In the Matter of the Involuntary Termination of the Parent-Child Relationship of B.F. (Minor Children) and C.B. (Mother) and J.F. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 15 2019, 10:59 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT C.B. ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Sierra A. Murray
ATTORNEY FOR APPELLANT J.F. Deputy Attorney General
Cara Schaefer Wieneke Indianapolis, Indiana
Wieneke Law Office, LLC
Brooklyn, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary March 15, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of B.F., Je.F., 18A-JT-1967
Jay.F., Jar.F., C.F., Ky.F., and Appeal from the Vigo Circuit
Ke.F. (Minor Children) Court
The Honorable Sarah K. Mullican,
Judge
and
The Honorable Daniel W. Kelly,
Magistrate
C.B. (Mother) and J.F. (Father), Trial Court Cause Nos.
84C01-1710-JT-1441, -1442, -1443,
Appellants-Respondents, -1444, -1445, -1446, -1447
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1967 | March 15, 2019 Page 1 of 14
v.
Indiana Department of Child
Services,
Appellee-Petitioner
Crone, Judge.
Case Summary
[1] C.B. (“Mother”) appeals the involuntary termination of her parental rights to
seven of her minor children, and J.F. (“Father”) appeals the involuntary
termination of his parental rights to six of those children.1 We affirm.
Facts and Procedural History
[2] Mother and Father (collectively “Parents”) are the biological parents of Je.F.
(born October 14, 2008), Jay.F. (born December 18, 2009), Jar.F. (born
November 20, 2010), C.F. (born February 3, 2012), Ky.F. (born February 20,
2013), and Ke.F. (born May 15, 2015), and Mother is the biological parent of
B.F. (born March 28, 2002) (collectively “the Children”).2 In April 2015, the
Indiana Department of Child Services (“DCS”) received a report alleging
1
Mother has three children from a prior relationship, C.F., A.F., and B.F. C.F. and A.F. were no longer
minors at the time of the termination proceedings so they are not involved. Although B.F. is part of Mother’s
appeal, because B.F. is not Father’s biological child, she is not part of his appeal.
2
Prior to the termination hearing, Mother gave birth to her tenth and eleventh children, M.F. and P.F.
Those two children are not parties to these termination actions.
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physical abuse and medical neglect of the Children by Parents. DCS
determined that Je.F. had suffered bruising due to inappropriate physical
discipline and that several of the Children had unaddressed medical issues.
Accordingly, DCS filed child in need of services (“CHINS”) petitions as to the
Children on June 3, 2015.3 Following a hearing, the trial court adjudicated the
Children as CHINS pursuant to stipulation of the parties. The Children
remained in the home; however, the trial court issued dispositional decrees
ordering both Mother and Father to participate in various home-based and
individual services.
[3] DCS continued to receive reports of physical abuse and domestic violence in
the home. DCS was able to substantiate reports that Father kicked three-
month-old Ke.F. and threw her out of her infant seat. DCS was also able to
substantiate that Father threw Je.F. into a dresser, which resulted in bruising
and a “goose egg” bump on his head. Mother’s App. Vol. 2 at 51.4 DCS
implemented intensive services and made a safety plan to try to keep the
Children in the home. However, in January 2016, after B.F. was “hit in the
mouth” and Ja.F. sustained “suspicious injuries,” DCS determined that it was
“no longer able to ensure the safety of the [C]hildren if left in the home.” Id. at
3
Ke.F. had just been born. She was added to the proceedings in September 2015 after Father kicked and
threw her in front of some of the other Children.
4
Mother denied that abuse was occurring and claimed that injuries occurred when Je.F. was “rough
housing” with one of the other boys. Tr. Vol. 2. at 15. However, some of the older Children witnessed
Father abuse Je.F.
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52; Tr. Vol. 2 at 13. Accordingly, the Children were removed from Parents’
care on January 11, 2016.5
[4] Parents were largely compliant with services, and an in-home trial visit was
granted in February 2017. However, Parents’ volatile relationship continued to
be an issue, the Children’s behavior quickly regressed, and DCS received new
reports of physical abuse and medical neglect. Specifically, Je.F. had a cut on
his face, and C.F. had a blackeye and marks on her buttocks consistent with
physical abuse. C.F. also had a “popped MERSA boil” that needed, but was
not getting, medical attention. Tr. Vol. 2. at 241. The Children were again
removed from Parents’ care in May 2017.
[5] After virtually no progress was made by Parents in services over the next year,
termination petitions were filed, and following a hearing held on July 23 and
24, 2018, the trial court found and concluded in relevant part as follows: 6
17. There is a reasonable probability that the conditions that
resulted in the [Children’s] removal or the reasons for placement
outside the home of the [P]arents will not be remedied, and there
is a reasonable probability that the continuation of the parent-
child relationship poses a threat to the well-being of the
[Children], as more particularly described below.
5
Although originally placed in foster care, due to behavioral issues, B.F. was moved to respite care, then to a
behavioral center, then to shelter care, and eventually to a long-term care group home.
6
At times, the trial court refers to the parties by their names. We use “Mother,” “Father,” and “the
Children” where appropriate.
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A. Throughout the life of the [CHINS] proceedings, there has
been a pattern whereby Mother engages in services and is largely
compliant but fails to implement that which she has been taught
through services. Through testing that was done as part of a
psychological evaluation, DCS determined that Mother’s
intellectual functioning is extremely limited. Her IQ score of 63
on the Wechsler Adult Intelligence Scale, Fourth Edition
(WAIS-IV), places [Mother] in the “extremely low range” of
intellectual functioning for her age. Psychologist Dr. Leah
Powell found these results to be an accurate reflection of
Mother’s current level of cognitive functioning. Dr. Powell also
found that Mother appeared to be sad most of the time. She
reported feeling generally unlucky. She also felt a need to
“protect” her children, rather than allowing them the
independence necessary to become autonomous.
B. When DCS became involved with the family in 2015, all the
children six years old and under were still in diapers and non-
verbal. The court concludes from the evidence that the
Children’s inability to speak was the result of a combination of
untreated hearing loss, cognitive impairment and lack of verbal
and intellectual stimulation in the home. When Mother worked
outside the home, Father was the primary caregiver for all [] of
the children. He was described by virtually every witness who
interacted with him as extremely quiet and frequently sullen.
Poor anger management also appears to be a strong aspect of his
personality, as he would frequently abuse Mother and various
children in the home. Whether it was due to Mother’s own
limited intellectual functioning, a consequence of being a victim
of abuse, her dependence on his help with the Children or a
combination of these factors, Mother refused to leave Father, and
by the time of the termination hearing was denying that he was
abusive to her or the Children, claiming that DCS put the notion
of abuse in the Children’s heads. Therefore, in addition to
concerns about her cognitive functioning making it difficult to
parent a large number of children in the home and to deal
effectively with the Children’s numerous medical and
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educational needs, the evidence indicates that Mother cannot
keep the Children safe from physical abuse and domestic
violence.
C. Despite the continuing threat that Father’s presence in the
home posed to all of the Children, Father was generally non-
communicative, non-participatory in services, and quick to angry
outbursts. Father refused to talk to DCS case managers, telling at
least one of them that they need to communicate with him
through Mother. In family team meetings, [the Parents] would
often get so angry that DCS was unable to conduct the meeting.
D. Mother would often show up to supervised visits crying,
having been in a fight with Father. Their poor relationship,
characterized by frequent arguing and physical altercations,
remained a significant obstacle to reunification throughout the
duration of the case. When the kids were home on a trial home
visit, the Children saw Father grab Mother by the shirt and throw
her against a wall. Mother rationalized Father’s abuse, saying
that he hits her because she doesn’t give him enough breaks with
the kids and he takes his frustration out on her.
E. Although service providers pushed Father to obtain a driver’s
license so that he could help Mother transport the Children to
their many doctor and therapy appointments, he has still never
obtained a driver’s license. His intellectual functioning is in the
low-average range. Although he would feed the Children and
change diapers during supervised visits, he rarely displayed
affection toward the Children.
….
G. Eighteen-year-old A.F. credibly testified to daily abuse of the
Children by her stepfather. She also frequently saw him abuse
her mother. When the Children were in the care of Father, they
would sometimes miss meals and she felt generally unsafe. She
strongly believes that parental rights should be terminated. ….
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H. As a consequence of their education and medical needs,[7] all
of the Children at issue require more care than typical children,
but due to [the Parents’] limitations and the sheer number of
children involved, as well as transportation issues, the [P]arents
simply cannot meet those needs for the Children. ….
I. After extensive services for nearly three years, the in-home
caseworker from Raintree Consulting, who worked on parenting,
tutoring, supervised visitation, home organization and linked the
family to resources, felt that no progress had been made with
Mother and Father. She testified that the Children made
progress following removal on their ability to speak, using the
bathroom, etc.
….
18. Based upon all the evidence presented, including
recommendations by DCS and CASA [(Court Appointed Special
Advocate)], the court finds that termination is in the best interests
of all of the [Children].
19. There is a satisfactory plan for the care and treatment of the
Children which is adoption. The Children appear to be happy
and well-bonded in their pre-adoptive homes.
Mother’s App. Vol. 2 at 53-56. Accordingly, the trial court entered its order
terminating both Mother’s and Father’s parental rights to the Children. Each
parent now separately appeals.
7
The six younger children (except for Ke.F. who was too young for assessment) each have different and
various special needs, including cognitive and developmental delays, post-traumatic stress disorder,
reattachment disorder, and hearing loss. Father’s App. Vol. 2 at 48-49.
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Discussion and Decision
[6] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, 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) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege 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.
Ind. Code § 31-35-2-4(b)(2). DCS must prove that termination is appropriate by
a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
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(Ind. 2016). If the trial court finds that the allegations in a petition are true, the
court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[7] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92-93 (citations omitted). “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 R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
[8] Father challenges the trial court’s conclusions that there is a reasonable
probability that the conditions that resulted in the Children’s removal from and
continued placement outside the home will not be remedied by him, and that
termination of his parental rights is in the Children’s best interests. Mother’s
sole challenge is to the trial court’s conclusion that termination of her parental
rights is in the Children’s best interests. We will address these challenges in
turn.
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Section 1 – Clear and convincing evidence supports the trial
court’s conclusion that there is a reasonable probability of
unchanged conditions.
[9] We first address Father’s challenge to the trial court’s conclusion that there is a
reasonable probability that the conditions that led to the Children’s removal
and continued placement outside the home will not be remedied by him.8 In
determining whether there is a reasonable probability that the conditions that
led to the Children’s removal and continued placement outside the home will
not be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child
Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what
conditions led to their placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132, 1134 (Ind. 2010)
(citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997))). In the second
step, the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions, and
balancing a parent’s recent improvements against “‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
8
Father also challenges 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. However, Indiana Code Section
31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of parental
rights, the trial court need only find that one of the three requirements of that subsection has been established
by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.
2013), trans. denied. Accordingly, we will address only one of the three requirements.
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or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1231). “A pattern of unwillingness to deal with parenting problems
and to cooperate with those providing social services, in conjunction with
unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” Lang v. Starke Cty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. The
evidence presented by DCS “need not rule out all possibilities of change; rather,
DCS need establish only that there is a reasonable probability that the parent’s
behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007).
[10] One of the main reasons the Children were initially removed and continued to
be placed outside the home was multiple substantiated reports of Father’s
physical abuse against the Children. Still, Father asserts that DCS failed to
prove that he “had not or would not change” his abusive behavior. Father’s Br.
at 19. However, the record indicates that Father was wholly noncompliant
with the services that were put in place to address the physical abuse. During
the termination hearing, DCS Family Case Manager (“FCM”) Janet Wall-
Myers testified that not only had Father failed to actively participate in services,
but he had also “never taken any responsibility for the physical abuse” of the
Children. Tr. Vol. 3 at 7. Contrary to Father’s contention, FCM Wall-Myers
never stated that “she had no concerns” regarding future physical abuse of the
Children by Father. Father’s Br. at 19. Rather, she acknowledged during the
termination hearing that physical abuse was not a current concern simply
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because “there are not opportunities” for Father to abuse the Children during
supervised visits. Tr. Vol. 3 at 8. DCS presented ample evidence regarding
Father’s pattern of unwillingness to deal with his abusive behavior and to
cooperate with those providing social services. Clear and convincing evidence
supports the trial court’s conclusion that there is a reasonable probability that
the conditions that resulted in the Children’s’ removal and continued placement
outside the home will be not remedied by Father.
Section 2 – Clear and convincing evidence supports the trial
court’s conclusion that termination of both Mother’s and
Father’s parental rights is in the Children’s best interests.
[11] Both Mother and Father challenge the trial court’s conclusion that termination
of their respective parental rights is in the Children’s best interests. In
considering whether termination of parental rights is in the best interests of a
child, the trial court is required to look beyond the factors identified by DCS
and look to the totality of the evidence. McBride v. Monroe Cty. Office of Family &
Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In doing so, the trial court
must subordinate the interests of the parent to those of the child involved. Id.
The trial court need not wait until the child is irreversibly harmed before
terminating parental rights. Id. “The historic inability to provide adequate
housing, stability, and supervision, coupled with the current inability to provide
the same, will support a finding that continuation of the parent-child
relationship is contrary to the child’s best interests.” In re A.H., 832 N.E.2d 563,
570 (Ind. Ct. App. 2005). The testimony of service providers may support a
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finding that termination is in the child’s best interests. McBride, 798 N.E.2d at
203.
[12] Here, CASA Mary Canarecci opined that termination of both Parents’ rights
was in the Children’s best interests. She reflected on how this case had “kept
[her] awake” at night and how much she “feel[s] for these children.” Tr. Vol. 2
at 222-23. She encouraged the trial court “to terminate parental rights so these
children can move on.” CASA Ex. 1 at 3. She reported that over the past three
years of being away from Parents, the Children had “made great progress in
development towards a normal lifestyle.” Id. She further reported that the
Children “are experiencing trauma” when forced to visit with Parents and “it is
time to move forward” and allow the Children to “leave behind [their] fears[.]”
Id. She emphasized that Parents had not made any progress in services despite
having “all this time to get their act together for these children.” Tr. Vol. 2 at
225-26. Canarecci stated that she and her co-CASA were in total agreement in
recommending termination of both Mother’s and Father’s parental rights, and
that they did not come to that decision “haphazardly.” Id. at 226.
[13] Similarly, FCM Wall-Meyers and FCM William Welch each opined that
termination of parental rights is in the Children’s’ best interests. Wall-Meyers
noted that although Mother participated in some services, “she struggled to
implement changes.” Id. at 244. Regarding Father, she noted that he “would
not actively engage and did not make changes as a result.” Id. Welch stated
that based upon all the reports from service providers, he did not believe that
the reasons the Children were removed from Parents’ care were likely to be
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remedied and that the Children may be “in significant risk of danger and harm”
if they were returned home. Tr. Vol. 3 at 52.
[14] Clear and convincing evidence supports the trial court’s conclusion that
termination of both Mother’s and Father’s rights is in the Children’s best
interests. Decisions to terminate parental rights “are among the most difficult
our trial courts are called upon to make” and are very fact sensitive. E.M. v. Ind.
Dep't of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014). We will not second-guess
the trial court’s thoughtful decision here.9 The trial court’s termination of
Mother’s and Father’s parental rights is affirmed.
[15] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
9
In its detailed findings and conclusions, the trial court was sympathetic to Mother, noting that this case is
“very sad” and although “Mother loves all of her children” and has “invested herself in the court-ordered
services,” there are “seemingly intractable circumstances” that “render reunification impracticable now and
likely in the future as well.” Mother’s App. Vol. 2 at 50.
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