to those services, as evidence of whether conditions will be
remedied. Id. Moreover, the WCDCS is not required to provide evidence ruling out all
possibilities of change; rather, it need establish only that there is a reasonable probability
the parent’s behavior will not change. See In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007).
We note that, in the present case, Mother does not challenge the juvenile court’s
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legal conclusions vis-à-vis the following statutory elements: (1) the Child has been
removed from Mother’s care for the requisite period of time; (2) that continuation of the
parent-child relationship poses a threat to the Child’s well-being; (3) that termination of
Mother’s parental rights is in the best interests of the Child; and (4) that there is a
satisfactory plan for the care and treatment of the Child through relative adoption. We
conclude that notwithstanding Mother’s apparent waiver of arguments as to those elements,
the record supports the juvenile court’s conclusions.
Further, since Indiana Code section 31-35-2-4(b)(2)(B) requires proof of only one
of the following statutory elements--(1) the reasonable probability that the conditions
resulting in the Child’s removal or placement outside of the home will not be remedied, or
(2) there is a reasonable probability that the continuation of the parent-child relationship
poses a threat to the wellbeing of the Child--and Mother challenges only the former, she
has, in fact, conceded that the State has proven the latter element by clear and convincing
evidence. That alone would support the juvenile court’s decision to terminate Mother’s
parental rights to the Child. Notwithstanding Mother’s waiver of the argument with respect
to the former element, the record supports the juvenile court’s decision.
We observe that Mother has not challenged the juvenile court’s findings of fact;
thus, they stand as proven. A party waives a challenge to the sufficiency of the evidence
supporting the trial court’s findings when the party does not provide any argument relating
to the sufficiency of the findings of the trial court on appeal. City of Whiting v. City of E.
Chicago, 266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977).
Even so, the record in this matter supports the juvenile court’s findings. WCDCS
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presented clear and convincing evidence that Mother would not remedy the conditions that
resulted in the Child’s removal and/or the reasons for the continued placement of the Child
outside of the home. Mother argues that WCDCS’s failure to “never establish [] a goal of
reunification of [the Child] and [Mother] whereby specific skills or milestones were
established to achieve that end state” demonstrates a “dramatic failure on the part of ‘the
system’ established by [WCDCS].” Appellant’s Br. at 9. Mother contends that “[o]ne
night of poor judgment in which no one was harmed or even arrested should not discount
those strides she made to both improve and prove to [WCDCS] her abilities as a parent[,]”
does not support a termination of her parental rights to the Child. Id. at 11.
The record is replete with testimony from Rausch, FCM Reed, and Twyla Gould, a
Lifeline employee who provided case management services to assist Mother, that they were
initially requested to work on reunification of Mother with the Child as that was the initial
goal, and that WCDCS was moving toward trial home visitation. Furthermore, we have
stated the following:
The [juvenile] court can reasonably consider the services offered by the
[WCDCS] to the parent and the parent’s response to those services.
However, the law concerning termination of parental rights does not require
the [WCDCS] to offer services to the parent to correct the deficiencies in
childcare. . . . Rather, while a participation plan serves as a useful tool in
assisting parents in meeting their obligations, and while county departments
of public welfare routinely offer services to assist parents in regaining
custody of their children, termination of parental rights may occur
independently of them, as long as the elements of Ind. Code § 31-35-2-4 are
proven by clear and convincing evidence. Therefore, a parent may not sit
idly by without asserting a need or desire for services and then successfully
argue that he was denied services to assist him with his parenting.
In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000) (internal citations omitted).
Additionally, the statute does not contain a requirement that specific skills or
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milestones be provided by the WCDCS, or other such similar agency, in order for
reunification to be achieved. “[T]he provision of family services is not a requisite element
of our parental rights termination statute.” In re I.A., 934 N.E.2d 1127, 1136 (Ind. 2010)
(quoting In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000)). Thus, a challenge of the
sufficiency or reasonableness of services offered to a parent is not properly brought in an
appeal from the termination of parental rights.
Although Mother’s challenge of the juvenile court’s decision to terminate her
parental rights is couched in terms of “one night of poor judgment,” Appellant’s Br. at 11,
referring to the September 2012 incident at A.P.’s house, the juvenile court chose to cast a
wider net, and considered Mother’s habitual patterns of conduct. We have recited her
continued difficulty with substance abuse, including an instance where service providers
requested that Mother be transported by ambulance to a hospital after ingesting an
unknown blue pill. Mother twice ran away from home, and after the first termination
petition was denied, Mother failed to attend the family team meeting to discuss how her
case should progress. Mother also continued to engage in inappropriate sexual
relationships with older men resulting in two additional pregnancies subsequent to the birth
of the Child. Mother minimized the severity of her sister’s abuse of alcohol, even though
she was aware that A.P. was on probation for an alcohol-related offense, and Mother, who
was underage, consumed vodka while at A.P.’s home. Mother was dishonest with service
providers for over a two-year period. Moreover, Mother’s response to the violence to
which she exposed her child, B.I., at A.P.’s house, was to enlist the assistance of D.A., a
man against whom she had obtained a protective order.
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A juvenile court must subordinate a parent’s interests to those of the child. In re
J.S., 906 N.E.2d 226, 231 (Ind. Ct. App. 2009). The Child has been in relative foster
placement for much of her life and has developed while in the foster placement. While we
acknowledge and commend Mother for the progress she has made with regard to her grades
and management of her schedule, we observe that the record reveals this change came
about in knowledge of the imminent filing of a second petition to terminate her parental
rights to the Child.
We will reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake has been
made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592
N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the
juvenile court’s termination of Mother’s parental rights to the Child was clearly erroneous.
We, therefore, affirm the juvenile court’s judgment.
Affirmed.
FRIEDLANDER, J., and BAILEY, J., concur.
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