In the Matter of the Termination of the Parent-Child Relationship of: J.N.S., G.L.S., and N.M.M. (minor children) O.S. (mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Apr 28 2017, 9:46 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Marjorie Newell
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 28, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of: J.N.S., G.L.S., and N.M.M. 28A05-1611-JT-2682
(minor children); Appeal from the Greene Circuit
O.S. (mother), Court
The Honorable Erik C. Allen,
Appellant-Respondent,
Judge
v. Trial Court Cause Nos.
28C01-1604-JT-2
The Indiana Department of 28C01-1604-JT-4
28C01-1604-JT-6
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] O.S. (“Mother”) appeals the termination of the parent-child relationship with
her daughters, N.M. (“N.M.”), J.S. (“J.S.”), and G.S. (“G.S.”) (collectively
“the children”), claiming that there is insufficient evidence to support the
termination. Specifically, Mother argues that the Department of Child Services
(“DCS”) failed to prove by clear and convincing evidence that termination of
the parent-child relationship is in the children’s best interests. Concluding that
there is sufficient evidence to support the termination of 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 has three daughters, N.M., who was born in 2012, J.S., who was born
in 2013, and G.S., who was born in 2014. K.S. (“Father”) is the father of J.S.
and G.S.1 N.M.’s father is J.P.2 In February 2015, a DCS case manager (“the
case manager”) investigated a report that the children were being neglected. At
1
Father voluntarily relinquished his parental rights in September 2016 and is not a party to this appeal.
2
J.P. was not a party below and is not a party on appeal.
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that time, Father was in jail for physically abusing Mother in front of the
children, and Mother was living in a motel room with the three girls. The room
was cluttered with diapers, trash, food debris, and clothes. The two older girls
were extremely active but had no safe play areas. The urine-soaked cot where
five-month-old G.S. slept was wedged between a dresser and a double bed. The
case manager removed the children because of the unsafe living environment
and recurring domestic violence in the home.
[4] The three girls were adjudicated to be children in need of services (“CHINS”) in
April 2015. Mother was court-ordered to participate in home-based services,
therapy, and supervised visitation. The trial court also ordered Mother to find
stable income and housing. The children were placed in foster care together.
[5] One year later, in April 2016, DCS filed petitions to terminate the parental
relationship between Mother and the children. Testimony at the September
2016 termination hearing revealed that Mother had not successfully completed
the court-ordered services. Specifically, Mother, who was often in bed when
the home-based service provider arrived at her motel room, did not understand
why it was important for her to be out of bed and ready for the appointments.
When the service provider pointed out that Mother would have to maintain a
schedule once her children were returned to her care, Mother responded that
her children would sleep late.
[6] Mother’s therapist also testified that Mother was often asleep when the
therapist arrived for the appointments. The therapist further explained that
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Mother had often cut herself with razor blades, and the most recent cutting
incident had occurred just two months prior to the termination hearing. The
therapist concluded that Mother had been unable to successfully complete
treatment. Mother had also failed to obtain stable income and housing.
[7] The supervised visitation coordinator testified that Mother had not provided
activities for the children during visitation, was often distracted by her cell
phone, and struggled to properly supervise her three daughters. Visitation
between Mother and the children was suspended before the termination hearing
because Mother had not demonstrated the ability to supervise the children.
[8] Also at the hearing, the case manager testified that termination was in the
children’s best interests. Specifically, she explained that “these kids have been
in care since February of 2015, [and] we are still at the point of really pretty
much the same situation that brought us into this. . . . [T]hese kids need
permanency . . . and they are thriving where they are . . . .” (Tr. 58). The case
manager further testified that the plan for the children is foster parent adoption.
[9] The CASA also testified that termination was in the children’s best interests.
Specifically, the CASA explained that Mother had shown that “there was either
a lack of ability or a lack of willingness . . . to make the necessary changes . . .
in order to provide these [three] very young girls with a safe and stable home
environment.” (Tr. 231). The CASA further explained that the thriving
children were happy and loved and that they “receive[d] attention and affection
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and they also ha[d] structure and discipline and they deserve[d] permanency . . .
.” (Tr. 231).
[10] In October 2016, the trial court issued a nineteen-page order terminating
Mother’s parental relationship with the children. Mother now appeals the
termination.
Decision
[11] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. In
re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.
However, a trial court must subordinate the interests of the parents to those of
the child when evaluating the circumstances surrounding a termination. Id. at
1188. Termination of the parent-child relationship is proper where a child’s
emotional and physical development is threatened. Id. Although the right to
raise one’s own child should not be terminated solely because there is a better
home available for the child, parental rights may be terminated when a parent is
unable or unwilling to meet his or her parental responsibilities. Id.
[12] Before an involuntary termination of parental rights may occur, 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.
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(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. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1230 (Ind. 2013).
[13] When reviewing a termination of parental rights, this Court will not reweigh
the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,
628 (Ind. 2016). We consider only the evidence and any reasonable inferences
to be drawn therefrom that support the judgment and give due regard to the
trial court’s opportunity to judge the credibility of the witnesses firsthand.
K.T.K., 989 N.E.2d at 1229.
[14] When the trial court’s judgment contains specific findings of fact and
conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56
N.E.3d at 628. First, we determine whether the evidence supports the findings,
and second, we determine whether the findings support the judgment. Id. We
will set aside a trial court’s judgment terminating a parent-child relationship
only if it is clearly erroneous. Id. Findings are clearly erroneous only when the
record contains no facts or inferences to be drawn therefrom that support them.
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In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014). A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.
[15] As a preliminary matter, we note that Mother challenges none of the trial
court’s findings. As a result, she has waived any argument relating to whether
these unchallenged findings are clearly erroneous. See McMaster v. McMaster,
681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial
court findings were accepted as true). We now turn to the issue in this case.
[16] Mother’s sole argument is that DCS failed to prove by clear and convincing
evidence that there is insufficient evidence that the termination was in the
children’s best interests. In determining whether termination of parental rights
is in the best interests of a child, the trial court is required to look at the totality
of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.
denied. In so doing, the court must subordinate the interests of the parents to
those of the child involved. Id. Termination of the parent-child relationship is
proper where the child’s emotional and physical development is threatened. In
re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial court
need not wait until the child is irreversibly harmed such that her physical,
mental, and social development is permanently impaired before terminating the
parent-child relationship. In addition, a child’s need for permanency is a
central consideration in determining the child’s best interests. In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers
may support a finding that termination is in the child’s best interests. McBride v.
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Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.
2003).
[17] Here, our review of the evidence reveals that Mother failed to successfully
complete the home-based services program as well as therapy. Her supervised
visitation was suspended because she failed to demonstrate the ability to
supervise her children. She also failed to obtain stable income or housing. In
addition, the case manager and the CASA both testified that termination was in
the children’s best interests because they deserved stability and permanency.
The testimony of these service providers, as well as the other evidence
previously discussed, supports the trial court’s conclusion that termination was
in the children’s best interests.
[18] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[19] Affirmed.
May, J., and Brown, J., concur.
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