In the Matter of the Termination of the Parent-Child Relationship of F.N. (Minor Child) and S.D. (Mother) and A.L. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 11 2019, 10:13 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT S.D. ATTORNEYS FOR APPELLEE
Roberta Renbarger Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 11, 2019
of the Parent–Child Relationship Court of Appeals Case No.
of F.N. (Minor Child) 18A-JT-1880
and Appeal from the Allen Superior
Court
S.D. (Mother) and A.L. (Father),
The Honorable James R. Heuer,
Appellants-Respondents, Senior Judge
v. Trial Court Cause No.
02D08-1712-JT-214
The Indiana Department of
Child Services,
Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
Bradford, Judge.
Case Summary
[1] S.D. (“Mother”) and A.L. (“Father”)1 are the biological parents of F.N. In
2014, at five months old, F.N. was placed in foster care and adjudicated to be a
child in need of services (“CHINS”) due to Mother’s and Father’s inability to
address her special medical needs and domestic violence concerns. In
December of 2017, the Department of Child Services (“DCS”) petitioned for
the termination of Mother’s parental rights, after she failed, for nearly an entire
year, to participate in home-based and domestic-violence services, attend
visitation and F.N.’s medical appointments, and maintain contact with DCS.
On July 10, 2018, the juvenile court ordered that Mother’s parental rights in
F.N. be terminated. Mother contends that the juvenile court’s termination of
her parental rights was clearly erroneous. Because we disagree, we affirm.
Facts and Procedural History
[2] Mother and Father are the biological parents of F.N. (born March 21, 2014).
F.N. was born prematurely and continues to suffer significant medical issues.
Due to Mother’s and Father’s inability to provide the necessary care for F.N.
and the occurrence of domestic violence between the parents, F.N. was placed
1
Father has not appealed the termination of his parental rights. Therefore, we will only address the
termination of Mother’s parental rights.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
in foster care upon her release from the hospital at five months old and has
remained there since. Currently, F.N. has monthly medical appointments with
a pediatrician, lung specialist, and gastroenterologist and attends speech therapy
weekly to learn how to swallow food. F.N. also has a feeding tube which is
used to provide her with PediaSure three times daily and must be changed
every six months.
[3] In 2014, F.N. was adjudicated to be a CHINS, and Mother was ordered into
reunification services. In 2015, the juvenile court changed the permanency plan
from reunification to adoption after Mother failed to satisfactorily participate in
ordered services. In August of 2016, the juvenile court entered an order denying
termination and changing the permanency plan back to reunification, after
finding that Mother had begun complying with services.
[4] After a February 2017 review hearing, the juvenile court found that Mother had
“recently been battered by a boyfriend and appeared in court with a black eye
that was healing [and noted that it had] concerns about whether she has
benefited from services provided.” State’s Ex. 12. In March of 2017, DCS held
a Child and Family Team Meeting with Mother and her family to discuss the
possibility of a change of custody of F.N. to Mother’s sister and brother-in-law.
After a background check revealed the brother-in-law’s previous conviction for
domestic battery in the presence of a child, that plan was disqualified. Around
that time, Mother moved out of her house, where she lived with her mother,
sister, and brother-in-law, and moved in with Father. Mother completely
stopped participating in services, including visitation and attendance at F.N.’s
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
medical appointments. Mother failed to appear for hearings in August of 2017,
November of 2017, and January of 2018, and at the November hearing the
juvenile court changed the permanency plan to adoption. The juvenile court
found that Mother had failed to visit F.N., participate in home-based and
domestic-violence services, and maintain contact with DCS. On December 12,
2017, DCS petitioned for the termination of Mother’s and Father’s parental
rights. In February of 2018, Mother and Father came to the DCS office and
requested that services resume. In March of 2018, supervised visitation
resumed, and in April of 2018, Mother resumed participating in services. On
May 30, 2018, and June 7, 2018, the juvenile court held an evidentiary hearing
on the termination petition.
[5] Virervia Rodriguez, a caseworker for Amani Family Services, supervised
Mother’s visits with F.N. and provided her with parenting and domestic
violence education until March of 2017 and again starting in March of 2018
when Mother resumed services. Rodriguez testified that in February of 2017,
after observing bruising around Mother’s eyes and forehead, Mother told her
that “she hit herself with something but at the end she confirmed that [Father]
hit her.” Tr. Vol. II p. 30. Rodriguez, however, recommended to the juvenile
court that Mother be granted unsupervised visitation, noting that she was
participating in the resumed services, employed, and not a safety concern and
had moved back in with her mother, sister, and brother-in-law.
[6] DCS family case manager Amanda Ray (“FCM Ray”) was assigned to the case
in August of 2014 and testified that in March of 2017, Mother “fell off the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
map.” Tr. Vol. II p. 117. FCM Ray explained that from March of 2017 to
March of 2018, Mother was completely absent and the only contact FCM Ray
had with Mother was during an unannounced visit at Father’s residence in
November of 2017, while serving them notice of the termination proceedings.
During that visit, FCM Ray noticed that Mother’s lips were cut and swollen.
When FCM Ray asked Mother about her lips, she replied that they were
“chapped.” Tr. Vol. II p. 98. FCM Ray noted that Mother still had not obtained
a driver’s license or her own residence and that there were still concerns related
to domestic violence.
[7] Guardian ad Litem Konrad Urberg (“GAL Urberg”) testified that it was in the
best interests of F.N. if parental rights were terminated. GAL Urberg expressed
his concern with Mother’s one-year absence, stating “It appears that once—
shortly thereafter the termination petition was again filed she resurfaces and
begins to say—tries to get services again.” Tr. Vol. II p. 134. He also expressed
concern over the domestic violence between Mother and Father.
[8] On July 10, 2018, the juvenile court ordered that Mother’s parental rights be
terminated. The juvenile court concluded, inter alia, that the conditions that
resulted in F.N.’s removal would not be remedied, continuation of the parent–
child relationship posed a threat to F.N.’s well-being, and termination of
Mother’s parental rights was in F.N.’s best interests.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
[9] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. 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.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.
2003) (internal citations omitted). Parental rights, however, are not absolute
and must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate the parent–child relationship. Bester, 839
N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their
parental responsibilities their rights may be terminated. Id.
[10] In reviewing the termination of parental rights on appeal, we neither reweigh
the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of
Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.
We consider only the evidence and reasonable inferences therefrom which are
most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile
court has entered findings of facts and conclusions of law, our standard of
review is two-tiered. Id. First, we determine whether the evidence supports the
factual findings, second, whether the factual findings support the judgment. Id.
The juvenile court’s findings and judgment will only be set aside if found to be
clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences
drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.
2005). “A judgment is clearly erroneous if the findings do not support the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
juvenile court’s conclusions or the conclusions do not support the judgment.”
Id.
[11] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to
support a termination of parental rights. Of relevance to this case, DCS was
required to establish by clear and convincing evidence
(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.
[and]
(C) that termination is in the best interests of the child[.]
Ind. Code § 31-35-2-4(b)(2).
[12] It is not disputed that F.N. had been removed from Mother for at least six
months under a dispositional decree and that there was a satisfactory plan for
the care and treatment of F.N., and that both required findings pursuant to
Indiana Code section 31-35-2-4(b)(2). However, Mother contends that the trial
court erred by concluding that (1) the conditions that resulted in the removal of
F.N. from Mother’s care would not be remedied, (2) the continuation of the
parent–child relationship between F.N. and Mother posed a threat to F.N.’s
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
well-being, or (3) termination of Mother’s parental rights was in F.N.’s best
interests.
I. Indiana Code Section 31-35-2-4(b)(2)(B)
[13] Mother argues that there is insufficient evidence to establish a reasonable
probability that the conditions that resulted in F.N.’s removal would not be
remedied or that the continued parent–child relationship posed a threat to F.N.
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive,
DCS was only required to establish one of the circumstances. 2 We choose to
first address Mother’s argument that the trial court erred by concluding that the
conditions which resulted in F.N.’s removal would not be remedied.
In determining whether the conditions that resulted in the
child[ren]’s removal…will not be remedied, we engage in a two-
step analysis[.] First, we identify the conditions that led to
removal; and second, we determine whether there is a reasonable
probability that those conditions will not be remedied. In the
second step, the trial court must judge a parent’s fitness as of the
time of the termination proceeding, taking into consideration
evidence of changed conditions—balancing a parent’s recent
improvements against habitual pattern[s] of conduct to determine
whether there is a substantial probability of future neglect or
deprivation. We entrust that delicate balance to the trial court,
which has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination.
Requiring trial courts to give due regard to changed conditions
2
A third circumstance for satisfying the provisions of Indiana Code section 31-35-2-4(b)(2)(B) is to establish
that the child has been adjudicated to be a CHINS on two separate occasions; however, that circumstance is
not applicable in this matter.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
does not preclude them from finding that parents’ past behavior
is the best predictor of their future behavior.
In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations,
quotations, and footnote omitted, first and third set of brackets in
original, second set added).
[14] The conditions that led to F.N.’s removal were Mother’s and Father’s inability
to address F.N.’s special medical needs and domestic violence concerns
between the parents. DCS produced ample evidence to establish a reasonable
probability that these conditions would not be remedied. F.N. requires monthly
visits to a pediatrician, lung specialist, and gastroenterologist, with the latter
being located at Riley Children’s Hospital in Indianapolis. In addition, F.N.
must attend weekly speech therapy to learn how to swallow and requires a
feeding tube. After four years, Mother still has not acquired a valid driver’s
license or learned how to use the public transportation system. Most troubling,
Mother was utterly absent and unaccountable for nearly a year. F.N.’s medical
needs require someone who can provide consistent care and transportation, and
Mother has demonstrated that she cannot do so. Moreover, concerns regarding
domestic violence remain. In February of 2017, the juvenile court noted that
Mother appeared in court with a black eye having been battered by her
boyfriend. In November of 2017, FCM Ray observed Mother’s cut and swollen
lips during an unannounced visit at Father’s residence. Mother has also failed
to secure independent housing and remains in a home with her brother-in-law,
who has a domestic violence conviction himself.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
[15] In sum, we agree with the observations of GAL Urberg that Mother appears
only to request and participate in services once termination proceedings have
started. Mother points to her testimony that she is employed, will soon obtain a
driver’s license and independent housing, and does not plan to resume a
relationship with Father. The juvenile court, however, was under no obligation
to credit Mother’s testimony and apparently did not. The juvenile court did not
abuse its discretion by concluding that the conditions which led to F.N.’s
removal would not be remedied. Therefore, it is unnecessary for us to address
Mother’s argument that there was insufficient evidence to conclude that the
continued parent–child relationship posed a threat to F.N.
II. Indiana Code Section 31-35-2-4(b)(2)(C)
[16] Mother argues that there is insufficient evidence to support the juvenile court’s
conclusion that termination of Mother’s parental rights was in F.N.’s best
interests. We are mindful that, in determining what is in the best interests of the
child, the juvenile court must look beyond factors identified by DCS and
consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.
App. 2009). The juvenile court need not wait until a child is irreversibly harmed
before terminating the parent–child relationship because it must subordinate the
interests of the parents to those of the children. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have
previously held that recommendations from the FCM and court-appointed
special advocate to terminate parental rights, in addition to evidence that
conditions resulting in removal will not be remedied, is sufficient evidence to
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019
show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at
236.
[17] FCM Ray testified that it was the recommendation of DCS that Mother’s rights
be terminated and an adoption plan for F.N. proceed. GAL Urberg testified
that it would be in F.N.’s best interests if Mother’s parental rights were
terminated. Coupling our previous conclusion that there was sufficient evidence
to show the conditions of removal would not be remedied with the
recommendations of FCM Ray and GAL Urberg, we further conclude that
there is sufficient evidence to show that termination of Mother’s parental rights
was in F.N.’s best interests. Mother has failed to establish that the juvenile
court’s judgment was clearly erroneous in any respect.
[18] The judgment of the juvenile court is affirmed.
Bailey, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1880 | January 11, 2019