In Re the Termination of Parent-Child Relationship of B.W., A.W., W.S., & U.S., B.W., and J.S. v. Indiana Department of Child Services ( 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
of establishing the defense of res Jan 10 2014, 9:20 am
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT, J.S., ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
ATTORNEY FOR APPELLANT, B.W., ROBERT J. HENKE
Deputy Attorney General
CHRISTOPHER A. CAGE Indianapolis, Indiana
Anderson, Indiana
REBECCA L. MOSES
Department of Child Services
New Castle, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF PARENT-CHILD)
RELATIONSHIP OF B.W., A.W., W.S., & U.S., )
)
B.W., and J.S., )
)
Appellants-Defendants, )
)
vs. ) No. 33A01-1306-JT-270
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Mary G. Willis, Judge
Cause Nos. 33C01-1210-JT-10, JT-11, JT-12, JT-13
January 10, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
B.W. (“Father”) appeals the termination of his parental rights to B.W. and A.W.,
and J.S. (“Mother”) appeals the termination of her parental rights to W.S., U.S., B.W.,
and A.W. We affirm.
Issues
Father raises one issue, which we restate as whether the evidence is sufficient to
support the termination of his parental rights to B.W. and A.W. Mother also raises one
issue, which we restate as whether the evidence is sufficient to support the termination of
her parental rights to W.S., U.S., B.W., and A.W.
Facts
Mother has four children, W.S., who was born in February 1996, U.S., who was
born in June 1998, B.W., who was born in August 1999, and A.W., who was born in
August 2007. Father has two children with Mother, B.W. and A.W.1
The Department of Child Services (“DCS”) began working with Mother, Father,
and the children in December 2009 under an informal adjustment due to Mother’s arrest
for check deception and Father’s incarceration. The children had previously been placed
in a guardianship from October 2006 through August 2007 and in foster care in Kentucky
1
The fathers of U.S. and W.S. were unnamed or unknown.
2
from August 2007 through June 2008. DCS provided home based counseling, a
parenting assessment, and a domestic violence assessment. Initially, Mother and the
children were living at a shelter. After Father’s release from incarceration, they began
renting a home. After an extension, the informal adjustment was closed in August 2010.
In August 2011, Father was convicted of Class D felony battery resulting in bodily
injury for an incident involving a battery to B.W. and false informing. He was sentenced
to one and one-half years in the Henry County Jail for the battery conviction consecutive
to a 180-day sentence for a false informing conviction. In September 2011, DCS learned
that Mother and the children were homeless and that Father was incarcerated. Mother
and the children had been living with friends, but B.W. was allegedly molested by an
adult in the home. Mother and the children were “put up” in a hotel, but Mother had no
food stamps left for the month, no income, and no family support. Tr. p. 28. DCS
removed the children from Mother’s care and placed them together in foster care. DCS
filed petitions alleging that the children were Children in Need of Services (“CHINS”).
Mother and Father admitted the allegations of the petitions, and the trial court found that
the children were CHINS.
In November 2011, the trial court entered a dispositional order, which in part
required Mother and Father to: (1) maintain weekly contact with DCS; (2) notify DCS of
changes in address, household composition, employment, and telephone numbers; (3)
notify DCS of any arrests or criminal charges; (4) keep appointments with DCS and
service providers; (5) obtain suitable housing; (6) obtain suitable income; (7) participate
in intensive family preservation; (8) participate in home based counseling; and (9) attend
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visitation with the children. The children remained in foster care. In April 2012, the trial
court ordered Mother and Father to undergo a substance abuse assessment, random drug
screens, and parenting skills education. The trial court also ordered Father to undergo a
mental health evaluation.
Although Mother and Father participated in services, little progress was made
toward reunifying the family. Throughout the proceedings, W.S. and U.S. refused to visit
with Mother or Father, and in July 2012, B.W. refused any further visitations with them.
In September 2012, the trial court approved a permanency plan of termination of Mother
and Father’s parental rights. DCS ceased providing services in October 2012 and filed
petitions to terminate Mother and Father’s parental rights.
At the hearing on the petitions, the CASA reported that U.S., W.S., and B.W. did
not want to return to Mother and Father’s care. The CASA recommended termination of
Mother and Father’s parental rights due to “[t]he length of time out of the home, the
services applied to the family with[out] lasting change in place, and foremost the
children’s desires.” Id. at 190. In an in camera interview, U.S. refused to visit Mother
and Father, and he said that he wanted to be adopted by his foster parents. In another in
camera interview, B.W. said that she also wanted to be adopted but wanted to maintain
some sort of contact with Mother.
The trial court entered findings of fact and conclusions thereon granting DCS’s
petition to terminate Mother and Father’s parental rights. The trial court concluded that
there was a “reasonable probability that continuation of the parent-child relationship”
posed a threat to the children’s well-being. Mother’s App. p. 86, 91, 96, 101. The trial
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court also concluded that termination of parental rights was in the children’s best interests
due to:
(1) parents’ failure to make adequate progress in court
ordered services which were ordered to help parents improve
their parental abilities/fitness so they could reunify with their
children; (2) parents’ failure to demonstrate they have
benefitted from the limited services in which they did
participate; and (3) older siblings refusal to visit with the
parents during the pendency of the underlying CHINS case.
Id. at 89, 94, 99, 104. The trial court also concluded that DCS had an adequate plan for
the children, which included adoption. Mother and Father now appeal.
Analysis
Father challenges the termination of his parental rights to B.W. and A.W., and
Mother challenges the termination of her parental rights to W.S., U.S., B.W., and A.W.
The Fourteenth Amendment to the United States Constitution protects the traditional
right of parents to establish a home and raise their children. In re I.A., 934 N.E.2d 1127,
1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of his or her
children is ‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). “Indeed the parent-child
relationship is ‘one of the most valued relationships in our culture.’” Id. (quoting Neal v.
DeKalb County Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We
recognize of course that parental interests 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. (citing In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004),
trans. denied)). Thus, “[p]arental rights may be terminated when the parents are unable
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or unwilling to meet their parental responsibilities.” Id. (quoting D.D., 804 N.E.2d at
265).
When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. Id. We consider only the evidence and reasonable
inferences that are 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 Ind. Trial Rule 52(A)). Here, the trial court entered findings of fact and
conclusions thereon in granting DCS’s petition to terminate Mother and Father’s parental
rights. When reviewing findings of fact and conclusions thereon entered in a case
involving a termination of parental rights, we apply a two-tiered standard of review.
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. Id. A judgment is clearly erroneous if the
findings do not support the trial court’s conclusions or the conclusions do not support the
judgment. Id.
Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true, the court
shall terminate the parent-child relationship.” Indiana Code Section 31-35-2-4(b)(2)
provides that a petition to terminate a parent-child relationship involving a child in need
of services must allege, in part:
(B) that one (1) of the following is true:
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(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.
The State must establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
A. Threat To Children’s Well-Being
Mother and Father argue that the trial court erred when it determined that the
continuation of the parent-child relationship posed a threat to the children’s well-being.2
The trial court noted that, since the initiation of CHINS proceedings, the children have
2
Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. DCS concedes that subsection
(b)(2)(B)(iii), which concerns repeated CHINS adjudications, is inapplicable here. Consequently, DCS
was required to demonstrate by clear and convincing evidence a reasonable probability that either: (1) the
conditions that resulted in the children’s removal or the reasons for placement outside the home of the
parents will not be remedied, or (2) the continuation of the parent-child relationship poses a threat to the
well-being of the children. Both Mother and Father argue that the trial court’s conclusion that the
conditions that resulted in the children’s removal or the reasons for placement outside the home of the
parents will not be remedied is clearly erroneous. However, the trial court made no findings regarding
this factor. Rather, the trial court found a reasonable probability that continuation of the parent-child
relationship posed a threat to the well-being of the children, and there is sufficient evidence in the record
to support the trial court’s conclusion. Thus, we need not determine whether there was a reasonable
probability that the conditions that resulted in the children’s removal and continued placement outside
Mother and Father’s home would not be remedied. See, e.g., Bester v. Lake County Office of Family &
Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind. Ct. App. 2001),
trans. denied.
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not been returned to Mother or Father. The trial court also noted that Mother “failed to
accept responsibility for her choices” that led to the CHINS action and “lacked insight
into how this contributed to the extreme deterioration of the parent-child relationship.”
Mother’s App. p. 88, 93, 98, 103. As for Father, the trial court noted the relationship
between Father and B.W., U.S., and W.S. was “not remediated.” Id.
Mother and Father claim that they substantially complied with the services
provided and that they resolved the issues that led to the children’s removal. Most of
Mother and Father’s arguments are requests that we reweigh the evidence and judge the
credibility of the witnesses. We cannot do that. Although Mother and Father made
progress with respect to their repeated homelessness and instability prior to the
termination hearings, they still often ran out of food stamps and money to buy food even
though the children were in foster care. Additionally, the service providers testified that,
although Mother and Father participated in the services, they made little improvement
and did not resolve the tensions between themselves and the older children.
DCS presented evidence that, despite extensive therapy, Mother lacks insight into
how her conduct and choices have impacted the situation and her children. Mother
refused to take any responsibility for the situation; she blamed Father or U.S. and W.S.
Her willingness to “try new things was pretty well nonexistent” because she was
comfortable with her parenting skills. Tr. p. 49. However, the therapist described her
parenting as “overly structured” and “very rigid.” Id. at 56-7. A home based counselor
described Mother’s parenting as “military type parenting.” Id. at 143. The therapist
stated that a rigid parenting style “generally hampers the children’s opportunity to grow
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mentally and emotionally in a healthy way.” Id. at 59. U.S. and W.S. refused to
participate in visitations with Mother or Father.
Father was incarcerated for much of the CHINS proceedings. Part of his
incarceration was the result of his battery upon B.W. In July 2012, B.W. refused to
participate in further visitations with Mother and Father. Additionally, Mother and the
children reported a history of domestic violence in the household, and Mother reported
that Father hit her “a lot.” Id. at 137.
Father complains that DCS did not make all reasonable efforts to reunite the
family, and Mother complains that intensive family counseling was not offered to reunite
her with the children. However, the service providers testified that Mother and Father
needed to make more progress in individual counseling before they could recommend
family counseling, and neither Mother nor Father ever made the required progress. The
lack of progress was evident in U.S.’s in camera interview with the trial court and the
children’s statements to the CASA. W.S., U.S., and B.W. each expressed a desire not to
live with Mother or Father, and A.W. has spent most of her life outside the care of her
parents.
Given the lack of significant progress during therapy and home based counseling,
the lack of a relationship between Mother and Father and the children, and the children’s
progress in their foster home, we cannot say that the trial court was clearly erroneous
when it determined that the continuation of the parent-child relationship posed a threat to
the children’s well-being.
B. Best Interest
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Next, Mother and Father argue that termination of their parental rights was not in
the children’s best interests. The DCS was required to prove by clear and convincing
evidence that the termination was in the children’s best interests. In determining what is
in the best interests of a child, the trial court is required to look at the totality of the
evidence. A.F. v. Marion County Office of Family & Children, 762 N.E.2d 1244, 1253
(Ind. Ct. App. 2002), trans. denied. In doing so, the trial court must subordinate the
interests of the parents to those of the child involved. Id. “[T]he 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).
Father argues that his lack of a relationship with W.S. or U.S. is irrelevant because
he has no parental rights to them. However, his relationship with B.W. was also
significantly impacted. In July 2012, B.W. refused further visitation with Mother and
Father, and in her in camera interview, B.W. expressed a desire to be adopted. Father
made no progress in repairing his relationship with B.W., and A.W. has spent most of her
life outside of his care.
At the start of therapy, W.S. was tense, angry, and frustrated when he talked about
Mother and Father. U.S. was withdrawn and lacked self-confidence. After about six
months of therapy, W.S. was more relaxed and doing well in school. U.S. was more
outgoing and confident. After U.S. and W.S. refused to visit Mother, Mother told the
home based counselor that U.S. and W.S. were “disrespecting her” and had “turned their
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backs on her.” Tr. p. 136. Mother never made progress in repairing her relationship with
the children. In fact, in an in camera interview, U.S. told the trial court that Mother and
Father’s home was “a messed up place.” Id. at 235. He refused to visit Mother and
Father, and he wanted to be adopted by his foster parents.
None of the service providers or case managers recommended that the children be
returned to Mother and Father during the proceedings, and the service providers, case
managers, and CASA recommended that termination of parental rights was in the
children’s best interests. The trial court concluded that termination of parental rights was
in the children’s best interests due to:
(1) parents’ failure to make adequate progress in court
ordered services which were ordered to help parents improve
their parental abilities/fitness so they could reunify with their
children; (2) parents’ failure to demonstrate they have
benefitted from the limited services in which they did
participate; and (3) older siblings refusal to visit with the
parents during the pendency of the underlying CHINS case.
Mother’s App. at 89, 94, 99, 104.
Although Mother and Father made some improvements in housing, income, and
stability, little progress was made to improve their relationships with the children. Given
the totality of the circumstances, the children’s wishes, and Mother and Father’s failure to
make progress in services, we cannot say that the trial court’s conclusion is clearly
erroneous.3
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Mother also briefly argues that DCS’s plan for the children is inadequate. DCS presented evidence that
the plan for the children is adoption. DCS also indicated that, given his age, W.S. might pursue
independent living. A satisfactory 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.” Lang v.
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Conclusion
The trial court’s termination of Father’s parental rights to B.W. and A.W. is not
clearly erroneous. Further, the trial court’s termination of Mother’s parental rights to
W.S., U.S., B.W., and A.W. is not clearly erroneous. We affirm.
Affirmed.
ROBB, J., and BROWN, J., concur.
Starke County Office of Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied.
DCS’s plan for the children is satisfactory.
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