In the Termation of the Parent-Child Relationship of: K.M.W. & K.W. (Minor Children), and M.W. (Mother) & D.W. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 08/31/2017, 9:58 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marilyn Tucker Fullen Curtis T. Hill, Jr.
Tucker and Tucker, P.C. Attorney General of Indiana
Paoli, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- August 31, 2017
Child Relationship of: Court of Appeals Case No.
K.M.W. & K.W. (Minor Children), 59A04-1703-JT-590
and Appeal from the Orange Circuit
Court
M.W. (Mother) & D.W. (Father)
The Honorable John T. Evans,
Appellants-Respondents, Special Judge
v. Trial Court Cause Nos.
59C01-1606-JT-133
59C01-1606-JT-134
The Indiana Department of
Child Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] M.W. (“Mother”) and D.W. (“Father”) appeal the juvenile court’s termination
of their parental rights to K.M.W. and K.W. (“Children”), raising four issues
for our review, which we consolidate and restate as whether the juvenile court’s
termination order is clearly erroneous. Concluding the termination order is not
clearly erroneous, we affirm.
Facts and Procedural History
[2] Mother and Father are the parents of K.M.W., born September 2003, and
K.W., born July 2008. The Indiana Department of Child Services (“DCS”)
first became involved with the family in 2006 after it was reported Mother and
Father neglected K.M.W., then three years old. DCS determined K.M.W.,
who is developmentally disabled, was failing to thrive under the care of Mother
and Father, her hygiene was poor, and her living environment endangered her
life and health. K.M.W. was adjudicated a child in need of services (“CHINS”)
and placed in foster care. After Mother and Father complied with services and
secured a satisfactory living arrangement, DCS ceased services and returned
K.M.W. to Mother and Father’s care.
[3] Shortly following K.W.’s birth in July 2008, DCS substantiated an allegation
the Children’s living environment was endangering their life and health. A
period of informal adjustment ensued, which Mother and Father completed. In
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2012, DCS substantiated an additional allegation that Mother and Father
neglected the Children.
[4] In October 2014, DCS received a report alleging Mother and Father neglected
the Children. DCS investigated the allegations and identified horrid conditions
in the home, including a strong smell of urine, a blue carpet turned black with
dirt and grime, heaps of trash, and cockroaches. DCS also learned K.M.W.
sometimes rubbed feces on her face and had a history of open sores on her
bottom from urinating herself on a nightly basis,1 the family’s dog often
defecated and urinated on the Children’s clothing and throughout the home, the
Children’s clothing smelled strongly of urine, K.M.W. suffered from untreated
scabies and lice, and K.W. suffered from untreated lice. In addition, neither
Mother nor Father allowed DCS access to the bedrooms, each parent
considered the Children’s clothes to be clean, and Father acted aggressively
toward DCS employees.
[5] On November 7, 2014, DCS filed a petition alleging the Children were CHINS,
claiming the Children’s physical and mental health was seriously impaired or
endangered as a result of Mother and Father’s inability to provide necessary
supervision, food, medical care, clothing, shelter, and education. The Children
were removed from Mother and Father’s care. K.M.W. was placed in the
1
K.M.W. suffers from enuresis and encopresis, resulting in involuntarily urination and defecation.
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Indiana Developmental Training Center (“IDTC”) and K.W. was placed in
foster care.
[6] In December 2014, K.W. received in-home placement with Mother and Father.
On January 26, 2015, Mother and Father admitted the allegations set forth in
the DCS petition and the juvenile court adjudicated the Children as CHINS.
The juvenile court ordered K.W. be placed with Mother and Father and
K.M.W. to continue with her placement at the IDTC. In the dispositional
decree, the juvenile court ordered Mother and Father to participate in services;
maintain safe and suitable housing, properly feed, clothe, and supervise the
Children; attend to the Children’s physical, mental, and medical needs; and
provide the Children with a safe, secure, and nurturing environment free from
abuse and neglect.
[7] In February 2015, DCS received a report alleging the family’s home was very
dirty and K.W. did not have any clean clothes. The following month, DCS
visited the home and found the floor of K.W.’s room was completely covered in
clothes, the kitchen was dirty and old food was left out, and there was waste in
the toilet. Father explained the toilet was broken.
[8] In April, K.W. missed a dentist appointment. DCS then visited the home and
found it to be appropriate, except Mother and Father had failed to fix the toilet.
DCS questioned Mother and Father as to why they had not visited or called
K.M.W. at the IDTC since March. Mother explained they did not have gas in
their vehicle nor any minutes remaining on their cell phone. Mother also
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explained she did not have any shampoo, conditioner, or toilet paper. Father
was very combative during the visit.
[9] The next day, DCS visited K.M.W. at the IDTC. There, K.M.W.’s therapist
explained Mother and Father had not visited for nearly two months, and
despite being allowed to call K.M.W. daily, Mother and Father did not call
more than once a week and often failed to follow through when they said they
would call.
[10] In July, DCS learned K.W. had untreated scabies with open sores and there
was minimal food in the home. Despite the scabies diagnosis, Mother and
Father did not believe K.W. was suffering from scabies. DCS thereafter moved
the juvenile court to remove K.W. and place her in foster care, which the
juvenile court granted. It was later discovered Mother and Father also had
scabies.
[11] Over the next few months, K.W. and K.M.W. flourished in foster care. By
December 2015, Mother and Father were allowed unsupervised home visits
with the Children after Mother and Father had been keeping the home
appropriate for the Children. However, in January 2016, DCS learned that
during one of K.W.’s home visits, Mother and Father were not giving K.W. her
medicine. K.W.’s foster mother also reported K.W. returned from a home visit
with feces in her underwear.
[12] In February 2016, the guardian ad litem observed ants throughout the family’s
home, spoiled food in the refrigerator, and that the home was dirtier than
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previous months. She also learned K.W.’s behavior at school was disruptive
only on the days she visited with Mother and Father. During the same month,
K.M.W. explained to her therapist that during a recent home visit, the family’s
home was covered with bugs. The therapist later explained to DCS that
K.M.W.’s behavior had turned disruptive since she began home visits with
Mother and Father. DCS then visited the home and observed the kitchen was
cluttered, there were open food containers on the counters, and a dish on the
kitchen floor was filled with cockroaches. DCS also observed cockroaches in
other areas of the home. Moreover, the home contained little food.
[13] On June 1, 2016, DCS filed a petition to terminate Mother and Father’s
parental rights and changed the Children’s permanency plan to adoption. On
July 11, 2016, DCS visited the home for the final time and observed
cockroaches in the kitchen crawling on the refrigerator and counter, the
refrigerator was tilting and appeared as if it might fall through the floor, and the
home was dirty. Following three evidentiary hearings in January 2017, the
juvenile court issued its order terminating parental rights, relevant portions of
which we quote below:
25. Father and Mother have received services and community
referrals since as early as 2006.
***
27. Father and Mother each underwent a psychological
evaluation . . . . Each parent has issues to overcome and for
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which he/she must compensate.[2]
***
30. Historically, Father is not willing to accept help or try
something different to see if it will work. Father is aggressive,
argumentative, and obstructive. Father resists recommendations,
is very guarded, and responds that it is already as good as it can
be. Father often argues with service providers about what he
does not need to do or what others, such as DCS, or the Judge,
or others, are doing wrong. Father sometimes obstructs service
providers or the GAL, including prohibiting DCS and the GAL
from viewing the girls’ bedroom. . . .
31. Father is very concrete in his thinking. Father may correct
the one thing pointed out to him, but is unable to generalize the
instructions to apply to other things or other areas in the home.
Generally, Father simply denies that a problem exists, even when
it is brought to his attention. At one point, Father described the
reasons for DCS removal of the children in 2014 as cleanliness
and clutter, believing the home to simply be “messy.” At another
time, Father described the reasons for DCS removal of the
children as only because of [a relative] molesting them.[3]
***
33. Mother leaves it to Father to speak for the family and make
decisions. Father is the family decision-maker. Mother refers
issues to Father for decision.
34. Mother describes the home at the time of removal as
“cluttered,” explaining that she had not had a chance to take the
trash out and she had a headache for four days. Mother
describes that she cleans as best as she can, but she gets sick a lot
and now that she is working she is tired.
2
Father’s psychological evaluation revealed Father is Moderately Mentally Retarded and can parent only
with the support of others. Mother’s psychological evaluation revealed Mother has the ability to care for the
Children and meet their needs, but given her medical issues, it would be difficult for Mother to provide a high
level of care and oversight to the Children.
3
The record reveals allegations the Children’s grandfather sexually abused the Children, but it is unclear
whether DCS substantiated those allegations.
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35. In October, 2015, Mother obtained employment at the
casino, the first job of her life . . . . This has left Mother even
more tired, stressed, and disconnected. Mother has missed
parenting time because she went to bed. Other times, Mother
simply did not interact and left Father to do all the talking.
36. Father and Mother do not view issues of cleanliness and
hygiene as issues of concern. Both repeatedly deny that problems
exist and as a result, take no action to correct. Father
aggressively denies that he and Mother fail to provide [the
Children] with a safe environment, free from neglect. Mother
either denies that an issue exists or minimizes it. After years of
neglecting their children, not only do Father and Mother fail to
recognize their own neglect, they fail to comprehend that they
are the cause of their children’s neglect.
***
38. Father and Mother both fail to recognize that [K.M.W.’s]
particular needs are extensive. Father treats the situation as a
discipl[in]e issue. Mother believes home-schooling is appropriate
for [K.M.W.] Father believes public school is appropriate for
[K.M.W.].
39. Father and Mother now live in a two bedroom, one
bathroom trailer . . . . They have made repairs and corrections to
the trailer including replacing carpeting and paying for
commercial pest control quarterly. DCS last viewed the premises
in July, 2016, and observed: outside was very messy, with piles of
trash, broken toys, trash and furniture on the porch; inside was
cockroaches and exposed food. Father and Mother describe that
they have corrected these issues as of February, 2017, although
roaches are still present.
40. [K.M.W.] is likely the most developmentally delayed child
her clinical service specialist has ever seen. At the time of
detention, she did not know how to take a shower and struggled
cleaning herself after soiling herself. She required regular
prompts for personal hygiene and potty training, including being
awakened by staff in the middle of the night to use the restroom.
***
42. [K.M.W.] appears to be making overall progress. However,
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[K.M.W.] has a very low I.Q. and is never going to be able to live
independently. She will never be appropriate for public school.
43. [K.M.W.] is very special needs and has very specific needs
that must be addressed in a particular way and on a schedule.
***
46. [K.W.] has experienced significant progress since removal.
Originally, she was dirty, defensive, smelled bad, very unhappy,
sad, and angry. She lived as if in a fantasy world, describing that
her brother hides under her bed and touches pretty girls. [The
Children] do not have a brother. [K.W.] was anxious and
exhibited poor social skills. She would often have temper
tantrums and “meltdowns” especially at school. She was very
resentful and angry with her sister.
47. Today [K.W.] is greatly improved. She is focused on reality.
She has developed self-esteem, a trust of others, confidence, and
a mastery over her environment. She now looks forward to
visiting with her sister. [K.W.] has an I.Q. of 108 and is doing
well in school.
***
49. Father and Mother have only been able to elevate their care
for their children above minimum standards for short periods of
time with assistance. They have never been able to provide
consistent care. The situation always returns to chronic neglect
of the children.
50. Father and Mother have not enhanced their ability to fulfill
their parental obligations.
51. Given the family’s extensive, extended history, the severity
of the neglect, Mother and Father’s inability to recognize when
they are neglecting their children and take action to correct it, the
Court is firmly convinced that continuation of the parent-child
relationship endangers [the Children’s] physical health and will
significantly impair their emotional development. Father and
Mother’s historical pattern is one of repeated, extensive, and
severe neglect. If the children were again in Father and Mother’s
care, their repeated pattern predicts additional neglect, continued
suffering by [the Children], and a continuing need for
intervention and removal of both children. Mother is employed
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and Mother and Father have improved the condition of their
home. However, the Court does not believe that either parent
has otherwise improved his or her ability to provide necessary
care for [the Children].
52. DCS’s plan for [the Children] is adoption.
Appellant’s Appendix, Volume II at 33-39. This appeal ensued.
Discussion and Decision
I. Standard of Review
[14] When we review a termination of parental rights, we neither weigh the
evidence nor judge witness credibility and we consider only the evidence and
reasonable inferences most favorable to the judgment. In re C.G., 954 N.E.2d
910, 923 (Ind. 2011). We apply a two-tiered standard of review to the juvenile
court’s findings of fact and conclusions thereon: we first determine whether the
evidence supports the findings and then determine whether the findings support
the judgment. Id. “We will set aside the court’s judgment terminating a parent-
child relationship only if it is clearly erroneous. Clear error is that which leaves
us with a definite and firm conviction that a mistake has been made.” S.L. v.
Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1123 (Ind. Ct. App. 2013) (citation
omitted).
II. Termination Order
[15] The termination of parental rights is an extreme measure designed to be utilized
only when all other reasonable efforts have failed. In re K.W., 12 N.E.3d 241,
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249 (Ind. 2014). Indiana Code section 31-35-2-4(b)(2) details what must be
proven in order to terminate parental rights, which we note in relevant part:
(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.
***
(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 prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2.
[16] Mother and Father contend the juvenile court’s termination order is clearly
erroneous. Specifically, they claim DCS failed to present clear and convincing
evidence sufficient to establish there is a reasonable probability the conditions
resulting in the Children’s removal will not be remedied, the continuation of the
parent-child relationships pose a threat to the Children’s well-being, termination
of the parent-child relationships is in the Children’s best interests, and there is a
satisfactory plan for the care and treatment of the Children.
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A. Remedy of Conditions
[17] In determining whether conditions leading to a child’s removal will not be
remedied, the juvenile 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
evidence of changed conditions. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.
2010). “[I]t is not just the basis for the initial removal of the child that may be
considered for purposes of determining whether a parent’s rights should be
terminated, but also those bases resulting in the continued placement outside of
the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
The juvenile court must also “evaluate the parent’s habitual patterns of conduct
to determine the probability of future neglect or deprivation of the child.” In re
A.B., 924 N.E.2d at 670 (citation omitted). However, the juvenile court cannot
focus solely on historical conduct to the exclusion of evidence as to the parent’s
current circumstances or evidence of changed conditions. In re C.M., 960
N.E.2d 169, 175 (Ind. Ct. App. 2011).
[18] In maintaining DCS did not meet its burden, Mother and Father claim the
juvenile court focused solely on their historical conduct and ignored evidence of
their current circumstances and changed conditions.4 Contrary to this view, the
findings establish Mother and Father’s involvement with DCS dates back to
4
Mother and Father challenge findings 33, 35, 36, 38, and 39. Our review of the record indicates the
evidence supports each of these findings and Mother’s and Father’s arguments are merely a request for this
court to reweigh evidence and reassess witness credibility, which we will not do. In re C.G., 954 N.E.2d at
923.
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2006 when K.M.W. was removed from Mother and Father’s care after they
neglected K.M.W. and failed to provide her with a safe living environment.
Over the next several years, DCS intervened twice after substantiating similar
allegations of neglect. Then, in 2014, DCS learned the Children had poor
hygiene and the condition of the family’s home threatened the Children’s
physical and mental well-being. DCS removed the Children, and during the
CHINS proceedings, Mother and Father admitted they had failed to provide
the Children a clean and appropriate home. Although Mother and Father did
participate in services, DCS continued the Children’s placement outside of the
home due to Mother and Father’s inability to consistently maintain a safe living
environment for the Children.
[19] During the next two years, DCS visited the home on several occasions. On
some occasions, the home was cleaner than times previous, but on other
occasions, the condition of the home had severely deteriorated. In fact,
following one visit in fall 2015, K.W. described Mother’s and Father’s home as
“disgusting.” Exhibit 6 at 24. And in early 2016, K.M.W. stated she did not
desire to visit Mother and Father at the home, explaining that during her most
recent visit the bugs in the home crawled all over her.
[20] Thus, and as the juvenile court noted, every time Mother and Father improved
the conditions of their home and DCS allowed them to again care for the
Children, Mother and Father always allowed the home to fall into disarray
thereby endangering the Children’s health. Asked whether she believed Mother
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and Father had, or could, remedy the conditions that led to the Children’s
removal, DCS clinical service specialist Melissa Weedman testified,
I don’t think that is likely, . . . look at the history of the case it
started in 2006 and before [K.W.] was born, there has been a
history of chronic neglect for the last eleven years. Do I believe
that [Mother and Father] can pull it together for short periods of
time? Yes I can. Do I think that they can keep their home clean
and not neglect their children after we if we were not to be
involved? No, no I don’t think they could. Because they
haven’t.
Transcript, Volume II at 15-16. In light of Mother and Father’s historical and
current failure to remedy the conditions that resulted in the Children’s removal,
we conclude DCS presented sufficient evidence to show a reasonable
probability the conditions leading to the Children’s removal will not be
remedied.5
5
Mother and Father also contend the juvenile court erred in finding continuation of the parent-child
relationship poses a threat to the Children’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires only one element in that subsection be proven to support termination
of parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude the
evidence is sufficient to show a reasonable probability the conditions resulting in the Children’s removal will
not be remedied, we need not also determine whether the juvenile court erred in concluding continuation of
the parent-child relationship posed a threat to Children’s well-being.
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B. Best Interests
[21] Mother and Father argue DCS failed to prove termination of their parental
rights was in the Children’s best interest.6 “In determining what is in the best
interests of the child,” the juvenile court “is required to look beyond the factors
identified by the DCS and look to the totality of the evidence.” In re H.L., 915
N.E.2d 145, 149 (Ind. Ct. App. 2009).
The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Recommendations of
the case manager and court-appointed advocate, in addition to
evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing
evidence that termination is in the child’s best interests.
In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (citations omitted), trans.
denied.
[22] As noted above, there is sufficient evidence the conditions resulting in the
Children’s removal will not be remedied. In addition, Weedman, the
Children’s guardian ad litem Diana Rojahn, the DCS family case manager
Gina McDonald, and the family’s parent aid Robin Brown all agreed
termination of Mother and Father’s parental rights was in the Children’s best
interests. Further, we note permanency is a central consideration in
6
Specifically, Mother and Father contend DCS did not call the current placement providers for the Children
to testify what they believed was in the Children’s best interests. However, Mother and Father cite to no case
law to support how such evidence is required. This argument fails.
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determining whether termination is in the Children’s best interests. In re G.Y.,
904 N.E.2d 1257, 1265 (Ind. 2009). The record reveals the Children have
suffered from lack of permanency given DCS’s longstanding involvement with
the family. After the Children were removed in 2014, each flourished in foster
care. However, when Mother and Father were allowed unsupervised home
visits with the Children beginning in January 2015, the Children’s behavior and
attitudes regressed. And as McDonald testified, “[I]f the girls were to be
reunified or returned home, I believe that there would be a huge regression in
both girls as far as their progress. As far as their social skills, as far as their
academics.” Tr., Vol. III at 19. We conclude DCS presented sufficient
evidence from which the juvenile court could conclude termination of Mother
and Father’s parental rights was in the Children’s best interest.
C. Satisfactory Plan
[23] Finally, Mother and Father contend DCS did not prove it had a satisfactory
plan for the care and treatment of the Children. In order to terminate a parent-
child relationship, the juvenile court must find there is a satisfactory plan for the
care and treatment of the child. In re Termination of Parent-Child Relationship of
D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004), trans. denied. “This 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.” Id. Here,
DCS admitted evidence that the plan for K.W. and K.M.W. was adoption,
which is a satisfactory plan that offers a general sense of the direction the
Children would go after termination of Mother and Father’s parental rights. See
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id. DCS presented sufficient evidence from which the juvenile court could
conclude DCS had a satisfactory plan for the Children.
Conclusion
[24] DCS established by clear and convincing evidence the requisite elements to
support the termination of Mother and Father’s parental rights. The judgment
of the juvenile court terminating Mother and Father’s parental rights is
affirmed.
[25] Affirmed.
Riley, J., and Pyle, J., concur.
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