In the Matter of the Termination of the Parent-Child Relationship of J.P. and M.B. (Minor Children) C.B. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                                FILED
    regarded as precedent or cited before any                                       Apr 30 2019, 11:23 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                                    ATTORNEYS FOR APPELLEE
    Daniel G. Foote                                           Curtis T. Hill, Jr.
    Indianapolis, Indiana                                     Attorney General of Indiana
    Abigail R. Recker
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Termination                          April 30, 2019
    of the Parent-Child Relationship                          Court of Appeals Case No.
    of J.P. and M.B. (Minor                                   18A-JT-390
    Children);                                                Appeal from the Marion Superior
    C.B. (Mother),                                            Court
    The Honorable Marilyn A.
    Appellant-Respondent,
    Moores, Judge
    v.                                                The Honorable Scott B. Stowers,
    Magistrate
    Indiana Department of Child                               Trial Court Cause Nos.
    Services,                                                 49D09-1702-JT-183
    49D09-1702-JT-184
    Appellee-Petitioner.
    Najam, Judge.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019                       Page 1 of 12
    Statement of the Case
    [1]   C.B. (“Mother”) appeals the juvenile court’s termination of her parental rights
    over her minor children, J.P. and M.B. (“Children”). Mother 1 raises a single
    issue for our review, which we restate as the following three issues:
    1.       Whether the juvenile court erred when it concluded that
    the conditions that resulted in the Children’s removal from
    Mother’s care would not be remedied.
    2.       Whether termination of Mother’s parental rights was in
    the Children’s best interests.
    3.       Whether there is a satisfactory plan for the care and
    treatment of the Children.
    [2]   We affirm.
    Facts and Procedural History
    [3]   Mother has two children: J.P., born on June 16, 2005; and M.B., born on
    October 3, 2006. In February 2013, the Indiana Department of Child Services
    (“DCS”) received a report that Mother’s home had no heat, no running water,
    and a broken refrigerator, and that there was human feces in the bathroom.
    Mother was arrested for child neglect, and the Children were removed from her
    care. On February 27, DCS filed petitions alleging that the Children were
    Children in Need of Services (“CHINS”). After a hearing, the court
    1
    The Children’s fathers do not join this appeal.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 2 of 12
    adjudicated the Children to be CHINS, and on May 28, the juvenile court
    entered its dispositional order and instructed Mother to participate in home
    based counseling and to submit to random drug screens.
    [4]   Mother initially complied with the dispositional order and exercised
    unsupervised visitation with the Children. However, in April 2015, Mother
    was involved in a “domestic disturbance” with a man in the Children’s
    presence. Tr. at 13. Accordingly, on April 28, the juvenile court temporarily
    suspended Mother’s visitation and later reinstated it, but only under the
    supervision of Kelsey Middaugh, a family consultant with Lifeline Youth and
    Family Services. During the ensuing five months, Mother cancelled four
    supervised visits with the Children, and she ended seven of the visits early.
    Middaugh had warned that ending visits early would cause Middaugh to “close
    out” the supervised visitation services. 
    Id. at 74.
    Despite that warning, Mother
    ended an October visit early, and Middaugh closed out Mother’s services.
    [5]   After the domestic disturbance, DCS recommended that Mother submit to a
    domestic violence assessment, and she complied. Penny Carter with Branches
    of Life completed the assessment and recommended that Mother participate in
    domestic violence education. Mother completed the program, but Carter found
    Mother to be “combative” and described Mother as trying to convince Carter
    that Mother was not a victim. 
    Id. at 65.
    [6]   Mother proceeded to visit Children at maternal grandmother’s house, where
    they had been placed. But Mother ceased visitations with the Children in July
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 3 of 12
    2016. Mother perceived that maternal grandmother had “sabotaged” her
    attempts to see the Children. 
    Id. at 17.
    [7]   During the course of the CHINS proceeding, Mother had lived at eight different
    residences, at least four of which were unsuitable for the Children. In January
    2017, the juvenile court held a permanency hearing, and Mother claimed that
    she had recently leased an apartment. Mother presented the court with
    photographs of the apartment. Mother also told the court that she had a valid
    driver’s license. Shortly after that hearing, the court learned that Mother had
    lied both about the apartment, which was not really her residence, and the
    validity of her driver’s license. In February, DCS filed petitions to terminate
    Mother’s parental rights over the Children.
    [8]   On December 13, the court held a fact-finding termination hearing. Thereafter,
    in January 2018, the court entered the following findings of fact and
    conclusions of law:
    20. There is a reasonable probability that the conditions that
    resulted in the [C]hildren’s removal and continued placement
    outside of the home will not be remedied by their [M]other.
    [Mother] has had nearly five (5) years to comply with services
    and has not done so. No service provider has recommended that
    the [C]hildren be returned to the care of their [M]other. [Mother]
    has not completed services and little to no progress has been
    made toward reunification. [Mother] does not have stable
    housing or employment. Furthermore, she attempted a fraud
    upon the CHINS court by submitting a false lease agreement and
    fake photographs of what she represented as her home.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 4 of 12
    21. Continuation of the parent-child relationship[s] poses a
    threat to the [C]hildren’s well-being in that it would serve as a
    barrier for them obtaining permanency through an adoption
    when their [M]other hasn’t demonstrated that she can provide
    stability and parent. She has not seen the [C]hildren since July
    2016. As recently as the December 13, 2017[,] Termination
    Trial, [Mother] didn’t even know the ages of her [C]hildren. In
    nearly five years, [Mother] has been unable to provide a safe and
    stable home for her children.
    22. Termination of the parent-child relationship[s] is in the best
    interests of the [C]hildren. Termination would allow them to be
    adopted into a stable and permanent home where their needs
    would be safely met.
    23. There exists a satisfactory plan for the future care and
    treatment of the [C]hildren, that being adoption.
    24. The Guardian ad Litem agrees with the permanency plan of
    adoption as being in the [C]hildren’s best interests.
    Appellant’s App. Vol. 2 at 51. In light of its findings and conclusions, the court
    ordered the termination of Mother’s parental rights. This appeal ensued. 2
    2
    Mother timely filed a notice of appeal, pro se, on February 8, 2018. On August 28, this Court remanded to
    the juvenile court because the record was not clear as to whether the court had advised Mother that she had
    the right to appellate counsel. Thereafter, the juvenile court appointed appellate counsel for Mother, and on
    November 19, she filed her amended notice of appeal.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019                    Page 5 of 12
    Discussion and Decision
    Overview
    [9]    We begin our review of this appeal by acknowledging that “[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.” Bailey v. Tippecanoe
    Div. of Fam. & Child. (In re M.B.), 
    666 N.E.2d 73
    , 76 (Ind. Ct. App. 1996), trans.
    denied. However, a juvenile court must subordinate the interests of the parents
    to those of the child when evaluating the circumstances surrounding a
    termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 
    750 N.E.2d 832
    , 837 (Ind. Ct. App. 2001). 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.
    [10]   Before an involuntary termination of parental rights can occur in Indiana, DCS
    is required to allege and prove:
    (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.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 6 of 12
    (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
    (D) that there is a satisfactory plan for the care and treatment of
    the child.
    Ind. Code § 31-35-2-4(b)(2) (2018). DCS’s “burden of proof in termination of
    parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
    Dep’t of Child Servs. (In re G.Y.), 
    904 N.E.2d 1257
    , 1260-61 (Ind. 2009) (quoting
    I.C. § 31-37-14-2).
    [11]   When reviewing a termination of parental rights, we will not reweigh the
    evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
    Fam. & Child. (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. Moreover, in
    deference to the juvenile
    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.
    Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 
    717 N.E.2d 204
    , 208 (Ind.
    Ct. App. 1999), trans. denied.
    [12]   Here, in terminating Mother’s parental rights, the juvenile court entered
    findings of fact and conclusions thereon following an evidentiary hearing.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 7 of 12
    When a juvenile court’s judgment is based on such findings and conclusions,
    we apply a two-tiered standard of review. Bester v. Lake Cty. Off. of Fam. &
    Child., 
    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 juvenile court’s decision, we must affirm. In re 
    L.S., 717 N.E.2d at 208
    .
    [13]   On appeal, Mother contends that the juvenile court erred when it concluded
    that: the conditions that resulted in the Children’s removal will not be
    remedied; the continuation of the parent-child relationships poses a threat to the
    Children’s well-being; termination is in the Children’s best interests; and there is
    a satisfactory plan for the care and treatment of the Children. However, as
    Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need
    not address Mother’s contention that the continuation of the parent-child
    relationships poses a threat to the Children’s well-being.
    Issue One: Failure to Remedy
    [14]   We first address the juvenile court’s conclusion that there is a reasonable
    probability that the conditions that resulted in the Children’s removal or the
    reasons for placement outside Mother’s home will not be remedied. In
    determining whether the conditions that led to a child’s placement outside the
    home will not be remedied, a juvenile court is required to (1) ascertain what
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 8 of 12
    conditions led to the child’s removal or placement and retention outside the
    home; and (2) determine whether there is a reasonable probability that those
    conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re K.T.K.),
    
    989 N.E.2d 1225
    , 1231 (Ind. 2013). Here, the juvenile court found that DCS
    had removed the Children from Mother’s home and placed them in foster care
    because of Mother’s lack of suitable housing and her neglect of the Children.
    [15]   In order to determine whether there is a reasonable probability that the
    conditions that resulted in removal will not be remedied, the juvenile court
    should assess a parent’s “fitness” at the time of the termination hearing, taking
    into consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of
    Child Servs. (In re E.M.), 
    4 N.E.3d 636
    , 643 (Ind. 2014). The court must weigh
    any improvements the parent has made since removal against the parent’s
    “habitual patterns of conduct to determine whether there is a substantial
    probability of future neglect or deprivation.” 
    Id. When making
    such decisions,
    juvenile courts should consider evidence of a “parent’s prior criminal history,
    drug and alcohol abuse, history of neglect, failure to provide support, lack of
    adequate housing, and employment.” Evans v. St. Joseph Cty. Off. of Fam. &
    Child. (In re A.L.H.), 
    774 N.E.2d 896
    , 990 (Ind. Ct. App. 2002).
    [16]   The juvenile court found that, over the course of the almost five years after the
    Children’s removal from Mother’s care: Mother’s participation in visitation
    with the Children was inconsistent, and Mother stopped visiting the Children in
    July 2016; Mother lived in eight different homes, including an apartment
    infested with bedbugs, and she failed to show that she had suitable housing at
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 9 of 12
    the time of the factfinding hearing; Mother lied to the juvenile court about
    having found suitable housing and about having a valid driver’s license; and
    Mother refused to participate in home based case management. Accordingly,
    we cannot say that the juvenile court erred when it concluded that there is a
    reasonable probability that the conditions that resulted in the Children’s
    removal or the reasons for placement outside Mother’s home will not be
    remedied. 3
    Issue Two: Children’s Best Interests
    [17]   Mother also asserts that the juvenile court clearly erred when it concluded that
    termination of her parental rights is in the Children’s best interests. In
    determining what is in a child’s best interests, a juvenile court is required to
    look beyond the factors identified by DCS and consider the totality of the
    evidence. A.S. v. Ind. Dep’t of Child Servs. (In re A.K.), 
    924 N.E.2d 212
    , 223 (Ind.
    Ct. App. 2010). A parent’s historical inability to provide “adequate housing,
    stability, and supervision,” in addition to the parent’s current inability to do so,
    supports finding termination of parental rights is in the best interests of the
    child. 
    Id. 3 To
    the extent Mother contends that the court’s termination order is clearly erroneous because DCS did not
    offer her adequate services during the CHINS proceeding aimed at finding suitable housing, that contention
    is without merit. DCS presented evidence that it offered Mother home based case management services to
    find suitable housing, and Mother refused that assistance. In any event, as DCS points out, our courts have
    “long recognized that, in ‘seeking termination of parental rights,’ the DCS has no obligation ‘to plead and
    prove that services have been offered to the parent to assist in fulfilling parental obligations.’” T.D. v. Ind.
    Dep’t of Child Servs. (In re J.W.), 
    27 N.E.3d 1185
    , 1190 (Ind. Ct. App. 2015) (quoting S.E.S. v. Grant Cty. Dep’t
    of Welfare, 
    594 N.E.2d 447
    , 448 (Ind. 1992)), trans. denied.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019                      Page 10 of 12
    [18]   When making its decision, the court must subordinate the interests of the
    parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),
    
    906 N.E.2d 226
    , 236 (Ind. Ct. App. 2009). “The court need not wait until a
    child is irreversibly harmed before terminating the parent-child relationship.”
    
    Id. Moreover, this
    Court has previously held that recommendations of the
    family case manager and court-appointed advocate to terminate parental rights,
    coupled with evidence that the conditions resulting in removal will not be
    remedied, are sufficient to show by clear and convincing evidence that
    termination is in the child’s best interests. 
    Id. [19] Here,
    again, Mother has not seen the Children since July 2016, and she has not
    had suitable or stable housing since the CHINS petitions were filed in 2013.
    DCS offered Mother assistance in finding a suitable home, but Mother rejected
    it. And, while Mother completed domestic violence education, she did not
    admit that she had been a victim of domestic violence. The Children are
    thriving in their placement with maternal grandmother. The Guardian ad
    Litem (“GAL”) testified that termination was in the Children’s best interests
    because maternal grandmother has “given them permanency.” Tr. at 119.
    Given the totality of the evidence, including the GAL’s testimony, Mother
    cannot show that the juvenile court erred when it concluded that termination of
    her rights was in the Children’s best interests.
    Issue Three: Satisfactory Plan
    [20]   Finally, Mother contends that the juvenile court clearly erred when it concluded
    that DCS had a satisfactory plan for the care and treatment of the Children.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 11 of 12
    Indiana courts have traditionally held that for a plan to be satisfactory, for the
    purposes of the termination statute, it need not be detailed, so long as it offers a
    general sense of the direction in which the child will be going after the parent-
    child relationship is terminated. K.W. v. Ind. Dep’t of Child Servs. (In re A.S.), 
    17 N.E.3d 994
    , 1007 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A DCS
    plan is satisfactory if the plan is to attempt to find suitable parents to adopt the
    children. 
    Id. Here, DCS
    presented evidence that the Children’s maternal
    grandmother, with whom they have lived for several years, plans to adopt
    them.
    [21]   Mother contends that the plan for her mother to adopt the Children is not
    satisfactory because, she asserts, maternal grandmother has mental health issues
    and will not let Mother see the Children. But Mother ignores the evidence that
    the Children are thriving in maternal grandmother’s care. Mother’s contentions
    on this issue amount to a request that we reweigh the evidence, which we
    cannot do. We hold the juvenile court did not err when it concluded that DCS’
    plan of adoption was satisfactory.
    [22]   In sum, we affirm the juvenile court’s termination of Mother’s parental rights
    over the Children.
    [23]   Affirmed.
    Baker, J., and Robb, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-390 | April 30, 2019   Page 12 of 12