In the Matter of the Involuntary Term. of the Parent-Child Rel. of S.W. H.L. v. The Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, FILED
Jul 03 2012, 9:30 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY E. STRATMAN ROBERT J. HENKE
Aurora, Indiana DCS Central Administration
Indianapolis, Indiana
AMANDA TEBBE CANESSA
Indiana Department of Child Services
Lawrenceburg, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF PARENT-CHILD )
RELATIONSHIP OF S.W., (minor child) and )
H.L., (mother), )
)
Appellant, )
)
vs. ) No. 15A01-1112-JT-623
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 15C01-1108-JT-25
July 3, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
H.L. (“Mother”) appeals the involuntary termination of the parent-child
relationship with her daughter, S.W.1
We affirm.
ISSUE
Whether there was clear and convincing evidence to support the
termination of Mother’s parental rights to S.W.
FACTS
S.W. was born in July 2009. In addition to S.W., Mother had four other children,
all of whom were no longer in her care. In November 2009, when S.W. was four months
old, the Dearborn County Department of Child Services (“DCS”) received a report,
alleging that Mother had limited mental functioning; that she was unable to properly care
for S.W.; and that her parental rights to her other children had been terminated by the
State of Ohio. Upon investigation by DCS, the family case manager found Mother’s
house to be “very cluttered with debris scattered across the floor[,]” including dirty
diapers and “baby wipes soiled with human feces” littering the home and bedroom where
Mother and S.W. slept, as well as, old food and a gallon jug of urine in Father’s bedroom.
(App. 55). The family case manager noted that the house “was not clean and smelled of
body odor and garbage.” (App. 55).
1
R.W. (“Father”) voluntarily terminated his parental rights as to S.W. and is not involved in this appeal.
2
DCS deemed the house unsafe, removed S.W. from Mother’s home, and filed a
petition alleging that she was a child in need of services (“CHINS”). Mother admitted
that S.W. was a CHINS, and the trial court determined S.W. to be a CHINS.
In March 2010, clinical psychologist, Edward Conner, performed a psychological
evaluation and parenting assessment of Mother. When Mother completed her Parenting
Awareness Skills Survey and was asked to describe any areas of needed parental
improvement, she answered “none.” (DCS Ex. 1 at 8). In his evaluation report, Dr.
Conner indicated that he had “grave concern” over Mother’s response that she needed no
parental improvement and opined that “[h]er conscious omittence of her areas of needed
parental improvement and complete denial is very concerning and an indication of her
lack of awareness and perhaps unwillingness to correct her parenting deficits.” Id. at 8.
Dr. Conner’s report also indicated that Mother, who inappropriately giggled and
acted “giddy” during the evaluation, id. at 5, tended “to take on a rather ‘Pollyanna’
approach to criticism or conflict resolution, especially when she [was] confronted on her
deficits.” Id. at 10. Dr. Conner’s report also revealed that Mother was in the “lower
extreme” descriptive category on both verbal and nonverbal IQ tests, id. at 9, and he
opined that she was “not mentally retarded” but that she may be “intellectually disabled.”
Id. at 10. In the report, Dr. Conner explained that Mother’s low nonverbal IQ score
“suggest[ed] that she may not always be able to properly identify complex variables in
day-to-day parenting situations, place them in proper sequence and make accurate
decisions.” Id. at 11.
3
During the CHINS proceeding, Mother participated in services provided by DCS,
including couple’s therapy, supervised visitation, and home-based services. Her
participation, however, did not result in significant change.
Two family aide specialists, Kathy Craig and Kelly Monohan, provided home-
based services and worked with Mother on cleanliness and safety issues. Mother had
multiple residences during the proceedings. With the assistance of family aide specialist
Craig, Mother made “some progress” in cleaning. (Tr. 31). Nevertheless, each of
Mother’s residences had issues with cleanliness. At the time of the termination hearing,
Mother’s home had food on the floor and was infested with cockroaches.
The family aide specialists also supervised Mother’s visits with S.W. and worked
with Mother on parenting issues, including how to increase her bonding with S.W.
Mother had supervised visits with S.W. two to three times per week. These visits
occurred at varied locations, including at Mother’s home, a community center, or in the
park. During Mother’s visits with S.W., Mother was not always attentive to S.W., and
service providers frequently had to intervene and point out obvious safety concerns to
Mother.
In August 2011, DCS filed a petition to terminate Mother’s rights to then two-
year-old S.W. The trial court held a termination hearing on October 31, 2011. During
the hearing, multiple service providers acknowledged that Mother had participated in
services and that she had made some progress. However, these providers also testified
that any progress observed was not long term or significant enough to show that Mother
could effectively care for S.W. Additionally, the service providers testified that Mother
4
was not bonded with S.W. and that Mother could not recognize potential safety issues
concerning S.W.
For example, Kim Emyart, the therapist who conducted couples therapy with
Mother and Father from November 2010 to July 2011, testified that Mother had actively
participated in couple’s therapy and acknowledged that Mother had “worked very hard”
on her relationship and communication with Father. (Tr. 22). However, Emyart also
indicated that she “had some concerns that [Mother] had some difficulty in family
functioning[.]” (Tr. 19).
Emyart also conducted an initial assessment of Mother and testified that during
that assessment—which was conducted just after Mother had lost custody of S.W. and
was “struggling to make ends meet,” (tr. 20)—Mother, who presented as “very happy
[and] smiling[,]” (tr. 20), and “felt at the time that everything was great[,]” (tr. 21), did
not recognize the need to make a change. (Tr. 21). Emyart explained that Mother had a
“coping mechanism” in which she had a tendency to “disengage from her emotions when
they bec[a]me too difficult for her to manage[.]” (Tr. 20). Emyart testified that Mother’s
coping mechanism leads her to be “incongruent in her affect” where she would present as
smiling and happy on the outside while she is experiencing emotional pain on the inside.
(Tr. 20). Emyart further explained that Mother’s coping mechanism was a “double edge
sword” because it helped her to avoid depressive symptoms but it also could “prevent her
from making changes the way other people may make changes[.]” (Tr. 22). Emyart
additionally testified that “this defense mechanism that [Mother] has . . . that she protects
5
herself with, is very, very strong, so it’s hard for her to make those changes long lasting.”
(Tr. 22).
In regard to Mother’s progress on remedying the cleanliness issues of her home
that led to the removal of S.W., Kathy Craig, one of the family aide specialists, testified
that Mother was willing to participate in services and acknowledged that Mother made
“some progress” in cleaning her home after Craig had worked with her. (Tr. 31).
Nevertheless, despite Mother’s improvements, Craig explained that Mother “had
problems maintaining the improvements[.]” (Tr. 28). Craig testified that “[u]sually
cleanliness of the home . . . was an issue,” (tr. 25), explaining that the home was usually
“cluttered” and that many times Mother’s home had “garbage overflowing” and empty
food containers on the floor or coffee table. (Tr. 28). Additionally, Craig testified that
the most recent home, where Mother was living at the time of the termination hearing,
was “cluttered” with empty food containers and had “hard shell bugs.” (Tr. 29).
Kelly Monohan, the other family aide specialist who worked with Mother,
testified that there was “an ebb and flow” with Mother’s ability to clean up her house but
that the house was usually dirty and cluttered. (Tr. 48). Monohan testified that Mother
would not keep the whole house clean but would sometimes clean one room and then try
to keep S.W. confined to that room during a home visit. Monohan tried to explain to
Mother that S.W. would be mobile and that she would need to keep the rest of the house
clean as well. Monohan also testified that the home where Mother was living at the time
of the termination hearing had the “wors[t] condition” she had seen of Mother’s previous
homes, (tr. 49), and that it “was much more dirty[.]” (Tr. 52). Monohan explained that
6
Mother’s home had “a lot of food on the floor” and was infested with cockroaches. (Tr.
49).
Additionally, the family case manager, Denise Kirchgassner, testified that Mother
had willingly participated in services. However, the family case manager testified that
Mother had progressed “very little” and had not remedied the issues that resulted in S.W.
being placed outside the home. (Tr. 68).
Finally, Mark Scott, the Guardian Ad Litem (“GAL”), testified that he had visited
Mother’s house approximately two weeks prior to the termination hearing and that the
house was “cluttered” and still had food on the floor despite the exterminator’s advice to
keep the house clean to avoid roaches. (Tr. 63).
During the termination hearing, the service providers also testified regarding their
concerns about Mother’s inability to maintain a safe environment for S.W. and to
properly supervise S.W. For example, Craig testified that Mother had pop cans and a
lighter in the bedroom but explained that Mother—who stated that the cans were used as
an ash tray and that the lighter did not work—failed to see how they posed a safety
concern for S.W. Craig also testified that she did not believe that Mother had the ability
to effectively recognize dangers and to protect S.W. from them.
Monohan also testified about safety concerns she had with Mother’s parenting
ability and explained that she had to repeatedly intervene during visits to redirect Mother
about appropriate activities for S.W. For example, Monohan testified that Mother was
not always attentive to S.W. during visits and that she had to frequently remind Mother of
choking hazards with certain toys. Monohan also testified that she had to explain to
7
Mother, on more than one occasion, that she should not let S.W. crawl on a table.
Monohan testified that while Mother had made “some progress” in her parenting skills,
such as with meeting S.W.’s needs for food, Monohan had not really seen improvement
in Mother’s ability to recognize and deal with safety concerns. (Tr. 50).
The family case manager also testified that she had concerns regarding S.W.’s
safety and Mother’s ability to care for S.W. and to recognize potential dangers.
Specifically, the family case manager testified that the condition of Mother’s home was a
safety concern because the bedroom was “cluttered with clothes, pop cans and
medication[.]” (Tr. 67). The family case manager also testified that she had seen Mother
fall asleep during supervised visits with S.W. Additionally, the family case manager also
testified that termination was in S.W.’s best interest.
As far as Mother’s bond with S.W., the GAL testified that Mother did not have an
emotional bond with S.W. Additionally, both family aide specialists also testified
regarding the lack of bonding between Mother and S.W. Craig acknowledged that
Mother loved S.W. but testified that Mother had not shown improvement in her ability to
interact with S.W. and did not appear to be bonded with S.W. Monohan also testified
that Mother did not seem to be bonded with S.W. Monohan explained that when Mother
had visits with S.W., she did not physically greet or touch her—i.e., no hugs or kisses—
and did not help S.W. transition into or from the room during a visit. Monohan testified
that she repeatedly worked with Mother on the importance of transitioning S.W. into the
room for the visit, but Mother was unable to follow through and apply that advice to
future visits with S.W.
8
Additionally, Dr. Conner, the psychologist who conducted a psychological
evaluation and parenting assessment of Mother at the beginning of the CHINS
proceeding in March 2010, testified regarding his clinical impressions obtained from that
evaluation. When discussing his concern about Mother’s parenting assessment survey
response that she needed no parental improvement, Dr. Conner testified that it was “very
unusual” for a person to respond in such a manner, especially when she was being
evaluated for parenting issues. (Tr. 79). Dr. Conner’s evaluation report, which revealed
that Mother scored in the lower extreme on both verbal and nonverbal IQ tests and placed
her reading and math ability at a grade school level, was also admitted as an exhibit.
Mother’s counsel cross-examined the service providers about whether Mother’s
mental deficiencies contributed to Mother’s inability to make the necessary level of
improvement, and they agreed that her intellectual limitations could be a factor in her
difficulty in making progress.
Finally, during the termination hearing, Mother testified that she cleaned her house
“almost everyday” and that she had been keeping it clean. (Tr. 88). She acknowledged
that her current home was infested with cockroaches but claimed that the entire apartment
complex was too. Mother further testified that she recognized that she needed to make
improvements in her parenting skills. Mother admitted that she had previously taken
parenting classes in Ohio when her older children were removed from her by Ohio child
services. Mother also acknowledged that she had four other children who were no longer
in her care. According to Mother, who was twenty-six years old when S.W. was born,
she gave up her first child, who was born when Mother was fifteen years old, for
9
adoption; she let her brother adopt two other children who had been removed from her by
Ohio child services; and she let her ex-partner have custody of one child, who
subsequently died in his father’s care.
Following the termination hearing, the trial court issued an order terminating
Mother’s parental rights to S.W. Mother now appeals. Additional facts will be provided
as necessary.
DECISION
Although parental rights are of a constitutional dimension, the law allows for
termination of these rights when parties are unable or unwilling to meet their
responsibility. In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). The purpose of
termination of parental rights is not to punish parents but to protect children. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.
In reviewing the termination of parental rights, we will neither reweigh the
evidence nor judge the credibility of witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010). We consider only the evidence most favorable to the judgment. Id. Where the
trial court has entered findings of fact and conclusions of law, we apply a two-tiered
standard of review. Id. We must determine whether the evidence supports the findings
and then whether the findings support the judgment. Id. We will set aside a judgment
terminating a parent-child relationship only if it is clearly erroneous. Id. A judgment is
clearly erroneous if the findings do not support the conclusions or the conclusions do not
support the judgment. Id.10
When DCS seeks to terminate parental rights, it must plead and prove, 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.
(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 . . . .
Ind. Code § 31–35–2–4(b)(2).2 These allegations must be established by clear and
convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court finds the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate the parent-
child relationship. I.C. § 31–35–2–8(a).
Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only
one of the two elements by clear and convincing evidence. See Bester v. Lake County
Office of Family and Children, 839 N.E.2d 143, 153 n.5 (Ind. 2005). Thus, if we hold
that the evidence sufficiently shows that the conditions resulting in removal will not be
remedied, we need not address whether the continuation of the parent-child relationship
2
During the 2012 legislative session, Indiana Code section 31–35–2–4 was amended by Public Law No. 48–2012,
§66 (effective July 1, 2012).
11
poses a threat to the well-being of S.W.3 See I.C. § 31-35-2-4(b)(2)(B); A.N.J., 690
N.E.2d at 721 n.2.
1. Conditions Remedied
Mother argues that the DCS failed to prove that there was a reasonable probability
that the conditions that resulted in S.W.’s removal or the reasons for placement outside
the home will not be remedied. Specifically, Mother contends that the DCS failed to
meet its burden because there was evidence presented that Mother had engaged in
services and had made improvements in remedying the cleanliness of her home.
To determine whether a reasonable probability exists that the conditions justifying
a child’s continued placement outside the home will not be remedied, the trial court must
judge a parent’s fitness to care for the child at the time of the termination hearing, taking
into consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721. The
trial court must also evaluate the parent’s habitual patterns of conduct to determine
whether there is a substantial probability of future neglect or deprivation. Id. A trial
court may properly consider evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of adequate
employment and housing. McBride v. Monroe County Office of Family & Children, 798
N.E.2d 185, 199 (Ind. Ct. App. 2003). Additionally, the trial court can properly consider
the services offered by DCS to the parent and the parent’s response to those services as
3
DCS contends that Mother has waived any argument challenging the trial court’s threat to the well-being
determination. We do not need to determine whether Mother waived this issue nor review whether the evidence
supports the trial court’s conclusion that a reasonable probability exists that the continuation of the parent-child
relationship poses a threat to S.W.’s well-being because we conclude that clear and convincing evidence supports
the trial court’s conclusion that a reasonable probability exists that the conditions that led to S.W.’s removal and
reasons for placement outside the home will not be remedied.
12
evidence of whether conditions will be remedied. Id. “A pattern of unwillingness to deal
with parenting problems and to cooperate with those providing social services, in
conjunction with unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” L.S., 717 N.E.2d at 210.
We acknowledge that Mother engaged in services and that various service
providers testified that Mother had made some progress in trying to clean up her house;
however, we cannot overlook the evidence that reveals that Mother had moved multiple
times and that each of Mother’s residences was cluttered with food and trash and had
safety issues despite her attempts at cleaning.
Indeed, the GAL testified that the issues that resulted in S.W. remaining outside
the home had not been remedied and further testified that he did not believe they would
be remedied in the future. While he testified that Mother had made efforts to improve, he
also testified that Mother had difficulty doing so. Specifically, the GAL testified that he
had visited Mother’s house approximately two weeks prior to the termination hearing and
that the house was “cluttered” and still had food on the floor despite the exterminator’s
advice to keep the house clean to avoid roaches. (Tr. 63).
Additionally, both family aide specialists and the family case manager testified
that Mother had not been able to maintain a consistent level of improvement in the
cleanliness of her home and that the home where she lived at the time of termination
hearing was the most troubling of Mother’s homes. These service providers also testified
regarding their concerns regarding Mother’s inability to maintain a safe environment for
S.W. and to properly supervise S.W.
13
Accordingly, we find that the trial court did not err in determining that there is a
reasonable probability that the conditions that resulted in S.W.’s removal or the reasons
for placement outside the home will not be remedied.
2. Best Interests
Mother also contends that DCS failed to prove that termination of her parental
rights was in the best interests of S.W.
For the “best interests of the child” statutory element, the trial court is required to
consider the totality of the evidence and determine whether the custody by the parent is
wholly inadequate for the child’s future physical, mental, and social growth. In re A.K.,
924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed. In making this
determination, the trial court must subordinate the interest of the parent to that of the
child involved. Id. The recommendations of the service providers that parental rights be
terminated support a finding that termination is in the child’s best interests. See A.J. v.
Marion County Office of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008),
trans. denied.
Here, the family case manager and the GAL testified that termination of Mother’s
parental rights was in S.W.’s best interest. Mother acknowledges that the family case
manager’s and the GAL’s testimony regarding S.W.’s best interest but cites to In re
Termination of Parent-Child Relationship of A.B., 888 N.E.2d 231 (Ind. Ct. App. 2008),
trans. denied, for the proposition that these service providers’ testimony cannot be the
sole basis for termination of parental rights. In that case, we held that a GAL’s and
caseworker’s testimony that termination was in the child’s best interest because it was in
14
the child’s best interest to be adopted by a foster parent could not serve as the sole basis
for terminating parental rights, especially where there was also no evidence to support the
trial court’s determination that conditions that warranted removal would not be remedied.
See A.B., 888 N.E.2d at 239 (“A parent’s right to his or her children may not be
terminated solely because a better place to live exists elsewhere.”).
Here, however, there is evidence to support the trial court’s conditions remedied
determination. Furthermore, the totality of the evidence—not solely the testimony of the
family case manager and GAL regarding best interests—demonstrated that the
termination of Mother’s parental rights was in S.W.’s best interests. Specifically,
multiple service providers testified about their concerns regarding Mother’s ability to
maintain a safe environment for and to properly supervise S.W. Both family aide
specialists who had supervised Mother’s visits with S.W. testified that Mother had not
exhibited the ability to effectively recognize and deal with dangers to S.W., and one of
the aides testified that Mother had not really improved in her ability to deal with safety
concerns. Additionally, the family case manager and the GAL testified regarding safety
concerns for S.W. if she were to return to Mother’s care. The GAL testified that he had
“not seen enough improvement in the parenting skills of [Mother] to make [him] think
that [S.W.] would not be in danger if she was returned home.” (Tr. 60). Finally, multiple
service providers testified that Mother did not have an emotional bond with S.W. In
summary, the totality of the evidence reveals that there is evidence to support the trial
15
court’s finding that termination of Mother’s parental rights is in S.W.’s best interests.
Accordingly, we affirm the trial court’s termination of Mother’s parental rights.4
CONCLUSION
We conclude there was clear and convincing evidence to support the trial court’s
decision to terminate Mother’s parental rights to S.W. 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 County
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.
Affirmed.
NAJAM, J., and RILEY, J., concur.
4
Mother also contends that the trial court erred by giving significant weight to Dr. Conner’s testimony
and evaluation because his evaluation occurred one and one-half years before the termination hearing, and
she also suggests that the trial court may have terminated her parental rights based solely on her mental
deficiencies. We disagree with both contentions. First, while the trial court stated in its order that it gave
“considerable weight” to Dr. Conner’s testimony and evaluation report, the trial court also acknowledged
that it “view[ed] his testimony in light of significant time having passed since his evaluation ha[d] been
completed.” (App. 30). Additionally, turning to Mother’s argument regarding mental deficiencies, we
note that a parent’s parental rights may not be terminated solely on the basis of his or her mental
disability. See R.M. v. Tippecanoe County Dep’t of Pub. Welfare, 582 N.E.2d 417, 420 (Ind. Ct. App.
1991). However, “[a] parent’s abilities, including intellect, as they relate to the parent’s capacity to
provide for the needs of the child, are relevant factors to be weighed in a termination proceeding.” Id.Here, however, the trial court’s order makes clear that it did not terminate Mother’s parental rights based
solely on her mental deficiencies. In the order, the trial court acknowledged that “Mother’s limited
intellectual capacity has likely played a role in her inability to gain the necessary skills” but clarified that
its decision to terminate Mother’s parental rights was “not solely [based] on Mother’s intellectual ability,
but rather on the two years of services provided and the lack of substantial progress which would indicate
reunification as a feasible goal.” (App. 30).
16