In the Matter of the Termination of the Parent-Child Relationship, O.W., Minor Child, E.S., Mother v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 17 2019, 8:47 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General
Brooklyn, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 17, 2019
of the Parent-Child Relationship, Court of Appeals Case No.
O.W., Minor Child, 19A-JT-1911
E.S., Mother, Appeal from the Knox Superior
Court
Appellant-Respondent,
The Honorable Gara U. Lee,
v. Judge
Trial Court Cause No.
Indiana Department of Child 42D01-1811-JT-31
Services,
Appellee-Petitioner.
Brown, Judge.
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[1] E.S. (“Mother”) appeals the involuntary termination of her parental rights to
her child, O.W. We affirm.
Facts and Procedural History
[2] Mother has three sons, O.W., who was born on June 23, 2009, S.W., who was
born on February 8, 2007, and N.W. 1 On January 27, 2016, the father of S.W.
and O.W. died.
[3] In August 2016, the Indiana Department of Child Services (“DCS”) received a
report alleging S.W. was the victim of neglect and a separate report alleging
O.W. was the victim of physical abuse by Mother when she hit him with a
hanger resulting in an injury to O.W.’s lip, tongue, and tooth. On August 31,
2016, DCS filed a request for authorization to file a petition alleging O.W. was
a child in need of services (“CHINS”).
[4] On August 31, 2016, the court entered an order authorizing DCS to take O.W.
into immediate protective custody and to file a petition. That same day, DCS
filed a verified petition alleging O.W. to be a CHINS which mentioned the
physical abuse and that the home was covered in trash and food, the home had
animal feces and roaches, the walls had holes, multiple knives were lying within
reach of the children, and there was a lack of food.
1
Family Case Manager Vanessa Luchtefeld testified that there were originally three children involved and
that the eldest child, N.W., was adjudicated a child in need of services and “aged out.” Transcript Volume II
at 63.
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[5] On December 9, 2016, the court entered an order finding Mother had signed a
stipulation to an adjudication of CHINS and adjudicated O.W. a CHINS. On
January 6, 2017, the court entered a dispositional order which ordered Mother
to: contact the family case manager every week; notify the family case manager
of any changes in address, household composition, employment, or telephone
number within five days; allow the family case manager or other service
providers to make announced or unannounced visits to her home; enroll in
programs recommended by the family case manager or other service provider;
maintain all appointments with any service provider; maintain suitable, safe,
and stable housing; secure and maintain a legal and stable source of income;
refrain from using any illegal controlled substances or alcohol; obey the law;
complete a parenting assessment; submit to random drug screens; attend all
scheduled visitations with O.W.; and comply with all visitation rules. On
November 27, 2018, DCS filed a verified petition for involuntary termination of
the parent-child relationship between O.W. and Mother.
[6] On April 17 and 25, 2019, the court held a factfinding hearing. The court
indicated it was holding a consolidated hearing for cause number 42D02-1811-
JT-31, related to O.W., and cause number 42D01-1811-JT-30 (“Cause No.
30”), related to the termination of Mother’s parental rights to S.W. Mother
testified that she had pending charges of battery and two counts of theft. She
testified that she had been homeless, another family took her in “for a little bit,”
and that she had been “pretty much couch surfing.” Transcript Volume II at
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34. When asked if she did not have stable housing for the children at the time,
she answered, “Yeah, obviously.” Id. at 48.
[7] When asked about her work history, she stated that she worked at Progress,
Comfort Suites, Farbest, McAllister’s Deli, McDonalds, and Perdue, that she
quit her job at Farbest, and that she was currently employed at Vuteg Toyota.
When asked how long she stayed at each of those jobs, she answered “a couple
months, two, three months . . . [a]t least three months.” Id. at 36. Mother
admitted to using illegal substances including methamphetamine and marijuana
since January 2017, to testing positive for methamphetamine on March 15,
2019, and to failing to routinely submit to random drug screens.
[8] Family Case Manager Vanessa Luchtefeld (“FCM Luchtefeld”) testified that
she received the case in May 2018, detailed the services she provided to
Mother, and indicated that Mother had not met any of the goals for
reunification. She indicated that Mother periodically submitted to random drug
screens and tested positive for methamphetamine and THC. She testified that
S.W. has serious behavioral issues, attempted to commit suicide, was placed in
Gibault, and received therapeutic services. She stated that O.W. sees a
therapist for behavior issues once every three months and was on medication.
She indicated that she did not believe that there is a probability that Mother has
remedied the situation that led to the children’s removal.
When asked why not, she answered: “Due to the history of her relapsing
numerous times. Not being able to obtain or maintain housing, employment,
and the continuance of the criminal history that keeps occurring.” Id. at 69.
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She stated that O.W. was in a relative placement and they were willing to adopt
him, and that S.W. was adoptable and DCS has services and programs that will
assist helping S.W. find a permanent home. She indicated that termination of
Mother’s parental rights was in the children’s best interests and that returning
the children to Mother will be a threat to their well-being.
[9] Upon cross-examination by Mother’s counsel, FCM Luchtefeld indicated that
S.W. had been at Gibault since December 2018 and had been in approximately
seven or eight different homes or placements since his removal, and that O.W.
was residing with his maternal uncle. She testified that N.W. had no
communication with S.W. or O.W. since he turned eighteen years old. On
redirect examination, she stated that the relationship between S.W. and O.W.
was “pretty rocky” when she received the case but had improved. Id. at 78.
She indicated that S.W. and O.W. could potentially write, call, or see each
other again. Upon questioning by the court, she stated that placement of S.W.
with the maternal uncle was a possibility, that the uncle had “been on the fence
about it,” and that he wanted to ensure that S.W. was able to maintain his
behaviors and utilize coping techniques. Id. at 81.
[10] Family Case Manager Tiffany Shepherd testified that S.W. was initially placed
with his maternal uncle but was removed after he hit his uncle’s pregnant
girlfriend in the stomach. She indicated that S.W. had other placements and
was eventually placed in Mother’s care until she had a positive drug screen in
August 2017 for methamphetamine and marijuana. She stated that S.W. had
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been diagnosed with ADHD, anxiety, and depression, and that O.W. had been
diagnosed with ADHD.
[11] Emma Marsh, a visit supervisor and parent aide at Rain Tree Consulting,
testified that she took over the case in December 2018 when Mother was
homeless, that Mother was not compliant with visits, and that Mother had four
jobs during the four months she worked with her and had not been employed
the entire time.
[12] Court Appointed Special Advocate Cheryl Hugunin testified that she had
concerns regarding reunifying the children with Mother because she did not
have stable housing or stable employment, she had positive drug screens, and
the mental health issues of Mother and the children needed to be addressed.
She testified that she believed that “it was an abusive relationship to begin with,
and I don’t think that that has been resolved.” Id. at 133.
[13] On July 19, 2019, the court terminated Mother’s parental rights to O.W. 2 The
court found that O.W. was removed from Mother’s care due to her mental
instability, instances of physical abuse, and deplorable home conditions. It
found that Mother had a pending charge of battery resulting in bodily injury to
a person under fourteen years old as a level 5 felony and violated her pretrial
release on three separate occasions for positive drug screens as well as being
arrested for additional charges. It found that Mother continued to engage in
2
The court also terminated Mother’s parental rights to S.W. in a separate order under Cause No. 30.
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acts that resulted in criminal charges throughout the underlying case including
two pending charges of theft as level 6 felonies. The court detailed her
residential instability, employment instability, and drug use. It found that O.W.
had been removed from Mother’s care for more than six months, there was a
reasonable probability that the conditions which resulted in O.W.’s removal
and continued placement outside the home would not be remedied,
continuation of the parent-child relationship posed a threat to O.W.’s well-
being, termination of parental rights was in O.W.’s best interests, and there was
a satisfactory plan for the care and treatment of the child.
Discussion
[14] The issue is whether the evidence is sufficient to support the termination of
Mother’s parental rights. In order to terminate a parent-child relationship, DCS
is required to allege and prove, among other things:
(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
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(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[15] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[16] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
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confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640. The involuntary
termination statute is written in the disjunctive and requires proof of only one of
the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
[17] Mother expressly states that she does not dispute that DCS proved that there
was a reasonable probability the conditions that resulted in the removal or the
reasons for the child being placed outside her home will not be remedied, that
continuation of the relationship posed a threat to the O.W.’s well-being, or that
there was a satisfactory plan for the child’s care and treatment. Rather, Mother
asserts that DCS failed to carry its burden with respect to whether termination
was in O.W.’s best interest. She contends that stability and permanency should
not be the only considerations, particularly when O.W. has a sibling. Without
citation to the record, she asserts that she was doing well at the time of the
termination hearing and allowing her additional time to work toward
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reunification would have provided the brothers an opportunity for their sibling
relationship to remain intact.
[18] 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 the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated 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, 647-648 (Ind. 2014). However, focusing on permanency, standing alone,
would impermissibly invert the best-interests inquiry. Id. at 648.
[19] To the extent Mother does not challenge the court’s findings of fact, the
unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.
Ct. App. 2007) (failure to challenge findings by the trial court resulted in waiver
of the argument that the findings were clearly erroneous), trans. denied. While
Mother appears to focus on O.W.’s sibling relationship with S.W., we note that
Mother’s parental rights with respect to S.W. have been terminated. Further,
when asked separately if she thought it was in the best interest of the children
for Mother’s parental rights to be terminated and if the best likelihood for the
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children to have a permanent plan for their life would be to be adopted, FCM
Luchtefeld responded affirmatively. Based on the testimony, as well as the
totality of the evidence in the record and set forth in the trial court’s termination
order, we conclude that the court’s determination that termination is in O.W.’s
best interests is supported by clear and convincing evidence.
[20] Affirmed.
Baker, J., and Riley, J., concur.
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