In re Termination of the Parent-Child Relationship of: J.T., Dt.W., and Dc.W. (Minor Children), and T.D. (Mother) v. Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 26 2017, 8:27 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re Termination of the Parent- September 26, 2017
Child Relationship of: J.T., Court of Appeals Case No.
Dt.W., and Dc.W. (Minor 49A02-1704-JT-671
Children), Appeal from the Marion Superior
and Court
T.D. (Mother), The Honorable A. Marilyn
Appellant-Respondent, Moores, Judge
The Honorable Larry E. Bradley,
v. Magistrate
Trial Court Cause Nos.
Indiana Department of Child 49D09-1511-JT-672
Services, 49D09-1511-JT-673
49D09-1511-JT-674
Appellee-Petitioner,
and
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 1 of 13
Child Advocates, Inc.,
Appellee-Guardian ad Litem.
Bradford, Judge.
Case Summary
[1] Appellant-Respondent T.D. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to Dc.W. and Dt.W. She raises the following
restated issue on appeal: whether the Department of Child Services (“DCS”)
presented sufficient evidence to support the termination of her parental rights to
Dt.W. and Dc.W. Specifically, Mother contends that the juvenile court
erroneously found that termination was in Dc.W.’s and Dt.W’s best interests.
Concluding that the evidence is sufficient to support the termination order, we
affirm.
Discussion and Decision
[2] Mother is the biological parent of Dc.W., who was born November 4, 2011,
Dt.W., who was born June 22, 2010, and J.T., who was born on July 28, 2006. 1
On January 17, 2012, DCS filed a verified petition alleging Dc.W., then a two-
1
Mother does not appeal the termination of her parental rights with respect to J.T. The children have
different biological fathers. The parental rights of the fathers were also terminated, but they do not
participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 2 of 13
month-old child with special needs, to be a child in need of services (“CHINS”)
due to medical neglect. An initial hearing was held that day, and Dc.W. was
initially permitted to remain in the home.
[3] On January 26, 2012, the juvenile court issued an order removing Dc.W. from
the home and placing him into foster care. That same day, DCS filed a verified
petition alleging that J.T. and Dt.W., Dc.W.’s older brothers, were CHINS.
The juvenile court held an initial hearing that day and ordered that Dt.W. and
J.T. also be placed in foster care.
[4] On February 21, 2012, the juvenile court found that the children were CHINS
based on Mother’s admission. A dispositional hearing for Mother was held the
same day. Dc.W.’s father agreed with Mother’s admission but asked that the
disposition be set a few weeks later after he established paternity. His
dispositional hearing was held on March 5, 2012.
[5] On May 1, 2012, the juvenile court held a periodic review hearing—Dc.W.’s
father did not attend because he was in jail for physically assaulting Mother.
On November 13, 2012, the court held the first permanency hearing. DCS
recommended that the permanency plan remain reunification in view of the
parents’ progress up to that point, and the juvenile court agreed.
[6] On February 19, 2013, a periodic review hearing was held. Mother did attend
the hearing, but she was not actively engaging in services or visiting the children
at that time because she had moved to Michigan in November of 2012 with
Dc.W.’s father.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 3 of 13
[7] A second permanency hearing was held on May 28, 2013. DCS recommended
that the permanency hearing plan be changed to adoption and the guardian ad
litem (“GAL”) agreed. At that point, the parents had not completed services,
Mother had not seen the children since her November 2012 move to Michigan,
and the children were doing very well in their foster care placement. DCS
initiated termination proceedings with respect to all three children in June
2013.2
[8] By the time of the September 10, 2013, periodic review hearing, Mother and
Dc.W.’s father had returned to Indianapolis and were engaging in services. In
January of 2014, DCS dismissed the original termination proceedings due to
Mother’s and Dc.W.’s father’s cooperation and compliance with services.
[9] On April 8, 2014, the juvenile court held another permanency hearing. The
permanency plan was changed back to reunification, over the GAL’s objection.
On September 16, 2014, the juvenile court issued a no-contact order barring
contact between Mother and Dc.W.’s father and between Dc.W.’s father and
the children, because he had attacked Mother.3
[10] On April 17, 2015, the GAL filed a motion to suspend Mother’s unsupervised
visitation with the children after Mother was seen with Dc.W.’s father in
2
Mother has at least one other biological child who is not a part of this particular case.
3
There is also evidence in the record that Dc.W.’s father abused J.T. causing him to suffer from post-
traumatic stress disorder, reactive attachment disorder, and other severe behavioral issues.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 4 of 13
violation of the no-contact order. DCS objected to the motion because it
wanted to give Mother another chance due to all the progress she had made on
other fronts. On April 28, 2015, the juvenile court denied the GAL’s motion.
[11] On September 1, 2015, the juvenile court held a permanency hearing. Mother
and Dc.W.’s father came to the hearing together despite the no-contact order.
Several days before the hearing, Dc.W.’s father violated the no-contact order
when he was present in Mother’s home during an unsupervised visit intended to
be between Mother and the children. The juvenile court ordered that Mother’s
visits be fully supervised due to concerns about Mother not being able to keep
the children safe.
[12] During an October 6, 2015, permanency hearing, the juvenile court changed the
permanency plan from reunification back to adoption. The juvenile court noted
that the matter had been open since January 2012 and Mother had not
successfully completed services. While Mother had participated in some
services, she had not demonstrated a willingness or an ability to protect her
children from their abuser, allowing Dc.W.’s father to have contact in violation
of the no-contact order.
[13] On November 5, 2015, DCS filed a petition for involuntary termination of
parental rights with respect to Mother and all three children, Dc.W. and his
father, and Dt.W. and his biological father.4 A four-day trial was held on
4
The parent-child relationship between J.T. Sr., and J.T. had been severed on October 24, 2013.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 5 of 13
August 22 and 23, 2016, and February 21 and 22, 2017. Mother attended the
first day of trial via telephone and the second day of trial in person. Mother,
however, did not attend the last two days of trial. Dc.W.’s father attended only
part of the first day of trial via telephone.
[14] On March 9, 2017, the juvenile court issued an order terminating the parent-
child relationships between Mother and all three children, Dc.W. and his
father, and Dt.W. and his father. In doing so, the juvenile court made the
following pertinent specific findings:
44. The three children have been placed with the same foster
parents since January of 2012, and this placement is preadoptive.
45. [Dt.W. and Dc.W.] were seeing a behavior specialist from
April of 2016, due to difficulties with severe temper outbursts and
tantrums.
46. [Dt.W] is cognitively struggling in school and is speech
delayed. He has an Individualized Educational Program set up
for him at school and he has an academic aide. He is on three
medications.
47. [Dc.W.] was a failure to thrive baby but his foster parents
caught his weight up in a month. He sees six doctors and has two
medications presented for his behavior issues. [5]
5
Dc.W. weighed four to five pounds when he was removed from the home at two-months old. He was also
very sick. The foster parents had to take him to approximately twelve doctors during the first three months
that he was in their home to help get him to a normal weight and improve his health.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 6 of 13
****
58. The children’s caregivers work with providers and they
follow the same behavior program from school to provide
structure, stability, and predictability.
59. The foster parents are advocates toward meeting the
children’s intense special needs.
60. The children have been observed as being very bonded to
their preadoptive foster parents. [J.T.] has been placed with the
family one-half of his life, and [Dt.W.] and [Dc.W.] for most of
their lives.
61. Continuation of the parent-child relationship poses a threat to
the children’s well-being. It would stand as a barrier to having the
children adopted, after five years of being wards, into the home
where they have bonded and are having all their needs met. If
placed back with their mother, it is not known if she would be
able to provide for the children’s basic or special needs on a
twenty-four seven basis, or provide the stability the children must
have.
62. Without continued structure and stability, the children’s
behaviors could regress.
63. There is a reasonable probability that the conditions that
resulted in the removal and continued placement of the children
outside the home will not be remedied by their mother. Although
[Mother] made good progress in services until the end of 2015, it
is clear that she was not willing to give up her relationship with
[Dc.W.’s father] and provide a safe environment, emotionally
and physically, in which to appropriately parent.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 7 of 13
****
66. Family Case Manager Phyllis Clemons has been on the
CHINS case for four years. She recommends adoption given the
five-year length of the CHINS case, and the children thriving,
and being bonded, in their placement which is nurturing and
loving.
67. Mark Bass has been the children’s Guardian ad Litem since
the CHINS opened. He agrees with the plan of adoption as being
in the children’s best interests given the children’s bond and
having their special needs met.
68. Termination of the parent-child relationship is in the best
interests of the children. Termination would allow them to be
adopted into a stable and permanent home in which they have
resided for much of their lives, and where their basic and special
needs will continue to be safely met.
69. There exists a satisfactory plan for the future care and
treatment of the children, that being adoption
Appellant’s App. Vol. II pp. 59-60.
Discussion and Decision
[15] This court has long had a highly deferential standard of review in cases
concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836
(Ind. Ct. App. 2001). When reviewing a termination of parental rights case, we
will consider only the evidence and reasonable inferences that are most
favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 8 of 13
2004), trans. denied. Thus, we will not reweigh the evidence or judge the
credibility of the witnesses. Id. We will only set aside the court judgment
terminating a parent-child relationship if it is clearly erroneous. In re B.J., 879
N.E.2d 7, 14 (Ind. Ct. App. 2008).
[16] The traditional right of a parent to establish a home and raise her children is
protected by the Fourteenth Amendment to the United States Constitution.
Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005).
Furthermore, we acknowledge that the parent-child relationship is “one of the
most valued relationships of our culture.” Id. However, parental rights are not
absolute and the law allows for the termination of such rights when a parent is
unable or unwilling to meet her responsibilities as a parent. In re T.F., 743
N.E.2d 766, 773 (Ind. Ct. App. 2001), trans denied. The purpose of terminating
parental rights is to protect the child, not to punish the parent. Id. The juvenile
court may terminate the parental rights if the child’s emotional and physical
development is threatened. Id. The juvenile court need not wait until the child
has suffered from irreversible harm. Id.[17] Before an involuntary termination of parental rights may occur, DCS is
required to prove by clear and convincing evidence that:
(A) one (1) of the following exists:
(i) the child has been removed from the parent for at least
six (6) months under a dispositional decree;
(ii) a court has entered a finding under IC 31–34–21–5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 9 of 13
the court’s finding, the date of the finding, and the manner
in which the finding was made; or
(iii) the child has been removed from the parent and has
been under the supervision of a county office of family and
children or probation department for at least fifteen (15)
months of the most recent twenty-two (22) months,
beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in
need of services or a delinquent child;
(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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the
child.
Ind. Code § 31-35-2-4(b)(2). DCS’s burden of proof for establishing these
allegations in a termination case is one of “clear and convincing evidence.” In
re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009).
[18] Mother argues that the juvenile court’s order terminating the parental rights as
to Dc.W. and Dt.W. was clearly erroneous. Specifically, Mother argues that
the findings of facts do not support its conclusion that termination is in the
children’s best interests.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 10 of 13
[19] Mother argues that the juvenile court’s conclusion that termination is in
Dc.W.’s and Dt.W.’s best interests is “mere speculation.” Appellant’s Br. p.
14. When reviewing such claims, we are mindful of the fact that the juvenile
court is required to look beyond the factors identified by DCS and consider the
totality of the circumstances. McBride v. Monroe Cnty. Office of Family & Children,
798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In doing so, this court must
subordinate the interest of the parent of the child involved. Id. Children’s need
for permanency is a “central consideration in determining the [children’s] best
interests.” K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office, 989 N.E.2d
1225, 1235 (Ind. 2013). Further, the Indiana Supreme Court has acknowledged
that “children cannot wait indefinitely for their parents to work toward
preservation or reunification—and courts ‘need not wait until the child is
irreversibly harmed such that the child’s physical, mental and social
development is permanently impaired before terminating the parent-child
relationship.’” In re E.M., 4 N.E.3d 636, 648 (Ind. 2014) (quoting K.T.K., 989
N.E.2d at 1235).
[20] In addressing whether termination was in Dt.W’s and Dc.W.’s best interests,
we note that the DCS Family Case Manager and the GAL testified that
termination was in their best interests. Such testimony is sufficient to support
the juvenile court’s conclusion in this regard. See In re A.B., 887 N.E.2d 158,
170 (Ind. Ct. App. 2008). However, additional evidence further supports the
juvenile court’s conclusion. Dc.W. and Dt.W. have been in foster care for
more than five and a half years. Mother has failed to maintain a consistent and
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 11 of 13
positive relationship with Dc.W. and Dt.W. throughout the CHINS case. She
has not visited them since December of 2015. There was also a period from
November 2012 to May 2013 where she moved to Michigan. Furthermore, the
record shows that Mother consistently put her relationship with Dc.W.’s father
ahead of the health and safety of her own children.
[21] The service providers further testified that the children would be seriously
endangered in Mother’s care despite all of their efforts to help Mother with
reunification. The record shows that Mother’s relationship with Dc.W.’s father
was often a priority over the needs and safety of her children. These findings
indicate Mother is uninterested or unwilling to put her children’s needs and
safety first.
[22] Moreover, establishing permanency for Dc.W. and Dt.W. was repeatedly
expressed as a reason for termination given their special needs. Dc.W. and
Dt.W. both have severe behavioral issues and have been seeing a behavior
specialist since April 2016. Dc.W. has a “terrible temper” and will head-butt
and pinch to the point that he cannot be controlled. Tr. Vol. III p. 101. When
they started seeing the behavior specialist, Dc.W. and Dt.W. would not listen
and would throw severe temper tantrums. Dt.W. was struggling with the same
aggressive behaviors at school, striking teachers and peers when he got angry.
Their development is delayed and they behavior is consistent with that of a
younger child. The foster parents and specialist worked together at home and
at school to provide the children with structure, consistency, and predictability.
Dt.W. and Dc.W. have shown considerable improvement due to those efforts.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 12 of 13
However, the behavior specialist testified that if the stability, consistency,
security, and predictability is taken away, it is likely that they behaviors will
regress and the aggression and defiance will return. The record contains clear
and convincing evidence that Mother is not capable of providing Dt.W. and
Dc.W. with the care they need to have a safe and stable life.
[23] The totality of the evidence demonstrates that the juvenile court’s conclusion
that termination of Mother’s parental rights is in Dc.W.’s and Dt.W.’s best
interests is not clearly erroneous. See, e.g., In re T.F., 743 N.E.2d 776 (Ind. Ct.
App. 2001) (holding that the record contained sufficient evidence that
termination of the parents’ rights was in the best interests of the children).
Consequently, we find sufficient evidence in the record to support the juvenile
court’s conclusion that DCS proved the statutory elements by clear and
convincing evidence. Mother is essentially asking us to reweigh the evidence as
it pertains to the children’s best interests, which we will not do. In re N.G., 51
N.E.3d 1167, 1170 (Ind. 2016).
[24] For the foregoing reasons, we affirm the juvenile court’s termination of
Mother’s parental rights to Dc.W. and Dt.W.
May, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1704-JT-671 | Septemeber 26, 2017 Page 13 of 13