In the Matter of the Involuntary Termination of the Parent-Child Relationship of T.T. & J.T., Minor Children, and Their Mother, C.T., C.T. v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION May 08 2015, 9:07 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Small Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary May 8, 2015 Termination of the Parent-Child Court of Appeals Case No. Relationship of T.T. & J.T., 49A02-1410-JT-733 Minor Children, and Their Appeal from the Marion Superior Mother, C.T., Court The Honorable Marilyn A. Moores, Judge C.T., The Honorable Larry Bradley, Magistrate Appellant-Respondent, Lower Court Cause Nos. 49D09- 1402-JT-96, 49D09-1402-JT-97 v.

Indiana Department of Child Services, Appellee-Petitioner,

Bradford, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015 Page 1 of 16

Case Summary [1] Appellant-Respondent C.T. (“Mother”) appeals the juvenile court’s order

terminating her parental rights to T.T. and J.T. (collectively, the “Children”).

On June 26, 2012, Appellee-Petitioner the Indiana Department of Child

Services (“DCS”) filed a petition alleging that the Children were children in

need of services (“CHINS”). The CHINS petition stated that DCS became

involved with the family and the Children were removed from Mother’s care

because Mother was unable to provide the Children with a safe, stable, and

appropriate living environment. On July 10, 2012, the Children were

adjudicated to be CHINS, following Mother’s admission to this effect. Mother

was subsequently ordered to participate in certain services. Although Mother

participated in the court-ordered services, Mother was unable to progress to a

point where the service providers could recommend reunification. [2] DCS filed a petition seeking the termination of Mother’s parental rights to the

Children on February 26, 2014. Following a two-day evidentiary hearing, the

juvenile court issued an order terminating Mother’s parental rights to the

Children. On appeal, Mother contends that DCS did not provide sufficient

evidence to support the termination of her parental rights. We affirm.

Facts and Procedural History [3] Initially, it is of note that Mother has an extensive history with DCS. DCS first

became involved with Mother in September of 2009, when it filed a petition

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alleging that T.T., who was born on October 24, 2003, and Mother’s other

child, S.T.,1 were CHINS. In this petition, DCS alleged that T.T. and S.T. were

CHINS because Mother’s home “was observed to be in [a] deplorable condition

with excessive clutter and cockroaches.” DCS Ex. 2, p. 4. The petition also

alleged that T.T. had “significant burns” on his body with “at least one of these

burns left untreated.” DCS Ex. 2, p. 4. The juvenile court adjudicated T.T.

and S.T. to be CHINS on October 26, 2009. Approximately eight months later,

DCS reported that Mother had completed all services and recommended that

the case be closed. [4] DCS again became involved with Mother in November of 2010, after receiving

a report of potential child abuse or neglect. At the time, Mother’s home was

found to be in “disarray, with numerous items laying about the house” and T.T.

was observed to have “a mark under his left eye that was approximately [two]

inches long and [one] inch wide, with observable lines. DCS Ex. 17, p. 44. As

a result of the concerns raised by the report, Mother was entered into a six-

month Informal Adjustment. The informal adjustment was successfully closed

on May 6, 2011. [5] J.T. was born to Mother June 22, 2012. A few days after J.T.’s birth, DCS

again became involved with Mother. On June 26, 2012, DCS filed a petition

alleging that the Children were CHINS. In this petition, DCS alleged that the

1 Mother’s parental rights to S.T. are not at issue in the instant appeal.

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Children were CHINS because Mother had failed or was unable to provide the

Children with a safe, stable, and appropriate living environment. Specifically,

DCS alleged that Mother’s home “was observed to be unsanitary for the

[Children] due to the infestation of roaches and ants, and the home was in

disarray.” DCS Ex. 21, p. 57. DCS further alleged that Mother was “also

being evicted from her home, and she [had] not secured other housing that

[was] appropriate for the [Children].” DCS Ex. 21, p. 57. Furthermore still,

DCS alleged that medical professionals had expressed concern about mother’s

ability to care for her newborn baby, J.T., in light of Mother’s mental health

issues. [6] Following an initial hearing on DCS’s petition, the juvenile court, over DCS’s

objection, allowed for placement of the Children with Mother so long as

Mother participated in services and met other requirements. However, the next

day, on June 27, 2012, before J.T. was released from the hospital into Mother’s

care, Mother took T.T. to DCS due to a lack of appropriate housing. [7] The juvenile court adjudicated the Children to be CHINS on July 10, 2012,

following Mother’s admission that she lacked “appropriate housing for the

children at this time and therefore, the [Children] are [CHINS].” DCS Ex. 27,

p. 91-95. On July 10, the juvenile court issued a dispositional order and

parental participation decree in which it ordered Mother to participate in home-

based counseling and to complete a parenting assessment. The juvenile court

also ordered Mother to complete all services recommended as a result of the

parenting assessment. Following an April 30, 2013 review hearing, the juvenile

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court authorized a trial home visit pending positive recommendations from the

service providers. The Children were subsequently removed from the trial

home visit after safety concerns arose. [8] On February 26, 2014, DCS filed a petition seeking the termination of Mother’s

parental rights to the Children. The juvenile court conducted an evidentiary

termination hearing on August 11 and September 15, 2014. During the

termination hearing, DCS introduced evidence relating to concerns regarding

Mother’s continued inability to provide proper care for the Children.

Specifically, DCS introduced evidence which demonstrated that although

Mother initially made some progress in services, her progress eventually

stagnated; Mother was unable to demonstrate that she could consistently

handle the Children during visits; Mother’s cognitive abilities negatively

affected her ability to recognize the Children’s needs and to effectively parent

the Children; and Mother would require presently unavailable significant and

permanent continued support in order to parent the Children. DCS also

introduced evidence indicating that the termination of Mother’s parental rights

was in the Children’s best interest and that its plan for the permanent care and

treatment of the Children was adoption. Mother, for her part, presented

evidence which she claimed demonstrated that she loved the Children, had

made progress in services, and was willing to continue to try to learn how to

appropriately care for the Children. Following the conclusion of the

termination hearing, the juvenile court issued an order terminating Mother’s

parental rights to the Children. Mother now appeals.

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Discussion and Decision [9] The Fourteenth Amendment to the United States Constitution protects the

traditional right of a parent to establish a home and raise her child. Bester v.

Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further,

we acknowledge that the parent-child relationship is “one of the most valued

relationships of our culture.” Id. However, although parental rights are of a

constitutional dimension, the law allows for the termination of those rights

when a parent is unable or unwilling to meet her responsibility as a parent. In re

T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,

parental rights are not absolute and must be subordinated to the child’s interests

in determining the appropriate disposition of a petition to terminate the parent-

child relationship. Id. [10] The purpose of terminating parental rights is not to punish the parent but to

protect the child. Id. Termination of parental rights is proper where the child’s

emotional and physical development is threatened. Id. The juvenile court need

not wait until the child is irreversibly harmed such that his physical, mental,

and social development is permanently impaired before terminating the parent-

child relationship. Id. [11] Mother contends that the evidence presented at the evidentiary hearing was

insufficient to support the juvenile court’s order terminating her parental rights.

In reviewing termination proceedings on appeal, this court will not reweigh the

evidence or assess the credibility of the witnesses. In re Involuntary Termination

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of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only

consider the evidence that supports the juvenile court’s decision and reasonable

inferences drawn therefrom. Id. Where, as here, the juvenile court includes

findings of fact and conclusions thereon in its order terminating parental rights,

our standard of review is two-tiered. Id. First, we must determine whether the

evidence supports the findings, and, second, whether the findings support the

legal conclusions. Id. [12] In deference to the juvenile court’s unique position to assess the evidence, we

set aside the juvenile court’s findings and judgment terminating a parent-child

relationship only if they are clearly erroneous. Id. A finding of fact is clearly

erroneous when there are no facts or inferences drawn therefrom to support it.

Id. A judgment is clearly erroneous only if the legal conclusions made by the

juvenile court are not supported by its findings of fact, or the conclusions do not

support the judgment. Id. [13] In order to involuntarily terminate a parent’s parental rights, DCS must

establish by clear and convincing evidence that:

(A) one (1) of the following exists: (i) the child has been removed from the parent for at least six (6) months under a dispositional decree; (ii) a court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made; or (iii) the child has been removed from the parent and has been under the supervision of a county office of family and children or

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probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child; (B) that one (1) of the following is true: (i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied. (ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child. (iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services; (C) termination is in the best interests of the child; and (D) there is a satisfactory plan for the care and treatment of the child.

Ind. Code § 31-35-2-4(b)(2) (2011). Mother does not dispute that DCS presented sufficient evidence to support the first, third, and fourth elements set forth in Indiana Code section 31-35-2-4(b). Mother, however, does claim that DCS failed to establish the second element that is required to be proven before a court can order the involuntary termination of a parent’s parental rights. Specifically, Mother argues that DCS failed to establish either that (1) there is a reasonable probability that the conditions that resulted in the Children’s removal from or the reasons for the Children’s continued placement outside of her home will not be remedied, or (2) there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the Children. Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015 Page 8 of 16

Conditions Resulting in Removal Not Likely to Be Remedied [14] On appeal, Mother argues that DCS failed to establish by clear and convincing

evidence that the conditions resulting in the Children’s removal from and

continued placement outside her care will not be remedied. Mother also argues

that DCS failed to establish by clear and convincing evidence that the

continuation of the parent-child relationship poses a threat to the Children.

However, it is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B)

is written in the disjunctive, the juvenile court need only find either that the

conditions resulting in removal from or continued placement outside the

parent’s home will not be remedied or that the continuation of the parent-child

relationship poses a threat to the children. In re C.C., 788 N.E.2d 847, 854 (Ind.

Ct. App. 2003), trans. denied. Therefore, where, as here, the juvenile court

concludes that there is a reasonable probability that the conditions which

resulted in the removal of the children from or the reasons for the continued

placement of the children outside of the parent’s care would not be remedied,

and there is sufficient evidence in the record supporting the juvenile court’s

conclusion, it is not necessary for DCS to prove or for the juvenile court to find

that the continuation of the parent-child relationship poses a threat to the

children. In re S.P.H., 806 N.E.2d at 882. [15] In order to determine whether the conditions will be remedied, the juvenile

court should first determine what conditions led DCS to place the Children

outside of Mother’s care or to continue the Children’s placement outside

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Mother’s care, and, second, whether there is a reasonable probability that those

conditions will be remedied. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App.

2005), trans. denied; In re S.P.H., 806 N.E.2d at 882. When assessing whether a

reasonable probability exists that the conditions justifying a child’s removal or

continued placement outside his parent’s care will not be remedied, the juvenile

court must judge the parent’s fitness to care for the child at the time of the

termination hearing, taking into consideration evidence of changed conditions.

In re A.N.J., 690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile court must

also evaluate the parent’s habitual patterns of conduct to determine whether

there is a substantial probability of future neglect or deprivation. Id. A juvenile

court may properly consider evidence of the parent’s prior criminal history,

drug and alcohol abuse, history of neglect, failure to provide support, and lack

of adequate employment and housing. McBride v. Monroe Cnty. Office of Family &

Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court

“‘can reasonably consider the services offered by [DCS] to the parent and the

parent’s response to those services.’” Id. (quoting In re A.C.C., 682 N.E.2d 542,

544 (Ind. Ct. App. 1997)). The evidence presented by DCS “need not rule out

all possibilities of change; rather, DCS need establish only that there is a

reasonable probability that the parent’s behavior will not change.” In re

Involuntary Termination of Parent-Child Relationship of Kay L., 867 N.E.2d 236,

242 (Ind. Ct. App. 2007). [16] Here, the juvenile court determined that DCS presented sufficient evidence to

prove that it was unlikely that the reasons for the Children’s removal from and

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-JT-733 | May 8, 2015 Page 10 of 16 continued placement outside of Mother’s care would be remedied, and upon review, we conclude that the juvenile court’s determination to this effect is supported by the record. In support of its determination, the juvenile court found as follows:

12. [T.T.] has been diagnosed as Moderately Mentally Disabled, and he has Post Traumatic Stress Disorder. At the time the [CHINS] was filed he had a history of being aggressive and violent, with hitting, kicking and biting. He would not follow directions, had a severe speech difficulty using growls instead of verbalizing, and had toileting issues. 13. [T.T.’s] formal education at this time is at one hour per day at an alternative IPS school. Prior, due to his behavior, he had been placed in home bound education with a teacher coming to the home. 14. [T.T.’s] foster parents work with [him] at least two days a week with educational computer programs. 15. [T.T.] is also receiving speech and occupational, therapy at his school. 16. Physically, other than being obese, [T.T.] has an intestinal problem. He has a fiber diet and toileting schedule to combat this. 17. [J.T.] was a newborn when the [CHINS] case commenced. He has not been tested for any developmental disabilities but appears to have, at the least, a verbal problem. 18. Foster parents placed [J.T.] in First Steps. [Mother] does not believe anything is wrong with [J.T.], nor does he need therapy. While placed with her, [Mother] failed to engage with First Steps. 19. After [J.T.’s] trial in home visitation with his mother, he came back to the foster parents growling and making little eye contact. He “ranged” for any food he could get. 20. The [Children] progress in the care of their foster parents but appear to regress after visits, or during in-home placement, with their mother. 21. [J.T.] does not wish to go to his mother and does not have a strong bond with her.

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22. [T.T.] and [J.T.] have been observed as having a strong bond. 23. Services were ordered and referred for [Mother] to successfully complete toward reunification. [Mother] has actively participated in services, some of which continues at this time. 24. [Mother] has a cognitive disability which impairs her parenting skills. She is concrete in her thinking. 25. At the beginning of the [CHINS] case, [Mother] underwent a Family Functioning Assessment, with the exception of a Child Abuse Potential Inventory which [Mother] did not appear to understand and complete. 26. As part of the assessment, [Mother] completed the AAPI-2 Inventory designed to assess parenting and child rearing attitudes and indications of risks. [Mother] scored low in appropriate expectations of a child, empathy, and parent-child role reversal. She scored mid- range as to corporal punishment beliefs and children’s power and independence. 27. Travis Nelson, with Life Solutions, worked as a therapist with [Mother] all through the [CHINS] case, working eight to ten hours per week at the peak of his services. After working with [Mother] for over two years he still feels she would need support, probably professional, on a daily basis to parent her children. 28. Mr. Nelson believes that at this time there are still safety issues, and [Mother] still lacks in areas of intervention, following through with discipline, appropriate diet, and consistency. 29. Although [T.T.] is obese and has special dietary needs, [Mother] does not present as an appropriate model with her diet and has trouble implementing his special diet. 30. Mr. Nelson also has concerns regarding educational neglect with [Mother] not able to navigate [T.T.’s] school needs or the boy’s homework. 31. Services providers throughout the [CHINS] case have expressed [the] concerns that Mr. Nelson has. 32. Jessica Hynson, of Adult and Child, commenced therapy with [T.T.], as well as therapy sessions with [T.T.], [J.T.], and [Mother] in April of 2014. She last saw [Mother] approximately one month prior to this trial.

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33. Ms. Hynson has concerns for [Mother’s] parenting skills in lack of affection, not being able to disciple, her lack [of] positive reinforcement, and interaction with both boys. 34. As a result of [T.T.’s] violent outbursts and trouble at school which appeared to co-relate to visits with his mother, Ms. Hynson started recommending decreased visitation. [T.T.] did better after visits decreased. 35. [Mother] received significant support from her mother. She also received support from a neighbor and her church. [Mother’s] mother died the month prior to the pending [CHINS] case, [Mother] no longer wants the neighbor’s support, and she has been asked to refrain from attending church until the boys’ situation is over. **** 37. Stable, sanitary and appropriate housing has been inconsistent. [Mother] has resided in her current residence for approximately two months. It has been observed as having clutter and trash throughout. **** 40. [Mother] participated in extensive services for over two years to the point that she has reached her capacity and no other services are available to help in her reunification effort. 41. At the time of trial in this matter, no service provider, family case manager or Guardian ad Litem could recommend reunification. Additional time will not bring reunification. **** 43. There is a reasonable probability that the conditions that resulted in the [Children]’s removal and continued placement outside the home will not be remedied by their mother. After prior case services and with the current [CHINS] case being open for well over two years, major parenting concerns remain to be overcome prior to reunification. [Mother] loves her children and has fully engaged in referred services, but due to unfortunate cognitive deficiencies and [a] lack of a daily support system, she cannot make the progress to ensure an appropriate home and meet the [Children]’s needs. It is not a case of trying but is a question of an ability that [Mother] does not have.

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Appellant’s App. pp. 21-23. In light of these findings, the juvenile court

concluded that DCS had established by clear and convincing evidence that the

reasons for the Children’s removal from and continued placement outside

Mother’s home would not be remedied. Specifically, the juvenile court

concluded as follows:

There is a reasonable probability that the conditions that resulted in the [Children]’s removal and continued placement outside the home will not be remedied. After more than two years of active participation in services, [Mother] still lacks the insight and skills needed to furnish the [Children] with a safe, appropriate home free of neglect, and be able to effectively meet educational, emotional and physical needs.

Appellant’s App. p. 24. [17] In challenging the termination of her parental rights, Mother does not challenge

any of the specific findings of the juvenile court. Mother argues, however, that

“[i]f a parent loves her children, but has intellectual difficulties such that those

children are removed from her care and custody, DCS should provide services

sufficient to achieve reunification. [Mother] tried to respond to services. She

loves her children. Termination was not supported by the evidence.”

Appellant’s Br. p. 12. [18] No one disputes that Mother loves her children. However, the unchallenged

findings made by the juvenile court demonstrate that despite Mother’s love for

her children, she has been unable to progress to a point where the service

providers involved in this matter could recommend reunification. Mother

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acknowledges that the juvenile court was required to evaluate her fitness to care

for the Children at the time of the evidentiary hearing together with her habitual

patterns of conduct. The above-quoted findings indicate that the juvenile court

did so before reaching the conclusion that the circumstances leading to removal

from and requiring continued placement outside of Mother’s home would not

be remedied. Furthermore, while the record indicates that the juvenile court

considered the evidence presented by Mother regarding the progress in learning

how to care for the Children that she claimed to be making, it is well-

established that the juvenile court, acting as a trier of fact, was not required to

believe or assign the same weight to the testimony as Mother. See Thompson v.

State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308, 320

(Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp. v. First

Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v.

Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949), trans. denied. [19] We conclude that the evidence, when considered as a whole, is sufficient to

demonstrate a reasonable probability that the reasons for the Children’s

removal from and placement outside Mother’s care will not be remedied.

Mother’s claim to the contrary effectively amounts to an invitation for this court

to reassess witness credibility and reweigh the evidence, which, again, we will

not do. See In re S.P.H., 806 N.E.2d at 879. [20] Under these circumstances, we cannot say that the juvenile court erred in

determining that DCS established that it is unlikely that the conditions resulting

in the Children’s removal from and continued placement outside Mother’s care

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would be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App.

1997). Having concluded that the evidence was sufficient to support the

juvenile court’s determination, and finding no error by the juvenile court, we

need not consider whether the continuation of the parent-child relationship

poses a threat to the Children’s well-being because DCS has satisfied the

requirements of Indiana Code section 31-35-2-4(b)(2)(B) by clear and

convincing evidence. As such, we affirm the judgment of the juvenile court. [21] The judgment of the juvenile court is affirmed.

Vaidik, C.J., and Kirsch, J., concur.

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