MEMORANDUM DECISION
Feb 03 2015, 8:35 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Attorney for Mother D.S. Gregory F. Zoeller
Phyllis J. Emerick Attorney General of Indiana
Bloomington, Indiana
Robert J. Henke
Attorney for Father B.P. James D. Boyer
Amy P. Payne Deputies Attorney General
Bloomington, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 3, 2015
of the Parent-Child Relationship Court of Appeals Case No.
of: 53A01-1408-JT-337
T.P., K.P., and D.P., minor Appeal from the Monroe Circuit
children, Court; The Honorable Stephen R.
Galvin, Judge;
and 53C07-1402-JT-81
D.S., Mother, and B.P., Father, 53C07-1402-JT-82
53C07-1404-JT-182
Appellants-Respondents,
v.
The Indiana Department of Child
Services,
Appellee-Petitioner.
May, Judge.
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[1] D.S. (Mother) and B.P. (Father) (collectively, Parents) appeal the involuntary
termination of their parental rights to T.P., K.P., and D.P. (collectively,
Children). We affirm.
FACTS AND PROCEDURAL HISTORY
[2] T.P. was born March 3, 2011, K.P. was born January 16, 2012, and D.P. was
born February 11, 2013. On January 3, 2012, after complaints of substance
abuse and domestic violence in T.P.’s presence, Parents entered into a court-
approved Informal Adjustment Plan to address those issues. On March 29, the
Department of Child Services (DCS) removed T.P. and K.P. from Parents’
home after Parents left them with an intoxicated babysitter. On March 30,
DCS filed petitions to adjudicate T.P. and K.P. as Children in Need of Services
(CHINS) based on Parents’ substance abuse and domestic violence issues.
[3] On August 2, Parents admitted to the allegations in the CHINS petitions and
T.P. and K.P. were adjudicated as such. On September 10, the court entered a
dispositional order, requiring Parents to participate in services such as couples
counseling, parenting assessments, substance abuse screenings, and substance
abuse treatment. On December 3, the court held a review hearing and found
Parents had not complied with the requirements of the dispositional decree.
[4] On February 11, 2013, D.P. was born. On February 14, D.P. was removed
from Parents’ custody because Mother tested positive for marijuana while
pregnant with D.P. and because of the pending CHINS case involving T.P. and
K.P. On February 28, the court adjudicated D.P. a CHINS based on Parents’
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admissions to the CHINS allegations. On March 28, the court issued a
dispositional order requiring Parents to participate in reunification services.
[5] On February 19, 2014, DCS filed a petition to terminate Parents’ parental rights
to T.P. and K.P. On April 8, DCS filed a petition to terminate Parents’ rights
to D.P. The court held an evidentiary hearing on June 18 and on July 10,
issued an order terminating parental rights.
DISCUSSION AND DECISION
[6] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge credibility of 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 a
judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
534 U.S. 1161 (2002).
[7] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first
whether the evidence supports the findings and second whether the findings
support the judgment. Id. “Findings are clearly erroneous only when the
record contains no facts to support them either directly or by inference.” Quillen
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v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences
support the juvenile court’s decision, we must affirm. In re L.S., 717 N.E.2d at
208.
[8] “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. A trial court must
subordinate the interests of the parents to those of the child, however, when
evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d
at 837. The right to raise one’s own child should not be terminated solely
because there is a better home available for the child, id., but parental rights
may be terminated when a parent is unable or unwilling to meet his or her
parental responsibilities. Id. at 836.
[9] To terminate a parent-child relationship, the State must allege and prove:
(A) that one (1) of the following is true:
(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 the court’s finding, the
date of the finding, and the manner in which the finding was
made.
(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
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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) 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.
[10] Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. Because our legislature wrote subsection (B) in the disjunctive, a trial
court needs to find only one of the three requirements established by clear and
convincing evidence before terminating parental rights. In re L.S., 717 N.E.2d
at 209. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[11] Parents argue DCS did not present sufficient evidence to prove Ind. Code §§ 31-
35-2-4(b)(2)(B)(i), (B)(ii), or (C).
1. Remedy of Conditions Resulting in Children’s Removal
[12] The trial court found the conditions that resulted in Children’s removal would
not be remedied. In making such a determination, a trial court must judge a
parent’s fitness to care for his or her child at the time of the termination hearing,
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taking into consideration evidence of changed conditions. In re J.T., 742
N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. It must evaluate the
parent’s habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Pursuant to this rule, courts
have properly considered evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cnty. Office of Family &
Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial
court may also properly consider, as evidence of whether conditions will be
remedied, the services offered to the parent by DCS, and the parent’s response
to those services. Id. A trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his or her physical, mental, and
social growth are permanently impaired before terminating the parent-child
relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002).
[13] The trial court found:
There is a reasonable probability that the conditions which resulted in
the removal of the [C]hildren, or the reasons for placement outside the
home of the parents, will not be remedied, and/or, the continuation of
the parent-child relationship poses a threat to the well-being of the
[C]hildren.
In October, 2011, six month old [T.P.] was knocked to the floor during
a fight between [Mother] and [Father]. They continued to fight while
he lay crying on the floor. [Mother] was pregnant at the time.
[Father] was arrested and ultimately convicted for [sic] battering
[Mother].
[T.P.] and [K.P.], then a new two months [sic] old, were removed
from their parents’ care on March 29, 2012, after they were found with
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a babysitter who was intoxicated. Their mother had gone out for
cigarettes and never returned. [Mother] and [Father] admitted that the
[C]hildren were Children in Need of Services.
At the Dispositional Hearing on September 10, 2012, [Mother] and
[Father] were ordered to participate in services to address their
substance abuse and domestic violence issues. Despite being offered
services, the pattern of domestic violence and substance abuse
continued.
On January 4, 2013, [Mother], then eight months pregnant, stabbed
[Father] with a knife, puncturing his lung. [Father] was hospitalized
for four days. [Mother] was arrested and ultimately convicted for [sic]
Battery, a class C felony. [Mother] takes no responsibility for her acts.
She describes the stabbing as a “scratch.” [Mother] admitted to
smoking marijuana while pregnant with [D.P.]. [Father] also
continued to use controlled substances.
On March 23, 2013, [Mother] and [Father] were arrested during an
argument with a security guard at a local skating rink. Both were
drinking at the time of their arrest.
After [Father] was released from jail in April, 2013, he made progress
while on house arrest at a relative’s home. However he returned to
live with [Mother] in October, 2013. Their participation in services
immediately declined. On December 15, 2013, police were called to
their home due to a domestic disturbance. They heard a woman
scream “get off of me.” They kicked down the door. [Father] and
[Mother] were both intoxicated. The apartment reeked of alcohol.
Both were loud and argumentative. Both were arrested.
On May 8, 2014, police were again called to [Mother’s] home
following an argument between [Mother] and [Father]. [Mother] told
Ms. Richardson [the home-based case manager] that she had a split lip
and intimated that [Father] had caused the injury.
Both parents have been offered extensive services for over two years.
[Mother] and [Father] participated in Couples therapy with Vershawn
Champion beginning in May, 2013. They did not benefit from the
counseling. They minimize and excuse their behavior. Their primary
relationship is with each other. Their relationship with [Children] is
secondary. They do not understand how their actions adversely affect
[Children]. They did not follow their Safety Plan when they relapsed
in December, 2013. They were primarily focused on how to avoid
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detection when using and not on refraining from using. If one uses
drugs or alcohol, both use. Ms. Champion notes that their relationship
is “toxic.”
[Mother] began individual therapy with Catherine Colbert in
September, 2013. They were scheduled to meet weekly. By
November, 2013, Ms. Colbert was having difficulty reaching [Mother].
Following her relapse in December, [Mother] regularly attended
therapy sessions in January, February, and March, 2014. However,
she stopped attending therapy on March 14, 2014. [Mother] was
resistant to therapy and refused to address her anger and domestic
violence issues. She made little progress.
Melissa Richardson attempted to offer home-based services to
[Mother] beginning in January, 2013. She attempted to address issues
such as housing, income, parenting skills, budgeting, resource
acquisition, and assistance in meeting the goals of the case plan.
However, [Mother] refused to acknowledge that she had problems that
needed to be addressed. As Ms. Richardson testified, [Mother] has
made no long-term changes in her behavior.
[Mother] has failed to complete [Intensive Outpatient Program] at
least three times since [T.P.] and [K.P.] were removed. She has no job
and no source of income. Her rent is paid through a federal grant.
[Father] ceased to participate in any services beginning in March,
2014. Despite the overwhelming evidence to the contrary, [Father]
denies that he has a drug problem or a problem with domestic
violence.
Although [Mother] and [Father] testified that they recently decided to
separate, this testimony is not credible. For the past two years, despite
the loss of [Children], repeat episodes of domestic violence, ongoing
substance abuse and alcohol abuse, and repeated arrests, both have
chosen to maintain their relationship. Clearly, their relationship
means more to them than their own well-being and the well-being of
[Children].
Given the parents’ extensive history of substance abuse, domestic
violence, and failed treatment, there is no reasonable probability that
the conditions which resulted in the removal of [Children] will be
remedied.
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Further, the parents have repeated [sic] demonstrated that they will
continue to use drugs and alcohol, and to engage in acts of domestic
violence, even if this behavior endangers [Children]. They twice
engaged in brutal altercations when [Mother] was pregnant. In 2011,
they did not even stop fighting when six month old [T.P.] was knocked
to the floor and was crying. In light of this pattern of violence and
substance abuse, it is clear that continuation of the parent-child
relationship poses a threat to the well-being of [Children].
[14] (App. of Appellant D.S. at 8-10.)
[15] Father argues he has “largely complied,” (Br. of Appellant B.P. at 7), with the
requirements of the Dispositional Order, noting he completed an intensive
outpatient substance abuse treatment program, attended couples counseling, is
employed, and pays child support. However, he overlooks the domestic
violence that occurred throughout the proceedings, which was one of the
reasons for Children’s removal. Similarly, Mother argues she completed many
of the required services, but does not acknowledge her admission that she will
always be an alcoholic, or the fact that, despite three attempts at an intensive
outpatient substance abuse treatment program, she has relapsed multiple times
during the proceedings. Parents’ arguments are invitations for us to reweigh the
evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court cannot reweigh evidence or judge the credibility of witnesses). 1
1
Parents also argue DCS did not present sufficient evidence the continuation of the parent-child relationship
posed a threat to the well-being of Children. However, as DCS presented sufficient evidence the conditions
under which Children were removed would not be remedied, we need not address that argument. In re L.S.,
717 N.E.2d at 209 (because statute written in disjunctive, court needs to find only one requirement to
terminate parental rights).
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2. Best Interests of the Children
[16] Pursuant to Ind. Code § 31-35-2-4(b)(1)(C), DCS must provide sufficient
evidence “that termination is in the best interests of the child.” In determining
what is in the best interests of a child, the trial court is required to look beyond
the factors identified by DCS and to consider the totality of the evidence. In re
J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the trial court must
subordinate the interests of the parent to those of the child. Id. The court need
not wait until a child is harmed irreversibly before terminating the parent-child
relationship. Id. Recommendations of the case manager and court-appointed
advocate, in addition to evidence 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. Id. A parent’s historical inability to
provide a suitable environment, along with the parent’s current inability to do
the same, supports finding termination of parental rights is in the best interests
of the children. Lang v. Starke County Office of Family and Children, 861 N.E.2d
366, 373 (Ind. Ct. App. 2007), trans. denied.
[17] The trial court found and concluded:
[T.P.] and [K.P.] are placed with their grandparents, [R.G.] and
[D.G.]. They have spent most of their lives in this home. This is the
only true home they have ever known. Their grandparents provide
them with a safe and loving home. Although [D.P.] is in foster
placement, he is in the process of transitioning to his grandparents’
home.
As noted above [in the findings of facts and conclusions of law
regarding the probability that the conditions under which Children
were removed would not be remedied and the continuation of the
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parent-child relationship posed a risk to the well-being of Children],
[Mother] and [Father] have demonstrated that they cannot provide
[Children] with a safe and stable home.
Clearly, termination of the parent-child relationship is in the best
interests of [Children].
[18] (App. of Appellant D.S. at 10-11.)
[19] Parents both argue Children’s need for permanency, standing alone, “is not an
adequate reason for termination of the parent-child relationship.” (Br. of
Appellant B.P. at 15.) However, this argument ignores the court’s other
findings regarding their substance abuse and domestic violence issues, and it is
an invitation for us to reweigh the evidence, which we cannot do. See In re
D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge the
credibility of witnesses).
CONCLUSION
[20] DCS presented sufficient evidence the conditions that resulted in Children’s
removal from Parents’ care would not be remedied and the termination of the
parent-child relationship was in Children’s best interests. Accordingly, we
affirm the termination of Parents’ parental rights to Children.
[21] Affirmed.
Barnes, J., and Pyle, J., concur.
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