In the Matter of the Termination of the Parent-Child Relationship of B.D., Mother, and S.D., Minor Child, B.D. v. Indiana Department of Child Services, and Child Advocates, Inc. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 23 2018, 5:23 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE1
Ruth Johnson Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
Anna Onaitis Holden Abigail R. Recker
Indianapolis, Indiana Katherine A. Cornelius
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 23, 2018
of the Parent-Child Relationship Court of Appeals Case No.
of B.D., Mother, and S.D., 49A05-1708-JT-1931
Minor Child, Appeal from the
B.D., Marion Superior Court
The Honorable
Appellant-Respondent,
Marilyn A. Moores, Judge
v. The Honorable
Larry Bradley, Magistrate
1
On November 29, 2017, DeDe K. Connor filed an appearance for Child Advocates, Inc.; however, Child
Advocates, Inc. did not file a separate appellee’s brief.
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Indiana Department of Child Trial Court Cause No.
Services, 49D09-1605-JT-487
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee-Guardian Ad Litem.
Kirsch, Judge.
[1] B.D. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her child S.D. (“Child”), raising the following restated issue: whether
the judgment terminating Mother’s parental rights was clearly erroneous
because there was insufficient evidence that termination was in Child’s best
interests.
[2] We affirm.
Facts and Procedural History
[3] Child was born on July 28, 2008 to Mother and K.R. (“Father”).2 In April
2014, DCS filed its petition alleging that Child was a child in need of services
2
Father was convicted of having sexually abused Child’s half-sister, H.A., and he was incarcerated at the
time of Child’s termination hearing. In December 2016, Father signed consents for Child’s adoption. Father
does not participate in this appeal.
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(“CHINS”).3 The 2014 CHINS petition (“CHINS petition”) alleged, in
pertinent part, that Mother had failed to or was unwilling to provide Child with
a safe, stable, and appropriate living environment. Mother had an extensive
history with DCS and was, at that time, involved in a CHINS action regarding
her daughter H.A.4 Child’s CHINS petition alleged that Mother lacked stable
housing and had moved numerous times in the months preceding the filing of
the CHINS petition. Further, Mother had not successfully demonstrated the
ability to provide Child with a safe, stable, appropriate home. Accordingly, the
CHINS court determined that its coercive intervention was necessary to ensure
Child’s safety and well-being. After the initial hearing, DCS removed Child
from Mother’s care, and Child was placed in foster care.
[4] On May 28, 2014, Child was adjudicated to be a CHINS, and that same day,
the CHINS court proceeded to a dispositional hearing. The CHINS court’s
parental participation decree ordered Mother, in part, to participate in: (1)
home-based counseling; and (2) domestic violence assessment and the
recommended services. The permanency plan for Child remained reunification
until April 13, 2016, at which time the CHINS court changed the plan to
adoption. DCS filed its petition to terminate Mother’s parental rights on May
3
Mother had four children, H.A., M.D., J.D., and Child. The CHINS petition alleged that Child and two of
her half-siblings, H.A. and J.D., were CHINS; however, Child is the only subject of the instant appeal.
4
A CHINS petition regarding H.A. and M.D. was filed in March 2013. Tr. Vol. II at 169. Mother testified
that she walked “in the bedroom catching [her] oldest[, H.A.,] rape her middle daughter[, M.D.].” Id.
Mother did not successfully complete services to remedy the reasons for DCS’s involvement regarding H.A.,
and H.A. was not returned to Mother’s care. Mother admitted that she did not want H.A. to return to the
home due to H.A.’s history of sexually abusing her siblings.
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13, 2016. On June 22, 2017, more than three years after Child had been
removed from Mother’s care, the juvenile court held a hearing on the petition to
terminate Mother’s rights.
[5] At the termination hearing, Cura Lester (“Lester”), Child’s foster care case
manager at Children’s Bureau, testified that she visited Child at least once a
week, visited Child’s school at least twice a month, but had little contact with
Mother. Lester said that Child could have explosive temper tantrums, where
intervention was necessary. Tr. Vol. II at 11-12. It was Lester’s opinion that
Child should remain in her current placement with her foster mother, and she
“recommended adoption of [Child] . . . just for stability and consistency for
her.” Id. at 12. Lester said that change was difficult for Child to understand—
she required routine, consistency, and an understanding of what is going on day
to day.
[6] Elwanda Haynes (“Haynes”), a home-based therapist at Gallahue Behavioral
Health, testified that she began treating Child in August 2014, when Child was
five years old. Id. at 105. Child’s demeanor during sessions varied “depending
on what was going on that day.” Id. at 106. “If she had a good day, she was
fine and we could . . . talk about things” like feelings and behaviors. Id. at 106-
07. If Child “got in trouble in school, she was very defiant,” and she did not
want to talk or participate in the session. Id. at 106. Child’s defiant behaviors
included yelling, screaming, and running away. Id. at 107. Child’s case was
closed with Haynes in December 2015 because Child began working with
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another therapist, who was able to deal with Child’s mental health and
sexualized behaviors. Id. at 106.
[7] Patricia Phelps (“Foster Mother”) testified that, due to no fault of Child, Child
was removed from the first foster home, and in May 2015, she was placed in
therapeutic foster care with Foster Mother. Id. at 10, 86. Foster Mother, who
was seventy-seven years old, testified that she had been a foster parent since
1973, had fostered thirty-six children, and had adopted sixteen. Id. at 86, 100.
In addition to Child, there were three other children living in Foster Mother’s
home, an adopted daughter and two “medically fragile” foster children. Id. at
87. Foster Mother said that there was a “strong rule” in the family: “I don’t
touch you and you don’t touch me.” Id. at 90. Child was allowed to interact
with the medically fragile children, but only when Foster Mother or a nurse was
present. Even so, Foster Mother stressed, “[W]e do not push a deep
relationship with these kids because . . . they’re probably not going to live long
and . . . [Child]’s already had her share of issues . . . so we make sure they
[Child and other adopted child] build a life that’s not included with the
[medically fragile] kids.” Id. at 95.
[8] Foster Mother testified that Child was, initially, well behaved, but that changed
a few months later when Child began exhibiting some destructive behaviors.
Child would peel paint off woodwork and eat it. Id. at 102-03. Foster Mother
testified that Child started throwing tantrums at home, and at school, “she was
leaving the classroom, she was stealing. She was all of a sudden out of the clear
blue cussing the teacher, [and] throwing chairs at the children.” Id. at 90.
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Child also displayed sexualized behaviors, including: (1) approaching random
men or neighborhood boys, explaining the different sexual acts she could
perform, and asking if they were interested; (2) masturbating with potentially
dangerous objects; and (3) intentionally urinating on her clothing. Id. at 92,
101-02. Foster Mother testified that there was a correlation between visits with
Mother and Child’s sexualized behavior. Id. at 94. Child would go weeks
without a visit, and the sexualized behavior would go away; however, after
visits with Mother, Child would act out sexually. Id. Child’s behavior
interfered with her education; “she was on the first-grade level for three years,”
even having had a tutor for five days a week. Id. at 103. Child was treated by
various mental health providers, and her medication was adjusted over time.
Foster Mother testified that those changes made a “remarkable difference,”
saying, “[Child] can keep her mind on things. Um she can um think before she
acts.” Id. at 93. Foster Mother testified that she was willing to adopt Child. Id.
at 94.
[9] Gabrielle Young (“Young”), a home-based therapist at Family Works, testified
that Child began working with her in July 2015. Child met with Young once or
twice a week and treatment goals included working on Child’s “sexually
reactive behaviors.” Id. at 45, 51. Child said that Father had touched her
“down there” and made her touch him in certain places. Id. at 58-59. She also
said that her half-sister, M.D., had touched her inappropriately. Id. at 60.
Additionally, Child had witnessed domestic violence between Mother and
Father and between Mother and other men. Id. at 59-60. Young spent a long
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time trying to get Child to express and regulate feelings and emotions, as well as
learning body boundaries. Id. at 45-46. Child would sometimes talk about
“rubbing herself down there.” Id. at 57. Sometimes, Child acted
inappropriately during sessions, including intentionally spreading her legs and
dancing inappropriately. Id. at 46-47. Young attributed Child’s behaviors to
past sexual trauma. Id. at 57. Young testified that Child has “a very complex
trauma history,” so it is “important for her to feel stable, to feel secure and not
to increase her anxiety.” Id. at 52.
[10] Meghann Banks (“Banks”), a care coordinator at Choices, testified that she
began monitoring Child’s “progress and treatment” in September 2016. Id. at
30, 32. At that time, Child had a “behaviorist” and home-based therapy. Id. at
32. Banks testified that, initially, Child’s behavior fluctuated. However, three
or four months before the termination hearing, Child was referred to and
participated in Applied Behavioral Analysis (“ABA”), “an intensive service that
is used to address behaviors.” Id. at 33, 37. As part of the ABA, Child was
provided with an educational mentor. Id. at 31. Banks said that Child’s
behavior improved after ABA was put into place.
[11] Shirley Perez (“Perez”), a DCS Family Case Manager (“FCM”) who had
worked with the family for two years, testified that Mother had trouble
complying with services. Id. at 117. Perez testified that, in the spring of 2016,
DCS recommended that Mother have unsupervised visits with Child. Because
Child was having “suicidal thoughts,” a safety plan was created, requiring
Mother to call 911 if Child “were to do something.” Id. at 123. When Child
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put a jump rope around her neck and threatened to harm herself, Mother did
not comply with the safety plan. Id. Perez testified that Mother’s non-
compliance created concern as to whether Mother could provide Child a stable
home. Child’s stability was important because Child “has such high anxiety
that if anything changes just a bit it, it just throws her off completely.” Id. at
127. Perez had “personally requested to keep the case just to make sure that it
[didn’t] throw [Child] off even with an FCM coming to the home.” Id. Perez
testified that it was in Child’s best interests to “be adopted by the current foster
parent” because Foster Mother can take care of Child’s needs. Id. Perez
testified that Foster Mother was “a strong advocate” in regard to getting
necessary referrals, medication, and therapy to meet Child’s needs. Id. at 127-
28.
[12] Mark Bass (“the GAL”), a guardian ad litem for Child Advocates, Inc., testified
that as part of his involvement with Child’s case he had attended court
hearings, reviewed court reports, provider reports, and school documents,
spoken with numerous providers, and visited Mother at home. Id. at 143. The
GAL testified that, typically, an individual like Child would be placed in
residential treatment; however, that was avoided because Foster Mother has
been “that much of an advocate” for Child. Id. at 145. Foster Mother has been
able to handle Child’s outbursts, school issues, and sexually acting out. The
GAL stated, “[I]t takes an experienced person and a person with a big heart to
be able to, to handle that stuff. Um and [Foster Mother’s] experience has
helped her do that[,] and in the years I’ve been doing this[,] a lot of foster
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parents aren’t capable of that.” Id. at 146. The GAL said that Mother had been
given a sufficient amount of time, but had been unable to complete services. He
said that Child needed consistency and stability to properly develop; he
recommended that Child’s permanency plan should be adoption. Id. at 147.
[13] In April 2016, Mother was referred to Family Works provider Bertha Rush
(“Rush”), who helped Mother with home-based therapy and monitored
supervised visitation between Mother and Child. Rush testified that Mother did
well overall. Rush opined that Mother had made progress; however, Rush
expressed concerns because she “didn’t see a long duration of stability. Um
often times that would change within a month or two.” Id. at 195. Rush
stopped providing services for Mother in February 2017, when she had not
heard from Mother “in about a month.” Id. at 196. The juvenile court entered
its order, on August 2, 2017, terminating Mother’s parental rights to Child.
Mother now appeals.
Discussion and Decision
[14] Mother contends that the juvenile court erred in terminating her parental rights
to Child. Specifically, she contends that termination is not in Child’s best
interests because Child “has an undisputed, heightened need for consistency
and permanency,” which is inconsistent with DCS’s plan that Child be adopted
“by an elderly woman who fosters medically fragile children who may not live
long.” Appellant’s Br. at 4. “‘The Fourteenth Amendment to the United States
Constitution protects the traditional right of parents to establish a home and
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raise their children.’” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1230
(Ind. 2013) (quoting Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005)). “The parent-child relationship is one of the most valued
relationships in our culture.” Id. (internal quotations omitted). “However,
although parental rights are of a constitutional dimension, the law allows for
the termination of those rights when a parent is unable or unwilling to meet his
[or her] responsibility as a parent.” In re D.P., 994 N.E.2d 1228, 1231 (Ind. Ct.
App. 2013) (citing In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans.
denied). Further, “‘children have an interest in terminating parental rights that
prevent adoption and inhibit establishing secure, stable, long-term, continuous
relationships.’” In re K.T.K., 989 N.E.2d at 1230 (quoting In re C.G., 954
N.E.2d 910, 917 (Ind. 2011)). Therefore, parental rights are not absolute and
must be subordinated to the child’s best interests in deciding the appropriate
disposition of a petition to terminate the parent-child relationship. Id.[15] The purpose of terminating parental rights is not to punish the parent but to
protect the child. In re D.P., 994 N.E.2d at 1231. Termination of parental rights
is proper where the child’s emotional and physical development is threatened.
Id. The juvenile court need not wait until the child is irreversibly harmed such
that her physical, mental, and social development is permanently impaired
before terminating the parent-child relationship. Id.
[16] In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re K.T.K., 989 N.E.2d at
1229; In re S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004).
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We consider only the evidence and any reasonable inferences
therefrom that support the judgment, and give due regard to the
trial court’s opportunity to judge the credibility of the witnesses
firsthand. Where a trial court has entered findings of fact and
conclusions of law, we will not set aside the trial court’s findings
or judgment unless clearly erroneous. In evaluating whether the
trial court’s decision to terminate parental rights is clearly
erroneous, we review the trial court’s judgment to determine
whether the evidence clearly and convincingly supports the
findings and the findings clearly and convincingly support the
judgment. Clear and convincing evidence need not reveal that
the continued custody of the parents is wholly inadequate for the
child’s very survival. Rather, it is sufficient to show by clear and
convincing evidence that the child’s emotional and physical
development are threatened by the respondent parent’s custody.
In re K.T.K., 989 N.E.2d at 1229-30 (internal citations omitted) (internal
quotations omitted).
[17] As is pertinent to this appeal, to involuntarily terminate Mother’s parental
rights, DCS had 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.
. . . .;
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(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)(B). The State’s burden of proof for establishing
these allegations in termination cases “is one of ‘clear and convincing
evidence.’” In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App. 2009). Moreover, if
the court finds that the allegations in a petition described in section 4 of this
chapter are true, the court shall terminate the parent-child relationship. Ind.
Code § 31-35-2-8(a) (emphasis added).
[18] Mother does not challenge the following findings made by the juvenile court:
(1) Mother’s therapy—to cope with anger and understand Child’s needs—
closed in April 2017 after a month where Mother had no contact with provider;
(2) in 2014, Child had violent tantrums, screamed, and threw objects, which
Mother thought was typical behavior of a young girl; (3) therapist Young
treated, for two years, Child’s sexual trauma, which was caused by being
molested by Father and half-sister and by witnessing Mother as victim of
domestic abuse; (4) Young has been opposed to unsupervised visits throughout
the CHINS case, based on [Mother]’s lack of consistency and stability, and
believes that Child should not be returned to Mother’s care; (5) Child sexually
acts out and has had issues with body safety boundaries; (6) Mother agrees that
Child displays behavior of having been sexually abused, but initially blamed
Child’s behavior on foster care; (7) Mother minimizes Child’s need for
treatment and believes everything would be fine if Child came home; (8) Child
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is doing well with Foster Mother and has made a lot of progress with decreased
anxiety and increased understanding of boundaries; (9) Child’s inappropriate
behavior coincided with parenting time and was triggered by exposure to older
men and Mother; (10) Mother was inconsistent in exercising her parenting time
and cancelled visits at the last minute, negatively affecting Child; (11) at the
time of the termination hearing, Child had lived with Foster Mother for over
two years; (12) Foster Mother has agreed to adopt Child; (13) Foster Mother is
patient, calm, and a strong advocate in meeting Child’s special needs; and (14)
while Mother loves Child and the two have a bond, stability is important to
Child to keep her anxiety low; (15) Child needs routine and consistency in
order to thrive. Appellant’s App. Vol. II at 17-18.
[19] Further, Mother does not dispute the juvenile court’s conclusions that “[t]here
is a reasonable probability that the conditions that resulted in [Child]’s removal
and continued placement outside the home will not be remedied” and “[t]here
is a reasonable probability that the continuation of the parent-child relationship
poses a threat to [Child]’s well-being.”5 Id. at 18. As a result, Mother has
waived any argument relating to these unchallenged findings and conclusions.
See In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (providing that failure
5
Mother states, she “acknowledges, without conceding, that there is evidence in this case that may prove one
or both of the elements set out in Indiana Code Section 31-35-2-4(b)(B).” Appellant’s Br. at 17 (emphasis
added). Notwithstanding Mother’s apparent attempt to keep those issues alive on appeal, Mother makes no
cogent argument that the juvenile court’s findings as to those two matters are clearly erroneous. Failure to
make a cogent argument waives the issue for appellate review. Crider v. Crider, 15 N.E.3d 1042, 1071 (Ind.
Ct. App. 2014), trans. denied.
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to challenge findings resulted in waiver of argument that findings were clearly
erroneous), trans. denied. Instead, Mother’s argument folds together two
requirements, claiming (1) that the termination is not in Child’s best interests
because (2) the plan for Child, which is “adoption by an elderly woman who
fosters medically fragile children who may not live long,” is not a satisfactory
plan. Appellant’s Br. at 4. We remind Mother that these two requirements are
separate inquiries.
1. Best Interests
[20] In deciding whether the termination of parental rights is in the best interests of a
child, the juvenile court must look beyond the factors identified by DCS and
consider the totality of the evidence. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct.
App. 2014), trans. denied. In making that determination, the juvenile court must
subordinate the interests of the parent to that of the child involved. Id. The
court need not wait until a child is harmed irreversibly before terminating the
parent-child relationship. Id. Here, Mother recognizes that Child needs
stability and consistency. Appellant’s Br. at 18. Mother also understands that
“[p]ermanency is a central consideration in determining the best interests of a
child.” Id. at 19 (quoting In re G.L., 904 N.E.2d 1257, 1265 (Ind. 2009)). That
being said, “a need for permanency, alone is not a sufficient basis for
terminating parental rights.” In re A.S., 17 N.E.3d at 1006.
[21] Here, permanency was a consideration, but it was not the sole basis for the
termination of Mother’s parental rights. The evidence before the juvenile court
revealed that Child and two of her siblings were sexually molested while under
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Mother’s care, and Child witnessed Mother being a victim of domestic abuse.
Tr. Vol. II at 60, 156, 169. Upon leaving Mother’s care at age five, Child had
violent tantrums, screamed, and threw objects, which Mother thought was
typical behavior of a young girl. Id. at 11, 173. Child sexually acted out and
had issues with body safety boundaries; Mother initially blamed Child’s
behavior on foster care. Id. at 79-80. Mother minimized Child’s need for
treatment and believed that everything would be fine once Child came home.
Appellant’s App. Vol. II at 17. Child’s inappropriate behaviors coincided with
parenting time, and triggers of those behaviors were exposure to older men and
to Mother. Tr. Vol. II at 64-65, 131. Mother was inconsistent with her
visitation and would cancel at the last minute, which negatively impacted
Child. Id. at 13. At the time of the termination hearing, Child had lived with
Foster Mother for two years, was doing well, and had made a lot of progress
with decreased anxiety and increased understanding of boundaries. Id. at 86,
93. Mother’s therapy, addressing Mother’s ability to cope with anger and
understand Child’s needs, was terminated after Mother was out of
communication with provider Rush for about a month. Id. at 196. Finally,
Child needs routine and consistency in order to thrive. Id. The juvenile court
did not err in concluding there was sufficient evidence that termination of
Mother’s parental rights was in Child’s best interests. Mother’s arguments to
the contrary are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004) (appellate court cannot reweigh evidence or judge the
credibility of witnesses), trans. denied.
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2. Satisfactory Plan
[22] Mother contends that, considering Child’s needs for stability, it was an
improper plan to place Child with Foster Mother. Considering the
requirements of Indiana Code section 31-35-2-4(b)(2)(B), we restate Mother’s
argument as whether DCS has a satisfactory plan for Child’s care and
treatment. Mother asserts that Foster Mother’s age of seventy-seven years old,
and her care for medically fragile children in her home creates an uncertainty
regarding how stable Foster Mother’s home will be for Child. To terminate
Mother’s parental rights, the juvenile court did not need to judge the
appropriateness of Foster Mother’s home; instead, it was required only to
determine whether DCS had a satisfactory plan for Child.
[23] “Indiana courts have traditionally held that for a plan to be ‘satisfactory,’ for
the purposes of the termination statute, 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.’” In re A.S., 17 N.E.3d at 1007 (quoting
Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 375 (Ind. Ct.
App. 2007), trans. denied). A DCS plan is satisfactory if the plan is to attempt to
find a suitable parent to adopt the child. Id. In other words, there need not be a
guarantee that a suitable adoption will take place, only that DCS will try to find
a suitable adoptive parent. Id. Accordingly, a plan is not unsatisfactory if DCS
has not identified a specific family to adopt the child. Id. Part of the reason for
this is that it is within the authority of the adoption court, not the termination
court, to decide whether an adoptive placement is appropriate. Id. Here, DCS
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had a plan that Child would be adopted. Based on these standards, we
conclude that DCS’s plan that Child be adopted was a satisfactory plan.
Accordingly, we need not discuss whether Foster Mother is a suitable adoptive
parent, that question will be within the jurisdiction of the adoption court. Id.[24] DCS presented sufficient evidence that termination was in Child’s best interests,
and that adoption was an appropriate plan.
[25] Affirmed.
Bailey, J., and Pyle, J., concur.
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