In the Matter of the Termination of the Parent-Child Relationship of K.B.: J.B. v. The Indiana Department of Child Services (mem. dec.) , 121 N.E.3d 147 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jan 30 2019, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Benjamin J. Church Curtis T. Hill, Jr.
Church Law Office Attorney General of Indiana
Monticello, Indiana
Patricia McMath
Lauren A. Jacobsen
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 30, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of K.B.; 18A-JT-1509
J.B., Appeal from the White Circuit
Court
Appellant-Respondent,
The Honorable Robert W.
v. Thacker, Judge
Trial Court Cause No.
The Indiana Department of 91C01-1712-JT-27
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] J.B. (“Mother”) appeals the termination of the parent-child relationship with
her son, K.B. (“K.B.”), claiming that there is insufficient evidence to support
the termination.1 Specifically, Mother argues that the Department of Child
Services (“DCS”) failed to prove by clear and convincing evidence that
termination of the parent-child relationship is in K.B.’s best interests.
Concluding that there is sufficient evidence to support the termination of the
parent-child relationship, we affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether there is sufficient evidence to support the termination of
the parent-child relationship.
Facts
[3] In August 2014, Mother suffered a traumatic brain injury when she was
involved in a serious car accident. In March 2016, Mother’s two older children
were placed in a guardianship with their maternal grandparents. In August
2016, Mother gave birth to K.B., who is the subject of this appeal. The day
after K.B.’s birth, DCS received a report that Mother was unable to provide for
K.B.’s basic needs, such as “waking him to feed him and measuring formula to
1
K.B.’s father is not known.
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the water bottles.” (Tr. 7). DCS filed a petition alleging that K.B. was a child
in need of services (“CHINS”) and placed him in foster care with his maternal
grandparents.
[4] The trial court adjudicated K.B. to be a CHINS in October 2016 and ordered
Mother to: (1) participate in individual therapy; (2) participate in home-based
case management; (3) assist DCS in finding K.B.’s biological father; (4) attend
supervised visits with K.B.; (5) participate in random urine drug screens; (6)
maintain suitable, safe, and stable housing; and (7) secure and maintain a legal
and stable source of income. DCS subsequently referred Mother to both
neuropsychological and substance abuse evaluations. When Mother failed to
show progress in any of these programs and began to have positive drug screens
for methamphetamine, DCS filed a petition to terminate her parental rights in
December 2017.
[5] Testimony at the April 2018 termination hearing revealed that Mother had
suffered “severe cerebral insults to various parts of the brain” as a result of the
automobile accident and, at the time of the hearing, she had “difficulty with
organization, difficulty with decision making, [and] difficulty with impulsivity.”
(Tr. 68). In addition, Mother was unable “to regulate her moods and she
c[ould] be sad one minute and in a rage the next.” (Tr. 22). Mother needed “to
be supervised around [K.B.] to make sure that she [was] not losing her temper
or talking about inappropriate sexual things . . . and making good decisions on
supervising him and paying attention to him.” (Tr. 22).
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[6] In addition, the testimony at the hearing revealed that Mother had struggled to
maintain stable housing during the pendency of the proceedings. At the time of
the hearing, Mother had moved eight times and was living in an apartment.
She was behind on her rent and lived with three rabbits, which were free to
roam and defecate throughout the apartment. Mother called the rabbits “her
girls” and insisted on keeping them even though they caused cleanliness
concerns and had resulted in Mother being evicted from previous apartments.
(Tr. 100).
[7] Testimony at the hearing further revealed that Mother did not have legal
employment. Instead, she engaged in prostitution and explained that she was
paid “a bill,” which was one-hundred dollars, every time she had one of her
“Joes” over to her apartment. (Tr. 115, 121). Mother testified that she did not
have intercourse with her “Joes.” Rather, according to Mother, she used her
hands or her mouth. She testified that she has approximately eight visits a week
from “Joes” and that she leaves her door unlocked so they have access to her
home. Mother explained that she has to have her “Joes” come to her home
because she cannot leave her rabbits. Mother believed that there was nothing
about her job that was improper. She stated that she had no sexually
transmitted diseases and that she got tested for them “all the time.” (Tr. 119).
[8] K.B., who has suffered from asthma since his birth, takes a steroid twice each
day and needs a breathing treatment every evening. He also has to attend
frequent doctor’s appointments. Guardian Ad Litem Rebecca Trent (“GAL
Trent”) testified that K.B.’s health was “a concern for him being in [Mother’s]
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care all the time, knowing what doctors he needs to go to, keeping track of a
calendar, keeping track of breathing treatments that he needs to have done,
being aware of what they are and how to deal with them.” (Tr. 137).
[9] White County DCS Family Case Manage Melissa Barrett (“Family Case
Manager Barrett”) testified that Mother’s drug and alcohol use had increased
during the pendency of the proceedings. The case manager further shared her
concern that Mother had not had a “legal source of income, she [did not] have
a lot of desire to do that because she acknowledge[d] that she [made] more
money, doing what she [was] doing.” (Tr. 22). Family Case Manager Barrett
also testified that K.B. had lived with his maternal grandparents for almost two
years. According to the case manager, termination of Mother’s parental rights
was in K.B.’s best interests because Mother was “unable to provide for the
safety, stability, well-being and permanency for [K.B.]” (Tr. 23).
[10] In June 2018, the trial court issued a detailed twenty-page order terminating
Mother’s parental relationship with K.B. Mother now appeals the termination.
Decision
[11] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. In
re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.
However, a trial court must subordinate the interests of the parents to those of
the child when evaluating the circumstances surrounding a termination. Id. at
1188. Termination of the parent-child relationship is proper where a child’s
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emotional and physical development is threatened. Id. 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. Id.[12] Before an involuntary termination of parental rights may occur, DCS 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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1230 (Ind. 2013).
[13] When reviewing a termination of parental rights, this Court will not reweigh
the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,
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628 (Ind. 2016). We consider only the evidence and any reasonable inferences
to be drawn therefrom that support the judgment and give due regard to the
trial court’s opportunity to judge the credibility of the witnesses firsthand.
K.T.K., 989 N.E.2d at 1229.
[14] Mother’s sole argument is that DCS failed to prove by clear and convincing
evidence that there is sufficient evidence that the termination was in K.B.’s best
interests. In determining whether termination of parental rights is in the best
interests of a child, the trial court is required to look at the totality of the
evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. In
so doing, the court must subordinate the interests of the parents to those of the
child involved. Id. Termination of the parent-child relationship is proper where
the child’s emotional and physical development is threatened. In re R.S., 774
N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court need not
wait until the child is irreversibly harmed such that his physical, mental, and
social development is permanently impaired before terminating the parent-child
relationship. K.T.K., 989 N.E.2d at 1235. A child’s need for permanency is a
central consideration in determining the child’s best interests. In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009).
[15] In addition, a parent’s historical inability to provide adequate housing, stability,
and supervision coupled with a current inability to provide the same will
support a finding that the 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). A child’s need for permanency is a central consideration in
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determining the child’s best interests. G.Y., 904 N.E.2d at 1265. Further, the
testimony of the service providers may support a finding that termination is in
the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798
N.E.2d 185, 203 (Ind. Ct. App. 2003).
[16] Here, our review of the evidence reveals that Mother suffered a traumatic brain
injury when she was involved in a serious car accident in 2014. When K.B.
was born in 2016, Mother was unable to care for his basic needs, and he was
placed with his maternal grandparents. At the time of the termination hearing
almost two years later, Mother did not have legal employment. Rather, she
engaged in prostitution and left the door to her apartment unlocked so that her
“Joes” had access to her home. Mother also lacked stable housing at the time
of the termination hearing. She was behind on her rent and lived with rabbits,
which were free to roam and defecate throughout her apartment. K.B., who
has lived with his maternal grandparents since his birth, suffers from asthma
and requires daily steroids and breathing treatments. GAL Trent testified that
K.B.’s health was a concern for him being placed in Mother’s care. In
addition, Family Case Manager Barrett testified that termination was in K.B.’s
best interests because Mother was “unable to provide for the safety, stability,
well-being and permanency for [K.B.]” (Tr. 23). This evidence supports the
trial court’s conclusion that termination was K.B.’s best interests.
[17] We 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.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
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1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[18] Affirmed.
Najam, J., and Altice, J., concur.
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