In Re: the Termination of the Parent-Child Relationship of W.M.L. and A.J.L., R.R. (Guardian ad Litem) v. E.L. (Mother), O.H. (Father) , 82 N.E.3d 361 ( 2017 )

FILED
08/31/2017, 10:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT, PRO SE ATTORNEY FOR APPELLEE
Roberta L. Renbarger (MOTHER)
Fort Wayne, Indiana Donald J. Frew
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: the Termination of the August 31, 2017
Parent-Child Relationship of Court of Appeals Case No.
W.M.L. and A.J.L. 02A03-1703-JT-479
R.R. (Guardian ad Litem), Appeal from the Allen Superior
Court
Appellant-Petitioner,
The Honorable Charles F. Pratt,
v. Judge
Trial Court Cause Nos.
E.L. (Mother), O.H. (Father), et 02D08-1603-JT-53
02D08-1603-JT-54
al.,
Appellees-Respondents.
Pyle, Judge.
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Statement of the Case
[1] Guardian Ad Litem, Roberta Renbarger, (“GAL Renbarger”) appeals the trial
court’s denial of the Department of Children’s Services’ (“DCS”) petition to
terminate the relationship between parents, E.L. (“Mother”) and O.H.
(“Father”), and their children, W.L. (“W.L.”) and A.H. (“A.H.”) (collectively
“the children”). Concluding that the trial court did not err in denying DCS’s
petition to terminate the parent-child relationships, we affirm the trial court’s
judgment.
[2] We affirm.
Issue
Whether the trial court erred in denying DCS’s petition to
terminate the parent-child relationships.
Facts
[3] The evidence most favorable to the judgment reveals that Mother and Father
are the parents of son, W.L., who was born in October 2008, and daughter,
A.H., who was born in May 2012. Both children were removed from Mother
and Father shortly after A.H.’s birth when it was discovered that Mother had
used marijuana during her pregnancy and that the family was homeless. The
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children were adjudicated to be Children in Need of Services (“CHINS”), and
both parents were court-ordered to participate in services.
[4] The children were returned to their parents’ home in July 2013. However, in
September 2013, the police arrested Father for battering Mother. The children
were removed from the home and placed in foster care. Father was convicted
of domestic battery and placed on probation until September 2014. He was also
restrained, under a no-contact order, from having any contact with Mother.
Both parents were ordered to refrain from criminal activity, maintain clean and
appropriate housing, and cooperate with all service providers. Mother and
Father were also ordered to obtain diagnostic assessments, obtain drug and
alcohol assessments, enroll in and successfully complete home-based services
programs, refrain from the use of alcohol and illegal drugs, and attend all visits
with the children. Mother was further ordered to obtain and maintain
employment and to enroll in non-violence counseling at the Center for
Nonviolence. Father was also ordered to attend and complete a specific
program at the Center for Nonviolence.
[5] In March 2016, DCS filed a petition to terminate the parental relationship
between Mother and Father and their children, W.L. and A.H.1 The trial court
held five days of hearings from August to November 2016. Testimony at the
1
Mother and Father are also the parents of E.H., who was born in January 2016. At the time of the
termination hearing, he had been adjudicated to be a CHINS but was not the subject of a termination
petition.
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hearings revealed that Father had completed a six-month batterer’s intervention
program at the Center for Nonviolence in 2014 and had successfully completed
the probation imposed following his domestic battery conviction. He had also
completed a five-month substance abuse group program two weeks before the
termination hearing. In addition, Father had worked for the same roofing
company for several years.
[6] The testimony further revealed that Mother had completed a five-month
substance abuse program in 2013. She had also completed a program that had
required her to complete applications for Social Security disability, food stamps,
and Medicaid. At the time of the hearing, Mother was attending substance
abuse counseling twice a week. She also had a full-time job with a lawn care
service. Mother testified that although she still took prescribed methadone for
pain for her physical ailments, including multiple sclerosis, hip dysplasia,
rheumatoid arthritis, and osteoarthritis, she had not used illegal substances for
the past year. According to Mother, she was “willing to do whatever it t[ook]
to be better for [herself] so [she could] be better for [her] children.” (Tr. 114).
[7] In addition, Mother and Father, who had been together for sixteen years, had
recently gotten married and were living together in a three-bedroom house.
Both parents regularly visited W.L. and A.H. Therapist Nicole Gaunt
(“Therapist Gaunt”), who treated Mother and supervised the parents’ visitation
with their children, testified that the children were “ecstatic” to see their parents
and that W.L. had asked multiple times when he could “move back home with
his mom and dad.” (Tr. 142). She also explained that the parents engaged in
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imaginary play with their children and made a “good team as parents.” (Tr.
146). She recommended allowing the children to visit their parents at the
parents’ home. Gaunt further testified that Mother had a home with Father
and a job and was paying her bills. According to Gaunt, Mother’s life was as
stable as it had ever been. Gaunt also testified that termination of the parent-
child relationships would be detrimental to the children.
[8] The children’s foster mother testified that Mother and Father had kept in
regular communication with the children and that W.L. had a good bond with
Father. She further testified that it was evident that Mother and Father loved
their children.
[9] DCS Family Case Manager Ashley Nichter (“Case Manager Nichter”) testified
that Father had: (1) maintained contact with her; (2) always been employed;
(3) never had a positive drug screen; (4) completed a diagnostic assessment; (5)
completed counseling; (5) maintained stable and appropriate housing; and (6)
completed a home-based services program. Nevertheless, she recommended
terminating Mother’s and Father’s parental rights because she was concerned
about Mother’s current methadone use and past drug abuse. She further
acknowledged that Father had completed the required services but was
concerned whether he had benefited from them.
[10] GAL Renbarger also recommended terminating Mother’s and Father’s parental
rights because she believed that Father had not benefited from the domestic
violence program. However, GAL Renbarger further testified that she had
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never met Mother, Father, W.L., or A.H. She had only met the children’s
foster mother.
[11] After hearing the evidence, the trial court issued a ten-page, single-spaced order,
which provides, in relevant part, as follows:
The parents’ ability to care for the children at the time of the
Factfinding is determinative. (Rowlett v. Vanderburgh County Office
of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans.
denied.) By the time of the close of the bifurcated Factfinding,
the parents had demonstrated substantial progress with their
services. The Father had remained drug and alcohol free. He
had maintained his employment and had secured a safe and
stable home. The Mother was involved in her therapies and had
refrained from the use of non-prescribed controlled substances
and/or illegal substances. They have been living together
without any report of domestic violence. They have made
substantial progress in therapeutic visitations with their children
and were poised to participate in in-home supervised visits if
referred by the Department. However, there was no evidence
from any service provider that the children could not be safely
returned to the care of the parents at the time evidence was
closed. There was optimism by Therapist Nicole Gaunt that
reunification could eventually be achieved. In determining
whether or not the conditions that resulted in the children’s
removal will be remedied[,] the Court may consider the parties’
habitual patterns of conduct. (J.K.C. v. Fountain County
Department of Child Welfare, 470 N.E.2d 88 (Ind. Ct. App. 1984).
In this case, the Father has been able to demonstrate that he can
provide for his children.
The issue has been the Mother’s lack of cooperation with the
Center for Non Violence services and her abuse of controlled
substances. The Mother’s inability to manage her anger has also
been a chronic issue that has frustrated reunification. The Court
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notes, however, that she has recently begun to address her
emotional challenges and has made progress in therapy. The
Father has expressed his love for and his commitment to the
children’s mother. They intend to remain together. The Father’s
desire to remain with this wife is not sufficient to terminate his
parental rights. (In re V.A., 51 N.E.3d 1140 (Ind. Sup. Ct. 2016).
(App. 26). The trial court denied DCS’s petition to terminate the parent-child
relationships, thereby determining that DCS had failed to meet its burden. In
addition, the trial court ordered DCS to consider another permanency plan that
did not permanently sever the children’s relationships with their parents. GAL
Renbarger appeals.2
Decision
[12] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. In
re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. A
parent’s interest in the care, custody, and control of his or her children is
“perhaps the oldest of the fundamental liberty interests.” Bester v. Lake Cty.
Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000)). Indeed, the parent-child relationship is “one
of the most valued relationships in our culture.” Id. We recognize, however,
that parental interests are not absolute and must be subordinated to the child’s
interests in determining the proper disposition of a petition to terminate
2
DCS filed a notice of intent not to file an appellee’s brief. Mother filed an appellee’s brief but did not
challenge the GAL’s authority to appeal in place of DCS. Father did not file an appellant’s brief.
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parental rights. Id. Thus, “parental rights may be terminated when the parents
are unable or unwilling to meet their parental responsibilities.” Id. (quoting In
re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2014), trans. denied).
[13] When reviewing the termination of parental rights, we consider only the
evidence and reasonable inferences that are most favorable to the judgment.
Bester, 839 N.E.2d at 147. We do not reweigh the evidence or judge witness
credibility. Id. We also give due regard to the trial court’s opportunity to judge
the credibility of the witnesses firsthand. K.T.K. v. Ind. Dep’t of Child Servs., 989
N.E.2d 1225, 1230 (Ind. 2013).
[14] Before an involuntary termination of parental rights may occur, DCS is
required to allege and prove, among other things:
(A) that one (1) of the following is true:
(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.
(iii) The child has been removed from the parent and has
been under the supervision of a local office 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
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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 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).
[15] The burden of proof in termination of parental rights cases is one of “clear and
convincing evidence.”3 Bester, 839 N.E.2d at 147. In other words, if the State
3
In its notice of intent, DCS conceded that if it had challenged the trial court’s denial of its petition to
termination the parent-child relationships in this case, it would be appealing a negative judgment and would
need to show an error of law to prevail. DCS further acknowledges that it could not meet its burden. DCS is
correct. In Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App.2012), we explained
that:
A judgment entered against a party who bore the burden of proof at trial is a
negative judgment. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411
(Ind. Ct. App. 2002), trans. denied. On appeal, we will not reverse a negative
judgment unless it is contrary to law. Mominee v. King, 629 N.E.2d 1280, 1282
(Ind. Ct. App. 1994). To determine whether a judgment is contrary to law, we
consider the evidence in the light most favorable to the appellee, together with
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fails to prove any one of these four statutory elements, then it is not entitled to a
judgment terminating parental rights. Angela B. v. Lake Cty. Dep’t of Child Servs.,
888 N.E.2d 231, 239 (Ind. Ct. App. 2008), trans. denied.
[16] When the trial court’s judgment contains specific findings of fact and
conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56
N.E.3d 625, 628 (Ind. 2016). First, we determine whether the evidence
supports the findings, and second, we determine whether the findings support
the judgment. Id. We will set aside a trial court’s judgment terminating a
parent-child relationship only if it is clearly erroneous. Id. Findings are clearly
erroneous only when the record contains no facts or inferences to be drawn
therefrom that support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.
2014). A judgment is clearly erroneous if the findings do not support the trial
court’s conclusions or the conclusions do not support the judgment. Id.all the reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of
Family & Children, 697 N.E.2d 480, 482 (Ind. Ct. App. 1998). A party appealing from a
negative judgment must show that the evidence points unerringly to a conclusion
different from that reached by the trial court. Mominee, 629 N.E.2d at 1282.
However, DCS apparently believes that because GAL Renbarger was not the petitioner in this case, the
contrary to law standard does not apply to her appeal. We need not determine whether the contrary to law
standard applies to an appellant who was not a petitioner because: (1) Mother and Father do not argue that
they are entitled to this less stringent standard of review; and (2) we affirm the trial court’s denial of the
termination petition even when we apply the more stringent standard.
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[17] Here, GAL Renbarger argues that the trial court erred in denying DCS’s
termination petition. She specifically contends that the “dispositive
determination is whether the conditions that supported the children being
removed or the reasons for out of home placement have been remedied.”
(GAL Renbarger’s Br. 21). According to GAL Renbarger, DCS met its burden
to prove that there was a reasonable probability that the conditions that resulted
in the children’s placement outside the home would not be remedied.
[18] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and employment.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),
trans. denied. The trial court may also consider services offered to the parent by
DCS and the parent’s response to those services as evidence of whether
conditions will be remedied. Id.Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017 Page 11 of 13
[19] Here, our review of the evidence most favorable to the trial court’s judgment
reveals that the children were first removed from Mother and Father in 2012
because Mother had used marijuana during her pregnancy with A.H. and the
family was homeless. The children were returned to the home but then
removed again in 2013 after Father battered Mother.
[20] Evidence at the termination hearing revealed that at the time of the hearing,
Father had completed a batterer’s intervention program as well as the probation
imposed following his domestic battery conviction. He had also completed a
substance abuse group and had worked for the same roofing company for
several years. He had never had a positive drug screen. Mother had also
completed court-ordered programs and had a full-time job with a lawn care
service. She had not used illegal substances for the past year and was willing to
do “whatever it took” to be a better parent. (Tr. 114).
[21] Further, Mother and Father, who had been together for sixteen years, had
recently gotten married and were living together in a three-bedroom home.
Both parents regularly visited W.L. and A.H. Therapist Gaunt, who supervised
the visitation, explained that the children were “ecstatic” to see their parents,
and W.L. had asked multiple times when he could “move back home with his
mom and dad.” (Tr. 142). She also explained that the parents engaged in
imaginary play with their children and made a “good team as parents.” (Tr.
146). She recommended allowing the children to visit their parents at the
parents’ home. Therapist Gaunt further testified that Mother had a home with
Father and a job and was paying her bills. According to Therapist Gaunt,
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Mother’s life was as stable as it had ever been. Therapist Gaunt also testified
that termination of the parent-child relationships would be detrimental to the
children.
[22] Because this evidence supports the trial court’s conclusion that DCS did not
meet its burden to prove that there was a reasonable probability that the
conditions that resulted in the children’s removal would not be remedied, the
trial court did not err in denying DCS’s petition to terminate the parent-child
relationships. GAL Renbarger’s arguments are nothing more than a request
that we reweigh the evidence, which we cannot do. See Bester, 839 N.E.2d at
147.
[23] Affirmed.
Riley, J., and Robb, J., concur.
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