In the Matter of the Involuntary Termination of the Parent-Child Relationship of Z.B., D.B., L.B., Me.B., Ma.B. (Minor Children) and A.B. (Mother) v. The Indiana Department of Child Services , 108 N.E.3d 895 ( 2018 )

FILED
Jul 31 2018, 9:04 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ana M. Quirk THE INDIANA DEPARTMENT OF
Muncie, Indiana CHILD SERVICES
Curtis T. Hill, Jr.
Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
ATTORNEY FOR APPELLEE
DELAWARE COUNTY, INDIANA
CASA
Jon L. Orlosky
Muncie, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary July 31, 2018
Termination of the Parent-Child Court of Appeals Case No.
Relationship of Z.B., D.B., L.B., 18A-JT-318
Me.B., Ma.B. (Minor Children) Appeal from the Delaware Circuit
and Court
The Honorable Kimberly S.
A.B. (Mother), Dowling, Judge
Appellant-Respondent, The Honorable Amanda L.
Yonally, Magistrate
v.
Court of Appeals of Indiana | Opinion 18A-JT-318 | July 31, 2018 Page 1 of 17
The Indiana Department of Trial Court Cause Nos.
Child Services, 18C02-1609-JT-37
18C02-1609-JT-38
Appellee-Petitioner, 18C02-1609-JT-39
18C02-1609-JT-40
and 18C02-1611-JT-53
Delaware County, Indiana
CASA,
Appellee-Petitioner.
Bailey, Judge.
Case Summary
[1] A.B. (“Mother”) challenges the juvenile court’s decision to terminate her
parental rights as to her five children who had previously been adjudicated
Children in Need of Services (“CHINS”): Z.B., D.B., L.B., Me.B., (the
“Siblings”) and Ma.B (collectively, the “Children”).1 Notably, the Delaware
County Department of Child Services (“DCS”) opposed terminating Mother’s
parental rights with respect to Ma.B., but Ma.B’s court-appointed special
1
The order also terminated the parental rights of S.B., who was the father of the Siblings; S.B. testified in
favor of adoption, and does not actively participate in this appeal. Moreover, we note that there was no
petition to terminate the parental rights of Ma.B.’s father, C.B.; he participated in the proceedings as an
interested party, but also does not actively participate in this appeal.
Court of Appeals of Indiana | Opinion 18A-JT-318 | July 31, 2018 Page 2 of 17
advocates (the “CASAs”) pursued termination through counsel. Mother now
presents the following consolidated and restated issues:
I. Whether a CASA has the statutory authority to prosecute
a petition to terminate parental rights when DCS opposes
termination; and
II. Whether there is sufficient evidence supporting the
termination of Mother’s parental rights.
[2] We affirm, but remand for correction of certain scrivener’s errors.
Facts and Procedural History
[3] At some point, DCS alleged that the Children were CHINS, and, in May of
2015, Diana Robertson and Mary Fitzgerald became the Children’s CASAs. In
June of 2015, Ma.B. was adjudicated a CHINS, and Mother admitted certain
CHINS allegations as to the Siblings, including:
a. On or about April 10, 2015, [Mother] entered into an
Informal Adjustment with [DCS] due to educational
neglect, substance abuse, home conditions, and lack of
supervision.
b. [Mother] was positive on April 16, 2015 for
methamphetamines and uses other illicit substances such
as, but not limited to, heroin, methamphetamines and
prescription narcotics.
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c. Home conditions barely meet minimal standards and
[M]other is struggling to maintain appropriate living
conditions.
d. Mother struggles to control [Z.B.’s] behaviors as he is
destructive, violent and injures the other children.
Ex. Vol. I at 26, 167; Ex. Vol. II at 58, 201.
[4] The Siblings were at one point placed with family. As to Ma.B., Mother
consented to a modification of custody so that C.B. (“Father”) became Ma.B.’s
custodian, and Ma.B. began living with Father and his wife (“Stepmother”).
[5] On September 30, 2016, DCS filed a petition to terminate Mother’s parental
rights as to the Siblings. On November 21, 2016, the CASAs filed a petition to
terminate Mother’s parental rights as to Ma.B. DCS and Mother then moved
to dismiss the petition concerning Ma.B., arguing—among other things—that
the CASAs could not prosecute a petition to terminate parental rights where
DCS did not support the petition.2 The court denied the motions to dismiss and
consolidated the proceedings concerning the Children. The court then held a
fact-finding hearing on June 15, August 23, and October 18, 2017. The court
took the matter under advisement, and later entered an order terminating
Mother’s parental rights to the Children.
2
DCS did not support the petition because Ma.B. was already placed with a parent. DCS and Mother
asserted that Ma.B. was safe with Father as her physical custodian and that “[s]evering the parental rights of
the mother is extreme and unnecessary where the child can be protected by a parent.” App. Vol. II at 55, 66.
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[6] Mother now appeals.
Discussion and Decision
Statutory Authority
[7] Mother and DCS present what appears to be an issue of first impression:
whether a CASA has the statutory authority to prosecute a petition to terminate
parental rights when DCS opposes termination. We interpret statutes de novo.
In re Bi.B., 69 N.E.3d 464, 466 (Ind. 2017).
[B]efore interpreting a statute, we consider “whether the
Legislature has spoken clearly and unambiguously on the point
in question.” Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind.
2009). If a statute is clear and unambiguous, we put aside
various canons of statutory construction and simply “require that
words and phrases be taken in their plain, ordinary, and usual
sense.” Id. Indeed, “[c]lear and unambiguous statutes leave no
room for judicial construction.” Id. We will find a statute
ambiguous and open to judicial construction only if it is subject
to more than one reasonable interpretation.
KS&E Sports v. Runnels, 72 N.E.3d 892, 898-99 (Ind. 2017).
[8] When a child is alleged to be a CHINS under certain statutory sections, the
court must “appoint a guardian ad litem, court appointed special advocate, or
both, for the child.” Ind. Code § 31-34-10-3. The court is also obligated to do
so if a parent opposes a petition to terminate parental rights. I.C. § 31-35-2-7(a).
In the termination context, the CASA’s role is “to represent and protect the best
interests of the child in the termination proceedings.” I.C. § 31-35-2-7(b).
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[9] It is clear that a CASA may sign and file a petition to terminate parental rights
when a child has been adjudicated a CHINS. Indeed, Indiana Code Section 31-
35-2-4(a) provides as follows:
A petition to terminate the parent-child relationship
involving a . . . child in need of services may be signed and
filed . . . by any of the following:
(1) The attorney for the department.
(2) The child’s court appointed special advocate.
(3) The child’s guardian ad litem.
Moreover, it is equally clear that DCS represents the State’s interests in
termination proceedings: “Upon the filing of a petition under section 4 of this
chapter, the attorney for the department shall represent the interests of the state
in all subsequent proceedings on the petition.” I.C. § 31-35-2-5.
[10] Mother and DCS read these statutes as prohibiting proceedings on a petition to
terminate parental rights whenever DCS opposes the petition. They argue that
DCS should not be burdened with involvement in termination proceedings that
the State does not support. DCS further argues that letting a “CASA prosecute
a termination petition is tantamount to letting a child prosecute a termination
case against his or her parents.” DCS Br. at 29. DCS also directs us to caselaw
in the adoption context where we have strictly construed statutes to preserve the
parent-child relationship in light of the fundamental importance of the parent-
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child relationship. See In re K.F., 935 N.E.2d 282, 289 (Ind. Ct. App. 2010),
trans. denied.3 The CASAs respond that because the legislature specifically
authorized them to independently initiate termination proceedings, it follows
that they can also independently prosecute these matters.
[11] We agree with the CASAs. An authorization to file a petition cannot be
reasonably read to prohibit prosecuting that petition, and this plain reading in
no way affects the elements or burden of proof for termination. Moreover, our
legislature specifically created a mechanism for DCS—or a guardian ad litem or
a CASA—to express opposition to a petition to terminate parental rights. That
is, any “person described in section 4(a)” may—as DCS did here—file a motion
to dismiss the petition, asserting “a compelling reason, based on facts and
circumstances stated in the petition or motion, for concluding that filing, or
proceeding to a final determination of, a petition to terminate the parent-child
relationship is not in the best interests of the child.” I.C. § 31-35-2-4.5(d)(1).
That motion may be successful, but when it is not, we discern no impediment to
proceeding with the petition to terminate parental rights. Thus, there was no
error based upon DCS’s opposition to the petition concerning Ma.B.
3
To the extent that DCS relies upon In re S.G., 67 N.E.3d 1138 (Ind. Ct. App. 2017), that case involved a due
process challenge to the constitutionality of a statute—and there is no constitutional challenge here.
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Sufficiency of the Evidence
[12] “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 & 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. at 147 (quotation marks
removed). “Our General Assembly has thus set a high bar for terminating
parental rights.” In re Bi.B., 69 N.E.3d at 465.
[13] Under Indiana Code Section 31-35-2-4(b)(2), a petition seeking to terminate the
parent-child relationship must allege, in pertinent part:
(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. . . .
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.
(ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child. . . .
(C) that termination is in the best interests of the child; and
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(D) that there is a satisfactory plan for the care and treatment of
the child.
The petitioner must prove each element by clear and convincing evidence. I.C.
§ 31-37-14-2. If the court finds that the allegations are true, “the court shall
terminate the parent-child relationship.” I.C. § 31-35-2-8(a). In doing so, the
court must enter findings and conclusions, irrespective of whether the parties
have made a Trial Rule 52 request. See I.C. § 31-35-2-8(c); Ind. Trial Rule 52.
We will not “set aside the findings or judgment unless clearly erroneous,” T.R.
52(A); clear error is “that which leaves us with a definite and firm conviction
that a mistake has been made,” Egly v. Blackford Cty. Dept. of Pub. Welfare, 592
N.E.2d 1232, 1235 (Ind. 1992). In reviewing for clear error, we look to
“whether the evidence supports the findings, and whether the findings support
the judgment.” Steele-Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). Moreover,
we neither reweigh the evidence nor judge the credibility of witnesses, In re R.S.,
56 N.E.3d 625, 628 (Ind. 2016), and we give “due regard . . . to the opportunity
of the trial court to judge the credibility of the witnesses,” T.R. 52(A).
[14] Here, the juvenile court found that although Mother’s substance abuse was an
initial concern, substance abuse “was no longer a primary concern of DCS” by
the time of the fact-finding hearing. App. Vol. II at 173.4 Indeed, much of that
hearing—and the ensuing findings and conclusions—focused on issues related
4
For each child, the court entered separate findings and conclusions. Where these findings and conclusions
are identical, we cite only to the order concerning Z.B.
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to Mother’s ability to supervise the Children to ensure their safety.5 We note
that at the time of the fact-finding hearing, Ma.B. was eleven years old and the
Siblings were between three years old and ten years old.
[15] The court found that Mother began working with a therapist in the summer of
2015. The initial focus for therapy “was substance abuse based on the referral”
from DCS, but that focus “quickly transitioned to mother’s mental health and
cognitive concerns based on the therapist’s experience and observations.” Id. at
175. Mother’s therapist recommended a psychological evaluation, which
revealed that Mother has cognitive disabilities that impact “her day-to-day
living, including increased difficulty with problem-solving, lack of [judgment],
difficulty interacting with peers in her environment, and difficulty with
problem-solving on behalf of children.” Id. at 176. The evaluation “revealed a
full-scale I.Q. of 64” for Mother, and Mother received “a provisional diagnosis
of a neurocognitive disorder due to a traumatic brain injury.” Id. In view of
Mother’s “extremely low cognitive functioning, low academic functioning, and
issues with memory and clear thinking,” the psychologist recommended that
Mother “receive supportive services to assist in her day-to-day tasks,” and
receive parenting education “based on indications of [Mother’s] lack of
empathy toward children and expectations of children.” Id.
5
There were other identified issues, such as Mother’s struggles with maintaining a stable residence.
However, as we need only identify sufficient evidence to support the court’s decision, we elect not to discuss
every issue identified in the findings or addressed in the parties’ briefs.
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[16] Mother agreed to have a service provider act as payee for her disability benefits
so she could receive assistance “with finding stable housing and managing her
money.” Id. at 174. With that support in place, Mother also began working
with a child and family therapist who started therapeutically supervising
Mother’s visits in July of 2016; prior to that point, the visits were supervised but
without therapeutic elements. The therapist was aware of the results of the
psychological evaluation and “relied on those results in her therapeutic
approach” with Mother. Id. at 176. During those therapeutically supervised
visits, the therapist “observed significant conflict, arguing, [and] physical
aggression” among the Children, and that Mother displayed a “lack of
supervision.” Id. at 177. Mother “was unable to focus on more than one child”
and “failed to notice and intervene during physical aggression and fights.” Id.
[17] In November 2016, a second therapist began helping to supervise visits, as the
first therapist believed she “could not effectively work with [Mother] while at
the same time keeping track of the children and ensuring their safety.” Id. The
court found that adding a therapist “was necessary both to ensure the safety” of
the Children and “to effectively address parenting issues” with Mother. Id.
Around this time—in October 2016—Ma.B.’s visitation with Mother was
suspended. Ma.B. had exhibited instances of self-harm prior to October 2016,
and failed to make any improvement in therapy sessions between February
2016 and October 2016. After suspending visitation, Ma.B. made “significant
improvement, including being happier and more optimistic, reducing negative
behavior, and progressing academically” to the point where she no longer
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requires an individualized education program at school. Id. at 100. There were
also no instances of self-harm after suspending visitation.
[18] Over the course of Mother’s therapeutically supervised visits, Mother made
progress in some areas, including her ability to provide time-outs, but she “did
not make progress in her ability to monitor and supervise.” Id. Mother often
“lost track” of the Children and was unaware of their whereabouts. Id.
Although Mother asked what she could do to improve, and a therapist
responsively set up extra meetings to help with Mother’s parenting, Mother
“did not attend th[ose] appointments.” Id. Moreover, at some point, Mother
moved to Anderson, and her family case manager made efforts to transfer
Mother’s services there; when Mother subsequently moved back to Muncie, she
“informed the service providers that she did not need their assistance and
involvement.” Id. at 178. Mother also registered for certain parenting classes in
March of 2017 “but failed to attend any of the classes.” Id. at 174.
[19] We note that mental or cognitive disabilities, standing alone, are not a proper
basis for termination of parental rights. See In re V.A., 51 N.E.3d 1140, 1147
(Ind. 2016). However, a court may consider these issues where “parents are
incapable of or unwilling to fulfill their legal obligations in caring for their
children.” Egly, 592 N.E.2d at 1234. This is because “the purpose of
terminating parental rights is not to punish parents, but to protect the children.”
Id. (citing Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981)).
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[20] The court ultimately found that Mother “is not capable of safely or effectively
parenting” the Children, id. at 178, and the evidence favorable to the court’s
decision supports this finding. Moreover, this parenting issue—encompassing a
lack of supervision and a struggle to control violent behaviors—was among the
admitted CHINS allegations, and was an ongoing issue that led to continued
placement outside Mother’s home. We note also that there was no indication
that Mother’s cognitive functioning would improve; rather, Mother’s therapist
opined that Mother should continue to have a payee and, for the rest of her life,
Mother would likely struggle with managing aspects of day-to-day life.
[21] Under statutory subsection (b)(2)(B), the juvenile court determined that there
was a reasonable probability both that the continuation of the parent-child
relationship posed a threat to the well-being of the Children and that the
reasons for placement outside the home would not be remedied. The court also
made the requisite determinations with respect to the other subsections,
observing that the plan was for Ma.B. to remain in Father’s care and also be
adopted by Stepmother, and that the plan for the Siblings was to be adopted.
[22] Mother does not dispute whether the Children were out of her care for the
statutory period or whether there was a satisfactory plan for the care and
treatment of the Children. Instead, Mother appears to focus on the other
elements, specifically asserting that the evidence does not indicate that the
Children’s “survival was threatened or that termination was in their best
interests.” Appellant’s Br. at 32. With respect to Ma.B., Mother focuses on
whether the “conditions that caused the removal . . . have been remedied with
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the change of placement and custody to [Father].” Appellant’s Br. at 29. DCS
also argues that the evidence was insufficient with respect to Ma.B.6
[23] In her brief, Mother directs us to evidence indicating that she participated in a
variety of services, and made progress during the more than two years that the
Children were placed outside her home. However, we may not reweigh the
evidence, which supports a conclusion that there is a reasonable probability that
continuation of the parent-child relationship poses a threat to the well-being of
the Children. See 31-35-2-4(b)(2)(B)(ii). Indeed, the lack of supervision and the
attendant prospect of uncontrolled violence poses a threat to their safety.
[24] Mother and DCS argue that there was no threat to at least Ma.B. because
Father had physical custody. To the extent Mother and DCS are arguing that
termination of one parent’s rights is inappropriate when a child can live with
the other parent, it is true that termination is intended as a last resort, available
only when all other reasonable efforts have failed. In re V.A., 51 N.E.3d at
1151-52. However, our legislature has not articulated different termination
standards for children placed with a parent and for children placed in foster
care—and the evidence indicates that Mother remained unable to safely care for
Ma.B., even after participating in extensive services aimed toward reunification.
6
In one way or another, much of DCS’s argument focuses on the plan for stepparent adoption. At one point,
DCS argues that “the court’s satisfactory plan conclusion is . . . clearly erroneous” because the plan did not
require terminating Mother’s parental rights through a termination proceeding. DCS Br. at 26. DCS argues
thusly: “[w]hile it may be a satisfactory plan if rights are terminated, it is also a proper and statutor[ily] valid
permanency plan that does not require the termination of Mother’s parental rights to achieve it.” Id. DCS
has not persuaded us that the court clearly erred in determining that there was a satisfactory plan.
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This inability persisted whether or not DCS’s ultimate plan was for Ma.B. to
remain in Father’s custody and be adopted by Stepmother. Moreover, the court
found that it would be very traumatic for Ma.B. to return to Mother’s care.
Finally, we are not persuaded by Mother’s assertion that, in light of the custody
arrangement with Father, the potential for harm to Ma.B. was too speculative
to support terminating parental rights.7
[25] As to the best interests of the Children, in determining whether termination of
parental rights is in the best interests of a child, the 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 doing so, the court must subordinate the interests of the
parents to those of the children involved. Id. The court need not wait until a
child is irreversibly harmed before terminating the parent-child relationship.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct.
App. 2003). Moreover, the testimony of service providers may support a
finding that termination is in the child’s best interests. Id.[26] Here, the evidence favorable to the court’s decision indicates that the Children
would not be safe in Mother’s care. Moreover, Diana Robertson—the CASA
called to testify at the fact-hearing—testified that terminating Mother’s parental
7
As we have concluded that there is sufficient evidence supporting at least one of the elements under
subsection (b)(2)(B), we do not address arguments related to whether Ma.B.’s custodial arrangement with
Father adequately remedied the conditions that led to her removal from Mother’s home.
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rights would serve the best interests of the Children.8 In rendering her opinion,
the CASA expressed particular concern about Ma.B.—and Ma.B.’s therapist
also opined that termination was in Ma.B.’s best interests. Thus, we conclude
that there is sufficient evidence concerning the best interests of the Children.9
[27] There is clear and convincing evidence supporting the court’s decision to
terminate Mother’s parental rights as to the Children, and we therefore affirm
the decision of the juvenile court. However, we observe—and DCS has pointed
out—that the court made scrivener’s errors in entering orders pertaining to
D.B., L.B., and Me.B. That is, although each order contains a caption for the
cause specific to each child, and each order identifies the captioned child in its
findings, the concluding language refers to Z.B. when ultimately ordering the
termination of parental rights. We remand for correction of these three orders.
Conclusion
[28] Because a CASA has the statutory authority to independently prosecute a
petition to terminate parental rights, it was not improper for the CASAs to
8
Mother briefly suggests that the filing of the petition as to Ma.B. “appears to be vindictive” because the
relationship between Diana Robertson and Mother had deteriorated in the wake of an allegation that Ms.
Robertson battered Z.B. Appellant’s Br. at 29. Mother also directs our attention to the number of CASA-
related individuals that attended the hearing. Nonetheless, we reiterate that we cannot reweigh the evidence.
9
DCS argues that termination was not in Ma.B.’s best interests in part because the plan was for Stepmother
to adopt Ma.B., and termination would affect Ma.B.’s “ability to benefit from Mother’s social security
disability payments as well as to inherit from Mother.” Appellee’s Br. at 26. We note, however, that for a
biological parent not married to the adoptive stepparent, the effect of adoption is to relieve the biological
parent “of all legal duties” and divest the parent “of all rights with respect to the child”—and the act of
adoption also affects intestate succession. See I.C. §§ 31-19-15-1, -2; I.C. § 29-1-2-8.
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prosecute the petition concerning Ma.B. while DCS opposed termination.
Moreover, there was sufficient evidence supporting the termination of Mother’s
parental rights as to the Children. However, we are remanding for correction of
scrivener’s errors in the orders pertaining to D.B., L.B., and Me.B.
[29] Affirmed and remanded.
Crone, J., and Brown, J., concur.
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