In Re: The Termination of the Parent-Child Relationship of Mal.C.B. and Mak.C.B. (Minor Children) T.C. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 26 2020, 9:51 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cynthia Phillips Smith Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith Attorney General of Indiana
Lafayette, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Termination of the June 26, 2020
Parent-Child Relationship of Court of Appeals Case No.
Mal.C.B. and Mak.C.B. (Minor 20A-JT-3
Children); Appeal from the Tippecanoe
T.C. (Mother), Superior Court
The Honorable Kurtis Fouts,
Appellant-Respondent,
Special Judge
v. Trial Court Cause No.
79D03-1904-JT-47
79D03-1904-JT-48
The Indiana Department of
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] T.C. (“Mother”) appeals the termination of the parent-child relationships with
her twin sons, Mal.C.B. (“Mal.C.B.”) and Mak.C.B. (“Mak.C.B.”) (collectively
“the twins”), claiming that the Department of Child Services (“DCS”) failed to
prove by clear and convincing evidence that: (1) there is a reasonable
probability that the conditions that resulted in the twins’ removal or the reasons
for placement outside Mother’s home will not be remedied; (2) a continuation
of the parent-child relationships poses a threat to the twins’ well-being; and (3)
termination of the parent-child relationships is in the twins’ best interests.
Concluding that there is sufficient evidence to support the trial court’s decision
to terminate the parent-child relationships, we affirm the trial court’s judgment.1
[2] We affirm.
Issue
Whether there is sufficient evidence to support the involuntary
termination of Mother’s parental rights.
Facts
[3] Mother is the parent of the following children: (1) daughter, M.C., who was
born in July 2013 and who is in a guardianship with maternal grandmother in
Chicago; (2) son, K.C.B, who was born in July 2015 and who is also in a
1
The twins’ father’s (“Father”) parental rights were also terminated. However, Father is not a party to this
appeal.
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guardianship with maternal grandmother in Chicago; (3) twin sons, Mal.C.B.
and Mak.C.B., who were born in June 2016 and who are the children involved
in this appeal; (4) son, Ma.C., who was born in June 2017, and who is in a
guardianship with Mother’s sister in Georgia; and (5) daughter, T.C., who was
born in November 2018 and who lives with Mother.
[4] The twins, who were born prematurely, weighed a little more than one pound
each at birth. They were placed on ventilators and remained in an Illinois
hospital for more than three months before they were discharged to Mother and
Father. The twins and their parents subsequently moved to Lafayette, Indiana
to “get away from the environment” in Chicago.” (Tr. Vol. 2 at 154). Parents
and the twins moved in with family members. M.C. and K.C.B., who were
already in a guardianship with maternal grandmother, remained in Chicago.
[5] In April 2017, Father was charged in Illinois with aggravated sexual assault.
Mother remained at her family members’ home in Lafayette with the twins.
The home was over-crowded and had no hot water. In May 2017, maternal
grandmother allowed three-year-old M.C. to visit Mother. After boiling water
for M.C.’s bath, Mother set the pots down on the bathroom floor and left the
room. According to Mother, M.C. went into the bathroom and spilled the
water on herself. M.C. sustained second and third degree burns to over 60% of
her body, including her abdomen, back, genitals, left leg, and left arm.
Although staff at Riley Children’s Hospital believed that the burns looked as if
M.C. had been dipped and held in the boiling water, no criminal charges were
filed.
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[6] During its investigation of M.C.’s injuries, DCS removed the twins from
Mother’s home because of inadequate housing and safety concerns for the
twins. DCS placed the twins in foster care. At the time of their removal, the
twins were underweight, and the backs of their skulls were flat. In addition, the
almost one-year old twins could not roll over or crawl. They sought comfort
from each other rather than from adult caregivers.
[7] DCS filed a petition alleging that the twins were Children in Need of Services
(“CHINS”) in May 2017. Mother admitted that the children were CHINS, and
following an August 2017 dispositional hearing, the trial court ordered Mother
to: (1) complete a parenting assessment and follow all recommendations; (2)
obtain and maintain stable employment and housing; (3) participate in
parenting time; (4) remain drug free and submit to random drug screens; and (5)
participate in case management services.
[8] In October 2017, DCS filed a motion asking the trial court to find Mother in
contempt for failing to comply with the CHINS dispositional order. Mother
admitted that she had visited the twins only one time in three months and that
she had failed to participate in parenting education and case management
services. In November 2017, the trial court found Mother in contempt and
ordered her to serve four days in jail.
[9] In April 2018, DCS filed a second motion to find Mother in contempt for
failing to comply with the CHINS dispositional order. Mother had missed
several supervised visits with the twins and had not participated in the court-
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ordered parenting education and case management services. The trial court
again found Mother in contempt and ordered her to spend thirty days in a work
release program.
[10] Two months later, in June 2018, DCS filed a petition to terminate Mother’s
parental relationships with the twins. DCS subsequently dismissed the petition
to give Mother additional time to participate in services. In November 2018,
Mother and several service providers worked together to create a 30/60/90-day
plan leading to the reunification of Mother and the twins. Each thirty-day
increment in the plan had specific goals for Mother to complete, including
supervised visitation with the twins, home-based case management services to
assist Mother in finding suitable housing and employment, and a parenting
skills curriculum. Mother, however, failed to successfully complete the plan.
[11] At some point in early 2019, Mother moved back to Chicago. In the spring of
2019, Mother moved to Georgia. In April 2019, DCS filed another petition to
terminate Mother’s parental relationships with the twins. Mother returned to
Lafayette in June 2019 and asked DCS to allow her to re-engage in services.
[12] DCS referred Mother to Amanda Schaeffer (“Schaeffer”) at Promising Futures
Incorporated for parenting education and case management services and to
Serena Wahl (“Wahl”) at Lifeline Youth and Family Services. Mother met
with Schaeffer four times and then missed four appointments in August 2019,
leading Schaeffer to close the referral. Mother told Wahl that she was
relocating to Chicago.
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[13] At the October 2019 termination hearing, DCS Family Case Manager Shawna
Yoder (“FCM Yoder”) testified that the reasons for the twins’ removal had not
been remedied. Specifically, FCM Yoder testified that Mother “ha[d] not
shown the ability to care for these children or have a bond with these children[.]
She had many opportunities that we could assist her with, and she didn’t take
advantage of them.” (Tr. Vol. 2 at 39). At the time of the termination hearing,
Mother had not seen the twins in almost a year. FCM Yoder also testified that
termination of Mother’s parental rights was in the twins’ best interests and that
the twins’ foster parents planned to adopt them.
[14] CASA Staff Advocate Brenda Gochenour (“CASA Gochenour”) also testified
that termination was in the twins’ best interests. CASA Gochenour further
explained that the twins were:
two little guys that have developmental needs and some special
needs[.] They need to have consistency and stability and to make
sure they get to their appointments and to their therapies and do
the things that the doctors are recommending to let these children
grow and lead normal lives.
(Tr. Vol. 2 at 145). According to CASA Gochenour, this was the first case that
she had had “where extra chances were given to parents.” (Tr. Vol. 2 at 146).
[15] Testimony at the termination hearing also revealed that the twins were thriving
in foster care. They had a strong bond with their foster parents and had gained
weight. In addition, the flatness on the back of their heads was becoming
rounder. Pediatric physical therapist Jamie Stormont-Smith (“PT Stormont-
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Smith”), who has worked with the twins and their developmental delays,
testified that she has seen the twins make progress in the following areas: (1)
poop smearing; (2) sleep patterns; and (3) eating issues. As an example, PT
Stormont-Smith explained that Mak.C.B. had been making progress on his
tendency to eat to the point of vomiting, and Mal.C.B. had been making
progress on his tendency to avoid food and refuse to eat. According to PT
Stormont-Smith, an environment that supported the twins’ needs was critical.
She agreed that the twins would “need ongoing, extra attention in the future to
help them develop and progress.” (Tr. Vol. 2 at 114). PT Stormont-Smith also
testified that she believed that the foster parents would be able to identify any
new issues that would arise and would continue to work with the twins.
[16] At the time of the hearing, Father had been convicted of the aggravated sexual
assault charges and was incarcerated in Illinois. He testified remotely and
asked the trial court to “give [Mother] another chance[.]” (Tr. Vol. 2 at 153).
Mother also testified at the hearing. When asked if there was anything that she
wanted the trial court to know, Mother responded as follows:
I basically just want you to know this whole case is just a bunch
of B.S. The twins were not in any harm’s way. They were not
neglected. I am not a bad parent and this case went on for too
long for nothing and all over some services. I really feel like the
twins should be placed back with me. I am their Mother. And
just like they keep saying that I don’t have a bond with them.
They didn’t have a bond with the foster parents either when they
took them away from me. They didn’t know them either. They
are still young, and we can still establish our bond back. They
can still get to know me. That’s all.
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(Tr. Vol. 2 at 184-85).
[17] In December 2019, the trial court issued a detailed order terminating Mother’s
parental relationships with the twins. Mother now appeals the terminations.
Decision
[18] Mother argues that there is insufficient evidence to support the termination of
her parental rights. The Fourteenth Amendment to the United States
Constitution protects the traditional right of parents to establish a home and
raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,
the law provides for termination of that right when parents are unwilling or
unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147
(Ind. 2005). The purpose of terminating parental rights is not to punish the
parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[19] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
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evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
[20] A petition to terminate parental rights must allege:
(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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[21] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that: (1) the
conditions that resulted in the twins removal or the reasons for placement
outside Mother’s home will not be remedied; and (2) a continuation of the
parent-child relationships poses a threat to the twins’ well-being.
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[22] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010), trans. dismissed. We therefore discuss
only whether there is a reasonable probability that the conditions that resulted
in the twins’ removal or the reasons for their placement outside Mother’s home
will not be remedied.
[23] 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. Requiring trial courts to give due regard to
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changed conditions does not preclude them from finding that a parent’s past
behavior is the best predictor of her future behavior. E.M., 4 N.E.3d at 643.
[24] Here, the twins were removed from Mother’s home because of inappropriate
housing and safety concerns. Our review of the evidence reveals that Mother
failed to comply with the CHINS dispositional order. Specifically, Mother was
twice held in contempt for failing to comply with the order. DCS filed a
termination petition in June 2018 and then dismissed it to allow Mother to re-
engage in services. Service providers worked with Mother to create a plan that
would lead to the reunification of Mother and the twins, and Mother failed to
follow it. After the the second termination petition was filed in April 2019,
DCS again provided Mother with additional services when she asked for them.
After receiving the services, Mother failed to comply with them. During the
course of the proceedings, Mother has shown no ability to care for the twins or
have a bond with them, and she has refused to participate in services that would
have enhanced her ability to do so. This evidence supports the trial court’s
conclusion that there was a reasonable probability that the conditions that
resulted in the twins’ removal would not be remedied. We find no error.
[25] Mother also argues that there is insufficient evidence that the termination was
in the twins’ best interests. In determining whether termination of parental
rights is in the best interests of a child, the trial court is required to look at the
totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),
trans. denied. In so doing, the court must subordinate the interests of the parents
to those of the child involved. Id. Termination of the parent-child relationship
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is proper where the child’s emotional and physical development is threatened.
In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. Further, the
testimony of the service providers may support a finding that termination is in
the child’s best interests. McBride v. Monroe Cty. Office of Family and Children, 798
N.E.2d 185, 203 (Ind. Ct. App. 2003).
[26] Here, our review of the evidence reveals that the twins have developmental
delays. They require on-going extra attention as well as a supportive
environment. FCM Yoder and CASA Gochenour both testified that
termination was in the twins’ best interests. The testimony of these service
providers, as well as the other evidence previously discussed, supports the trial
court’s conclusion that termination was in the twins’ best interests. There is
sufficient evidence to support the terminations.
[27] Affirmed.
Bradford, C.J., and Baker, J., concur.
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