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

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Dec 23 2014, 10:04 am
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 APPELLEE:
THOMAS C. ALLEN GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
DAVID DICKMEYER
ROBERT J. HENKE
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP OF: )
)
L.D.H., D.M.H., K.M.H., AND N.M.H. )
(MINOR CHILDREN) )
) No. 02A04-1405-JT-212
B.J.H. (MOTHER), )
)
Appellant-Respondent, )
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
The Honorable Lori K. Morgan, Magistrate
Cause Nos. 02D08-1307-JT-66, 02D08-1307-JT-67,
02D08-1307-JT-68, 02D08-1307-JT-69
December 23, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
B.J.H. (“Mother”)1 appeals the termination of her parental rights upon the petition
of the Allen County Department of Child Services (“DCS”). We affirm.
Issue
Mother presents one issue for review, which we restate as: whether DCS
established, by clear and convincing evidence, the requisite statutory elements to support
the termination decision.
Facts and Procedural History
On October 31, 2011, L.D.H., D.M.H., K.M.H., and N.M.H. (collectively,
“Children”) were removed from Mother’s home after medical examinations of Children
revealed signs of physical abuse. Children were adjudicated Children in Need of Services
(“CHINS”) on November 29, 2011, after Mother admitted to the allegations that Children
suffered severe physical and psychological abuse at the hands of Mother’s live-in boyfriend
and that Mother failed to seek timely medical treatment for Children.
Mother subsequently was charged with four counts of Neglect of a Dependent
Resulting in Bodily Injury, as Class C felonies.2 On October 29, 2012, the trial court
accepted her guilty plea and sentenced her to eight years in the Indiana Department of
Correction (“DOC”), with all eight years suspended to probation.
1
Father is deceased.
2
Ind. Code § 35-46-1-4(b)(1)(A). This offense is now a Level 5 felony. We refer to the version of the
statute in effect at the time of Mother’s offense.
2
While on probation, Mother was charged with and pleaded guilty to Battery
Resulting in Bodily Injury, as a Class A Misdemeanor,3 stemming from an unrelated
incident at a nightclub. As a result, the State filed a verified petition to revoke Mother’s
probation in the Neglect case. Mother’s probation was revoked on May 15, 2013, and she
was ordered to serve all remaining suspended time in the DOC.
Mother has been incarcerated since her arrest for the probation violation on
February 14, 2013. Her earliest projected release date is January 28, 2017.4 Despite
reunification efforts made when Mother was not in jail, Children have never returned home.
D.M.H., K.M.H., and N.M.H. have been in foster care since their removal in 2011. L.D.H.
was initially in foster care; however, in July 2013 he was moved to a youth residential
facility that could provide intensive treatment for his serious psychological and behavioral
health issues.
On July 24, 2013, DCS filed a verified petition for involuntary termination of
parental rights. Hearings on the petition were conducted on January 9, 13, 16, and 17,
2014. On April 16, 2014, the court issued an order terminating Mother’s parental rights.
Mother now appeals.
Discussion and Decision
Standard of Review
3
I.C. § 35-42-2-1(a)(1)(A).
4
If Mother participates in certain programs offered by the DOC, she may be eligible for earlier release.
As of trial, Mother had enrolled in, but not completed, some of these programs.
3
Our standard of review is highly deferential in cases concerning the termination of
parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not
set aside the trial court’s judgment terminating a parent-child relationship unless it is
clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When
reviewing the sufficiency of the evidence to support a judgment of involuntary termination
of a parent-child relationship, we neither reweigh the evidence nor judge the credibility of
the witnesses. Id. We consider only the evidence that supports the judgment and the
reasonable inferences to be drawn therefrom. Id.Where, as here, the trial court enters 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. A
judgment is clearly erroneous if the findings do not support the court’s conclusions or the
conclusions do not support the judgment. Id.Requirements for Involuntary Termination of the Parent-Child Relationship
Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet their parental
responsibilities. Id. The purpose of terminating parental rights is not to punish the parents,
but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.
denied.
4
Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege
and prove by clear and convincing evidence in order to terminate a parent-child
relationship:
(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.
(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.
If the court finds that the allegations in a petition described above are true, the court shall
terminate the parent-child relationship. I.C. § 31-35-2-8(a).
Analysis
5
Mother contends that insufficient evidence supports the trial court’s termination
order. She does not challenge the court’s determinations under Indiana Code subsections
31-35-2-4(b)(2)(A) (removal), (B) (conditions and well-being), or (C) (best interests).
Mother challenges only the determination under subsection (D), that is, whether DCS has
proven by clear and convincing evidence that there is a satisfactory plan for the care and
treatment of Children.
Under subsection (D), a plan for the care and treatment of a child “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.” In re D.D., 804 N.E.2d 258, 268 (Ind. Ct.
App. 2004), trans. denied. At the termination hearing, DCS Family Case Manager Jennifer
Kracium testified that DCS’s plan for the care and treatment of Children is adoption. In
the trial court’s findings of fact and conclusions thereon, the court found that DCS “has a
satisfactory plan for the care and treatment of the children, which is placement of the
children for adoption.” (Appellant’s App. at 35.) The evidence therefore supports the trial
court’s findings, and the findings support the judgment of involuntary termination.
Mother argues, however, that adoption is not a satisfactory plan in this case because
“three of the children have substantial psychological needs which require specialized care
making it unlikely they would be adopted.” (Appellant’s Br. at 16.) We have not found
any authority, and Mother cites none, to support her argument that adoption is not a
satisfactory plan for children who have suffered severe physical and psychological trauma
– trauma caused by the prolonged abuse and neglect that necessitated their removal in the
first place – because their injuries may, in theory, reduce their chances of being adopted.
6
Rather, this Court repeatedly has held that adoption is a satisfactory plan even when
a specific adoptive family has not yet been identified. See Lang v. Starke Cnty. Office of
Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (“The fact that there was not
a specific family in place to adopt the children does not make the plan unsatisfactory.”),
trans. denied; D.D., 804 N.E.2d at 268 (holding that a plan for adoption, either by the
current foster family or another family, was satisfactory because it provided a general sense
of direction for the child’s care and treatment); In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct.
App. 2000) (same). DCS therefore established that there is a satisfactory plan for the care
and treatment of Children.
Conclusion
DCS established, by clear and convincing evidence, the requisite elements of
Indiana Code section 31-35-2-4(b)(2). Accordingly, the trial court’s judgment of
involuntary termination of the parent-child relationship was not clearly erroneous.
Affirmed.
ROBB, J., and BROWN, J., concur.
7