In the Matter of the Termination of the Parent-Child Relationship of: B.R. and A.R. (Minor Children) K.W. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 17 2020, 9:12 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Don R. Hostetler Curtis T. Hill, Jr.
Hostetler Law LLC Attorney General of Indiana
Indianapolis, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination July 17, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of: B.R. and A.R. (Minor 20A-JT-104
Children); Appeal from the Marion Superior
K.W. (Mother), Court
The Honorable Mark A. Jones,
Appellant-Respondent,
Judge
v. The Honorable Peter P. Haughan,
Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 49D15-1902-JT-240
49D15-1902-JT-241
Appellee-Petitioner.
Najam, Judge.
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Statement of the Case
[1] K.W. (“Mother”) appeals the trial court’s termination of her parental rights
over her minor children B.R. and A.R. (collectively, “Children”). Mother
presents three issues for our review, which we consolidate and restate as
whether the Indiana Department of Child Services (“DCS”) presented sufficient
evidence to support the termination of her parental rights.
[2] We affirm.
Facts and Procedural History
[3] Mother and R.R. (“Father”) (collectively, “Parents”) have two children
together: B.R., born September 4, 2013, and A.R., born November 11, 2014.
On August 8, 2016, DCS filed a petition alleging that Children were children in
need of services (“CHINS”) because Mother “[had] tested positive for
methamphetamine, amphetamine, and marijuana,” and Children “had on dirty
clothing, had unkempt hair, and appeared to be hungry.” Ex. at 48. DCS also
alleged that Father had been “unable or unwilling to protect his children while
in the care and custody of [Mother].” Id. On August 29, Mother, by her
counsel, admitted at the pretrial hearing that, because she “[had] used
methamphetamine and would benefit from services provided by DCS, the
[C]hildren are in need of services.” Id. at 71. On April 3, 2017, Father waived
his right to be tried separately, and the court adjudicated Children as CHINS.
[4] On May 1, 2017, the court entered a Parental Participation Order, which
required Mother to engage in a home-based therapy program and a home-based
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case management program referred by the Family Case Manager (“FCM”) and
required Mother to complete a parenting assessment and a psychological
evaluation. The court also issued a dispositional decree and awarded wardship
of Children to DCS. On February 19, 2019, DCS filed petitions to terminate
Mother’s parental rights over Children. And on August 24 and September 27,
the juvenile court held an evidentiary hearing on those petitions.
[5] DCS presented the testimony of several witnesses at the evidentiary hearing.
Dr. Sean Samuels, a licensed psychologist, had administered the Wechsler
Adult Intelligence Scale assessment for Mother. Mother scored a sixty, which
is in the extremely low range. This score indicated that she would need
continuous assistance across time to be able to retain information. Dr. Samuels
also administered the Repeatable Battery for the Assessment of
Neuropsychological Status test. Mother’s scores on that test indicated that she
is likely to experience significant difficulties with verbal learning, processing
and using visuospatial information, fluent use of language, basic attention, and
speed of information processing. She may also demonstrate mild difficulties
with recognition and retrieval of long-term memory stores. Mother met the
diagnostic criteria for Intellectual Disability, Mild and Adjustment Disorder
with Depressed Mood. At the evidentiary hearing, Dr. Samuels testified that he
was concerned that “[Mother] would be unwilling to ask for assistance or be
able to rely upon other people,” and, as Children become more complex,
“things are going to be very difficult for her to keep up with.” Tr. Vol. 2 at 21.
He also testified that he did “not expect [Mother’s] scores to increase; however,
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if she had [a] traumatic brain injury or [another] stroke or something, those
scores could decrease.” Id. at 22.
[6] Tenea Robinson (“Robinson”) testified that she served as the supervised visit
facilitator for Mother and Children between May 2017 and April 2018. At one
point during this period, Mother was permitted unsupervised in-home visits
with Children, and Robinson would come to the home to conduct pop-ins to
see how Mother and Children interacted with each other. During several pop-
in visits, Robinson observed other adults in the home, and Mother did not have
authorization to have anyone else at her visits. On one occasion, Mother could
not remember if she had fed Children adequate food. Robinson testified at the
hearing that she had some concerns with Mother meeting Children’s needs as
Mother “required a lot of assistance with re-direction with the [C]hildren.” Id.
at 218.
[7] Michelle Walkey-Thornburg testified that she was the therapist for Children
from June 2018 to November 2018. Children told Walkey-Thornburg that
Father had sexually abused each of them several times. A.R. also told Walkey-
Thornburg that B.R. had touched her vagina and anus. On one occasion, A.R.
masturbated in front of Walkey-Thornburg and tried to touch Walkey-
Thornburg’s breast. During a therapy session, B.R. pulled toilet paper out of
her vagina and put it into her mouth. Walkey-Thornburg observed a visit
between Mother and Children in September 2018, and she described it as
“chaotic” with Children running and yelling. Id. at 142. Mother tried to
redirect the whole time but did not succeed. Walkey-Thornburg recommended
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that Children be placed in separate placements because B.R. had repeatedly
touched A.R. in a sexual manner.
[8] Rayna Coe testified that she served as a supervised visit facilitator for Mother.
Coe had concerns with Mother’s parenting due to a lack of discipline, a lack of
consistency, and the continuing need for re-direction. During visits, Coe would
redirect Mother and model an appropriate response, but Mother did not
improve and continued to need re-direction. Because Mother’s lack of
consistency and discipline resulted in safety concerns, Coe believed that Mother
could not meet the needs of Children, especially given their sexual trauma. Coe
testified at the hearing that the court should terminate Mother’s parental rights
as Children are “thriving in a stable and supportive environment and are
receiving the support that they need to move on in a healthy way.” Id. at 166.
[9] Stacy Batts testified that she served as a supervised visit facilitator for Mother,
and she has supervised over 300 visitation hours for Mother. Children
displayed sexual behaviors during those visits, and they would not listen to
Mother. Children routinely had temper tantrums and engaged in masturbation
until aides stepped in to stop them. During visits, Children dominated Mother.
They would sometimes scream at Mother, not listen to Mother, throw items at
Mother, and tell Mother what they would do and what they would not do.
Batts described her work with Mother as “more coaching than facilitating” for
the first two months. Id. Mother would only implement the coaching when
Batts was watching. Batts testified that, because she could not firmly say that
Mother “would keep the [Children] safe” from sexual abuse, Mother could not
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meet Children’s needs. Id. at 198. Batts also testified that the court should
terminate Mother’s parental rights because she believed that Mother could not
“be a primary caregiver” for Children. Id. at 200.
[10] From August 2016 to January 2019, Jennifer Ankney served as Children’s
guardian ad litem (“GAL”). Ankney observed visits between Mother and
Children, and she described the visits as “chaotic.” Id. at 115. Ankney believed
that the Parents should not be given additional time to remedy the conditions
that led to the removal of Children because: the case had been open for nearly
three years; DCS had given each parent numerous service providers and
numerous services to address their needs; and there had been no improvement
by the Parents. Ankney testified at the hearing that it is in the best interest of
Children to terminate Mother’s parental rights because Mother “was unable to
maintain the education that she was given with her providers . . . and then
apply it.” Id. at 120. Mother was also “unwilling to keep the alleged
perpetrator away from B.R.” Id.
[11] Octavia Lee has been assigned to Children’s case as a Family Case Manager
since July 2018. Lee had concerns with Mother’s ability to retain information
as well as understand the appropriate parenting it takes to parent children with
trauma. She also had concerns about Mother’s ability to provide Children with
safe and stable housing as Mother is not currently employed and only receives
$771.00 a month in disability. Lee believed that there are no additional services
that can help rectify Mother’s issues and that she should not be given extra time
to remedy the issues. Lee testified at the hearing that, to achieve “the
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permanency that they need to live a safe and stable life in the future,” it is in
Children’s best interest to terminate Mother’s parental rights. Tr. Vol. 3 at 5.
[12] DCS presented evidence that on October 18, 2018, DCS placed B.R. in a pre-
adoptive foster home with D.G. and L.G. When DCS first placed B.R. with
them, she would hide food, touch herself in a sexual manner, and then
complain that her vaginal area hurt. Since B.R. has been in the care of D.G.
and L.G., she has stopped touching herself. B.R. is a very joyful kid in the
foster home, and she calls D.G. and L.G. by the names, “Daddy” and
“[M]ommy.” Tr. Vol. 2 at 84.
[13] DCS presented evidence that on November 16, 2018, DCS placed A.R. in a
pre-adoptive foster home with A.K. and J.K. When DCS placed A.R. with
them, she had a hard time getting to sleep, had night terrors, and cried when
she was told no. A.R.’s aggressive behaviors would almost always coincide
with her visits with Parents. A.R. is bonded with A.K. and J.K., and she calls
them by the names, “Dad” and “Mom.” Id. at 74.
[14] At the conclusion of the evidentiary hearing, the juvenile court entered the
following findings and conclusions:
80. Conditions Resulting in Removal or Reasons for Placement
Outside the Home.
* * *
(g) The conditions that led to Children’s removal or
placement and retention outside the home of Mother
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are: her issues with substance abuse; her inability to
grasp and remember parenting skills; and her
inability to safely and adequately parent the Children.
(h) Although Mother has remedied her issues with
substance abuse, the other conditions have not been
remedied. Mother is unable to grasp and remember
parenting skills, and she has made little to no
progress in being able to safely and adequately parent
the Children. Mother has not demonstrated the
ability to care for Children without the assistance of
service providers and has not progressed in any of her
services.
([i]) It is highly probable that these conditions will
not be remedied, even if Mother was given additional
time to remedy the conditions.
(j) There is a substantial probability that future
neglect or deprivation will occur because of Mother’s
failure to remedy the conditions.
* * *
(o) DCS has shown by clear and convincing evidence
that there is a reasonable probability that Mother will
not remedy the conditions that resulted in Children’s
removal.
81. Threat to the Well-Being of the Children.
* * *
(c) The Children’s emotional and physical
development are threatened by a continuing parent-
child relationship with Mother and by Mother’s
custody. Mother has not remedied the conditions
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that led to [the] removal and retention of the
Children from her care. Mother lacks the necessary
parenting skills to adequately care for the Children
and provide them with a safe and stable home.
* * *
(e) Children are thriving in their pre-adoptive
placement. It is highly probable that a future parent-
child relationship between [Mother] and Children
threatens the stability, safety, and progress the
[C]hildren have achieved.
(f) DCS has shown by clear and convincing evidence
that there is a reasonable probability that the
continuation of the parent-child relationship between
Mother and Children poses a threat to the well-being
of Children.
82. Termination in Best Interests of the Children
* * *
(f) Based on the above-listed findings, Mother has not
demonstrated the ability and willingness to parent
Children, to provide Children with a permanent, safe
and stable home environment, and to provide for
Children’s long-term and short-term needs.
* * *
(h) Both the FCM and the GAL believe that the
termination of Mother’s parental rights and the
adoption of the Children by their respective foster
care placements is in the Children’s best interests.
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(i) DCS has shown by clear and convincing evidence
that termination of Mother’s parental rights is in the
best interests of Children.
Appellant’s App. Vol. 2 at 37-40. Accordingly, the court terminated the parent-
child relationship between Mother and Children, and this appeal ensued.
Discussion and Decision
Standard of Review
[15] Mother asserts that the trial court erred when it terminated her parental rights.
We begin our review of this issue by acknowledging that “[t]he Fourteenth
Amendment of the United States Constitution protects the traditional right of
parents to establish a home and raise their children.” Z.G. v. Marion Cty. Dep’t of
Child Servs. (In re C.G.), 954 N.E.2d 910, 923 (Ind. 2011). However, a trial court
“must subordinate the interests of the parents to those of the child when
evaluating the circumstances surrounding the termination.” J.W. v. Ind. Dep’t of
Child Servs. (In re G.F.), 135 N.E.3d 654, 660 (Ind. Ct. App. 2019). It is proper
to terminate a parent-child relationship if “a child’s emotional and physical
development is threatened.” D.T. v. Ind. Dep’t of Child Servs. (In re K.T.), 137
N.E.3d 317, 325 (Ind. Ct. App. 2019). “Although the right to raise one’s own
child should not be terminated solely because there is a better home available
for the child, parental rights may be terminated when a parent is unable or
unwilling to meet his or her parental responsibilities.” Id.
[16] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
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(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.
***
(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) (2020). DCS’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260–61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
[17] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. Peterson v. Marion Cty. Off. of Fam. & Child.
(In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we
consider only the evidence and reasonable inferences that are most favorable to
the judgment. Id. Moreover, in deference to the trial court’s unique position to
assess the evidence, we will set aside the court’s judgment terminating a parent-
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child relationship only if it is clearly erroneous. Judy S. v. Noble Cty. Off. Of Fam.
& Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
[18] Here, in terminating Mother’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. First, we determine whether the evidence supports the findings and,
second, we determine whether the findings support the judgment. In re C.G.,
954 N.E.2d at 923. “‘Findings are clearly erroneous only when the record
contains no facts to support them either directly or by inference.’” State v. Int’l
Bus. Machs. Corp., 51 N.E.3d 150, 158 (Ind. 2016) (quoting Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996)). If the evidence and inferences support the trial
court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[19] On appeal, Mother asserts that the trial court erred when it concluded that: (1)
she will not remedy the conditions that resulted in Children’s removal and the
reasons for their replacement outside of her home; (2) there is a reasonable
probability that the continuation of the parent-child relationships poses a threat
to the well-being of Children; and (3) termination is in Children’s best interests.
However, as Indiana Code Section 31-35-2-4(b)(2)(B) is written in the
disjunctive, we need not address the issue of whether there is a reasonable
probability that the continuation of the parent-child relationships poses a threat
to the well-being of Children.
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Reasons for Children’s Placement Out of Mother’s Home
[20] Mother contends that DCS did not present sufficient evidence to prove that she
will not remedy the conditions that led to the Children’s removal from her
home. And she asserts that the court erred when it identified the reasons for the
Children’s initial removal. But Mother ignores the court’s findings with respect
to the reasons for the Children’s continued placement outside of Mother’s home,
which support the court’s conclusion.
[21] This Court has clarified that, given the wording of the statute, it 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 any basis
resulting in the continued placement outside of a parent’s home. Inkenhaus v.
Vanderburgh Cty. Off. of Fam. & Child. (In re A.I.), 825 N.E.2d 798, 806 (Ind. Ct.
App. 2005), trans. denied. To determine whether there is a reasonable
probability that Mother will remedy the reasons for Children’s continued
placement outside of her home, the trial court should judge Mother’s fitness to
care for Children at the time of the termination hearing, taking into
consideration evidence of changed conditions. See E.M. v. Ind. Dep’t of Child
Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). However, the court must also
“evaluate the parent’s habitual patterns of conduct to determine the probability
of future neglect or deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child
Servs., 894 N.E.2d 218, 226 (Ind. Ct. App. 2008) (quotations and citations
omitted). Pursuant to this rule, courts have properly considered evidence of a
parent’s prior criminal history, drug and alcohol abuse, history of neglect,
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failure to provide support, and lack of adequate housing and employment. Id.
Moreover, DCS is not required to rule out all possibilities of change; rather, it
need establish only that there is a reasonable probability the parent’s behavior
will not change. Id.
[22] The trial court identified the following conditions “that led to the Children’s
removal or placement and retention outside the home of Mother . . . : her issues with
substance abuse; her inability to grasp and remember parenting skills; and her
inability to safely and adequately parent the Children.” Appellant’s App. Vol. 2
at 38 (emphasis added). Mother’s contention that the court’s findings on this
issue are clearly erroneous is difficult to discern. Mother appears to suggest
that, because DCS initially removed Children from her care for reasons
different than those identified by the court, the court’s finding is clearly
erroneous. But Mother ignores the fact that the list of conditions refers to the
reasons for the Children’s initial removal as well as their continued placement
in foster care. Thus, Mother’s argument misses the mark.
[23] The court found, and the evidence supports that: Mother continuously needed
assistance with re-direction from supervised visit facilitators; Children
dominated Mother during visits; Mother is not currently employed and only
receives $771.00 a month in disability; and Mother will have difficulties keeping
up with Children’s needs as they become more complex. Based on the totality
of the circumstances, we hold that the trial court’s findings support its
conclusion that Mother will not remedy the conditions that resulted in
Children’s continued placement outside of her home. Mother’s contentions to
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the contrary are merely requests that we reweigh the evidence, which we will
not do.
[24] Finally, to the extent Mother contends that DCS improperly suggested that the
court should terminate her parental rights based solely on her mental
disability—and that the court did so—Mother does not direct us to anything in
the record to support that contention. In any event, again, Mother’s assertions
on this issue are directed solely at the reasons for the initial removal of the
Children, and she does not address the court’s findings with respect to the
Children’s continued placement outside of her home. Mother does not, for
instance, allege that it was improper for the court to find that she was unable
either “to grasp and remember parenting skills” or “safely and adequately
parent the Children.” Appellant’s App. Vol. 2 at 38.
Best Interests
[25] Mother next contends that the trial court erred when it concluded that
termination of her parental rights is in Children’s best interests. In determining
what is in a child’s best interests, a juvenile court is required to look beyond the
factors identified by DCS and consider the totality of the evidence. A.S. v. Ind.
Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A
parent’s historical inability to provide “adequate housing, stability, and
supervision,” in addition to the parent’s current inability to do so, supports a
finding that termination of parental rights is in the best interests of the child. Id.
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[26] When making its decision, the court must subordinate the interests of the
parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),
906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a
child is irreversibly harmed before terminating the parent-child relationship.”
Id. Moreover, this Court has previously held that recommendations of the
family case manager and court-appointed advocate to terminate parental rights,
coupled with evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id.
[27] As the trial court’s findings demonstrate, Mother has not shown that she is
capable of parenting Children. Mother required continuous assistance with re-
direction from others, and she is not currently employed and only receives
$771.00 a month in disability. Children have been living with their respective
foster families since late 2018. They are bonded and thriving. Both the GAL
and FCM recommended that the court should terminate Mother’s parental
rights. Given the totality of the evidence, Mother cannot show that the trial
court erred when it concluded that termination of her rights was in Children’s
best interests.
[28] Mother’s contention that the trial court relied on the GAL’s and the FCM’s
recommendations as “the sole basis for the termination of parental rights” is
entirely without merit. Appellant’s Br. at 22. In addition to the GAL’s and
FCM’s recommendations, the court also supported its finding with evidence
that shows that Mother had not demonstrated the ability and willingness to
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parent Children, to provide Children with a permanent, safe and stable home
environment, and to provide for Children’s long-term and short-term needs.
Mother has not shown that the trial court’s conclusion on this issue is clearly
erroneous.
[29] Affirmed.
Kirsch, J., and Brown, J., concur.
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