In Re the Term. of the Parent-Child Rel. of: Al.S. & A.S. and C.S. v. The Indiana Department of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
Apr 19 2012, 9:14 am
court except for the purpose of
establishing the defense of res judicata,
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:
HAROLD E. AMSTUTZ DAVID E. COREY
Lafayette, Indiana ROBERT J. HENKE
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF: )
)
Al. S. & A.S. (Minor Children) )
)
and )
)
C.S. (Father) ) No. 79A02-1112-JT-1158
)
Appellant-Respondent, )
)
vs. )
)
THE INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Loretta H. Rush, Judge
The Honorable Faith A. Graham, Magistrate
Cause No. 79D03-1108-JT-109;79D03-1108-JT-111
April 19, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-respondent C.S. (Father) appeals the juvenile court’s termination of his
parental rights as to his minor daughters, A.S. and Al. S., upon the petition of appellee-
petitioner Tippecanoe County Department of Child Services (DCS). Specifically, Father
argues that the termination order must be set aside because the juvenile court erred in
determining that there is a reasonable probability that the conditions that led to the
children’s removal would not be remedied, that the DCS failed to present sufficient
evidence that the continuation of the parent-child relationship posed a threat to the
children’s well-being, and that the juvenile court erred in determining that the children’s
best interests would be served by the termination of parental rights.
Concluding that the juvenile court did not err in terminating Father’s parental
rights as to both children, we affirm.
FACTS
S.S. (Mother) and Father are the parents of Al. S., born on April 27, 2009, and
A.S., born on November 30, 2010. Mother is not a party to this appeal. Mother and
Father had married in June 2009, and the marriage was fraught with instances of
domestic violence.1
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Mother and Father divorced in January 2011.
2
On June 22, 2010, the DCS received a report that Al. S. was being neglected.
Specifically, it was alleged that Al. S. had an ongoing diaper rash, a yeast infection,
dermatitis, a urinary tract infection, and low weight. DCS representatives also found
dirty and molded dishes on the counters and floors of the residence. At that time, Father
was already involved with the DCS through his other child, K.V., who had been
previously adjudicated a Child in Need of Services (CHINS).2
DCS family case manager Maria Hancock initiated the assessment and noted that
Mother had been arrested for domestic battery and Father was treated at a local hospital
for a contusion. It was also observed that Al. S. did not have proper bedding.
Subsequent investigation confirmed the reports and revealed that Al. S. weighed only
sixteen pounds at fourteen months of age.
The evidence showed that both Mother and Father failed to follow a safety plan
with regard to a previous domestic battery incident. Al. S. was placed in protective
custody in accordance with a CHINS Detention Hearing order that was issued on June
28, 2010. Al. S. was found to be a CHINS and a dispositional order was issued on July
23, 2010.
A.S. remained in Mother’s care. Shortly after A.S.’s birth, Al. S. was placed in
Mother’s care on a trial home visit commencing December 15, 2010. Within sixty days
of the trial home visit, Mother was arrested for shoplifting at the mall with the children
present. Mother had failed to comply with a safety plan regarding access to the children,
2
Father eventually voluntarily relinquished his parental rights as to K.V. Tr. p. 58, 59.
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and she had allowed contact between the children and unapproved caregivers. Mother’s
mental health had deteriorated and she was briefly hospitalized for inpatient mental
health treatment after her release from jail.
Both children were placed in protective custody pursuant to an order that was
issued on January 24, 2011. A.S. was found to be a CHINS, and another dispositional
order was issued on February 14, 2011. A CASA was appointed to represent the interests
of both children. Both A.S. and Al. S. have remained out of the parents’ care
continuously since that date.
The DCS offered Mother and Father various services including parenting classes,
and couples’ counseling. Father was also ordered to undergo anger management services
and substance abuse education. However, Father stopped attending various appointments
and participating in services. Father offered various excuses for not attending the
appointments, including illness, oversleeping, failing to write down the appointments,
and forgetting. Father was eventually discharged from one of the facilities because he
made threats during the therapy sessions and did not pay his fees.
On August 16, 2011, the DCS filed petitions to terminate Father and Mother’s
parental rights as to both children. At a hearing that commenced on the petitions on
October 25, 2011, it was determined that neither parent had demonstrated an investment
in unification with the children. The evidence showed that the circumstances of neither
of the parents had improved, and they were in no better position to care for their children.
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Mother resided in a number of places during the pendency of the proceedings until
she was able to locate a subsidized residence in February 2011. Although Mother
recently took a job at Wal-mart, she has no driver’s license and must rely on rides or bus
transportation.
It was also determined that Mother was unable or unwilling to address her mental
health needs. She had been diagnosed with bipolar disorder and prescribed medications.
She failed to follow through with the therapy that was recommended, and she has missed
psychiatric appointments for medication management.
Mother also has difficulties feeding the children and meeting their nutritional
needs. She struggles with decisions as to whether the children require a bottle or baby
food, despite intensive parent training in this area. Mother still needs prompting to feed
A.S. on a regular basis.
The evidence also established Father’s history of instability. Although Father
maintained an apartment for approximately one year, he is unemployed and has no
income for basic supplies for the children. Father has consistently missed visits with the
children and he has failed to attend various services that were recommended by the DCS
to improve his stability and parenting skills. In fact, Father was discharged from therapy
as a result of some threatening remarks and lack of attendance.
The CASA, Rebecca Barnes, testified that termination of parental rights was in the
children’s best interest. Barnes specifically noted the parents’ inability or unwillingness
to follow through with the DCS’s recommended services to improve their circumstances
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and parenting. Barnes also observed that the children are comfortable in foster care and
have no special needs.
On December 1, 2011, the juvenile court entered an order terminating the parental
rights of Mother and Father as to both children. The conclusions of law provided in part
that
1. There is a reasonable probability that the conditions that resulted in the
removal of the children from the parents’ care or the reasons for the
continued placement outside the home will not be remedied. Neither
parent has yet to demonstrate the ability or willingness to make lasting
changes from past behaviors. There is no reasonable probability that
either parent will be able to maintain stability in order to care and
provide adequately for the children.
2. Continuation of the parent-child relationships poses a threat to the well-
being of the children. The children need stability in life. The children
need parents with whom the children can form a permanent and lasting
bond to provide for the children’s emotional and psychological as well
as physical well-being. The children’s well-being would be threatened
by keeping the children in parent-child relationships with either parent
whose own choices and actions have made them unable to meet the
needs of the children.
3. DCS has a satisfactory plan of adoption for the care and treatment of the
children following termination of parental rights. The children can be
adopted and there is reason to believe an appropriate permanent home
has or can be found for the children as a sibling group.
4. For the foregoing reasons, it is in the best interests of Al. S. and A.S.
that the parental rights of [Mother and Father] be terminated.
Father now appeals.
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DISCUSSION AND DECISION
I. Standard of Review
When reviewing the sufficiency of the evidence to support a judgment of
involuntary termination of a parent-child relationship, we neither reweigh the evidence
nor judge the credibility of the witnesses. In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App.
2002). We consider only the evidence that supports the judgment and the reasonable
inferences to be drawn therefrom. Id. at 929-30. This court will not set aside the juvenile
court’s judgment terminating a parent-child relationship unless the judgment is clearly
erroneous. Id.The purpose of terminating parental rights is not to punish parents but to protect
their children. In re Termination of the Parent-Child Relationship of D.D., 804 N.E.2d
258, 264 (Ind. Ct. App. 2004). Although parental rights are of a constitutional
dimension, the law allows for the termination of those rights when parties are unable or
unwilling to meet their responsibility as parents. Id. The juvenile court must subordinate
the interests of the parents to those of the child when evaluating the circumstances
surrounding the termination. In re R.S., 774 N.E.2d at 930. Termination of the parent-
child relationship is proper where the child’s emotional and physical development is
threatened. Id. The juvenile court need not wait until the child is irreversibly harmed
before terminating the parent-child relationship. Id.7
Indiana Code section 31-35-2-4(b)(2) sets out the following elements that the DCS
must allege and prove by clear and convincing evidence in order to terminate a parent-
child relationship:
(B) there is a reasonable probability that:
(i) the conditions that resulted in the child’s removal or the
reasons for placement outside the home of the parents will not
be remedied; or
(ii) the continuation of the parent-child relationship poses a threat
to the well-being of the child;
(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.
As set forth above, subsection (B) is written in the disjunctive, requiring that the
DCS prove only one of the two requirements by clear and convincing evidence. In re
L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999). Therefore, standing alone, a finding that
a reasonable probability existed that the conditions resulting in the removal of the child
were unlikely to be remedied by the parent, can satisfy the requirement listed in
subsection (B).
II. Conditions Remedied
With regard to Father’s contentions that the DCS failed to show that the conditions
that resulted in the children’s removal would not be remedied, we note that, to determine
whether this allegation has been proven, the juvenile court must judge a parent’s fitness
to care for the child at the time of the termination hearing and take into consideration any
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evidence of changed conditions. In re D.D., 804 N.E.2d at 266. A parent’s habitual
pattern of conduct must also be evaluated to determine the probability of future neglect or
deprivation of the child. Id. The juvenile court can properly consider the services that
the State offered to the parent and the parent’s response to those services. In re M.W.,
943 N.E.2d 848, 854 (Ind. Ct. App. 2011), trans. denied.
As discussed above, Father has missed numerous visits with the children. The
record demonstrates that he did not visit in some instances because he had an ongoing
case of scabies. However, Father never resumed regular visits with the children. Father
also “struggled” with handling both of the children at once and had difficulty providing
adequate supervision for them. Tr. p. 50, 55, 60. When Father does visit with the
children, the sessions have been fully supervised with constant redirection regarding his
inappropriate developmental expectations for both Al. S. and A.S.
Throughout the pendency of the proceedings, Father was found in contempt on
four occasions for failing to complete the parenting services that were offered, and he has
displayed a very limited ability to care for the children for short periods of time. The
CASA also observed that Father “had a short fuse,” and it did not take much for him “to
snap at the children.” Id. at 119.
Father also failed to participate in the programs and services that were
recommended by the DCS to improve his stability and parenting skills. In fact, Father
commented that he was not open to suggestions regarding his parenting skills. DCS Ex.
6. Additionally, while a DCS case manager testified that Father had been offered “every
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service it could,” Father believed that the services “were a waste of time.” Tr. p. 92, 95.
Father also never completed recommended anger management services or parenting
classes.
Although Father testified that he might be able to find employment, he was
unemployed at the time of the termination hearing. In fact, Father’s mother supported
him financially.
One of the case managers testified that she believed that there would be a risk of
harm if the children were placed with Father. Thus, she and the CASA believed that
termination of Father’s parental rights is also in the children’s best interests. Tr. p. 96,
123.
In short, the evidence supports the juvenile court’s determination that there is a
reasonable probability that Father would not remedy the conditions that resulted in the
children’s removal.3
III. The Children’s Best Interests
We next address Father’s contention that the DCS failed to show that terminating
his parental rights as to the children was in their best interests. In determining what is in
a child’s best interests, the juvenile court is required to look beyond the factors identified
3
Father also contends that the DCS failed to prove the continuation of the parent-child relationship poses
a threat to A.S. and Al. S.’s well-being. However, as we have noted above, the statute is written in the
disjunctive and requires the juvenile court to find only one of the requirements of subsection (B) under
Indiana Code section 31-35-2-4 by clear and convincing evidence. In re L.S., 717 N.E.2d at 209.
Standing alone, the finding that there is a reasonable probability that the conditions that resulted in the
children’s removal will not be remedied satisfies the requirement of subsection (B). We therefore need
not address Father’s argument that DCS failed to prove the continuation of the parent-child relationship
poses a threat to the children’s well-being.
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by the DCS to the totality of the evidence. In re T.F., 743 N.E.2d 766, 776 (Ind. Ct. App.
2001). In doing so, the juvenile court must subordinate the interests of the parent to those
of the child involved. Id. In analyzing a child’s best interests, we recognize that
permanency is a central consideration. The juvenile court need not wait until a child is
irreversibly influenced such that his or her physical, mental, and social growth is
permanently impaired before terminating the parent-child relationship. Id.A child’s need for stability and permanency is paramount. McBride v. Monroe
Cnty. OFC, 798 N.E.2d 185, 192-93 (Ind. Ct. App. 2003). The testimony of a child’s
caseworker and advocate regarding the child’s need for permanency supports a finding
that termination is in the child’s best interest. In re T.F., 743 N.E.2d at 776.
In this case, both the CASA and the DCS caseworkers supported the termination
of Father’s parental rights and the plan of adoption for the children. As discussed above,
the DCS and the juvenile court made services available to assist Father. However, Father
refused to participate and cooperate, with the result being his inability or unwillingness to
better himself as a parent. The evidence also established that the children were adjusted
and happy in foster care placement, and their needs were being met.
In sum, the evidence established that Father was afforded an extensive period of
time in which to provide a safe, stable, and nurturing environment for the children by
making positive changes. However, he failed to do so. As a result, we conclude that the
juvenile court did not err in finding that termination of Father’s parental rights was in the
children’s best interests.
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The judgment of the juvenile court is affirmed.
KIRSCH, J., and BROWN, J., concur.
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