In Re: The Matter of the Involuntary Termination of the Parent-Child Relationship of D.W. J.W. (Mother) v. The Indiana Department of Child Services (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 Jul 13 2018, 8:52 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
Steven J. Halbert Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Matter of the July 13, 2018
Involuntary Termination of the Court of Appeals Case No.
Parent-Child Relationship of 49A02-1712-JT-2933
D.W.; Appeal from the Marion Superior
J.W. (Mother) Court
The Honorable Marilyn A.
Appellant-Respondent,
Moores, Judge
v. The Honorable Scott Stowers,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 49D09-1610-JT-1104
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] J.W. (“Mother”) appeals the termination of the parent-child relationship with
her daughter (“D.W.”), claiming that there is insufficient evidence to support
the termination because the Department of Child Services (“DCS”) failed to
prove by clear and convincing evidence that the conditions that resulted in
D.W.’s removal will not be remedied. Concluding that there is sufficient
evidence to support the trial court’s decision to terminate the parent-child
relationship, we affirm the trial court’s judgment.
[2] We affirm.
Issue
Whether there is sufficient evidence to support the termination of
the parent-child relationship.
Facts
[3] Mother is the parent of D.W., who was born in October 2014. In September
2015, after being released from jail, a homeless and unemployed Mother went
to her parents’ home to pick up her daughter. Mother and Mother’s mother
(“Grandmother”) became involved in a physical altercation in front of D.W.
when Grandmother refused to allow Mother to leave the house with the eleven-
month-old child. Mother was arrested and charged with battery resulting in
bodily injury, criminal trespass, and battery in the presence of a child.
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[4] That same day, DCS filed a petition alleging that D.W. was a Child in Need of
Services (“CHINS”). The petition alleged that Mother was unable to provide
D.W. with a “safe, stable, and appropriate living environment free from
violence.” (Ex. 11). The petition further alleged that Mother lacked stable
housing, was unemployed and did not have the financial means necessary to
provide D.W. with basic care and necessities. In addition, the petition alleged
that D.W.’s father was “unknown.” (Ex. 12).
[5] A November 2015 order stated that counsel for an incarcerated Mother
(“Mother’s Counsel”) had attended a CHINS pre-trial hearing and had told the
juvenile court that she had talked to Mother. Mother’s Counsel submitted
Mother’s admission to an amended CHINS petition, which the order identified
as Respondent’s Exhibit A (“Exhibit A”). According to the order, the juvenile
court accepted Mother’s admission and adjudicated D.W. to be a CHINS.
[6] At some point following Mother’s admission to the amended CHINS petition,
Mother went directly from the Marion County Jail to an in-patient mental
health treatment program at Richmond State Hospital (“Richmond State”).
When Mother arrived at Richmond State, she exhibited manic symptoms,
became easily agitated, and suffered from auditory and visual hallucinations.
[7] In December 2015, the juvenile court held a dispositional hearing and
subsequently ordered Mother to participate in home-based therapy, home-based
case management, and domestic violence services and to complete a parenting
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assessment. Because Mother was in the inpatient program at Richmond State,
she was unable to participate in the court-ordered programs at that time.
[8] In late December 2015 or early January 2016, Mother participated in supervised
parenting time with D.W. at Richmond State. During the visit, Mother
behaved erratically. Specifically, “[s]he burst into song several times, she
started cursing several times, . . . at one point, she . . . had . . . pulled [D.W.’s]
pants off and said [D.W.] wasn’t fresh and started throwing powder and lotion
on her.” (Tr. 53). Mother then took a baby wipe and smeared the powder and
lotion that covered D.W.’s body and hair. Mother also insisted that singer
Chris Brown was D.W.’s father and told the eleven-month-old girl to write in a
book that she had dedicated to him. The parenting time session was terminated
because of Mother’s inappropriate behavior.
[9] In October 2016, DCS filed a petition to terminate Mother’s parental
relationship with D.W. During the pendency of the proceedings, Mother was
discharged from Richmond State in July 2017 and sent to a transitional group
home. However, she was not properly medicated at the group home due to a
“Medicaid glitch.” (Tr. 35). A few weeks later, Mother was sent back to
Richmond State after becoming involved in an altercation with another group
home resident.
[10] After several delays and continuances, the juvenile court held a hearing on the
termination petition in November 2017. At the time of the hearing, Mother
was still a patient at Richmond State. Mother’s case worker at Richmond State
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testified that Mother had been diagnosed with a schizoaffective disorder,
cannabis dependence, and a personality disorder not otherwise specified. The
case worker explained Mother’s diagnosis as follows:
[E]ven when she is stable, she may still experience symptoms,
which could be auditory or visual hallucinations or delusions . . .
the idea of medication is to help her get to a place where she’s
able to better clarify what those things are and to not act on them
in an inappropriate way. The idea is that the medication would
help her to function despite those things.
(Tr. 38). The case worker further explained that Mother was on a discharge
waiting list and should be moving to transitional housing in 90 days.
[11] Mother testified that D.W.’s father was T.D., who Mother claimed had raped
her at gunpoint before getting a “record deal.” (Tr. 11). She also claimed that
D.W. was a “ten-month pregnancy” and that she had delivered D.W. herself.
(Tr. 12). Mother further explained that Chris Brown was D.W.’s father.
[12] Also at the hearing, D.W.’s foster mother (“Foster Mother”), who is Mother’s
cousin, explained that then-three-year-old D.W. had lived with Foster Mother
and her family for the previous two years. According to Foster Mother, D.W.
called her “mom.” (Tr. 47). Foster Mother further explained that it was her
plan to adopt D.W.
[13] CASA Shaindel Kramer (“CASA Kramer”) testified as follows regarding
D.W.’s placement with her foster family:
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She’s [a] very happy kid. . . . She’s very social . . . every time I’m
there, she comes up and says hi and wants to show me things, a
very sweet kid, very smart, uh, I remember her talking and
speaking very early on. . . . She just a very bright kid, and she is
very attached to all the other siblings in the home too. She has a
great relationship with them, they help take care of her, and she’s
in a very loving environment.
(Tr. 55-56). CASA Kramer recommended the termination of Mother’s parental
rights. She also explained that adoption was in D.W.’s best interests because
the foster family was the only family and home that D.W. had ever known, and
it would be traumatic for D.W. to be removed from that environment.
[14] In addition, GAL Sher’ron Anderson (“GAL Anderson”) explained that
Mother had not been able to complete the court-ordered services because
Richmond State did not allow additional service providers in the facility.
Mother had to stabilize her mental health and complete the Richmond State
inpatient program before she could participate in the parenting programs. GAL
Anderson also shared her concerns that Mother had never had stable housing or
employment. She also recommended the termination of Mother’s parental
rights.
[15] According to DCS Family Case Manager Jessica Upshaw (“Case Manager
Upshaw”), D.W.’s permanency plan had been changed from reunification to
adoption because the conditions that had led to her removal had not been
remedied. The case manager further testified that termination of parent-child
relationship was in D.W.’s best interests so that she could have permanency
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and stability through adoption. At the time of the hearing, Mother had not seen
D.W. for almost two years.
[16] Following the hearing, the trial court issued a termination order, which
concluded that DCS had met its burden of proving that there was a reasonable
probability that the conditions that resulted in D.W.’s removal would not be
remedied. Mother now appeals the termination.
Decision
[17] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However, the law provides for
termination of that right when parents are unwilling or unable to meet their
parental responsibilities. In re Bester, 839 N.E.2d 143, 147 (Ind. 2005). The
purpose of terminating parental rights is not to punish the parents but to protect
their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.
denied.
[18] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
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erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
[19] A petition to terminate parental rights must allege:
(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.
IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[20] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that the conditions
that resulted in D.W.’s removal or the reasons for placement outside the
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parent’s home will not be remedied; and (2) a continuation of the parent-child
relationship poses a threat to D.W.’s well-being.
[21] However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in D.W.’s removal
or the reasons for her placement outside Mother’s home will not be remedied.
[22] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. The second step requires trial courts to judge a
parent’s fitness at the time of the termination proceeding, taking into
consideration evidence of changed conditions and balancing any recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. DCS need not
rule out all possibilities of change. In re Kay. L., 867 N.E.2d 236, 242 (Ind. Ct.
App. 2007). Rather, DCS need establish only that there is a reasonable
probability that the parent’s behavior will not change. Id.
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[23] Here, our review of the evidence reveals that D.W. was removed from Mother
following a physical altercation between Mother and Grandmother in the
presence of D.W. Mother had just been released from jail and was unemployed
and homeless. At the time of the termination hearing, Mother had spent most
of the previous two years in an inpatient mental health treatment program at
Richmond State. She had been placed in a group home for a few weeks but had
ended up back at Richmond State after a physical altercation with another
group home resident. GAL Anderson pointed out that Mother had never had
stable housing or employment and recommended terminating her parental
rights. Case Manager Upshaw pointed out that Mother had not seen D.W. for
almost two years and that D.W.’s permanency plan had been changed from
reunification to adoption because the conditions that had led to her removal
had not been remedied. This evidence supports the trial court’s conclusion that
there was a reasonable probability that the conditions that resulted in D.W.’s
removal would not be remedied. There is sufficient evidence to support the
termination of Mother’s parental rights.1
1
Mother also raises an additional issue concerning an alleged violation of her due process rights because (1)
DCS did not admit the amended CHINS petition and Exhibit A into evidence at the termination hearing;
and (2) the juvenile court terminated Mother’s parental rights before D.W.’s father had been identified.
However, Mother did not raise this issue to the trial court. She has therefore waived appellate review of it
because a party may not raise an issue for the first time on appeal. See In re K.S., 750 N.E.2d 832, 834 n.1
(Ind. Ct. App. 2001) (mother waived her claim that the trial court had violated her due process rights because
she raised the constitutional issue for the first time on appeal); Smith v. Marion County DPW, 635 N.E.2d
1144, 1148 (Ind. Ct. App. 1994), trans. denied, (father waived his claim that the trial court had violated his
constitutional right to appointed counsel during a CHINS proceeding because he presented the issue for the
first time on appeal).
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[24] Affirmed.
Vaidik, C.J., and Barnes, Sr.J., concur.
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