W.P. v. Indiana Department of Child Services (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Oct 15 2015, 10:06 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan B. Quirk Gregory F. Zoeller
Muncie, Indiana Indianapolis, Indiana
Robert J. Henke
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
W.P., October 15, 2015
Appellant-Defendant, Court of Appeals Case No.
18A02-1504-JT-230
v. Appeal from the Delaware County
Court
Indiana Department of Child The Honorable Kimberly S.
Services, Dowling, Judge
Appellee-Plaintiff The Honorable Brian Pierce,
Magistrate
Trial Court Cause No.
18C02-1407-JT-34
Altice, Judge.
Case Summary
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[1] W.P. (Mother) appeals from the involuntary termination of her parental rights
to T.S., her minor child (Child).1 On appeal, Mother argues that the evidence is
insufficient to support the juvenile court’s judgment.
[2] We affirm.
Facts & Procedural History
[3] Child was born in March 1999. In November 2011, the Department of Child
Services (DCS) was notified that Child had missed thirty-two of fifty-four days
of school, twenty-four of which were unexcused. As part of its investigation
into the matter, DCS discovered that the residence where Mother and Child
lived was “unsanitary and unsafe” due to cat feces on the floor, soiled toilet
paper strewn throughout the bathroom, trash scattered throughout the
residence, rotten food in the kitchen, a non-working toilet full of feces and
urine, and an insect infestation. Exhibit Volume at 54. On November 15, 2011,
DCS filed a petition alleging Child to be a Child in Need of Services (CHINS)
due to Child’s school absences and living conditions. Over the course of the
next year, Mother successfully completed services, and the juvenile court
terminated its jurisdiction over the CHINS matter on November 19, 2012.
[4] Two and a half weeks later, on December 5, 2012, Child was again removed
from Mother’s care after Child was caught stealing food and hygiene items
1
Child’s biological father, B.S. (Father), did not respond to the petition to terminate his parental rights, and
therefore, the trial court entered a default judgment thereon. Father does not participate in this appeal.
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from a Marsh Supermarket. Mother was with Child at the time of the theft.2
The State filed a formal delinquency petition on December 21, 2012, after
which, Child was released to the custody of foster parents.3 That same day, the
State also filed a petition for parental participation, requesting Mother obtain
assistance in fulfilling her obligations as a parent, provide specified care,
treatment, and supervision for Child, and work with any person providing care,
treatment, or rehabilitation for Child. Child was subsequently adjudicated a
delinquent child and she remained out of Mother’s care. Following a February
27, 2013 dispositional hearing regarding the theft charge pending against Child,
the court issued a dispositional order placing Child on indefinite formal
probation, ordering Mother and Child to participate in services while Child
remained in foster care, and requiring that a home study be completed with
regard to Mother.
[5] On May 8, 2013, Crystal Ivy, a juvenile probation officer assigned to Child,
filed a petition for emergency change of placement due to Child’s behaviors and
disrespectful attitude toward her first foster parents. The trial court granted the
request and Child was transferred to the Youth Opportunity Center (YOC).
Child was eventually transferred to the YOC Translife Program on May 28,
2013. Probation Officer Ivy noted in her modification report that Child had
2
Mother was also arrested and charged with theft and contributing to the delinquency of a minor. Mother
pled guilty to an amended charge of conversion in that cause.
3
Child was placed in the custody of foster parents following a detention hearing.
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advised that she did not wish to return to Mother’s care “because she fears she
will revert back to her poor behaviors, such as failing to attend school.” Exhibit
Volume at 33.
[6] Probation Officer Ivy filed a review report with the court on August 13, 2013, in
which she noted that a home study had not yet been completed because Mother
had not provided an address. She further noted that a second foster family was
interested in taking Child into their care and custody. The court issued an order
following a review hearing and again reiterated its order that Mother provide
her address so that a home study could be completed, maintained Child’s
placement at YOC, and ordered that Child could be considered for placement
with Mother or a new foster family in October. At that time, the permanency
plan was Child’s reunification with Mother. Child was ultimately placed with a
second foster family on November 22, 2013.
[7] On January 27, 2014, Probation Officer Ivy filed another review report with the
court. She informed the court that Child remained in the care of the second
foster family and that minimal problems had been reported. Following a
subsequent review hearing in February 2014, the court issued an order
continuing Child’s placement with her second foster family and ordered Mother
“to contact Department of Child Services for a home study if she wishes for the
child to return home.” Exhibit Volume at 46. Probation Officer Ivy’s next six-
month review report was filed on August 25, 2014. Therein, she informed the
court that Child had completed her freshman year of high school and that she
was well-adjusted. With regard to Mother, she noted that despite several
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attempts, Mother had refused to provide her address and therefore, a home
study still had not been conducted. Probation Officer Ivy recommended that
the permanency plan for child be changed from reunification with Mother to
adoption by her second foster family.
[8] On July 24, 2014, prior to Probation Officer Ivy’s August review report being
submitted to the court, DCS had filed a petition for the involuntary termination
of Mother’s parental rights to Child, who was then fifteen years old, and notice
was provided to Mother. The court ordered that a CASA 4 be assigned to
represent Child’s interests. On September 8, 2014, Mother appeared at the
initial hearing along with an interpreter5 and denied the allegations in the
petition. The court held a fact-finding hearing on January 30, 2015. On April
13, 2015, the court issued its findings of fact and conclusions, setting forth, in
pertinent part, as follows:
6. During the course of the delinquency proceeding, [Mother]
failed to keep in regular contact with Juvenile Probation Officer
Crystal Ivy. [Mother] failed to provide Ivy with a regular
address, has not been cooperative about setting up a home study,
and has not provided any way for Ivy to keep in contact with her.
7. [Mother] was ordered to participate in counseling and
visitation with the child. While the child was placed at the
Youth Opportunity Center, [Mother] . . . visited [Child] only
4
A CASA, or Court Appointed Special Advocate, is an individual who acts as an officer of the court for the
purpose of representing the child(ren)’s interests.
5
Mother is hearing impaired.
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twice in a five month period. [Mother] only showed up for half
of the scheduled counseling sessions as well.
8. Therapist Lynn Henderson continues to work with [Child].
Initially, Henderson also worked with [M]other. However,
[M]other was inconsistent in her participation and got into
arguments with [Child] during therapy sessions. Since being
placed in foster care, [Child] has been able to make positive
progress in therapy.
9. [Child’s second foster family has] attempted to get [Mother] to
regularly visit with [Child]. However, their efforts have been
regularly rebuffed by [Mother]. During the time in which [Child]
has been placed with [her second foster family], [Mother] has
only made herself available for visitation one time. Additionally,
there has not [been] regular phone contact, email contact or
regular mail contact with [Child].
10. When originally placed with [her second foster family,
Child] struggled with her behavior. She would steal and lie on a
regular basis. [Child] put little effort into her school work. Since
[Child’s] placement with [her second foster family] in November
2013 [until the time of the fact-finding hearing in January 2015],
there has been a remarkable turn-around in [Child’s] behavior
and attitude.
11. With . . . consistent parenting and with Lynn Henderson’s
work in therapy, [Child] has become a very different child. She
no longer regularly lies or steals. She puts forth effort in school
and participates in extra-curricular activities.
12. When [Child] was living with [Mother], she received little to
no parenting direction. There were often times when there was
no food in the house and times when critical utilities were shut
off for months at a time. Since being placed with [her second
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foster family], [Child] no longer has to worry about such
conditions.
13. It is clear through the evidence presented that [Child] has
essentially been abandoned by [Mother]. The child’s life is much
better now that she is in a safe, loving and structured home
environment. And it is equally clear why [Child] wants to be
adopted by [her second foster family], which is the [foster
family’s] intent.
14. That the CASA agrees that it is in the best interest of [Child]
to terminate the parental rights of [Mother].
15. That based on the foregoing, there is a reasonable probability
that the conditions that resulted in [Child’s] removal will not be
remedied.
16. That based on the foregoing, there is a reasonable probability
that the continuation of the parent/child relationship herein
poses a threat to the well being of [Child].
17. Termination of the parent/child relationship is in the best
interest of [Child].
18. The Delaware County Juvenile Probation Department and
The Department of Child Services has a satisfactory plan for the
care and treatment of [Child], which is adoption.
Appellant’s Appendix at 40-41. Based on the foregoing, the court ordered that
Mother’s parental rights to Child be involuntarily terminated. Mother filed her
Notice of Appeal the same day. Additional facts will be provided where
necessary.
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Discussion & Decision
[9] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,
265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence
and reasonable inferences most favorable to the judgment. Id. In deference to
the juvenile court’s unique position to assess the evidence, we will set aside the
court’s judgment terminating a parent-child relationship only if it is clearly
erroneous. In re L.S., 717 N .E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Thus, if the evidence and inferences support the juvenile court’s decision, we
must affirm. Id.
[10] We recognize that the traditional right of parents to “establish a home and raise
their children is protected by the Fourteenth Amendment of the United States
Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
2008). In addition, a juvenile court must subordinate the interests of the parents
to those of the child when evaluating the circumstances surrounding the
termination. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose
of terminating parental rights is not to punish the parents, but to protect their
children. Id.
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[11] Before an involuntary termination of parental rights may occur in Indiana, the
State is required to allege and prove by clear and convincing evidence, 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[.]
Ind. Code § 31-35-2-4(b)(2).
[12] On appeal, Mother argues that the evidence is not sufficient to support the trial
court’s judgment involuntarily terminating her parental rights. Specifically,
Mother challenges the evidence as it relates to the court’s determination
regarding I.C. § 31-35-2-4(b)(2)(B)(i) and (ii).6 Mother asserts that the
conditions that resulted in Child’s detention have been remedied. Mother
6
Mother does not challenge the court’s determination with respect to the other requirements that must be
proved by clear and convincing evidence before a court can terminate parental rights. Specifically, Mother
does not challenge the court’s determination as to I.C. § 31-35-2-4(b)(2)(A)(i-iii), that termination is in Child’s
best interest, or that there is a satisfactory plan for the care and treatment of Child.
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claims that she has moved to a suitable home, maintained a consistent job, and
that she is saving money for transportation. Mother also argues that in this
case, termination of her parental rights is premature as she has been provided
no assistance and there has been no home study to determine her current living
conditions. With regard to her relationship with Child, Mother asserts that she
“wants to and can care and raise her child” and points out that she successfully
completed services resulting in the dismissal of a prior CHINS action.
Appellant’s Brief at 11.
[13] We are sensitive to Mother’s plight and fully recognize her stated desire to care
for Child. Nevertheless, the clear and convincing evidence presented by DCS
and detailed by the court in its judgment terminating Mother’s parental rights
supports the conclusion that continuation of the parent-child relationship poses
a threat to the well-being of Child. In 2011, when DCS first became involved
with Mother, Child, who was twelve years old at the time, had missed an
extraordinary amount of school. Child was the primary caretaker for her
younger sibling and would get her younger sibling ready and off to school, but
would then not go herself. Child explained that she felt obligated to care for
Mother. Child described the conditions of the home at that time as
“[h]orrible,” with trash everywhere, mold, cat feces, and gnats. Transcript at 31.
After a CHINS petition was filed, Mother apparently cooperated with services
and the CHINS petition was dismissed a year after it was filed. Child testified
that the house remained clean and appropriate for about two weeks.
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[14] In December 2012, less than three weeks after the CHINS petition was
dismissed, Child attempted to steal food and hygiene items at Mother’s
direction. Mother and Child were arrested, and Child was detained. Over the
course of the next twenty months, Child was placed in two different foster
homes and spent several months at the YOC. Child received counseling to deal
with adjustment issues, bipolar disorder, and behavioral concerns. Mother was
ordered to participate in the counseling as well, and did attend a few counseling
sessions, but was never consistent with her participation and had not
participated in the months leading up to the filing of the termination petition.
Mother visited Child on occasion while Child was placed at the YOC and only
one other occasion when Child was placed with a foster family. On that
occasion, Mother had the foster family bring Child to her place of employment
because she did not want Child to come to her home. Mother has had very
minimal contact with Child via email, regular mail, and social media. Child
testified that she would contact Mother via social media and Mother would
respond sporadically and that “usually [Mother] doesn’t contact me unless she
wants something from me.” Id. at 34.
[15] Child testified that “[w]hen I was with my mom I never thought I’d make it to
like 20.” Id. at 28. Child elaborated when questioned by the court that when in
Mother’s care, she never thought about her future or that she even had a future.
Child further described for the court that when in Mother’s care, there was no
food to eat, so they would go to food pantries or steal food. Mother also did
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not pay bills, so essential utilities like water and electricity were always being
turned off.
[16] Child told a different story when describing her life with her foster family.
Child told the court that she liked knowing that she had a future. Child was
regularly attending school and making significant improvements in her
academics and with her behavior. Child was involved in extra-curricular
activities and was fully supported by her foster parents, who now wish to adopt
her. Child’s counselor at the YOC testified that things had really changed since
Child was placed in foster care in that she was “actually doing teenage things”
and was “no longer being a parent.” Id. at 10, 11. Child expressed her fear that
if placed back with Mother she will have to be the parent again and will be back
in the same position she was in prior to being removed from Mother’s care for
the second time. Child informed the court that she did not want to hurt
Mother, but expressed her desire to be adopted by her current foster family.
[17] The record belies Mother’s claim that she was not offered services to help in
seeking reunification with Child. Mother was permitted to visit child and
ordered to participate in counseling, but did so only sporadically. Mother made
no attempt to regularly communicate with Child. With regard to a home study,
Mother failed and/or refused to provide Probation Officer Ivy with her address
or keep her apprised of new addresses after she moved. Even after Probation
Officer Ivy had an address for Mother, Mother did not cooperate in getting a
home study completed. Mother’s actions demonstrate a definite indifference
toward reunification with Child. We agree with the court that the evidence
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presented shows that Child “has essentially been abandoned by her mother.”
Appellant’s Appendix at 41.
[18] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence that there was a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for placement outside the home
would not be remedied and that continuation of the parent-child relationship
posed a threat to the well-being of Child. Mother’s claims to the contrary are
simply requests that this court reweigh the evidence, which we will not do.
[19] Judgment affirmed.
[20] Riley, J., and Brown, J., concur.
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