In the Termination of the Parent-Child Relationship of: J.A. (Minor Child) And S.G.P. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 29 2018, 10:08 am
this Memorandum Decision shall not be
regarded as precedent or cited before any CLERK
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
Kyle D. Gobel Curtis T. Hill, Jr.
Collier Gobel Homann, LLC Attorney General of Indiana
Crawfordsville, Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- March 29, 2018
Child Relationship of: Court of Appeals Case No.
J.A. (Minor Child), 54A01-1709-JT-2268
And Appeal from the Montgomery
Circuit Court
S.G.P. (Mother)
The Honorable Harry Siamas,
Appellant-Respondent, Judge
v. Trial Court Cause No.
54C01-1702-JT-46
The Indiana Department of
Child Services,
Appellee-Petitioner.
Bradford, Judge.
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Case Summary
[1] Appellant-Respondent S.G.P. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to J.A. She raises the following restated issue on
appeal: whether Appellee-Petitioner the Indiana Department of Child Services
(“DCS”) presented sufficient evidence to support termination of her parental
rights to J.A. Specifically, Mother contends that DCS did not prove by clear
and convincing evidence that (1) there is a reasonable probability that the
conditions that resulted in J.A.’s removal will not be remedied, and (2) that
there is a reasonable probability that continuation of the parent-child
relationship between Mother and J.A. poses a threat to J.A.’s well-being.
Concluding that the evidence is sufficient to support the termination order, we
affirm.
Facts and Procedural History
[2] Mother is the biological parent of J.A., who was born on March 9, 2015.1 On
November 5, 2015, DCS petitioned to the juvenile court to find J.A. to be a
child in need of services (“CHINS”). (App. p. 8). The CHINS petition alleged
that the biological father “beat a 9 month old baby that was left in his and
[Mother’s] care[,]” and that “7 month old [J.A.] was in the home and exposed
to a high risk of potential harm because [the Mother] did not stop the abuse.”
1
The biological father voluntarily terminated his rights and does not participate in this appeal.
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DCS Ex. 4. The CHINS petition further alleged that both parents were arrested
as a result of the incident. (Tr. 26-27). J.A. was removed from the home at the
time that the CHINS petition was filed. (Tr. 27). DCS also determined that
Mother had been working with Healthy Families, a service provider, at the time
of the incident. (Ex. 3). She also had a history of alcoholism, depression, and
anxiety, but was not seeking treatment at that time. (Ex. 3).
[3] On January 4. 2016, the juvenile court held a factfinding hearing. Mother
remained incarcerated at the time of the hearing. On January 11, 2016, the
juvenile court entered an order finding that Mother “was charged with neglect
of a dependent resulting in serious bodily harm and reckless supervision by a
child care provider.” DCS Ex. 11. Due to the nature of Mother’s pending
charges and the fact that she was still incarcerated, the juvenile court
determined that J.A. was a CHINS and authorized J.A. to remain placed
outside of the home.
[4] On February 2, 2016, the juvenile court entered a dispositional order. Mother
was ordered to complete a mental health assessment and follow all
recommendations; participate in home-based case services, individual
counseling, a domestic violence assessment, and visitation with the Child; and
“successfully meet all legal obligations.” DCS Ex. 17.
[5] On February 18, 2016, Mother was released after she pled guilty to Level 6
felony neglect of a dependent and was sentenced to two years suspended to
probation. (Ex. 28). Approximately one week after Mother’s release, there was
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a child and family team meeting to discuss the case. (Tr. 74-75). At the
meeting, Mother told the Family Case Manager (“FCM”) that she had already
been “through enough parenting things and she had been through counseling
and she felt like that was enough.” Tr. Vol. II p. 75. Mother had also been
unable to secure consistent housing at that time and was “couch surfing” with
friends. Tr. Vol. II p. 77.
[6] During a hearing on April 22, 2016, the juvenile court ordered Mother to
complete a mental health assessment and all recommendations, comply with
probation, provide stable housing and employment, and participate in
medication management. DCS recommended the psychological evaluation
because the service providers were concerned about Mother’s ability to process
and understand what she needed to do to be a productive parent. “It took four
or five times for us to kind of explain it to her for her to finally get it and then a
week later she couldn’t reiterate what she needed to get done.” Tr. Vol. II p.
76. Mother also had difficulty focusing on why DCS was involved and what
she needed to do to help J.A. (Tr. 7).
[7] During the supervised visits, DCS also reported that Mother would often walk
away or get upset and “kind of put her hands over her ears and rock back and
forth.” Tr. Vol. II p. 115. There were several incidents where Mother became
so frustrated that she left the visitation room. (Tr. 44). Mother was also
incapable of participating in discussions about finding housing or employment
without becoming very frustrated and upset. (Tr. 115).
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[8] Mother completed a psychological evaluation in September of 2016. The
evaluation recommended that Mother “continue with therapy as least twice a
week, and engage in skill building if that was not meeting her needs.” App.
Vol. II p. 122. The report further stated that Mother “struggles with being able
to properly and efficiently maintain [J.A.’s] behavior in longer visits because
she has not parented long term.” App. Vol. II p. 122. On September 30, 2016,
the juvenile court held a hearing. Mother was ordered to continue in services
and J.A. remained placed outside of the home. The permanency plan was
reunification with a concurrent plan of adoption.
[9] On February 15, 2017, DCS petitioned for the involuntary termination of the
parent-child relationship. (App. p. 8-10). On May 4 and August 2, 2017, the
court held a factfinding hearing. At the factfinding hearing, a FCM testified
that while Mother had made some progress, compliance with services does not
“equal growth and engagement.” Tr. Vol. II p. 143. The court appointed
special advocate testified that termination of Mother’s parental rights was in
J.A.’s best interest because J.A. needs a safe and stable home. (Tr. 157-58).
Based upon all of the evidence presented, the juvenile court issued an order
granting DCS’s petition for termination of parental rights on August 31, 2017.
In doing so, the juvenile court made the following relevant findings:
3. On November 3, 2015 the DCS investigated a report of abuse
[of] a nine month old baby in the home of Mother and Father.
Father was providing childcare for this unrelated baby and he
physically abused the child. Mother did not intervene to stop the
abuse nor did she alert the authorities. Mother admitted that she
knew Father had a violent temper. She heard Father slap the
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baby and she saw Father drop the baby apparently because the
baby would not stop crying. The infant suffered serious injuries
that required hospitalization. [J.A.] was in the home at the time
of the abuse to the other child. Father was arrested for battery to
the infant and eventually sentenced to prison. Mother was
arrested on November 3, 2015. She was in jail for 106 days. On
February 18, 2016 she pled guilty to Neglect of a Dependent as a
level 6 felony and she was placed on probation for two years.
4. As the result of Mother’s arrest, the DCS detained [J.A.] on
November 3, 2015. The DCS placed the Child in kinship care
with Connie Kouns. [J.A.] has been in this placement since then.
[J.A.] was never returned to his parent’s care.
5. On November 5, 2015 the DCS filed its petition alleging [J.A.]
to be a Child in Need of Services.
6. On January 4, 2016 the CHINS court held a fact finding
hearing and adjudicated [J.A.] to be a child in need of services.
7. On February l, 2016 the CHINS court held a disposition
hearing. The court made [J.A.] a ward of the DCS. The court
ordered Mother to participate in mental health therapy, domestic
violence assessment, home based case management services and
supervised visitation with [J.A.]. The court ordered services to
Father as well. [J.A.] remained detained outside the home of his
parents.
***
9. On September 30, 2016 the CHINS court held a permanency
hearing. The court ordered that the services to Mother continue.
[J.A.] remained in placement in kinship care. The permanency
plan was reunification with a concurrent plan of adoption.
10. On February 15, 2017 the DCS filed its petition for the
involuntary termination of the parent-child relationship.
***
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12. In the beginning of the CHINS case and for many months
during the period of the CHINS case Mother refused to
participate in services. The DCS attempted to offer some services
to her while she was in jail but she refused to cooperate or accept
any services. After her release from jail she still refused to
cooperate with the DCS or service providers. Eventually Mother
did begin to participate in services. She attended her visitation
times with [J.A.] and she was engaged in particular with one
service provider. At the time of the fact-finding hearing, she
continued to engage in services and she had made some progress.
13. Mother frequently displayed outbursts of anger, frustration
and extreme emotion during contacts with the DCS, service
providers and while visiting with [J.A.]. During visits Mother
demonstrated inappropriate parenting on several occasions. On
May 2, 2016 Mother became upset because [J.A.] was crying.
She put her hands over her ears and kept screaming “stop, stop,
stop”. Mother had to leave the room where [J.A.] was in order
to calm down. Mother left the room to calm down on other
occasions during visitation periods. In November and December
of 2016 Mother would become frustrated with [J.A.] when he
would not stop crying and she would shake her fists at [J.A.]. In
December 2016 [J.A.] was choking and Mother did not know
how to clear his throat. During this time period Mother ended
some visits early. Mother complained that she did not like being
around other people so she did not want to visit with [J.A.] in
public places. On one occasion in April 2016 Mother was visiting
with [J.A.] at the public library when she became upset because
she imagined library patrons were leaving the library because of
her. On January 9, 2017 [J.A.] tried to leave the room during a
visit; Mother became upset. She said that she did not want to
“trap” [J.A.] in the room if he did not want to be around her.
Mother tried to block the door with a table. Mother would
become upset during family team meetings, cry and cuss when
she heard things that upset her. [J.A.] was sometimes present.
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14. Mother is seeing a therapist provided by the DCS in order to
address Mother’s anxiety, inappropriate outbursts, anger and
frustration. Mother is impulsive and she has difficulty managing
her emotions. Her therapy continued at the time of the fact-
finding hearing.
15. Mother has had seven children. One of the children died from
fetal alcohol syndrome. Two of her children have been adopted.
Two of her children live with their father. Mother has been
convicted of sexual misconduct with a minor and failure to
register as a sex offender. Mother and Father lived in Colorado
beginning in 2007. They were homeless for periods of time and
according to Mother they lived in a tent by a river. Father
frequently physically and emotionally abused Mother. However,
when Mother moved back to Indiana in February 2015 Mother
paid for Father to fly back to Indiana with her disability check.
16. Mother did find employment and an apartment in 2016. At
the time of the fact-fading hearing she lived with her boyfriend.
At the time of the fact-finding hearing Mother was compliant
with services but she continued to have emotional outbursts
when frustrated. At the July 2017 family team meeting she would
not stop screaming when she learned that the DCS was
recommending adoption. When she hears things she does not
want to hear at the team meetings she lashes out and screams at
caseworkers and services providers. She has made suicidal
statements as well. Mother has made little progress in her ability
to control her emotions, and she has difficulty transferring skills
she is being taught in case management and therapy sessions to
controlling her emotions, anger and anxiety. There are no
additional services that can be offered to her to assist her with
this.
18. The kinship care placement will adopt [J.A.] if Mother’s
parental rights are terminated.
App. Vol. II pp. 12-14.
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Discussion and Decision
[10] This court has long had a highly deferential standard of review in cases
concerning the termination of parental rights. In re K.S., 750 N.E.2d 832, 836
(Ind. Ct. App. 2001). When reviewing a termination of parental rights case, we
will consider only the evidence and reasonable inferences that are most
favorable to the judgment. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. Thus, we will not reweigh the evidence or judge the
credibility of the witnesses. Id. We will only set aside the court judgment
terminating a parent-child relationship if it is clearly erroneous. In re B.J., 879
N.E.2d 7, 14 (Ind. Ct. App. 2008).
[11] The traditional right of a parent to establish a home and raise her children is
protected by the Fourteenth Amendment to the United States Constitution.
Bester v. Lake Cnty. Office of Family and Children, 839 N.E.2d 143, 145 (Ind. 2005).
Furthermore, we acknowledge that the parent-child relationship is “one of the
most valued relationships of our culture.” Id. However, parental rights are not
absolute and the law allows for the termination of such rights when a parent is
unable or unwilling to meet her responsibilities as a parent. In re T.F., 743
N.E.2d 766, 773 (Ind. Ct. App. 2001), trans denied. The purpose of terminating
parental rights is to protect the child, not to punish the parent. Id. The juvenile
court may terminate the parental rights if the child’s emotional and physical
development is threatened. Id. The juvenile court need not wait until the child
has suffered from irreversible harm. Id.
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[12] Before an involuntary termination of parental rights may occur, DCS is
required to prove by clear and convincing evidence that:
(A) one (1) of the following exists:
(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; or
(iii) the child has been removed from the parent and has
been under the supervision of a county office of family and
children 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 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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the
child.
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Ind. Code § 31-35-2-4(b)(2). DCS’s burden of proof for establishing these
allegations in a termination case is one of “clear and convincing evidence.” In
re G.Y., 904 N.E.2d 1257, 1260–61 (Ind. 2009).
[13] Here, Mother only challenges two of the juvenile court’s legal conclusions
regarding the probability of non-remedy and the probability of threat to J.A.’s
well-being. She does not challenge the other conclusions or findings of fact,
including the conclusion that termination is in J.A.’s best interest. Where the
juvenile court’s unchallenged findings clearly and convincingly support its
ultimate decision to terminate parental rights, we find no error. T.B. v. Ind.
Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied.
I. Conditions Resulting in Removal Not Likely to
Be Remedied
[14] “We begin by emphasizing that a trial court need not wait until a child is
irreversibly influenced by a deficient lifestyle such that his or her physical,
mental, and social growth is permanently impaired before terminating the
parent-child relationship.” Castro v. State Office of Family & Children, 842 N.E.2d
367, 372 (Ind. Ct. App. 2006). “When the evidence shows that the emotional
and physical development of a child in need of services is threatened,
termination of the parent-child relationship is appropriate.” In re L.S., 717
N.E.2d 204, 208 (Ind. Ct. App. 2002).
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[15] When determining whether there is a reasonable probability that a parent will
remedy the conditions resulting in their child’s removal from the home, a trial
court engages in a two-step inquiry. First the trial court “must ascertain what
conditions led to their placement and retention in foster care.” In re K.T.K., 989
N.E.2d 1225, 1231 (Ind. 2013). Second, the trial court must determine
“whether there is a reasonable probability that those conditions will not be
remedied.” Id. The statute does not simply focus on the initial reason or
reasons for removal, “but also those bases resulting in continued placement
outside the home.” In re A.I. v. Vanderburgh Cnty. OFC, 825 N.E.2d 798, 806
(Ind. Ct. App. 2005).
[16] Mother argues that the evidence does not support the finding that there is a
reasonable probability that the conditions that resulted in J.A.’s removal will
not be remedied. J.A. was initially removed from Mother’s care because an
unrelated child was injured by J.A.’s father while Mother was present and she
did not intervene or seek help for the unrelated child. Mother points to the
following in support of her argument: Father was incarcerated and no longer a
threat to J.A.; she obtained housing and employment; she was engaged in
services; DCS should have approved semi-supervised visits with J.A.; the
service providers testified that she had made significant progress in her ability to
care for J.A.; and Mother has bonded with J.A.
[17] While it is true that Mother obtained housing and employment, J.A.’s father is
incarcerated, and Mother progressed in her services, there is a great deal of
evidence that supports the conclusion there is a reasonable probability that the
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conditions which led to the continued placement outside of the home will not
be remedied. Under Indiana Code section 31-35-2-4(b)(2)(B)(i), DCS must
show a “reasonable probability that the conditions that resulted in the child’s
removal or the reasons for placement outside of the home of the parents will not
be remedied.” (emphasis added). “[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., 934 N.E.2d at 806.
[18] The trial court concluded that
The Child was removed from his parents in November 2015.
The DCS has offered reunification services to Mother but she
was not able to overcome her parenting deficits. Mother has a
long history of inability to care for or raise her children. One
child died from fetal alcohol syndrome. Two of her children
were adopted. Her other children were raised by their fathers.
Mother has a criminal history that involves abuse or neglect of
children: sexual misconduct with a minor and neglect of a
dependent. Mother failed to protect Child from an abusive
Father and she did not protect herself from his abuse. Mother
has had long periods of instability in her life including
homelessness for periods of time. While she has maintained
some stability in employment and housing in recent months and
she has been cooperative with services she still has not learned
how to control her emotions. Her emotional instability prevents
her from providing a safe and nurturing home to Child.
App. Vol. II p. 17.
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[19] Mother also argues that she should not be judged for her “difficult past.”
Appellant’s Br. p. 22. Mother, however, misunderstands the law. Under
Indiana law, a juvenile court may properly consider evidence of a parent’s prior
criminal history, history of neglect, failure to provide support, and lack of
adequate housing and employment. McBride v. Monroe Cnty. Office of Family and
Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court
“can reasonably consider the services offered by the [DCS] to the parent and the
parent’s response to those services.” Id. In addition, “[w]here there are only
temporary improvements and the pattern of conduct shows no overall progress,
the court might reasonably find that under the circumstances, the problematic
situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
2005). Based upon the juvenile court’s findings and the record, as discussed
therein, we conclude that the clear and convincing evidence supports that the
juvenile court’s determination that there was a reasonable probability that the
conditions leading to J.A.’s removal would not be remedied and that the court’s
conclusion is not clearly erroneous. As for the challenged conclusions, Mother
is essentially asking us to reweigh the evidence, which we will not do. In re
N.G., 51 N.E.3d 1167, 1170 (Ind. 2016).
II. Continuation of the Parent-Child Relationship
Posed a Threat to the Child’s Well-being
[20] Next, we address Mother’s claim that DCS failed to show by clear and
convincing evidence that the continuation of the parent-child relationship
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would be detrimental to J.A. Under Indiana Code section 31-35-2-4(b)(2)(B),
DCS need only prove that “[t]here is a reasonable probability that the
conditions that resulted in the child’s removal or the reasons for the placement
outside the home of the parents will not be remedied,” that “[t]here is a
reasonable probability that the continuation of the parent-child relationship
poses a threat to the well-being of the child,” or that the child has been
adjudicated as CHINS on two separate occasions. As discussed above, DCS
presented ample evidence for the juvenile court to conclude that there was not a
reasonable probability that the reasons for continued placement outside of the
parent’s home would not be remedied. Because Indiana Code section 31-35-2-
4(b)(2(B) is written in the disjunctive, and in light of our conclusion relating to
the probability that the conditions leading to continued placement outside of
the parent’s home would not be remedied, we need not consider Mother’s claim
that the evidence is insufficient to prove that the parent-child relationship posed
a threat to the J.A.’s well-being.
[21] We affirm the judgment of the juvenile court.
Robb, J., and Crone, J., concur.
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