Term. of the Parent-Child Rel. of B.W. and C.W. (Minor Children) J.W. (Mother) B.W. (Father) v. Indiana Dept. of Child Services ( 2012 )

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 FILED
of establishing the defense of res Nov 26 2012, 8:46 am
judicata, collateral estoppel, or the law
of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS, ATTORNEYS FOR APPELLEE:
J.W. (Mother), B.W. (Father)
REBECCA L. MOSES
CHRISTOPHER A. CAGE New Castle, Indiana
Anderson, Indiana
ROBERT J. HENKE
JOHN T. WILSON Indianapolis, Indiana
Anderson, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF )
B.W. AND C.W. (Minor Children), )
)
J.W. (Mother) B.W. (Father), )
)
Appellants-Respondents, )
)
vs. ) No. 33A04-1206-JT-289
)
INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Mary G. Willis, Judge
Cause No. 33C01-1202-JT-3, 33C01-1202-JT-4
November 26, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
J.W. (“Mother”) and B.W. (“Father”) appeal the termination of their parental
rights. We affirm.
Issue
Mother and Father each raise one issue, which we restate as whether there is
sufficient evidence to support the termination of their parental rights.
Facts
C.S.W. and B.J.W. were born on September 18, 2010. The Department of Child
Services (“DCS”) became involved with the family soon after the children’s birth
because the hospital staff was concerned about the parents’ possible drug impairment. In
October 2010, Mother and Father, who lived in New Castle, entered into an informal
adjustment with DCS. The informal adjustment concluded in April 2011.
In May 2011, a child in need of services (“CHINS”) petition was filed alleging
that the parents had been involved in an incident of domestic violence, that they were
abusing medications and drugs, that Mother was admitted for treatment of suicidal
thoughts, and that they had sought protective orders against one another but eventually
indicated they wanted to stay together and dismiss the protective orders. In June 2011,
the children were removed from the home when Father, while on bath salts, was found
walking around in the rain wearing only his underwear and carrying a hammer. When
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the DCS family case manager went to the home, Mother was impaired and suggested she
and Father and been involved in a domestic altercation. The house was in disarray, and
C.S.W. had a bump below her eye that was later determined to be a birthmark.
During the CHINS proceeding, Mother and Father participated in some services
but did not successfully complete treatment to address their substance abuse or mental
health issues. In October 2011, the couple moved to Muncie. On February 29, 2012,
DCS filed petitions to terminate the parent-child relationships. After a hearing, the trial
court granted the petition. In its order terminating the parent-child relationship, the trial
court found in part:1
b. There is a reasonable probability that:
(1) the conditions that resulted in the child’s
removal or the reasons for the placement
outside the parent’s home will not be remedied
in that:
a. The father self reported to Emily
McCall, addictions counselor, a
substance abuse history dating back to
2002 which included use of alcohol,
marijuana, cocaine, intravenous
morphine and bath salts.
b. The mother self reported to Emily
McCall, addictions counselor, a
substance abuse history dating back to
the age of thirteen (13) which included
use of marijuana, cocaine, Percocet,
intravenous oxycontin, hallucinogens
and intravenous bath salts.
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These findings specifically relate to B.J.W. The findings relating to C.S.W. are substantially similar.
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c. Neither mother nor father successfully
completed substance abuse treatment or
relapse prevention despite two prior
referrals in the underlying Child in Need
of Services case.
d. The father self reported a history of
mental health concerns including bipolar
disorder and anxiety.
e. The mother self reported a history of
mental health concerns including bipolar
disorder, panic disorder and depression.
f. The Father was hospitalized for
treatment of suicidal ideation and use of
bath salts in October, 2011.
g. The mother was hospitalized for
treatment of suicidal ideation on multiple
occasions in October, 2011.
h. Neither mother nor father successfully
completed individual and/or family
counseling to address mental health
concerns in New Castle or Muncie as
referred in the underlying Child in Need
of Services case.
i. The parents have a history of domestic
discord and violence and demonstrated a
lack of insight into the danger of this
volatile relationship by failing to abide
by protective orders and Department of
Child Services safety plans. Father had
an arrest for domestic violence and
invasion of privacy. Mother suffered a
fractured foot due to domestic violence.
j. Mother and father failed to satisfactorily
complete counseling to address domestic
violence concerns.
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and
(2) continuation of the parent-child relationship
poses a threat to the well-being of the child in
that:
a. Mother and father have lengthy
substance abuse histories.
b. Mother and father have self reported
mental illness.
c. Mother and father have a volatile
relationship which includes incidents of
domestic violence.
d. Mother and father have failed to
complete services or to satisfactorily
remedy issues of substance abuse,
domestic violence and mental health
concerns.
c. Termination is in the best interest of the child in that:
1. The child has been removed from the care of his
mother and father for ten (10) months, which
represents one half of the child’s lifetime.
2. CASA Susan Stamper believes termination is in
the child’s best interests.
3. The Department of Child Services believes
termination is in the child’s best interests.
4. Mother and father have failed to complete
services or to satisfactorily remedy issues of
substance abuse, domestic violence and mental
health concerns.
d. The Department of Child Services, Henry County local
office, has a satisfactory plan for the care and
treatment of the child, which is adoption.
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Father’s App. pp. 54-56. Mother and Father now appeal.
Analysis
Mother and Father argue there is not sufficient evidence 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.
(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 county office of
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family and children 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. Mother
Without directing us to which conclusions she is specifically challenging, Mother
claims “[t]here is no nexus between the trial courts [sic] finding and the need to terminate
the relationship. Put another way, termination was not a necessary conclusion to be
reached by the evidence.” Mother’s Br. p. 11. Mother argues that she had participated in
services and made progress while participating. Mother also suggests that, given her
participation, it was premature to petition to terminate her parental rights and that DCS
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failed to present evidence of the parents’ home, their fitness, or their employment status
at the time of the termination hearing.
Mother correctly points out that, in determining whether the conditions that led to
a child’s removal will not be remedied, 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 any
evidence of changed conditions. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
“However, the trial court must also ‘evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.’” Id. (quoting In
re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied). The trial court may
consider services offered by the DCS and the parent’s response to those services. Id.DCS is not required to rule out all possibilities of change, but only needs to establish that
there is a reasonable probability the parent’s behavior will not change. Id.Here, the trial court was presented with evidence that, at the time of the hearing,
Mother and Father had obtained housing in Plainfield, Father was working full-time, they
appeared to be sober, and the children were safe in a foster home. The trial court was
also presented with evidence that DCS first became involved with the family in
September 2010, and that although Mother participated in services, she did not
successfully complete services provided to her. Carly Lawson, a family case manager,
testified about continuing concerns related to both parents’ mental health issues,
including their suicidal ideations and multiple hospitalizations, and their substance abuse
issues. Evidence of domestic disputes between Mother and Father was presented to the
trial court.
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Mother’s challenge to the sufficiency of the evidence is a request to weigh the
evidence, which we cannot do. See I.A., 934 N.E.2d at 1132. The clear and convincing
evidence of Mother’s ongoing mental health and substance abuse issues as well as the
incidents of domestic disputes is sufficient evidence to support the termination of her
parental rights.
II. Father
A. Conditions Resulting in Removal
Father argues that the trial court erroneously concluded that the conditions
resulting in the children’s removal would not be remedied.2 Father asserts that he
substantially complied with DCS’s recommendations and that he was cooperative and
making progress in his verbal communications with Mother and his parenting skills
training. Father claims that he has taken advantage of the services provided by DCS and
that his situation had improved at the time of the hearing.
Although there was evidence that Father participated in services and had been
cooperative at times, there was also evidence that he threatened to kill his caseworker and
that Father did not successfully complete treatment for his mental health or substance
abuse issues. To the extent Father argues otherwise, he is asking us to reweigh the
evidence, which we cannot do. See I.A., 934 N.E.2d at 1132.
2
Father also asserts that the evidence does not support the conclusion that the continuation of the parent-
child relationship poses a threat to the children’s well-being. The current version of the statute required
DCS to allege and prove only one of the three factors listed in Indiana Code Section 31-35-2-4(b)(2)(A).
See also Bester v. Lake County Office of Family and Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005)
(observing that under the prior version of the statute, DCS was required to prove either of the two factors,
not both). Thus, we only need to address whether there is a reasonable probability that the conditions that
resulted in the children’s removal will not be remedied.
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B. Best Interests
Father also argues that the evidence does not establish that the termination of the
parent-child relationship is in the children’s best interests. Contrary to Father’s
argument, Lawson testified that termination was in the children’s best interests because
Mother and Father had not completed services. She explained that termination was
necessary to provide the children with a permanent home that is “safe and stable, free of
substance abuse and domestic violence.” Tr. p. 191. Similarly, the CASA reported that
the children:
are thriving in a pre-adoptive home that embraces the
maternal grandparents and encourages a relationship of
blended family. These are very young children who deserve a
stable and safe home free of substance abuse and domestic
violence. It is in their best interest for the parent child
relationship to be terminated.
Father’s App. p. 53. This evidence, combined with evidence of substance abuse, mental
health issues, and domestic discord, is clear and convincing evidence that termination of
the parent-child relationship is in the children’s best interests.
C. Satisfactory Plan
Father also asserts DCS’s plan for adoption “is nothing more than a statement to
the effect, and there is no guarantee that that will take place or that the children will even
remain together.” Father’s Br. pp. 20-21. For a plan to be “satisfactory,” it 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. See Lang v. Starke County Office
of Family and Children, 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied.
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Adoption is generally considered to be a satisfactory plan under the termination of
parental rights statute. See In re B.M., 913 N.E.2d 1283, 1287 (Ind. Ct. App. 2009).
DCS offered evidence that the plan for the children was adoption and that a pre-
adoptive home had been identified. This is clear and convincing evidence supporting the
trial court’s conclusion that DCS has an adequate plan for the children’s care and
treatment.
Conclusion
There is clear and convincing evidence to support the termination of Mother’s and
Father’s parental rights. We affirm.
Affirmed.
VAIDIK, J., and MATHIAS, J., concur.
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