in-the-matter-of-the-involuntary-term-of-the-parent-child-rel-of-jab ( 2012 )

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,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR CO-APPELLEE DCS:
DEIDRE L. MONROE EUGENE M. VELAZCO, JR.
Lake County Public Defender‟s Office Department of Child Services,
Gary, Indiana Lake County Office
Gary, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
ATTORNEY FOR CO-APPELLEE CASA:
DONALD W. WRUCK
Dyer, Indiana
FILED
Apr 04 2012, 9:28 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF Ja.B., J.B., J.P., A.P. & )
C.P., MINOR CHILDREN, AND )
THEIR MOTHER, R.P., )
)
R.P. )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1110-JT-453
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner, )
)
and )
)
LAKE COUNTY CASA, )
)
Co-Appellee. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Mary Beth Bonaventura, Senior Judge
Cause Nos. 45D06-1011-JT-194, 45D06-1011-JT-195,
45D06-1011-JT-196, 45D06-1011-JT-198, 45D06-1011-JT-199
April 4, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Respondent R.P. (“Mother”) appeals the juvenile court‟s order terminating
her parental rights to Ja.B., J.B., J.P., A.P., & C.P. (collectively “the children”). Mother
alleges that the Indiana Department of Child Services (“DCS”) did not provide sufficient
evidence to support the termination of her parental rights. Concluding that the evidence was
sufficient to support the termination of Mother‟s parental rights, we affirm.
FACTS AND PROCEDURAL HISTORY
Mother has five1 children at issue in this appeal.2 Ja.B. was born on August 19, 1997;
J.B. was born on May 30, 1995; J.P. was born on January 17, 1999; A.P. was born on
December 1, 2001; and C.P. was born on November 17, 2004. In December of 2006, Mother
and the children were about to be evicted from a homeless shelter when a representative of a
1
Mother has a total of eight children. The termination of her parental rights to the oldest three
children is not at issue in this appeal.
2
The termination of the parental rights of the children‟s fathers is not at issue in this appeal.
2
non-profit community organization called Project Neighbors provided beds, mattresses, rugs,
furniture, a washer and dryer, and kitchen accessories for the family in a home that was
provided for Mother. For nearly three years, Project Neighbors provided the family with
rent-free housing, clothing, mentoring, support, transportation, and food. In exchange,
Mother was required to keep the home clean and to work to further her education. If Mother
satisfied these two requirements, Project Neighbors intended to pass the title of the home
over to Mother. Mother, however, was not able to do so.
Over time, the condition of the home began to deteriorate. Project Neighbors
attempted to counteract the deteriorating condition of the home by putting a new roof on the
home and arranging for volunteers to make continual improvements to the home. Project
Neighbors was forced to provide new mattresses and furniture three or four times due to the
deteriorating condition of the home. Food was not stored properly. Eventually, the home
became infested with mice, and Project Neighbors was forced to replace the stove three times
after it became infested with maggots. Over the course of the approximately three years,
Project Neighbors spent nearly $40,000 in attempts to help the family.
The children lacked supervision. Mother‟s oldest child, E.W., attempted to feed and
parent the younger children. Mother would not supervise the children but rather would spend
her time sleeping, sitting, or wandering. Ja.B. was responsible for setting the alarm and
getting her siblings up and ready for school every morning. Two of the older children
repeatedly ran away, and Mother would engage in physical altercations with E.W. In
addition, Mother would occasionally send the children to a relative‟s home, where some of
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the children alleged they were sexually molested.
DCS first became involved with the children in November of 2008, after receiving
reports that the family was struggling with instability and living in deplorable home
conditions, and Mother was without the necessary means to parent and provide for the
children. DCS case manager Valerie Washington conducted an assessment of the family‟s
living conditions and found that the children were not adequately supervised, the family lack
adequate bedding, and the food supply in the home was limited. Case Manager Washington
also found that the children‟s attendance at school was “really off the chart” and that they
suffered from poor grades. Tr. p. 62. Mother told Case Manager Washington that she
suffered from a heart condition and depression, but that she was not taking her medication.
Mother also told Case Manager Washington that E.W. was not taking her medication.
Based on her assessment, Case Manager Washington recommended that with
intensive in-home services, the children could remain in the home, but also recommended
that DCS should initiate proceedings to adjudicate the children as Children in Need of
Services (“CHINS”). On December 18, 2008, Mother admitted that the children were
CHINS. That same day, the juvenile court adjudicated the children as CHINS and continued
the children‟s placement with Mother.
Even with the aid of DCS service providers, the conditions in the home did not
improve. Mother continued to fail to provide adequate supervision for the children, and,
although she complied with services, did not make progress toward improving the family‟s
situation. Eventually, in May of 2009, the children were removed from Mother‟s care
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because Mother had failed to show improvement in her parenting skills. Additional safety
concerns had also arisen after standing water was found in the home and the conditions of the
home had deteriorated to the point that Mother was going to be evicted from the home by
representatives of Project Neighbors.
After removing the children from Mother‟s care, DCS provided Mother with intensive
services. Mother generally complied with the services, but failed to improve to a level where
she could adequately parent the children. Mother had transportation problems and would
often be late or miss therapy sessions. Mother failed to implement the behaviors she was
taught and would allow others to discipline the children during visitation sessions. Mother
was unable to locate housing, employment, or a source of income, and she primarily relied on
relatives for support. From time to time it would seem that Mother was beginning to make
minimal progress, but such progress would be fleeting and Mother would revert back to her
old way of doing things. In addition, Mother failed to progress to the point where her visits
with the children could be unsupervised.
In light of Mother‟s failure to make lasting progress in implementing what she had
learned through the services provided by DCS, in June of 2010, DCS case manager Amanda
Horton recommended a change in the permanency plan to termination of parental rights and
adoption because she believed that the children required a sense of safety and stability which
Mother had, to that point, been unable to provide. In addition, DCS case manager Maritza
Perez indicated that she felt that termination of Mother‟s parental rights was in the best
interests of the children because they required a sense of stability and permanency that would
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be best served through adoption.
On November 9, 2010, DCS filed a petition seeking the termination of Mother‟s
parental rights to the children. As part of the continuing services provided by DCS, Mother
was given a parenting assessment in June of 2011 by therapist Amy Stuhlmacher, MSW.
Mother scored high to medium risk for abuse and neglect behaviors on all five areas that she
was assessed. The results of this parenting assessment indicated that Mother is a great risk
for being abusive or neglectful toward her children, and Stuhlmacher testified that she was
concerned that Mother would again rely on the older children to take a parental role.
On June 27 and August 8, 2011, the juvenile court conducted an evidentiary
termination hearing at which Mother appeared and was represented by counsel. During the
termination hearing, DCS introduced evidence relating to Mother‟s failure to implement the
parenting techniques learned from the lengthy intensive services provided by DCS and to
progress to a level where she could adequately care for the children. DCS introduced
evidence that Mother had not shown that she could adequately supervise or provide for the
children, that she had not proven that she had acquired long-term stable housing and a
permanent source of income, and that Mother was at great risk for being abusive or
neglectful toward her children. DCS also provided evidence indicating that its plan for the
permanent care and treatment of the children was adoption. Mother presented evidence
which she claimed demonstrated that she was beginning to make progress and, as such,
should be given more time before her parental rights were terminated. On August 23, 2011,
the juvenile court terminated Mother‟s parental rights to the children. Mother now appeals.
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DISCUSSION AND DECISION
The Fourteenth Amendment to the United States Constitution protects the traditional
right of a parent to establish a home and raise her children. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the
parent-child relationship is “one of the most valued relationships of our culture.” Id.
However, although parental rights are of a constitutional dimension, the law allows for the
termination of those rights when a parent is unable or unwilling to meet her responsibility as
a parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to the children‟s interests in
determining the appropriate disposition of a petition to terminate the parent-child
relationship. Id.
The purpose of terminating parental rights is not to punish the parent but to protect the
children. Id. Termination of parental rights is proper where the children‟s emotional and
physical development is threatened. Id. The juvenile court need not wait until the children
are irreversibly harmed such that their physical, mental, and social development is
permanently impaired before terminating the parent-child relationship. Id.
Mother contends that the evidence presented at the evidentiary hearing was
insufficient to support the juvenile court‟s order terminating her parental rights. In reviewing
termination proceedings on appeal, this court will not reweigh the evidence or assess the
credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806
N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the
juvenile court‟s decision and reasonable inferences drawn therefrom. Id. Where, as here, the
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juvenile court includes findings of fact and conclusions thereon in its order terminating
parental rights, our standard of review is two-tiered. Id. First, we must determine whether
the evidence supports the findings, and, second, whether the findings support the legal
conclusions. Id.
In deference to the juvenile court‟s unique position to assess the evidence, we set
aside the juvenile court‟s findings and judgment terminating a parent-child relationship only
if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no
facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if
the legal conclusions made by the juvenile court are not supported by its findings of fact, or
the conclusions do not support the judgment. Id.
In order to involuntarily terminate a parent‟s parental rights, DCS must establish by
clear and convincing evidence that:
(A) one (1) of the following exists:
(i) the child has been removed from the parent for at least six (6)
months under a dispositional decree;
(ii) a court has entered a finding under IC 31-34-21-5.6 that reasonable
efforts for family preservation or reunification are not required,
including a description of the court‟s finding, the date of the finding,
and the manner in which the finding was made; or
(iii) the child has been removed from the parent and has been under the
supervision of a county office of family and children or probation
department for at least fifteen (15) months of the most recent twenty-
two (22) months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need of
services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that
resulted in the child‟s removal or the reasons for placement
outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of the
8
parent-child relationship poses a threat to the well-being of the
child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2) (2010). Specifically, Mother claims that DCS failed to establish
that either (1) the conditions that resulted in the children‟s removal or the reasons for their
placement outside of her care will not be remedied, or (2) there is a reasonable probability
that the continuation of the parent-child relationship poses a threat to the well-being of the
children. Mother also claims that DCS failed to establish that termination of her parental
rights was in the children‟s best interests or that there is a satisfactory plan for the care and
treatment of the children.
A. Conditions Resulting in Removal Not Likely to be Remedied
In arguing that DCS failed to establish by clear and convincing evidence that the
conditions resulting in the children‟s removal from her care will not be remedied and that the
continuation of the parent-child relationship poses a threat to the children, Mother fails to
acknowledge that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive, the juvenile court need only find either that the conditions resulting in removal
will not be remedied or that the continuation of the parent-child relationship poses a threat to
the children. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore,
“where, as here, the trial court specifically finds that there is a reasonable probability that the
conditions which resulted in the removal of the [children] would not be remedied, and there
is sufficient evidence in the record supporting the trial court‟s conclusion, it is not necessary
9
for [DCS] to prove or for the trial court to find that the continuation of the parent-child
relationship poses a threat to the [children].” In re S.P.H., 806 N.E.2d at 882. In order to
determine that the conditions will not be remedied, the juvenile court should first determine
what conditions led DCS to place the children outside of Mother‟s care, and, second, whether
there is a reasonable probability that those conditions will be remedied. Id.
When assessing whether a reasonable probability exists that the conditions justifying a
child‟s removal and continued placement outside his or her parent‟s care will not be
remedied, the juvenile court must judge the parent‟s fitness to care for her child at the time of
the termination hearing, taking into consideration evidence of changed conditions. In re
A.N.J., 690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile 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 juvenile court may properly consider evidence of the
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 Cnty. Office of
Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court
“„can reasonably consider the services offered by [DCS] to the parent and the parent‟s
response to those services.‟” Id. (quoting In re A.C.C., 682 N.E.2d 542, 544 (Ind. Ct. App.
1997)).
Here, the juvenile court found that DCS presented sufficient evidence to prove that the
conditions that resulted in the children‟s removal from Mother‟s care were not likely to be
remedied, and upon review, we conclude that the juvenile court‟s finding to this effect is
10
supported by the record. The record reveals that Mother had a history of instability with
respect to housing and income, which continued throughout the CHINS and termination
proceedings. Mother was evicted from numerous shelters and homes, including the home
provided for her at no cost by Project Neighbors and a family member‟s home.
The record further reveals that although Mother completed many of the services
offered by DCS, she did not successfully implement the techniques that she learned from
these services or successfully demonstrate that she could adequately supervise, care, and
provide for the children. As the CHINS and termination proceedings progressed, Mother
made minimal progress, but such progress was short-lived and Mother would revert to her
prior deficient parenting techniques. In addition, Mother never progressed to unsupervised
visitation with the children and would rely on others to discipline the children during their
supervised visits. Multiple DCS case managers testified that despite the intensive services
provided to Mother, Mother failed to show adequate progress to indicate that the deficient
supervision, care, and housing conditions would be remedied in a timely fashion.
When considered as a whole, we conclude that the evidence is sufficient to
demonstrate a reasonable probability that the conditions which resulted in the children‟s
removal from Mother‟s care will not be remedied. It was within the province of the juvenile
court, as the finder of fact, to minimize any contrary evidence of changed conditions in light
of its determination that Mother‟s failure to provide a safe and stable living environment
which led to the children‟s removal was unlikely to change. See In re L.S., 717 N.E.2d 204,
210 (Ind. Ct. App. 1999), trans. denied.
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Moreover, contrary to Mother‟s claim that the juvenile court “failed to recognize that
[she] had physical and mental issues that affected her ability to quickly complete her case
plan” and, as such, prematurely terminated her parental rights in light of evidence that she
claims shows she had acquired suitable housing and sustainable income, Appellant‟s Br. p.
10, it is well-established that the juvenile court, acting as a trier of fact, was not required to
believe or assess the same weight to the testimony as Mother. See Thompson v. State, 804
N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308, 320 (Ind. 1993); Nelson
v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp. v. First Nat’l Bank of Elwood, 241
Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v. Brown, 120 Ind. App. 184, 189, 88
N.E.2d 795, 797 (1949), trans. denied. Mother‟s claim effectively amounts to an invitation
for this court to reassess witness credibility and reweigh the evidence, which, again, we will
not do. See In re S.P.H., 806 N.E.2d at 879.
Under these circumstances, we cannot say that the juvenile court erred in determining
that DCS established that it is unlikely that the conditions resulting in the children‟s removal
would be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App. 1997). Having
concluded that the evidence was sufficient to support the juvenile court‟s determination, and
finding no error by the juvenile court, we need not consider whether the continuation of the
parent-child relationship poses a threat to the children‟s well-being because DCS has
satisfied the requirements of Indiana Code section 31-35-2-4(b)(2)(B) by clear and
convincing evidence.
B. The Children’s Best Interests
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Next, we address Mother‟s claim that DCS failed to prove by clear and convincing
evidence that termination of her parental rights was in the children‟s best interests. We are
mindful that in determining what is in the best interests of the children, the juvenile court is
required to look beyond the factors identified by DCS and look to the totality of the evidence.
McBride, 798 N.E.2d at 203. In doing so, the juvenile court must subordinate the interests of
the parents to those of the children involved. Id. Furthermore, this court has previously
determined that the testimony of the case worker regarding the children‟s need for
permanency supports a finding that termination is in the children‟s best interests. Id.; see
also Matter of M.B., 666 N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
Here, the testimony establishes that the children have a need for permanency and
stability and that the termination of Mother‟s parental rights would serve their best interests.
Case Manager Perez testified that she believes that the children‟s best interests would be
served by the termination of Mother‟s parental rights because the children have a need for
permanency and stability and Mother has failed to demonstrate that she is capable of
providing the children with said permanency and stability. In discussing the children‟s need
for permanency and stability, Case Manager Perez indicated that the children are tired of
being in foster care and require a sense of permanency to live their desired “normal life” and
that she does not believe that it is “fair to the kids that we wait around to see if mom could
make those improvements and to see how long it is going to take mom to make those
improvements.” Tr. p. 225. Case Manager Perez further testified that the children‟s foster
mother provides them with a sense of stability and emotional support that Mother is unable to
13
provide.
In addition, Case Manager Horton testified that she believed that Mother‟s parental
rights should be terminated because the children required a sense of safety and security and
should know that they will be well cared for, and that Mother had failed to prove that she
could provide the children with the necessary level of stability and care. Just prior to the
termination hearing, Mother was given a parenting assessment, the results of which indicated
that Mother is a great risk of being abusive or neglectful toward her children in the future.
The juvenile court also heard testimony that the children appeared to be happier, more well-
adjusted, and have displayed marked academic and disciplinary improvement since being
removed from Mother‟s home.
The juvenile court did not have to wait until the children were irreversibly harmed
such that their physical, mental, and social development was permanently impaired before
terminating Mother‟s parental rights. See In re C.M., 675 N.E.2d at 1140. In light of the
testimony of Case Managers Horton and Perez considered with the results of the parenting
assessment which was given to Mother just prior to the termination hearing, we conclude that
the evidence is sufficient to satisfy DCS‟s burden of proving that termination of Mother‟s
parental rights is in the children‟s best interests.
Moreover, in arguing that the evidence was insufficient to support the juvenile court‟s
determination that the termination of her parental rights is in the children‟s best interests,
Mother alleges that the termination of her parental rights would cause the children to suffer
pain. Specifically, Mother claims that the children would suffer pain because they have
14
indicated that they would like to be reunited with Mother, and also because they would no
longer have contact with Mother or their older siblings. However, Mother‟s claim in this
regard merely amounts to an invitation for this court to reweigh the evidence, which again,
we will not do. See In re S.P.H., 806 N.E.2d at 879.
C. Satisfactory Plan for Care and Treatment of the Children
Mother also claims that DCS failed to establish that it had a satisfactory plan for the
care and treatment of the children. In making this argument, Mother concedes that DCS‟s
stated plan was for adoption, but argues that the plan was unsatisfactory because the
children‟s foster mother had not “affirmatively stated that she would adopt these children.”
Appellant‟s Br. p. 11.
In order for the trial court to terminate the parent-child relationship, the court
must find that there is a satisfactory plan for the care and treatment of the
child. In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct. App. 2000). This plan need
not be detailed, so long as it offers a general sense of the direction in which the
child will be going after the parent-child relationship is terminated. Id.
In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). “Attempting to find suitable
parents to adopt the child[] is clearly a satisfactory plan.” Lang v. Starke Cnty. Office of
Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (citing In re A.N.J., 690
N.E.2d at 722). “The fact that there was not a specific family in place to adopt the child[]
does not make the plan unsatisfactory.” Id. (citing In re B.D.J., 728 N.E.2d 195, 204 (Ind.
Ct. App. 2000)).
Here, it is undisputed that DCS‟s plan for the children‟s care and treatment was for
adoption. During the termination hearing, DCS presented evidence that the children‟s foster
15
mother was willing to adopt the children. Mother‟s claim to the contrary effectively amounts
to an invitation for us to reweigh the evidence, which again, we will not do. See In re S.P.H.,
806 N.E.2d at 879. Thus, in light of the evidence presented during the termination hearing
regarding DCS‟s plan for the care and treatment of the children, we conclude that DCS, by
demonstrating that its plan for the care and treatment of the children was adoption, satisfied
the statutory requirement set forth under Indiana Code section 31-35-2-4(b)(2)(C).
Having concluded that the evidence was sufficient to prove the statutory requirements
set forth in Indiana Code section 31-35-2-4(b)(2) by clear and convincing evidence, we
affirm the judgment of the juvenile court.
The judgment of the juvenile court is affirmed.
VAIDIK, J., and CRONE, J., concur.
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