In the Matter of the Involuntary Termination of the Parent-Child Relationship of E.S. and G.S. (Minor Children) and S.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 Aug 13 2018, 7:48 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 S.S. ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General
ATTORNEY FOR APPELLANT K.M.
Katherine A. Cornelius
Jennifer A. Joas Deputy Attorney General
Madison, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary August 13, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of E.S. and G.S. 18A-JT-196
(Minor Children) and Appeal from the Dearborn Circuit
S.S. (Mother) and K.M. (Father), Court
The Honorable James D.
Appellants-Respondents,
Humphrey, Judge
v. Trial Court Cause Nos.
15C01-1705-JT-6, -7
The Indiana Department of
Child Services,
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] S.S. (‘Mother’) and K.M. (“Father”) (collectively “the Parents”) appeal the trial
court’s order involuntarily terminating their parental rights to their minor
children E.S. and G.S. (collectively “the Children”). We affirm.
Facts and Procedural History
[2] The Parents are the biological parents of E.S., born on November 3, 2013, and
G.S., born on January 30, 2015. The Dearborn County Department of Child
Services (“DCS”) became involved with this family in June 2015 due to
unsanitary home conditions and lack of supervision of the Children. After a
program of informal adjustment was attempted but ultimately unsuccessful,
DCS filed a petition alleging that the Children were children in need of services
(“CHINS”), and the Children were removed from the Parents’ care. A petition
to terminate parental rights was subsequently filed on May 22, 2017, and
following evidentiary hearings held on July 27, August 18, October 19,
November 2, and November 22, 2017, the trial court made the following
relevant findings of fact:1
e. On May 2, 2016, DCS removed the Children from their
parents’ care due to Mother’s inability to apply services to
properly supervise the Children. Specifically, the Children had
gotten out of Mother’s apartment on two occasions, and DCS
and service providers had serious concerns with Mother’s ability
1
The trial court sometimes refers to the parties by their full names. We use the aforementioned designations
where appropriate.
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to supervise the Children.
f. As part of the dispositional decree, the Parents were required
to complete individual counseling through Community Mental
Health Center (hereinafter “CMHC”), complete homemaker
services, improve their parenting skills, secure and maintain
suitable and safe housing, refrain from breaking the law, and
show the ability to supervise and parent two young children.
g. Family Case Manager Gretchen Ricketts testified that she met
with both parents and created goals for them to aspire to,
including financial stability, improved supervision, and sanitary
home conditions, none of which were fully achieved.
h. Family Case Manager [(“FCM”)] Crystal Turner worked with
the family beginning in July 2016, and testified that no progress
was made while she was the case manager. At times during the
pendency of the case home conditions were described as
deplorable – bed bugs, animal feces and stale food left about the
house.
i. In February 2016, Father was charged with possession of a
narcotic drug, possession of paraphernalia, and theft…. Father
pleaded guilty to possession of a narcotic drug and theft in May
2016 and was placed on probation until May 2018. In March
2017, Father violated his probation by testing positive for
marijuana on three occasions.
j. Father is currently incarcerated for violating his probation, by
testing positive for Methamphetamine and Amphetamine on
September 15, 2017 and September 18, 2017.
….
l. [Mother’s therapist] testified that while Mother has made some
progress throughout the years, she would have concerns for the
Children’s safety if they were returned to Mother’s care …
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includ[ing] a lack of a support system for Mother, Mother’s
limited financial resources, and the inability of Mother to apply
learned skills, such as keeping the house sanitary and safe for
children.
….
n. [Gayle Holten from CMHC] testified that she would have
concerns for the Children’s safety if they were returned to
Mother’s care. Specifically, Ms. Holten’s concerns included
Mother’s inability to apply learned skills consistently and
Mother’s inability to follow-through with expectations and
application. For example, Ms. Holten testified that during
numerous visits to Mother’s home, she pointed out choking
hazards that Mother immediately addressed. However, the
choking hazards would return the following week.
o. Sophia Frazier … supervised visits with the Parents from
September 2016 to June 2017.… During the visits in Mother’s
home, Ms. Frazier testified that she consistently experienced
issues with the cleanliness of the home, as well as hazardous
materials within reach of the Children. Examples of the
hazardous materials include: an electric drill within reach of the
Children, a hair dryer next to standing water, safety razors within
reach of the Children, stacked boxes, and uncovered electrical
outlets when at least one of the Children attempted to put a key
in an electrical outlet. Ms. Frazier further testified that Mother
addressed the issues when mentioned, but the same issues would
appear the following week.
p. Mother has not been employed throughout the underlying
CHINS cases and remains unemployed today. She has applied
for disability on three occasions and has been denied all three
times. She has been supporting herself with food stamps and
family support. Mother did receive financial aid for two (2)
semesters while enrolled at Ivy Tech. Mother quickly spent all of
that aid on clothes for the Children, child care items, a television,
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a gaming console, an iPad, a laptop, and food. Mother was also
employed for four (4) days at the local Dunkin’ Donuts after
DCS filed for termination of parental rights, but was fired for her
inability to apply the skills she had been taught.
….
r. Throughout the underlying CHINS cases, Father was offered
supervised visitation, individual counseling, homemaker services,
and random drug screens. Father rarely appeared for supervised
visitation and only did so toward the end of the CHINS case,
when he was on house arrest and had to remain in the home.
Father did not go to individual counseling or work with a
homemaker. Father also did not comply with random drug
screens; Father did not call the DCS office for drug screening
purposes, because of his social anxiety.
s. Father’s counsel submitted Father’s 2017 Counseling Report,
without objection. The counseling report indicates that Father
participated in homemaker services in early 2017, despite being
ordered to complete the service in the Dispositional Decree. The
report also indicates that Father is currently attending services,
but is largely due to Father’s current incarceration. Testimony
also indicated that Father has a history of non-compliance.
Father also failed to take steps to establish paternity.
In addition, the Parents had to be constantly reminded to refrain
from the use of electronic devices during visitation with the
Children. Dangers to the Children caused by the Parent[s’] lack
of ability to supervise is represented by the Children fleeing from
the home while they were supposed to be supervised by [the]
Parents and the need for service providers and caseworkers to
intervene during visits for the Children’s safety.
Appealed Order at 2-5 (citations omitted).
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[3] Based upon these findings of fact, the trial court concluded that: (1) there is a
reasonable probability that the conditions that resulted in the Children’s
removal and continued placement outside the home will not be remedied by
either parent; (2) there is a reasonable probability that the continuation of the
parent-child relationship between both parents and the Children poses a threat
to the Children’s well-being; (3) termination of the parent-child relationship
between both parents and the Children is in the Children’s best interests; and (4)
DCS has a satisfactory plan for the care and treatment of the Children, which is
adoption. Accordingly, the trial court determined that DCS had proven the
allegations of the petition to terminate parental rights by clear and convincing
evidence and therefore terminated both parents’ rights to the Children. Each
parent now appeals.
Discussion and Decision
[4] “The purpose of terminating parental rights is not to punish the parents but,
instead, to protect their children. Thus, although parental rights are of a
constitutional dimension, the law provides for the termination of these rights
when the parents are unable or unwilling to meet their parental
responsibilities.” In re A.P., 882 N.E.2d 799, 805 (Ind. Ct. App. 2008) (citation
omitted). “[T]ermination is intended as a last resort, available only when all
other reasonable efforts have failed.” Id. A petition for the involuntary
termination of parental rights must allege in pertinent part:
(B) that one (1) of the following is true:
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(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
(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 that termination is appropriate by
a showing of clear and convincing evidence. In re V.A., 51 N.E.3d 1140, 1144
(Ind. 2016). If the trial court finds that the allegations in a petition are true, the
court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[5] “We have long had a highly deferential standard of review in cases involving
the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d
85, 92 (Ind. Ct. App. 2014).
We neither reweigh evidence nor assess witness credibility. We
consider only the evidence and reasonable inferences favorable to
the trial court’s judgment. Where the trial court enters findings
of fact and conclusions thereon, we apply a two-tiered standard
of review: we first determine whether the evidence supports the
findings and then determine whether the findings support the
judgment. In deference to the trial court’s unique position to
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assess the evidence, we will set aside a judgment terminating a
parent-child relationship only if it is clearly erroneous.
Id. at 92-93 (citations omitted). “A judgment is clearly erroneous if the findings
do not support the trial court’s conclusions or the conclusions do not support
the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App. 2005).
[6] Both Mother and Father challenge the sufficiency of the evidence supporting
the trial court’s conclusion that there is a reasonable probability that the
conditions that resulted in the Children’s removal from and continued
placement outside the home will not be remedied, 2 and that termination of their
respective parental rights is in the Children’s best interests.
Section 1 – Clear and convincing evidence supports the trial
court’s conclusion that there is a reasonable probability of
unchanged conditions.
[7] Mother and Father each assert that DCS failed to present clear and convincing
evidence that there is a reasonable probability that the conditions that led to the
Children’s removal and continued placement outside the home will not be
2
Both Mother and Father also argue that DCS failed to prove that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to the well-being of the Children. However,
Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the
termination of parental rights, the trial court need only find that one of the three requirements of that
subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Accordingly, we will address the sufficiency of the
evidence regarding only one of the three requirements.
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remedied.3 In determining whether there is a reasonable probability that the
conditions that led to the Children’s removal and continued placement outside
the home will not be remedied, we engage in a two-step analysis. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must
ascertain what conditions led to their placement and retention in foster care.”
Id. Second, “we ‘determine whether there is a reasonable probability that those
conditions will not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1132,
1134 (Ind. 2010) (citing In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App.
1997))). In the second step, the trial court must judge a parent’s fitness at the
time of the termination proceeding, taking into consideration evidence of
changed conditions, and balancing a parent’s recent improvements against
“‘habitual pattern[s] of conduct to determine whether there is a substantial
probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d 636, 643
(Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). “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.” Lang v. Starke
Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans.
denied. The evidence presented by DCS “need not rule out all possibilities of
change; rather, DCS need establish only that there is a reasonable probability
3
Mother and Father each challenge some of the trial court’s individual findings of fact or portions of certain
findings of fact, but we need not address these challenges because we can resolve the issues presented based
on the unchallenged findings and the evidence underlying those findings.
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that the parent’s behavior will not change.” In re Kay L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007).
[8] Here, there is sufficient evidence in the record to support the trial court’s
findings and ultimate conclusion that there is a reasonable probability that the
conditions that led to the Children’s removal and continued placement outside
the Parents’ care will not be remedied by either Mother or Father. The
Children were initially removed from the home due to the deplorable
conditions as well as lack of appropriate supervision of the Children. The
Children continued to be placed outside the home because neither parent
seemed to progress in his or her ability to provide a clean, safe, and stable
home. As for Mother, she asserts that as of the date of the final termination
hearing, she presented evidence that her living conditions are no longer
deplorable and that she can adequately supervise the Children because, as of
June 2017, she has found the right medications to deal with the mental health
issues that had caused her to be distracted and overwhelmed. Thus, she asserts,
“conditions have been remedied.” Mother’s Br. at 20. While we commend
Mother’s recent efforts and improvements, we must defer to the trial court’s
assessment of the testimony of service providers that Mother’s parenting skills
have not substantially improved and are unlikely to ever do so. Mother has
consistently demonstrated an inability to maintain a safe, clean, and stable
home for the Children.
[9] Mother admits that while the evidence may support a finding that perhaps the
Children should not immediately return to her care, the evidence does not
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support termination of her rights and the trial court should have simply
continued the CHINS proceedings to give her more time. However, DCS has
been involved with this family and has been trying to help Mother learn how to
parent for almost two years. The trial court was under no obligation to wait
even longer to see if Mother would progress, and we will not second-guess that
decision. “[C]hildren have an interest in terminating parental rights that
prevent adoption and inhibit establishing secure, stable, long-term, continuous
relationships.” K.T.K., 989 N.E.2d at 1230 (quoting In re C.G., 954 N.E.2d 910,
917 (Ind. 2011)). There is sufficient evidence in the record to support the trial
court’s conclusion that there is a reasonable probability that the conditions that
led to the Children’s removal and continued placement outside of the Parents’
care will not be remedied by Mother.
[10] As for Father, he blames the reasons for the Children’s initial removal wholly
on Mother because he did not reside with Mother and the Children at the time.
While we do review the changes in the conditions under which Children were
removed from a parent’s care, we also consider “those bases resulting in
continued placement outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind.
Ct. App. 2005), trans. denied. Even assuming Father was not responsible for the
initial removal of the Children, he has done little to remedy the conditions that
resulted in their continued placement outside the home. Father was
incarcerated at various times throughout the case, and the record indicates that
Father did not actively participate in services when he was not incarcerated.
Indeed, our review of the record reveals that except for times when Father was
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on house arrest or incarcerated, he did not comply with services, did not
consistently attend supervised visitation, continued to use drugs, and was
unable to secure employment or stable housing. Father concedes that he was
noncompliant, but he asserts he has recently demonstrated “an effort towards
remedying the reasons for placement outside the home.” Father’s Br. at 23. As
found by the trial court, Father’s recent efforts are largely due to his current
incarceration. Father’s pattern of unwillingness to deal with his parenting
problems and to cooperate with those providing social services, in conjunction
with unchanged conditions, supports the trial court’s conclusion that there
exists no reasonable probability that Father will remedy the conditions.
[11] In sum, the trial court was tasked with balancing the Parents’ recent
improvements against their habitual patterns of conduct to determine whether
there is a substantial probability of future neglect or deprivation. It is not our
prerogative on appeal to reweigh the evidence or reassess witness credibility.
Clear and convincing evidence supports the trial court’s conclusion that there is
a reasonable probability that the conditions that led to the Children’s removal
and continued placement outside the home will not be remedied by either
Mother or Father.
Section 2 – Clear and convincing evidence supports the trial
court’s conclusion that termination of both Mother’s and
Father’s parental rights is in the Children’s best interests.
[12] Both Parents assert that DCS failed to present clear and convincing evidence to
support the trial court’s conclusion that termination of their respective parental
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rights is in the Children’s best interests. In considering whether termination of
parental rights is in the best interests of a child, the trial court is required to look
beyond the factors identified by DCS and look 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 doing so, the trial court must subordinate the interests of the
parent to those of the child involved. Id. The trial court need not wait until the
child is irreversibly harmed before terminating parental rights. Id. “The historic
inability to provide adequate housing, stability, and supervision, coupled with
the current inability to provide the same, will support a finding that
continuation of the parent-child relationship is contrary to the child’s best
interests.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005). The testimony
of service providers may support a finding that termination is in the child’s best
interests. McBride, 798 N.E.2d at 203.
[13] Here, FCM Turner testified that none of the conditions that led to the
Children’s initial removal from the home have been remedied by either Mother
or Father, and she opined that termination of both Parents’ rights was in the
Children’s best interests. Regarding Mother, Turner testified that she remained
unable to appropriately supervise the Children or provide a safe home
environment, and that after more than two years of parenting classes, she “is
unable to apply anything that she’s learned.” Tr. Vol. 1 at 116. Turner further
noted that Mother has no financial means to support the Children and no
transportation. Regarding Father, Turner testified that he has not engaged in
services throughout the entire pendency of the case, has failed to consistently
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attend visits, has not been employed, and “really has a basic not-caring attitude
about what his children need.” Id. at 117. Turner noted that E.S. has been
diagnosed with reactive attachment disorder and displays behaviors consistent
with autism spectrum disorder, and that the Parents are ill-equipped to handle
the challenges of dealing with these issues.
[14] Similarly, therapist Sarah Wickman testified that she would be concerned for
the Children’s safety if they were returned to the home due to Mother’s
continuing struggle with becoming easily overwhelmed and her inability to
apply what she has been taught. She also stated that Mother’s limited financial
resources and lack of employment posed a threat to Mother’s ability to care for
the Children. As for Father, Wickman noted that Father seemed unable to
focus around the Children and needed constant coaching regarding proper
interactions, and the Children sometimes avoided Father during visits.
[15] Finally, service provider and parenting educator Gayle Holten testified that she
was tasked with teaching the Parents how to create a clean and safe
environment for the Children. Mother inconsistently participated in these
services and, even after being taught skills, demonstrated an inability to apply
them. Holten stated that Mother was unable to focus on the needs of the
Children as opposed to her own needs. As for Father, he rarely participated in
services and, during one home visit, he played video games and refused to
engage in services.
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[16] The evidence of unchanged conditions coupled with the testimony of service
providers supports the trial court’s conclusion that termination of both Parents’
rights is in the Children’s best interests. “Clear and convincing evidence need
not reveal that the continued custody of the parents is wholly inadequate for the
child’s very survival. Rather, it is sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143, 148 (citation and quotation marks omitted). The Parents have
been given ample time to demonstrate an ability to properly care for these
young children and they have failed to do so. The Children need the safety and
stability that adoption can provide them. Accordingly, we affirm the trial
court’s termination of both Mother’s and Father’s parental rights.
[17] Affirmed.
Najam, J., and Pyle, J., concur.
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