In Re the Termination of Parental Rights of A.S.O. & A.D. (minor children) and A.O. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Feb 05 2018, 6:01 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
Teresa K. Hollandsworth Curtis T. Hill, Jr.
Merrillville, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of February 5, 2018
Parental Rights of Court of Appeals Case No.
45A03-1708-JT-1758
A.S.O. & A.D. (minor children)
Appeal from the Lake Superior
and Court
A.O. (Mother), The Honorable Thomas P.
Appellant-Respondent, Stefaniak, Jr., Judge
Trial Court Cause Nos.
v. 45D06-1408-JT-201
45D06-1408-JT-202
The Indiana Department of
Child Services,
Appellee-Petitioner.
Mathias, Judge.
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[1] The Lake Superior Court terminated A.O.’s (“Mother”) parental rights to her
two minor children, A.S.O. and A.D. Mother appeals and raises two issues,
which we restate as:
I. Whether clear and convincing evidence supports the trial court’s
judgment terminating Mother’s parental rights, and
II. Whether Mother received a fundamentally fair trial.
We affirm.
Facts and Procedural History
[2] Mother has two children, A.S.O., born in August 2006, and A.D., born in April
2010. The children have different biological fathers.1 In September 2010, the
Indiana Department of Child Services (“DCS”) removed the children from
Mother’s care because her home was uninhabitable and did not have running
water. In November 2010, a dispositional hearing was held. Mother and the
children’s fathers were ordered to participate in numerous services.
[3] Mother complied with the court-ordered services, and on June 1, 2013, the
children were returned to her care for a trial home visit. On some date between
June 2013 and March 2014, Mother became homeless again. Mother sent the
children to their respective father’s homes without notifying DCS.
1
The children’s fathers’ parental rights were also terminated. Neither father participates in this appeal.
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[4] The children were removed from Mother’s care for a second time in April 2014
due to her continued instability and the fact that the children were not living
with Mother. Mother continued to participate in services. However, she also
moved from place to place and failed to obtain a stable residence.
[5] Thereafter, the DCS filed a petition to terminate Mother’s parental rights on
August 21, 2014. However, the trial court adopted a case plan of reunification
with Mother. One year later, after a review hearing, the court adopted a
permanency plan of termination of parental rights, and Mother’s visitation with
the children was restricted to telephonic visitation. Mother was referred to
Edgewater Systems for intensive services.
[6] Additional review hearings were held on December 16, 2015, September 30,
2016, and January 23, 2017. It appears that this case continued without
resolution throughout 2016 because DCS and the trial court believed that it
might be possible to place A.S.O. with her biological father. And DCS
continued to offer services to Mother throughout the proceedings. On the date
of the September 30 hearing, Mother was living with a friend, and DCS was
ordered to conduct a home visit at that residence. After the January 2017
review hearing, the trial court adopted a permanency plan of termination of
Mother’s parental rights and adoption by A.S.O.’s and A.D.’s foster parent.
The court also suspended A.S.O.’s visits with her father.
[7] The fact-finding hearing was held on May 17, 2017. Mother, A.S.O’s father,
and the children’s therapists testified. The trial court found that after seven
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years of services, Mother continues to struggle with housing instability.
Although Mother participated in services, she did not benefit from them.
Mother failed to demonstrate “an ability to independently parent the children
and provide necessary care, support and supervision.” Appellant’s App. p. 18.
[8] Mother admitted that she continues to struggle with homelessness. But
approximately three weeks before the fact-finding hearing, Mother obtained
housing through a homeless program that will pay her housing and utilities for
a year. Mother was not employed and stated that she is unable to work because
she suffers from bipolar disorder.
[9] A.S.O’s therapist believes that the child suffers from trauma, in part, due to the
failed reunification attempts with Mother, and she needs permanency. The
therapist testified that Mother is too inconsistent to parent A.S.O. The therapist
did not recommend reunification with Mother. A.D., who has mild autism, has
been removed from Mother for most of his life. He also requires consistency
and structure that Mother cannot provide. Both children reside together in their
pre-adoptive foster home. The trial court found that the children need
permanency, and Mother has been offered seven years of services without
progress toward reunification.
[10] On May 31, 2017, the trial court issued an order terminating Mother’s parental
rights to A.S.O. and A.D. Mother now appeals. Additional facts will be
provided as necessary.
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Discussion and Decision
[11] We have often noted that the purpose of terminating parental rights is not to
punish parents but instead to protect their children. In re S.P.H., 806 N.E.2d
874, 880 (Ind. Ct. App. 2004). Although parental rights have a constitutional
dimension, the law allows for the termination of such rights when parents are
unable or unwilling to meet their responsibility as parents. Id. Indeed, a parent’s
interest must be subordinated to the child’s interests in determining the proper
disposition of a petition to terminate parental rights. In re G.Y., 904 N.E.2d
1257, 1259 (Ind. 2009).
[12] The termination of parental rights is controlled by Indiana Code section 31–35–
2–4(b)(2), which provides that a petition to terminate parental rights must
allege:
(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 local office 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.
[13] The burden is on DCS to prove each element by clear and convincing evidence.
Ind. Code § 31–37–14–2; G.Y., 904 N.E.2d at 1261. If the court finds the
allegations in a petition are true, the court shall terminate the parent-child
relationship. I.C. § 31–35–2–8(a). If the court does not find that the allegations
in the petition are true, it shall dismiss the petition. Id. at § 8(b).
[14] When we review a trial court’s findings of fact and conclusions of law in a case
involving the termination of parental rights, we first determine whether the
evidence supports the findings and then whether the findings support the
judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We will set aside the trial
court’s judgment only if it is clearly erroneous. Bester v. Lake Cty. Office of Family
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& Children, 839 N.E.2d 143, 147 (Ind. 2005). We neither reweigh evidence nor
judge witness credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the
evidence and inferences most favorable to the judgment. Id. “[I]t is not enough
that the evidence might support some other conclusion, but it must positively
require the conclusion contended for by the appellant before there is a basis for
reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).
A. Factual Findings
[15] Before we address whether the DCS presented evidence sufficient to meet the
requirements of the termination statute, we address Mother’s challenges to
certain factual findings.2 First, Mother argues that the trial court’s findings that
she was inconsistent with services are not supported by the evidence. We agree
with Mother that she consistently participated in services, and to the extent the
trial court’s findings state that she did not, the findings are not supported by the
evidence. However, DCS did present evidence that Mother failed to benefit
from those services.
[16] Mother also challenges the trial court’s findings that she failed to establish
stable, suitable housing because she obtained housing three weeks before the
fact-finding hearing and will be allowed to remain in her current housing for
one year. But Mother failed to maintain stable housing throughout the seven-
2
Mother argues that certain findings concerning the children’s fathers are not supported by the evidence.
Because neither of the children’s fathers have appealed the termination of their parental rights, we do not
address those arguments.
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year history of the child in need of services (CHINS) and termination
proceedings. Therefore, the trial court’s findings with regard to Mother’s
homelessness and lack of stable housing are supported by the evidence.
[17] Mother also argues that the evidence is insufficient to support the finding that
she struggles with her mental health. Mother observes that she receives
psychological and psychiatric treatment and was only recently diagnosed with
bipolar disorder. Mother testified that she is compliant with her medication.
Mother is taking steps to address her mental health, but there is also evidence
that she has historically struggled with her mental health. She reported “suicidal
ideation” in November 2015, suffers from depression, and had a nervous
breakdown in the spring of 2016. Tr. pp. 28, 35; Ex. Vol., Ex. EE, p. 26. This
evidence supports the trial court’s finding concerning Mother’s mental health.
B. Conditions that Resulted in Removal
[18] We now turn to Mother’s argument that the DCS failed to prove the statutory
elements enumerated in the termination statute. Indiana Code section 31–35–2–
4(b)(2)(B) is written in the disjunctive; therefore, the trial court is required to
find that only one prong of that subsection has been established by clear and
convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
Although the trial court found that both prongs had been proven, we consider
only whether clear and convincing evidence supports the trial court's conclusion
that “[t]here is a reasonable probability that the conditions that resulted in the
child[ren]’s removal or the reasons for placement outside the home of the
parents will not be remedied.” Ind. Code § 31–35–2–4(b)(2)(B)(i).
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[19] When we review this determination, we engage in a two-step analysis. K.T.K. v.
Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must
determine what conditions led to the child’s removal. Id. And then we consider
“‘whether there is a reasonable probability that those conditions will not be
remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)). The trial
court must evaluate a parent’s fitness at the time of the termination hearing,
taking into consideration evidence of changed conditions and 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.’” Id.
[20] The children were removed from Mother’s home in September 2010 because
the home was uninhabitable and Mother and A.D.’s father were being evicted.
Mother was receiving government assistance at the time, but was unable to
maintain stable housing. Throughout the CHINS and termination proceedings,
Mother was either homeless or lived in various homes of friends and relatives.
The children were returned to Mother’s care for a trial home visit in June 2013,
but Mother became homeless again shortly thereafter. Mother never maintained
a stable home between the children’s removal in September 2010 and the fact-
finding hearing in May 2017.
[21] Mother argues that she now has stable housing, which she obtained three weeks
before the fact-finding hearing. However, she may only remain in that housing
for a year. Mother hopes she will be able to support herself with social security
disability payments, but her application was not approved at the time of the
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hearing. She claims that she will get a job if her social security application is not
approved. Mother failed to present any evidence that would support the
conclusion that she can maintain employment.
[22] DCS also provided Mother with services to assist her in maintaining a stable
home for her children. Mother failed “to utilize the available services and make
the necessary efforts to remedy” her housing instability. Appellant’s App. p. 18.
After the 2013 trial home visit failed because Mother lost her home again, DCS
offered additional services and intensified its efforts, but Mother was unable to
benefit from the additional assistance. This evidence supports the trial court’s
finding that Mother’s historical inability to provide a stable home for her
children leads to the conclusion that “it is unlikely that [she] will ever be in a
position to properly parent these children.” Id. For these reasons, we conclude
that the DCS presented clear and convincing evidence to prove that “there is a
reasonable probability that the conditions that resulted in the child[ren]’s
removal or the reasons for placement outside the home of the parents will not
be remedied.” I.C. § 31-35-2-4(b)(2)(B).
C. Best Interests
[23] Mother also argues that the DCS failed to prove that termination of her parental
rights was in the children’s best interests. In determining the best interests of a
child, the 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 doing so, “the trial court must subordinate the interests of the
parent to those of the child.” In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App.
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2013). The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Id. Recommendations of the case
manager and CASA, in addition to evidence that the conditions resulting in
removal will not be remedied or that the parent-child relationship poses a threat
to child’s well-being, are sufficient to show by clear and convincing evidence
that termination is in the child’s best interests. Id.
[24] Mother loves her children and has an established bond with her oldest child,
A.S.O. But sadly, she is unable to parent her children and provide them with a
stable home. The children are placed in the same foster home, which is a pre-
adoptive placement. They are bonded to each other and their foster family. The
children’s therapists believe that termination of Mother’s parental rights is in
their best interests because Mother is inconsistent and cannot provide stability
for the children. Tr. pp. 133, 141. A.S.O’s therapist believes that the child
suffers from trauma, in part, due to the failed reunification attempts. After
seven years, the children need stability and a permanent home. For these
reasons, we conclude that the trial court’s finding that termination of Mother’s
parental rights is in the children’s best interests is supported by clear and
convincing evidence.
Fundamentally Fair Trial
[25] Mother also argues that her trial counsel provided “ineffective assistance such
that Mother did not receive a fundamentally fair trial whose facts demonstrate
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an accurate determination.”3 Appellant’s Br. at 16. In Baker v. Marion County
Office of Family and Children, 810 N.E.2d 1035 (Ind. 2004), our supreme court
held that
[w]here parents whose rights were terminated upon trial claim on
appeal that their lawyer underperformed, we deem the focus of
the inquiry to be whether it appears that the parents received a
fundamentally fair trial whose facts demonstrate an accurate
determination. The question is not whether the lawyer might
have objected to this or that, but whether the lawyer's overall
performance was so defective that the appellate court cannot say
with confidence that the conditions leading to the removal of the
children from parental care are unlikely to be remedied and that
termination is in the child's best interest.
Id. at 1041. Therefore, we consider whether counsel’s performance was so
defective as to undermine our confidence in the trial court’s termination
decision. See In re A.P., 882 N.E.2d 799, 806 (Ind. Ct. App. 2008) (holding that
termination counsel did not provide ineffective assistance where parent received
a fundamentally fair trial where the facts demonstrated an accurate
determination and the court could say with confidence that DCS adequately
proved its case).
3
Indiana provides counsel to indigent parents in termination proceedings, rather than “incur the time and
money to litigate eligibility for public counsel in each case.” Baker v. Marion Cty. Office of Family and Children,
810 N.E.2d 1035, 1038 (Ind. 2004); see also Ind. Code § 31–32–4–1 (“The following persons are entitled to be
represented by counsel ... (2) A parent, in a proceeding to terminate the parent-child relationship, as provided
by IC 31–32–2–5”); Ind. Code § 31–32–2–5 (“A parent is entitled to representation by counsel in proceedings
to terminate the parent-child relationship.”).
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[26] First, Mother claims that trial counsel should have objected because the same
magistrate who presided over certain CHINS proceedings prepared the CHINS
petitions in September 2010 when he was a DCS attorney, and Mother was
never advised of the conflict. Magistrate Gruett prepared the CHINS petitions,
but he did not appear at the CHINS hearing. As a magistrate, he signed the
December 2015, September 2016, and January 2017 review hearing orders.4
There is no evidence in the record that the magistrate recalled drafting the
CHINS petition in this case. Moreover, the termination petitions were filed in
August 2014, well before Magistrate Gruett presided over the review hearings.
And the magistrate did not preside over the termination fact-finding and did not
participate in the judgment terminating Mother’s parental rights. For this
reason, the fact that Magistrate Gruett prepared the CHINS petitions five years
before he presided over a review hearing does not undermine our confidence in
the outcome of the termination proceedings.
[27] Next, Mother argues that she was denied counsel until after the review hearing
held on September 30, 2016. In fact, Mother was advised of her right to counsel
at the initial CHINS detention hearing, she waived her right to counsel, and
proceeded pro se. Appellant’s App. p. 32. She cannot now complain that her
decision to waive her right to counsel rendered the CHINS and termination
proceedings fundamentally unfair. See C.T. v. Marion Cty. Dep’t of Child Servs.,
4
It also appears that Magistrate Gruett signed the August 2015 review order, but the signature is not entirely
legible.
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896 N.E.2d 571, 588 (Ind. Ct. App. 2008) (“Error invited by the complaining
party is not reversible error.”), trans. denied. Importantly, Mother had counsel
prior to and during the termination fact-finding hearing.
[28] Thirdly, Mother claims that counsel should have argued that Mother’s due
process rights were violated because the CHINS detention hearing was held
seven days after the children were removed, which is contrary to the statute
requiring a hearing not later than forty-eight hours, excluding weekend days
and holidays. But the date the children were actually removed from Mother is
not entirely clear on the record before us. The hearing was held on September
27, 2010, and from the documents in the record, the children were removed on
either September 21, 23, or 27, 2010. Regardless, Mother has not demonstrated
that this possible error had any effect on the factual determination in this case
concerning whether her parental rights were properly terminated.
[29] Finally, Mother argues that counsel should have filed a motion to dismiss
because DCS failed to comply with a February 5, 2014 order directing DCS to
dismiss the CHINS proceedings once Mother completed her parenting class. In
February 2014, the children were on a trial home visit with Mother. However,
they were removed from Mother’s care when she became homeless once again.
The welfare of the children was the key factor to determine whether the CHINS
proceedings would be dismissed. Mother was unable to provide housing and
care for her children shortly after she completed the parenting class. Therefore,
she was not entitled to dismissal of the CHINS proceedings.
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[30] To determine whether Mother’s trial was fundamentally fair, we do not focus
on counsel’s errors but whether an accurate determination was made. The
evidence in this case supports the trial court’s decision that terminating
Mother’s parental rights was in the children’s best interests, and none of the
alleged errors undermines our confidence in the trial court’s termination
decision.
Conclusion
[31] Clear and convincing evidence supports the trial court’s decision terminating
Mother’s parental rights to her two children, and she has not established that
the termination proceedings were fundamentally unfair.
[32] Affirmed.
Najam, J., and Barnes, J., concur.
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