H v. and O.P. v. Indiana Department of Child Services ( 2012 )

FILED
Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Apr 12 2012, 9:31 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
THOMAS C. ALLEN MICHAEL SPECIALE
Fort Wayne, Indiana Indiana Department of Child Services
Fort Wayne, Indiana
DANIEL G. PAPPAS
Fort Wayne, Indiana ROBERT J. HENKE
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
H.V. and O.P., )
)
Appellants-Respondents, )
)
vs. ) No. 02A05-1108-JT-506
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Charles F. Pratt, Judge
The Honorable Lori K. Morgan, Magistrate
Cause Nos. 02D08-1008-JT-304, 02D08-1008-JT-305, 02D08-1008-JT-308, 02D08-1008-JT-
309, 02D08-1008-JT-310, 02D08-1008-JT-311, 02D08-1008-JT-312 and 02D08-1008-JT-313
April 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
O.P. (“Father”) and H.V. (“Mother”) appeal the involuntary termination of their parental
rights to their respective children. In so doing, Father contends that he was denied due process
of law, and thus the trial court erred in denying his motion to continue. In addition, Father and
Mother both challenge the sufficiency of the evidence supporting the trial court’s termination
order.
We affirm.
FACTS AND PROCEDURAL HISTORY
Father is the alleged biological father of M.V., born in April 1998, and M.P.,1 born
in August 2004. Mother is the biological mother of M.V. and M.P., as well as My.V.,
born in May 2003, and two additional children.2 Father and Mother have never been
married, and Father has never established paternity of M.V. or M.P.
The facts most favorable to the trial court’s judgment reveal that in July 2007, the
local Allen County office of the Indiana Department of Child Services (“ACDCS”)
received and substantiated a referral for neglect and abuse against Mother for physically
disciplining her two youngest children, M.P., and My.V., leaving bruising on their backs.
In addition, Mother was not taking her medication for depression and anxiety as
1
For clarification purposes we observe that M.P.’s last name was changed at some point during
the underlying proceedings from M.V. to M.P. To avoid confusion, we shall refer to this child as M.P.
throughout this opinion.
2
The trial court’s August 2011 judgment terminating Father’s and Mother’s respective parental
rights to M.V. M.P., and My.V., also terminated Mother’s parental rights to Ma.V. Mother’s remaining
biological child, Mo.V., has been placed with that child’s father, and the termination proceedings
pertaining to Mo.V. remain pending. Neither parent challenges the trial court’s termination order as to
Ma.V. We therefore limit our recitation of the facts to those pertinent solely to Father’s and Mother’s
appeal of the termination of their respective parental rights to M.V., M.P., and My.V.
2
prescribed. She also admitted that she was struggling with caring for five children under
the age of ten as a single parent.
This was not ACDCS’s first encounter with Mother. In November 2006, ACDCS
became involved with Mother when she agreed to sign a safety plan prohibiting the use
of physical discipline in the home after her boyfriend, George Mitchell, had spanked two
of the children. Mother was later required to sign a second safety plan in March 2007
after Mitchell spanked the children on another occasion.
Based on Mother’s history of involvement with ACDCS and the circumstances
surrounding the most recent referral, ACDCS filed petitions alleging all five children
were children in need of services (“CHINS”). During an initial hearing in July 2007,
Mother admitted to the allegations of the CHINS petition, and the children were so
adjudicated. The trial court proceeded to disposition the same day.
On August 1, 2007, the trial court entered its dispositional order formally granting
wardship of the children to ACDCS, but allowing the children to remain in the care of
Mother as in-home CHINS. The court’s dispositional order also incorporated a Parent
Participation Plan which directed Mother to successfully complete a variety of tasks and
services designed to improve her parenting skills and to facilitate reunification of the
family. Among other things, Mother was ordered to: (1) refrain from all criminal
activity; (2) maintain clean, safe, and appropriate housing at all times; (3) notify ACDCS
within forty-eight (48) hours of all changes in household composition, housing, and,
employment; (4) cooperate with all caseworkers and accept all announced and
unannounced home visits; (5) obtain a psychological evaluation and follow all resulting
3
recommendations, including anger management counseling if recommended; (6) obtain a
family functioning assessment at Caring About People Inc. and follow all
recommendations; (7) successfully participate in and complete home-based services
through Whiting Homes; and (8) refrain from physical discipline of the children at all
times.
Mother began participating in several of the court-ordered services, but her
participation was sporadic and “non-compliant.” Transcript, Vol. 3, p. 90. She also
refused to answer the door when ACDCS case managers attempted to visit the family
home. On December 11, 2007, ACDCS received a referral that the children were not
attending school regularly and that utilities in the family home had been turned off.
ACDCS assessment case manager Terri Palmeter investigated the matter and
substantiated that the water to the home had in fact been turned off and that the children
had missed a significant amount of school. Although Father did not live with Mother and
the children, he happened to be present at the time of Palmeter’s assessment and
indicated he would try to help Mother get the water to the home restored.
After providing Mother and Father with several hours to remedy the water
situation, the parents admitted their efforts had been unsuccessful. In addition, ACDCS
had ongoing concerns regarding (1) the lack of appropriate bedding and only minimal
amounts of food in the home, (2) Mother’s lack of cooperation with service providers,
and (3) Mother’s lack of medication management for herself and the children. Mother
had also continued to allow her neighbor, who had a criminal record for disorderly
conduct and battery on a child, supervise the children, alone, for extended periods of time
4
despite ACDCS’s admonishments against such arrangements. For all these reasons, the
children were taken into protective custody.
The next day, both Mother and Father participated in a supervised visit with the
children at the local ACDCS office. During the visit, Palmeter provided Father with her
name and contact information. She also asked Father for his current address and phone
number. In addition, Palmeter informed Father of the specific date, time, and location of
the pending detention hearing and further advised Father that he needed to establish
paternity of M.V. and M.P. to preserve his parental rights to the children.
The detention hearing was held on December 13, 2007, as scheduled. Father
failed to appear. Following the hearing, the trial court issued an order finding the
children were not progressing well in their current placement with Mother and accepting
ACDCS’s recommendation that the children be placed in licensed foster care. The court
also determined that the previously entered Parent Participation Plan continued to be
appropriate. No specific dispositional orders for reunification services were entered as to
Father. Later the same month, Mother was arrested while visiting with Father, who
resided in Ohio, on possession of cocaine charges. She thereafter entered a guilty plea
and was released on three years’ probation in Indiana.
Mother returned to Indiana in June 2008 following her release from incarceration
and began participating more regularly in services, including intensive home-based
services and visits with the children. Because Mother appeared to be actively involved in
and benefitting from services, the children were returned to her care in November 2008.
By June 2009, however, Mother’s participation in services had again become
5
inconsistent, and the children were removed from her care after Mother admitted to
hitting M.V. with a belt. Several additional incidents of neglect and/or lack of
supervision had also preceded the children’s second removal from Mother including: (1)
Mother’s admission to having allowed the three oldest children to drive her van while she
watched from outside, resulting in the car driving into a ditch with all the children inside;
(2) Mother’s steady disengagement and eventual unsuccessful discharge from home-
based services; (3) Mother’s failure to administer the children’s medication as prescribed;
and (4) Mother’s refusal to take her own prescribed medications relating to her own
mental health issues involving depression, anxiety, and bi-polar disorder.
ACDCS eventually filed petitions seeking the involuntary termination of Mother’s
and Father’s parental rights to the children in August 2010. A consolidated evidentiary
hearing held on seven different days and spanning a four-month period commenced in
February 2011. During the evidentiary hearing, ACDCS presented substantial evidence
concerning both Mother’s and Father’s past and current inability to adequately care for
the children. Regarding Father, ACDCS presented evidence establishing that although
Father was provided with actual notice of the detention hearing held within two days of
the children’s removal from Mother’s care in December 2007, he failed to show. He
thereafter refused to initiate contact with ACDCS and/or to participate in any CHINS
court hearings. Father had also provided ACDCS with false or inaccurate contact
information, resulting in Father being unreachable by telephone, as well as the return of
numerous court orders and ACDCS mailings concerning CHINS review hearings, team
meetings, and other pertinent information as undeliverable. Also significant, Father
6
never established paternity of either M.P. or M.V. In addition, Father was arrested in
Indiana on drug-related charges in January 2010 and was later convicted for possession
of a controlled substance. At the time of the termination hearing, Father remained
incarcerated with an earliest projected release date of May 30, 2012.
As for Mother, ACDCS presented abundant evidence establishing that the
circumstances resulting in the children’s removal from Mother’s care had remained
largely unchanged and that Mother had made little or no progress in improving her
parenting abilities. Specifically, the evidence established that throughout the underlying
proceedings Mother changed residences at least seven different times, failed to maintain
consistent employment, repeatedly engaged in relationships with violent and abusive men
who abused both Mother and the children, continued to be unable to control the
children’s behavior and/or parent the children effectively during supervised visits,
struggled with mental health and anger control issues, tested positive for marijuana three
times, and continued to be non-compliant in taking her own medications as prescribed.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. On July 15, 2011, the trial court entered its judgment terminating Mother’s
and Father’s parental rights to their respective children. Both parents appeal.
DISCUSSION AND DECISION
We begin our review by acknowledging that when reviewing a termination of
parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.
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.7
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-child relationship only if it is clearly
erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Here, in terminating Mother’s and Father’s parental rights, the trial court entered
specific factual findings and conclusions. When a trial court’s judgment contains specific
findings of fact and conclusions thereon, we apply a two-tiered standard of review.
Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).
First, we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either directly or by
inference.” 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. L.S., 717 N.E.2d at 208.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must
subordinate the interests of the parents to those of the child when evaluating the
circumstances surrounding a termination. K.S., 750 N.E.2d at 837. Termination of a
parent-child relationship is proper where a child’s emotional and physical development is
threatened. Id. 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. at 836.
8
Before an involuntary termination of parental rights can occur in Indiana, the State
is required to allege and prove, among other things:
(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 . . . .
Ind. Code § 31-35-2-4(b)(2) (2010). The State’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). Moreover, Indiana
Code Section 31-35-2-8(a) provides that if a trial court finds the allegations in the
termination petition to be true, the court shall terminate parental rights.
Father and Mother raise separate allegations of error on appeal. Specifically,
Father asserts that the trial court violated his constitutional right to due process by
“failing to hold a (sic) initial hearing or a dispositional hearing relative to him in the
underlying CHINS cause, and by failing to grant trial counsel’s motion for continuance of
the termination hearing.” Appellant’s Br. (Father) p. 1. Father also claims the trial court
erred in finding that termination of his parental rights is in M.V.’s and M.P.’s best
interests.
Mother’s allegation of error focuses on the sufficiency of the evidence supporting
the trial court’s judgment terminating her parental rights to her two youngest children,
9
M.P. and My.V. Specifically, Mother contends that “the removal of the oldest three
children from the family substantially changed the dynamics of the family to the point
where she had demonstrated the ability to parent [M.P. and My.V.]” by the time of the
termination hearing. Appellant’s Br. (Mother) p. 13. Mother therefore contends she is
entitled to reversal.
I. Procedural Due Process
A parent’s interest in the care, custody, and control of his or her children is
arguably one of the oldest of our fundamental liberty interests. Bester, 839 N.E.2d at
147. Hence, “[t]he traditional right of parents to establish a home and raise their children
is protected by the Fourteenth Amendment of the United States Constitution.” In re
M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. The Due Process Clause of
the United States Constitution likewise “prohibits state action that deprives a person of
life, liberty, or property without a fair proceeding.” In re B.J., 879 N.E.2d 7, 16 (Ind. Ct.
App. 2008), trans. denied. To be sure, the right to raise one’s child is an “essential, basic
right that is more precious than property rights.” In re C.C., 788 N.E.2d 847, 852 (Ind.
Ct. App. 2003), trans. denied. Thus, when the State seeks to terminate a parent-child
relationship, it must do so in a manner that meets the constitutional requirements of the
Due Process Clause. Hite v. Vanderburgh Cnty. Office of Family & Children, 845
N.E.2d 175, 181 (Ind. Ct. App. 2006). Although due process has never been precisely
defined, the phrase embodies a requirement of “fundamental fairness.” In re J.T., 740
N.E.2d 1261, 1264 (Ind. Ct. App. 2000), trans. denied.
10
Notwithstanding the significance of the rights involved herein, it is well-
established, however, that a party on appeal may waive a constitutional claim. McBride
v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003).
In particular, we have previously held that a parent may waive a due process claim in a
CHINS or involuntary termination case when it is raised for the first time on appeal. Id.
at 194-95; see also In re K.S., 750 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2001) (concluding
mother waived claim that trial court violated her due process rights in failing to follow
statutory requirements governing permanency hearings, case plans, and dispositional
orders because she raised constitutional claim for first time on appeal). This is in keeping
with the long-standing general rule that an issue cannot be raised for the first time on
appeal. McBride, 798 N.E.2d at 194.
Father asserts for the first time on appeal that the trial court “never held an initial
hearing or a dispositional hearing, nor entered a dispositional order in the underlying
CHINS action” as to Father. Appellant Father’s Br. p. 8. A review of the record makes
clear, however, that Father did not object to any of these alleged deficiencies at any time
during the CHINS proceedings. Father, who was appointed counsel at the
commencement of the termination case and attended the termination hearing
telephonically, also never argued during the termination proceedings that these alleged
deficiencies during the CHINS case constituted a due process violation. Rather, Father
has raised his procedural due process claim for the first time on appeal. We therefore
conclude that Father has waived his constitutional challenge.
11
Waiver notwithstanding, we pause to note that Father’s additional contention that
the “record is silent as to whether he was properly served notice of the underlying CHINS
proceedings” also rings hollow, as the uncontested testimony of ACDCS case manager
Palmeter makes clear that she personally informed Father of the date, time, and location
of the detention hearing during Father’s and Mother’s visit with the children in December
2007. Palmeter went on to testify that although she had asked Father for his current
address and telephone number at that time, every case plan and court report she sent him
“came back undeliverable[,] and the phone number [Father] provided did not work.”
Transcript, Vol. 3, p. 78-79.
By refusing to attend the CHINS hearing which Father had actual knowledge of
and by failing to initiate any subsequent contact with ACDCS thereafter, Father has, at
least in part, invited the alleged error of which he now complains. Error invited by the
complaining party is not reversible error. See, e.g., Breining v. Harkness, 872 N.E.2d
155, 159 (Ind. Ct. App. 2007) (stating that the doctrine of invited error, grounded in
estoppel, provides that a party may not take advantage of an error that he commits,
invites, or which is the natural consequences of his own neglect or misconduct), trans.
denied. Nor can we agree with Father’s assertion that the alleged procedural
irregularities which occurred in the CHINS proceedings operated to deprive Father of
procedural due process in the termination case. Father was represented by counsel
throughout the termination proceedings. In addition, Father appeared for the termination
evidentiary hearing telephonically, was provided with an opportunity to be heard and to
cross-examine witnesses, and was zealously represented by counsel. For all these
12
reasons, we cannot conclude Father’s rights were fatally compromised. See, e.g., Hite v.
Vanderburgh Cnty. Office of Family & Children, 845 N.E.2d 175, 184 (Ind. Ct. App.
2006) (concluding that failure to provide father with notice during initial stages of the
CHINS action and copies of case plans did not substantially increase risk or error in
termination proceedings).
II. Sufficiency of the Evidence
A. Father - Best Interests
Both parents claim that the juvenile court’s judgment is not supported by the
evidence. In so doing, Father states that he was “never ordered to comply with services
because no dispositional hearing was held as to him.” Appellant’s Br. (Father) p. 10. He
further claims that he “visited” and “supported” the children in the past and “did not use
drugs around his children.” Id. Father therefore contends there is insufficient evidence
supporting the trial court’s determination that termination of his parental rights is in
M.V.’s and M.P.’s best interests.
We are mindful that when considering what is in the best interests of a child, the
trial court is required to look beyond the factors identified by the Indiana Department of
Child Services and look to the totality of the evidence. McBride, 798 N.E.2d at 203. In
so doing, the trial court must subordinate the interests of the parent to those of the child.
Id. The court need not wait until a child is irreversibly harmed before terminating the
parent-child relationship. Id. Moreover, we have previously determined that the
testimony of a child’s guardian ad litem regarding the child’s need for permanency
supports a finding that termination is in the child’s best interests. Id.13
In determining that the termination of Father’s parental rights is in M.V.’s and
M.P.’s best interests, the trial court specifically found that all of the parents “continue to
be unable, refuse, or neglect to provide for the basic necessities of a suitable home for the
raising of said children.” Appellant’s Appendix (Father), p. 36. The court further found
that Father had not been “significantly involved in the children’s lives,” failed to
“establish paternity,” did not “visit or have contact with the children,” did not provide
“financial or other material support for the children,” and failed to “take any steps to
participate in services or to put himself in a position to care for his children.” Id. at 37.
These findings are supported by the evidence.
During the termination hearing, case manager Palmeter, Guardian Ad Litem
(“GAL”) Robert Bellinger, and court-appointed special advocate (“CASA”) Suzanne
Lange all recommended termination of Father’s parental rights as in M.P. and M.V.’s
best interests. In so doing, Palmeter testified that it was “obvious from the beginning . . .
that [Father] was not fully invested in his children due to the fact he didn’t follow through
with paternity [testing] so that child support could be established to assist [Mother].”
Transcript, Vol. 3, pp. 102-03. Palmeter further explained that “through conversations
with [Mother][,] it was kind of obvious that there’d been a history of domestic violence
with [Father] in [Ohio],” and that there “were drug issues with [Father].” Id. Similarly,
in recommending termination of Father’s parental rights, CASA Bellinger informed the
trial court that there had “never been any involvement” by any of the fathers involved in
this case and that this “lack of involvement” by the fathers had left the children without a
support system “both emotionally and financially.” Id. at 104. GAL Bellinger likewise
14
testified that he believed termination of parental rights and adoption of the children was
“necessary” given the circumstances of the case. Id. at 124.
Additional evidence from service providers confirmed the children’s need for
structure and permanency in their lives. For example, therapist Karen Palmer confirmed
that M.V., who suffers with post traumatic stress disorder, attention deficit hyperactivity
disorder, encopresis, and mild retardation, had been in residential therapy since April
2010 due to his extreme behaviors. Palmer further testified that M.P. needs a “very
structured and routine environment” with a lot of “one on one” care due to his “low
functioning level” and inability to “understand complex situations.” Id., Vol. 1, pp. 135-
36.
Based on the totality of the evidence, including Father’s ongoing incarceration,
failure to establish paternity of the children, unresolved substance abuse issues, and
current inability to demonstrate he is capable of providing A.P. and A.V. with the safe
and stable home environment the children need, coupled with the testimony from
Palmeter, Bellinger, Lange, and Palmer, we conclude that clear and convincing evidence
supports the trial court’s determination that termination of Father’s parental rights is in
the children’s best interests.
B. Mother - Conditions Remedied/Threat to Well-Being
Finally, we consider Mother’s assertion that there is insufficient evidence
supporting the trial court’s determination that there is a reasonable probability the
conditions resulting in the children’s removal from her care will not be remedied. As
previously mentioned, Indiana’s termination statute provides that ACDCS need establish
15
only one of the requirements of subsection (b)(2)(B) by clear and convincing evidence
before the trial court may terminate parental rights. Because we find it to be dispositive
under the facts of this particular case, we shall only consider whether clear and
convincing evidence supports the trial court’s findings regarding subsection (b)(2)(B)(i),
namely, whether there is a reasonable probability the conditions resulting in the
children’s removal or continued placement outside the family home will be remedied.
When making such a determination, a trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),
trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. Pursuant to
this rule, courts have properly considered evidence of a parent’s prior criminal history,
drug and alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children,
762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also
consider any services offered to the parent by the local Indiana Department of Child
Services office (here, ACDCS) and the parent’s response to those services, as evidence of
whether conditions will be remedied. Id. Moreover, ACDCS is not required to provide
evidence ruling out all possibilities of change; rather, it need establish only that there is a
reasonable probability the parent’s behavior will not change. In re Kay L., 867 N.E.2d
236, 242 (Ind. Ct. App. 2007).
16
In the present case, the trial court’s judgment contains numerous detailed findings
regarding Mother’s unresolved parenting issues. Specifically, the trial court noted
ACDCS had made multiple referrals for services, including referrals for intensive family
preservation services, home-based services, parenting classes, and anger management
counseling but that Mother “failed to complete and/or benefit from [the] services
provided.” Appellant’s Appendix (Father) p. 31. The court further found that Mother
had moved approximately seven times since ACDCS’s involvement with the family
began in 2007, had “difficulty maintaining a clean and appropriate home for the children”
during the underlying CHINS case, and required assistance in obtaining groceries on at
least one occasion. Id. at 32. Although the trial court acknowledged in its findings that
Mother had obtained employment at McDonalds on two prior occasions, it went on to
find that she was “fired for failure to appear at work on time” and has “not consistently
maintained employment. . . .” Id.
The trial court also detailed the testimony of numerous case workers and service
providers regarding Mother’s overall lack of progress in services, including her inability
to safely parent the children and effectively manage each child’s special needs. For
example, the trial court noted the testimony from M.V.’s therapist that Mother had been
unable to implement the coping skills, relaxation techniques, and parenting skills
demonstrated to her while visiting with the children. Additional findings reflected
testimony from other case workers who had observed that visits between Mother and all
the children were “chaotic,” that Mother sometimes “did not want to listen to advice
and/or redirection” that visitation supervisors were giving her, and that visits eventually
17
reverted to in-office supervised visits by late March 2010 following an incident during
which Mother allowed the three oldest children, ages eleven, nine, and eight, to drive the
family van.
Finally, the trial court found Mother had “established a pattern of involvement
with violent and abusive individuals and a pattern of exposing her children to those
individuals who have often abused the children.” Id. at 35. The court went on to
acknowledge that the children had disclosed they do not feel safe with Mother and that
Mother’s “lack of good judgment and insight . . . has had a devastating impact on two of
the children who suffer from Post Traumatic Stress Disorder and other significant
diagnoses related to their treatment while in [Mother’s] care.” Id. A thorough review of
the record leaves us satisfied that these findings, too, are supported by abundant evidence.
The record makes clear that at the time of the termination hearing, Mother had
made little, if any, progress in her ability to care for the children and to provide them with
a safe and stable home environment. Specifically, Mother had been unemployed for the
majority of the underlying CHINS and termination cases, was arrested in Ohio on drug-
related charges, tested positive for marijuana on three occasions following her release
from incarceration in violation of the terms or her probation, and continued to be non-
compliant in taking her mental health medications as prescribed as of the time of the
termination hearing. Additionally, it was the general consensus among case workers and
service providers that although Mother loved her children, her situation would likely
never improve. For example when asked to describe Mother’s “follow through” on the
18
“matters [ACDCS] wanted to address with her,” ACDCS case manager Nakia Steele
answered as follows:
[Mother] would say that she would comply[,] but then again would fail to
initiate any contact with service providers[.] [O]r she would say that she’s
gonna follow through and just wouldn’t. . . . [W]henever we would have
family team meetings, she would be real[ly] positive and maybe even bring
a support system and say that she would follow through[,] but shortly
thereafter there would be no compliance. So it was just basically an on-
going thing of non-compliance with the Department.
Transcript, Vol. 1, p. 49. Similarly, SCAN restoration case worker Stacey Dickerson
testified that she supervised in-home visits between Mother and the children and worked
on a parenting curriculum with Mother between August 2008 and May 2009. When
questioned about Mother’s progress in services, Dickerson stated that although there was
a brief time when Mother appeared to be progressing in services, by September 2008 her
progress had become sporadic, and ultimately Mother “[d]idn’t progress at all.” Id. at
176. ACDCS case manager Palmeter likewise expressed ongoing concerns at the time of
the termination hearing regarding Mother’s unresolved anger management issues, history
of involvement in abusive relationships, inability to demonstrate she is capable of
supervising the children at all times, and historic inability to maintain a stable home and
employment.
As noted earlier, a trial court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s habitual
patterns of conduct to determine the probability of future neglect or deprivation of the
child. D.D., 804 N.E.2d at 266. “A pattern of unwillingness to deal with parenting
problems and to cooperate with those providing services, in conjunction with unchanged
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conditions, supports a finding that there exists no reasonable probability that the
conditions will change.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d
366, 372 (Ind. Ct. App. 2007), trans. denied. Moreover, we have previously explained
that “simply going through the motions of receiving services alone is not sufficient if the
services do not result in the needed change.” In re J.S., 906 N.E.2d 226, 234 (Ind. Ct.
App. 2009). Based on the foregoing, we conclude that clear and convincing evidence
supports the trial court’s findings as well as its ultimate determination to terminate
Mother’s parental rights to her children.
We will reverse a termination of parental rights “‘only upon a showing of “clear
error” – that which leaves us with a definite and firm conviction that a mistake has been
made.’” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
RILEY, J., and DARDEN, J., concur.
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