In the Term. of the Parent-Child Relationship of: R.P., C.P. and A.A. (Minor Children), and L.B. (Mother) v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Dec 07 2016, 9:41 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John T. Wilson Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- December 7, 2016
Child Relationship of: Court of Appeals Case No.
R.P., C.P. and A.A. (Minor Children), 48A02-1603-JT-482
and Appeal from the Madison
Circuit Court
L.B. (Mother)
The Honorable George G.
Appellant-Respondent, Pancol, Judge
v. Trial Court Cause Nos.
48C02-1505-JT-35
48C02-1505-JT-36
The Indiana Department of Child 48C02-1505-JT-37
Services,
Appellee-Petitioner.
Robb, Judge.
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Case Summary and Issue
[1] L.B. (“Mother”) appeals the juvenile court’s termination of her parental rights
to her children R.P., C.P., and A.A. (“Children”), raising a sole restated issue:
whether the juvenile court’s termination order is supported by clear and
convincing evidence. Concluding the termination order is not clearly
erroneous, we affirm.
Facts and Procedural History
[2] In the summer of 2012, the Indiana Department of Child Services (“DCS”)
received a report regarding the well-being of Mother’s youngest child, A.A.
DCS investigated the report and concluded there was sufficient probable cause
to determine A.A. was a child in need of services (“CHINS”) because the
children were found dirty and one child stated Mother smoked marijuana,
Mother was never home, and Mother rarely cooked for the Children.
Thereafter, DCS implemented a program of informal adjustment.
[3] On August 16, 2013, DCS received a report regarding Mother’s arrest for
burglary; Mother committed the crime while A.A. was with her. Mother
remained in jail for three months, and because no suitable caregivers were
available to care for the Children, DCS removed the Children and placed them
in foster care. DCS then filed a petition alleging the Children were CHINS.
Following a fact-finding hearing at which Mother admitted the allegations set
forth in the petition, the juvenile court adjudicated the Children as CHINS and
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ordered Mother to participate in reunification services. Specifically, the
juvenile court ordered Mother to obtain and maintain suitable housing and
employment and to participate in home-based case work, home-based therapy,
a family functional assessment, and supervised visitation. Mother’s
participation in these services was sporadic.
[4] On December 26, 2013, Mother was sentenced in her criminal case to four
years in the Department of Correction, with the entirety of the sentence
suspended to probation. In July 2014, Mother failed a drug screen and the trial
court in her criminal case issued a warrant for her arrest. Knowing she violated
a condition of her probation, Mother left town in an attempt to evade law
enforcement. Mother was later apprehended. The trial court revoked Mother’s
probation and ordered her to serve a portion of her remaining sentence on
house arrest. In November 2014, Mother—while on house arrest— failed
another drug screen, cut off her ankle monitoring device, and left town. Mother
was not apprehended until March 2015 and was incarcerated in the county jail
until May 2015. The trial court then ordered Mother to serve the remainder of
her sentence at a work release facility.
[5] On May 4, 2015, DCS filed a request to end Mother’s reunification services and
a petition for termination of Mother’s parental rights. The juvenile court
granted the request to end services and scheduled an evidentiary hearing on the
termination petition for September 15, 2015. At the evidentiary hearing, both
the court-appointed special advocate (“CASA”) and the DCS family case
manager testified Mother’s parental rights should be terminated, relying in part
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on Mother’s sporadic participation in services, criminal history, inability to
comply with the terms of probation and house arrest, and the improved
attitude, stability, and lifestyle the Children enjoyed in their foster homes.
Mother acknowledged she did not participate in services as she should, was
confined to work release, and could be sent to the Department of Correction if
she failed to comply with the terms of her work release. However, Mother
believed she was making the rights changes at the time of the hearing.
Specifically, she stated she had been working as an assistant manager at
Subway for over three months and was taking classes to attain her GED.
Mother’s work release case manager testified Mother had not yet failed any
drug screens or violated any policies or procedures. The case manager further
explained Mother paid ahead on rent, completed a substance abuse evaluation,
and completed numerous classes related to substance abuse, budgeting, and
employment. At the conclusion of the hearing, the juvenile court took the
matter under advisement.
[6] Nearly six months later, the parties convened for a review hearing. At the
beginning of the hearing, the juvenile court stated it intended to terminate
Mother’s parental rights, but wanted to give Mother one last opportunity to
admit any additional evidence showing why her parental rights should not be
terminated. Mother stated her work release had been modified to house arrest
and she had rented a house. Mother further explained she still worked at
Subway as an assistant manager.
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[7] Following the review hearing, the juvenile court issued an order terminating
Mother’s parental rights, finding in relevant part,
2. On or about August 16, 2013, Mother was arrested for
burglary while [A.A.] was with her. Mother was subsequently
incarcerated, and the children had no willing and/or available
caregivers. On August 20, 2013, Mother entered an admission to
the allegations in DCS’ Verified Petition Alleging Children are
Children in Need of Services.
3. The children were found to be Children in Need of Services
. . . and a dispositional order was issued on October 9, 2013. The
children have remained out of the parents’ care continuously
since that date.
4. Pursuant to dispositional orders, Mother was offered the
following services: home-based therapy, home-based casework,
family functional assessment, substance abuse evaluation,
random drug screens and visitation.
***
6. Mother failed to demonstrate an ability to remedy her stability
issues. Mother was provided home-based casework in order to
find employment, find housing, develop life skills and develop
parenting skills. Mother participated in home-based case work
during the CHINS case but demonstrated patterns of
inconsistency in attendance and participation. Mother stopped
participating in home-based casework in November 2014.
Mother was unable to secure stable housing during the course of
the underlying CHINS case. In the past five (5) years, Mother
resided at approximately thirteen (13) residences and was evicted
twice. At the time of the Termination Hearing, Mother was
residing at a work release facility and did not have a place to
reside upon her release. Due to her inconsistency in attendance
and failure to continue services past November 2014, Mother
was unable to attain her home-based case goals regarding life and
parenting skills.
7. Mother failed to demonstrate an ability to remedy her
substance abuse issues. Mother was first offered home-based
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therapy and random drug screens by DCS in August 2012
through the implementation of an informal adjustment. DCS
continued to offer Mother a substance abuse evaluation, home-
based therapy and random drug screens throughout the existence
of the underlying CHINS case. Mother participated in the
substance abuse evaluation which recommended a family
functional assessment, home-based therapy, home-based
casework and random drug screens. Mother had approximately
three years to address her substance abuse issues. Mother failed
to follow any recommendations from her substance abuse
assessment.
8. Mother failed to demonstrate an ability to remedy and/or
improve her mental health. Mother was offered home-based
therapy during the course of the CHINS case. The goals of
home-based therapy were to work through past traumatic
incidents in Mother’s life, to develop coping skills and to develop
coping skills relating to substance use. Due to Mother’s
inconsistency in attendance and participation in home-based
therapy, Mother was unable to meet any of her therapeutic goals.
Mother voluntarily stopped participating in home-based therapy
in November 2014.
9. Mother failed to demonstrate a commitment to her children.
The last time Mother visited her children was in November 2014.
Prior to November 2014, Mother demonstrated patterns of
inconsistency in her attendance and participation in visitation.
Mother arrived to visitations late, left visitations early and failed
to attend visitations without notice. [A.A.] has demonstrated
severe behavioral issues linked to his mother’s disappearance and
instability in his life. Mother is aware of the effect her
inconsistency in visitation had on her children.
10. Mother attended approximately seven (7) to nine (9) child
and family team meetings during the course of the underlying
CHINS case. Mother understood what she needed to
accomplish in order for reunification to occur. Mother had three
years to accomplish the reunification goals. Mother did not
benefit from the services offered to her by DCS.
11. Prolonging permanency for these children is detrimental to
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their well-being. All three children are engaged in home-based
case work and therapy. [R.P.] and [C.P.] participate in services
to develop their life skills. All three children struggle with
anxiety regarding instability in their lives. Prolonging
permanency for these children will have a negative effect on their
mental health.
12. The Court accepts the recommendations made by the DCS
family case manager and CASA that the continuation of the
parent-child relationship poses a threat to the children’s well-
being.
13. The Court accepts the recommendations made by the DCS
family case manager and CASA that termination is in the
children’s best interest.
Appellant’s Appendix at 43-45. Mother now appeals. Additional facts will be
added as necessary.
Discussion and Decision
I. Standard of Review
[8] When we review a termination of parental rights, we neither weigh the
evidence nor judge witness credibility, In re C.G., 954 N.E.2d 910, 923 (Ind.
2011), and we consider only the evidence and reasonable inferences most
favorable to the judgment, S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114,
1123 (Ind. Ct. App. 2013). As required by statute, the juvenile court entered
findings of fact and conclusions. See Ind. Code § 31-35-2-8(c). We therefore
apply a two-tiered standard of review: we first determine whether the evidence
supports the findings and then determine whether the findings support the
judgment. In re C.G., 954 N.E.2d at 923. “We will set aside the court’s
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judgment terminating a parent-child relationship only if it is clearly erroneous.
Clear error is that which leaves us with a definite and firm conviction that a
mistake has been made.” S.L., 997 N.E.2d at 1123 (citation omitted).
II. Termination Order
[9] “[T]he involuntary termination of parental rights is an extreme measure that is
designed to be used as a last resort when all other reasonable efforts have failed
. . . .” In re K.W., 12 N.E.3d 241, 249 (Ind. 2014) (alteration in original)
(citation omitted). Indiana Code section 31-35-2-4(b)(2) sets out what must be
proven in order to terminate parental rights, which we quote in relevant part:
(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.
***
(C) that termination is in the best interests of the child . . . .
The State must prove each element by clear and convincing evidence. Ind.
Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile
court determines that the allegations of the petition are true, then the court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
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[10] Mother contends the juvenile court’s termination order was clearly erroneous. 1
Specifically, she claims DCS failed to present clear and convincing evidence to
establish there is a reasonable probability the conditions resulting in the
Children’s removal will not be remedied, a reasonable probability the
continuation of the parent-child relationship poses a threat to the well-being of
the Children, and that termination is in the best interests of the Children.
A. Remedy of Conditions
[11] “In determining whether the conditions that led to a child’s removal will not be
remedied,” the juvenile court “must judge a parent’s fitness to care for her child
at the time of the termination hearing and take into consideration evidence of
changed conditions.” In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).
“[I]t is not just the basis for the initial removal of the child that may be
considered for purposes of determining whether a parent’s rights should be
terminated, but also those bases resulting in the continued placement outside of
the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied.
The juvenile court must also “evaluate the parent’s habitual patterns of conduct
to determine the probability of future neglect or deprivation of the child.” In re
A.B., 924 N.E.2d at 670 (citation omitted). However, the trial court’s findings
cannot focus solely on historical conduct absent findings as to the parent’s
1
We note Mother does not challenge any findings of fact and we therefore accept those as true. See In re
B.R.., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (noting a parent waived a claim the juvenile court’s findings
or conclusions were clearly erroneous by failing to specifically challenge the court’s findings or conclusions),
trans. denied.
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current circumstances or evidence of changed conditions. In re C.M., 960
N.E.2d 169, 175 (Ind. Ct. App. 2011). The juvenile court may also consider the
services the State offered to the parent and the parent’s response to such
services. In re A.B., 924 N.E.2d at 670.
[12] The findings establish the Children were initially removed from Mother’s care
because Mother committed burglary while with A.A., Mother was arrested, and
no suitable caregivers were available for the Children. The juvenile court
continued the Children’s removal due to Mother’s sporadic participation in
services, Mother’s drug use, Mother’s violation of the terms of her probation
and house arrest, and Mother leaving town twice to evade law enforcement. In
maintaining DCS did not meet its burden, Mother argues the juvenile court
focused solely on her past parental shortcomings and failed to consider
evidence of her current circumstances and changed conditions, namely her
progress through work release. Mother points to evidence at the time of the
termination hearing that she had not failed any recent drug tests, she was
working toward her GED, she attended several classes, including substance
abuse classes, and had maintained stable employment. Mother also points to
evidence admitted at the review hearing that her work release had been
modified to house arrest, she rented a home, and continued to work at Subway.
[13] We acknowledge the trial court’s findings must contain evidence of Mother’s
current circumstances and changed conditions and the juvenile court did not
enter any specific findings pertaining to Mother’s current circumstances except
for the finding that Mother was confined to work release. However, we further
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note a juvenile court has discretion to weigh such evidence against “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.”
McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 199 (Ind.
Ct. App. 2003). A juvenile court also has the discretion to disregard the efforts
a parent makes only shortly before termination and to weigh more heavily a
parent’s history of conduct prior to those efforts. K.T.K. v. Ind. Dep’t of Child
Servs., 989 N.E.2d 1225, 1234 (Ind. 2013).
[14] We commend Mother for her conduct during recent periods of work release
and house arrest. We are mindful, however, the juvenile court was within its
discretion to consider the fact Mother’s progress only occurred a few months
prior to the termination hearing and while Mother was confined to work release
and house arrest, both of which carried the threat Mother could be incarcerated
for any misconduct. The juvenile court weighed Mother’s recent
accomplishments while on work release and house arrest against her conduct
while on informal adjustment, her criminal and substance abuse history, her
inability to secure stable housing, and her lack of participation in reunification
services.2 As to services, DCS offered reunification services years before the
2
This is evidenced by the juvenile court giving Mother an additional opportunity to update the court on her
progress and further evidenced when it stated,
This has been a very difficult decision for me. I do think that the Department is correct. That at
the time of the hearing and even know [sic], I do feel . . . what has happened that caused the
removal and everything [that] has happened since, that even though [Mother], I congratulate
you on what you have done to get yourself on your feet and I hope you keep doing it and keep
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termination hearing and it is clear the juvenile court considered Mother’s
historical responses to such services. Mother did not begin to take consistent
steps towards a better lifestyle until she was confined to work release—only four
months prior to the termination hearing. It was Mother’s responsibility to
rehabilitate herself during the CHINS proceedings and prior to DCS filing a
petition to terminate her parental rights. See Prince v. Dep’t of Child Servs., 861
N.E.2d 1223, 1230 (Ind. Ct. App. 2007). Mother failed to do so and we cannot
say Mother’s current conduct would remain consistent but-for the court’s
current supervision.
[15] Further, the evidence establishes Mother was placed on probation and house
arrest and violated the terms of each, all while she was supposed to be
completing services to reunify with the Children. In addition, not only did
Mother violate the terms of her probation and house arrest, she left town each
time in an attempt to evade law enforcement. Such a decision required her to
cease participation in services, including visitation with her Children. It is clear
Mother put herself before her Children’s interests. We conclude DCS presented
sufficient evidence to show a reasonable probability the conditions leading to
yourself out of any further trouble . . . . [F]or your life, that at this point, I don’t think that the
issues that were presented to me have been or can be remedied . . . .
Transcript at 110.
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the Children’s removal or to their continued placement outside the home will
not be remedied.3
B. Best Interests of the Children
[16] Mother argues DCS failed to prove termination of her parental rights was in the
Children’s best interest. “In determining what is in the best interests of the
child, the [juvenile] court is required to look beyond the factors identified by the
DCS and look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149
(Ind. Ct. App. 2009).
The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Recommendations of
the case manager and court-appointed advocate, in addition to
evidence that 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.
In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (citations omitted), trans.
denied.
[17] As noted above, DCS presented evidence sufficient to show a reasonable
probability the conditions resulting in the Children’s initial and continued
3
Mother also contends the juvenile court erred in finding continuation of the parent-child relationship
posed a threat to the Children’s well-being. However, Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires only one element in that subsection be proven to support
termination of parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we
conclude the evidence is sufficient to show a reasonable probability the conditions resulting in the
Children’s removal will not be remedied, we need not determine whether the juvenile court erred in
concluding continuation of the parent-child relationship posed a threat to the Children’s well-being.
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removal will not be remedied. In addition, both the CASA and family case
manager testified at the evidentiary hearing that Mother’s parental rights should
be terminated. We further note permanency is a vital consideration in
determining a child’s best interest. In re G.Y., 904 N.E.2d at 1265. Here, the
findings indicate Mother and the Children lived in thirteen different residences
over a five-year period. In addition, Mother has not had visitation with the
Children since November 2014. The Children have been in foster care since
August 2013 and both the CASA and family case manager testified Mother’s
reunification with the Children would negatively affect the Children because
the Children have thrived in their foster homes. We conclude DCS presented
clear and convincing evidence from which the juvenile court could conclude
termination of Mother’s parental rights was in the Children’s best interest.
Conclusion
[18] DCS established by clear and convincing evidence the elements necessary to
support the termination of Mother’s parental rights. The judgment of the
juvenile court terminating Mother’s parental rights is affirmed.
[19] Affirmed.
Mathias, J., concurs.
Brown, J., dissents with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- Court of Appeals Case No.
Child Relationship of: 48A02-1603-JT-482
R.P., C.P. and A.A. (Minor
Children),
and
L.B. (Mother),
Appellant-Respondent,
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
Brown, Judge, dissenting.
[20] I respectfully dissent from the majority’s decision to affirm the juvenile court’s
termination of Mother’s parental rights in that the juvenile court failed to make
any findings or otherwise consider Mother’s efforts at remediation presented
either at the September 15, 2015 hearing or at the review hearing held six
months later. In determining whether the conditions that resulted in the
children’s removal will not be remedied, this Court engages in a two-step
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analysis. In re E.M., 4 N.E.3d 636, 642-643 (Ind. 2014). First, we identify the
conditions that led to removal, and second, we determine whether there is a
reasonable probability that those conditions will not be remedied. Id. at 643. In
the second step, the trial court must judge a parent’s fitness as of the time of the
termination proceeding, taking into consideration evidence of changed
conditions, balancing a parent’s recent improvements against habitual patterns
of conduct to determine whether there is a substantial probability of future
neglect or deprivation. Id.
[21] In this matter, the Children were removed following Mother’s arrest for
burglary in 2013. Evidence was presented that, at the time of the final review
hearing, Mother had rented a home and was serving the remainder of her
sentence on house arrest. She also had held a job as an assistant manager at
Subway for nine months and had been taking classes to obtain her GED.
Mother’s work release case manager testified at the termination hearing that
Mother had not failed any drug tests or violated any policies or procedures, had
completed a substance abuse evaluation, had completed classes related to
substance abuse, budgeting, and employment, and even paid ahead on her rent.
The court’s termination order overlooked such evidence and did not include it
in its findings, instead focusing almost exclusively on evidence derived from the
underlying CHINS case.
[22] Terminating a parent-child relationship is of such importance that we must be
convinced the trial court has based its judgment on proper considerations and
did so based upon clear and convincing evidence. See, e.g., Parks v. Delaware
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Cnty. Dep’t of Child Servs., 862 N.E.2d 1275, 1280-1281 (Ind. Ct. App. 2007). I
do not believe that this court can make such a determination based on the trial
court’s findings. Although the termination order addressed Mother’s past
parental shortcomings in its findings of fact, the court failed to make any
findings regarding her fitness to care for the Children at the time of the
termination hearing. I believe that the trial court’s focus on historical conduct,
absent any factual findings as to Mother’s current circumstances or evidence of
changed conditions, is akin to terminating parental rights in order to punish the
parent. See, e.g., In re C.M., 960 N.E.2d 169, 175 (Ind. Ct. App. 2011). I would
reverse the court’s termination order and remand for the court to consider and
make findings concerning mother’s efforts at remediation and their impact on
these proceedings. See K.E. vs. Ind. Dept. of Child Servs., 39 N.E.3d 641, 649, 652
(Ind. 2015) (holding that the father’s release from prison was impending and
that he has made substantial efforts toward bettering his life through programs
available during his incarceration, that the court did not balance such recent
improvements against his habitual patterns of conduct in its order, and that
accordingly it was not proven by clear and convincing evidence that the father
could not remedy the conditions leading to the child’s removal, and reversing
the court’s termination order).
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