J.P. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 02 2017, 6:36 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Mark F. James Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

James D. Boyer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.P., et al., May 2, 2017 Appellants-Defendants, Court of Appeals Case No. 71A03-1610-JT-2441 v. Appeal from the St. Joseph Probate Court Indiana Department of Child The Honorable James N. Fox, Services, Judge Appellee-Plaintiff Trial Court Cause No. 71J01-1506-JT-70, 71J01-1506-JT- 71, 71J01-1506-JT-72

Altice, Judge.

Case Summary Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017 Page 1 of 15 [1] J.P. (Mother) appeals from the trial court’s order terminating her parental rights

to her three children. On appeal, Mother argues that the trial court’s

termination order was not supported by sufficient evidence. [2] We affirm.

Facts & Procedural History [3] Mother and C.J. (Father)1 have three children: L.P, born in 2007; C.P., born in

2008; and K.P., born in 2010 (collectively, the Children). The family first came

to the attention of the Department of Child Services (DCS) in March 2009,

when L.P. was found outside the house unsupervised. The case was closed

after the implementation of a safety plan. Since that time, there have been

numerous DCS hotline reports made concerning the family. One such report

came in November 2013, in which it was alleged that Mother was smoking

marijuana in the presence of the Children and using cocaine, and that the home

and the Children were filthy and infested with head lice and bed bugs. A DCS

investigation revealed that L.P. had been missing a lot of school due to an

ongoing head lice infestation. Additionally, Mother tested positive for THC

and cocaine, and the DCS assessment worker had safety concerns due to the

Children’s extremely unruly behavior and Mother’s inability to control them.

1 Although Father’s parental rights were also terminated, he does not participate in this appeal. Accordingly, our recitation of the facts is limited to those relevant to the termination of Mother’s rights.

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As a result of these concerns, DCS and Mother entered into an informal

adjustment, which was approved in December 2013. [4] Very shortly after the informal adjustment was approved, DCS began to receive

additional hotline reports concerning Mother’s drug use, the condition of the

home, and the Children’s hygiene. On March 6, 2014, DCS received a report

that L.P. had been physically abused. L.P. had marks and bruises on her arms,

legs, and back, and she disclosed to a school nurse that Mother and two other

adults had beaten her with a belt. During a forensic interview, C.P. also stated

that Mother used a belt on the Children as a form of punishment and that he

was not allowed to talk to DCS because “he would get into trouble and get a

whooping.” Exhibit Volume, DCS Exhibit A at 12. The Children were placed in

foster care and shortly after their removal, L.P. disclosed that her maternal

grandfather had sexually abused her and that other adults had taken “nasty

pictures” of her at Mother’s home. Transcript at 94. [5] DCS filed its petition alleging the Children were Children in Need of Services

(CHINS) on March 10, 2014. Following a fact-finding hearing on July 17,

2014, at which Mother failed to appear, the Children were adjudicated CHINS.

A dispositional order was entered on August 13, 2014, pursuant to which

Mother was ordered, among other things, to maintain contact with DCS, keep

all appointments with service providers, participate in supervised visitation,

abstain from using drugs and alcohol, and submit to random drug screens.

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017 Page 3 of 15 [6] DCS filed its petitions to terminate Mother’s parental rights to the Children on

June 15, 2015. An evidentiary hearing was held on May 19 and 20, 2016, at

which DCS presented extensive evidence concerning Mother’s failure to

complete services and address her parenting issues. With respect to substance

abuse treatment, Mother had been referred to Oaklawn during the period of

informal adjustment, but she was discharged from the program due to poor

attendance. Mother began substance abuse treatment at the Center for Positive

Change in September 2015, but her attendance was inconsistent and she was

unsuccessfully discharged in December 2015. Mother re-entered the program

in January 2016, but she was again unsuccessfully discharged for poor

attendance and positive drug screens. Mother tested positive for alcohol and

synthetic marijuana on multiple occasions throughout the CHINS and

termination proceedings. [7] Between March and October 2014, Mother’s attendance at supervised visitation

“was not stellar.” Transcript at 104. Mother cancelled one visit and did not

show up for three other scheduled visits. Around October 2014, Mother’s

visitation stopped abruptly because she had been arrested for armed robbery.

Mother served about three months in jail, and ultimately pled guilty and

received a four-year suspended sentence. Upon her release from jail in early

2015, Mother resumed supervised visitation. DCS provided additional

assistance for Mother, including transportation to visits, and her attendance

greatly improved. However, DCS had concerns regarding Mother’s ability to

supervise the Children during the visits. The Children would often run out of

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the room and they frequently became violent with Mother and each other.

Mother did not follow through with discipline and the Children did not respect

her as a parental authority. Mother ignored the visitation supervisor’s

instructions and visits were sometimes ended early due to the Children’s

behavior. Additionally, the Children experienced anxiety and behavioral

problems both before and after visits with Mother. Due to the chaotic, violent

nature of the visits, Mother’s visitation was suspended in August 2016. The

Children have not seen Mother since August 17, 2016. [8] Mother was also referred for home-based therapy and case management.

Mother was not compliant with case management services. Mother did not

meet with a case manager for an intake assessment until April 2016. Aside

from this initial assessment, Mother attended only one meeting with her case

manager. Thereafter, Mother cancelled several appointments and did not show

up for scheduled appointments. Although Mother attended home-based

therapy and made some progress, her therapist was still concerned about

Mother’s substance abuse and ability to remain sober. [9] Because Mother disclosed that the Children had been exposed to domestic

violence while in her care, Mother was also referred for domestic violence

education. Mother attended only twenty-five of forty domestic violence classes,

and Mother’s fiancé was arrested for domestic battery against Mother just a few

weeks before the termination hearing. Although Mother testified that she was

no longer planning to marry him, he nevertheless accompanied her to the

termination hearing. Mother also testified that her fiancé was involved in the

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robbery she committed in October 2014. Mother had recently admitted to

violating her probation in that case and was set to be sentenced for the violation

the next week. [10] Evidence was also presented concerning the progress the Children had made

since their removal. When the Children were first placed in their foster home in

March 2014, they had serious behavioral problems, including defiance and

physical aggression. L.P. would make herself vomit and exhibited self-harming

behavior, and she had a lot of anxiety about whether she would have enough

food to eat. L.P. was also behind in school. C.P. was very destructive and

aggressive toward others, including his teachers. He would often say that he

was a “gangster” or “thug”, and his play was based on a “gang mentality” and

“killing people and shooting the cops[.]” Id. at 42. K.P. had nightmares and

would wake up screaming every night. She also stole things, exhibited self-

harming behavior, and was very bossy and controlling with other children. The

Children have also acted out sexually, and C.P. disclosed that he had observed

Mother engaging in sexual acts with her fiancé. [11] Since their removal, the Children have been going to therapy and working with

a behavioral clinician and a foster care support specialist. All three of the

Children have been diagnosed with post-traumatic stress disorder and

oppositional defiant disorder, and all three have been prescribed medication to

help manage their symptoms. Their behavior has improved dramatically with

these services. The Children’s behavior also improved after the visits with

Mother were stopped. However, all three of the Children had a “melt-down”

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after receiving a card from Mother shortly before the termination hearing. Id. at

158. K.P. was aggressive and defiant at school, C.P. “destroyed his

classroom”, and L.P. cried and was withdrawn. Id. at 159. [12] At the conclusion of the evidentiary hearing, the trial court took the matter

under advisement. The trial court issued its order terminating Mother’s

parental rights to all three of the Children on September 26, 2016. Mother now

appeals.

Discussion & Decision [13] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

and reasonable inferences most favorable to the judgment. Id. In deference to

the trial court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous.

In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id. [14] The trial court entered findings in its order terminating Mother’s parental rights.

When the trial court enters specific findings of fact and conclusions thereon, we

apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

evidence supports the findings, and second we determine whether the findings

support the judgment. Id. “Findings are clearly erroneous only when the

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record contains no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

only if the findings do not support the court’s conclusions or the conclusions do

not support the judgment thereon. Id. [15] We recognize that the traditional right of parents to “establish a home and raise

their children is protected by the Fourteenth Amendment of the United States

Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id. [16] Mother first argues that a number of the trial court’s findings are not supported

by the record. Mother challenges the following specific findings:

9. Mother appeared to be under the influence of some drug during the trial;

10. Mother appeared to be having difficulty staying awake;

11. Mother was inappropriately lifting and adjusting her blouse prior to the trial;

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12. Father is not incarcerated and has failed to comply with the orders of the Court;

13. The Court finds that father and paternal grandfather ask why placement was not with paternal grandfather;

14. Paternal grandfather lives in Michigan;

15. Paternal grandfather has only contacted DCS within the last few weeks to inquire about placement of the child[ren] with him;

16. Paternal grandfather has never spoken or contacted DCS during the pendency of these matters until recently;

17. Paternal grandfather had not contacted father while he was incarcerated to find out how to contact DCS[.]

Appellant’s Appendix at 36. [17] Findings number 12 through 17 address issues pertinent to Father and to the

placement of the Children with their foster mother rather than their paternal

grandfather, which Mother does not challenge. To the extent these findings are

unsupported by the record, they had no impact on the trial court’s judgment

terminating Mother’s parental rights. The only challenged findings pertinent to

Mother are findings number 9 through 11. These findings reflect the trial

court’s in-court observations of Mother’s demeanor, and as the finder of fact,

the trial court was permitted to make such findings. As an appellate court

reviewing a paper record, we are not in a position to second-guess such direct

observations. In any event, after reviewing the evidence presented in this case,

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we are satisfied that the trial court’s findings concerning Mother’s in-court

demeanor did not contribute significantly to its decision to terminate Mother’s

parental rights. See Lasater v. Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004)

(“Findings, even if erroneous, do not warrant reversal if they amount to mere

surplusage and add nothing to the trial court’s decision.”). [18] Mother also argues that the evidence was insufficient to support the trial court’s

ultimate judgment terminating her parental rights. Before an involuntary

termination of parental rights may occur in Indiana, DCS is required to allege

and prove by clear and convincing evidence, among other things:

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well- being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child and that there is a

satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-

4(b)(2)(C), (D).

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017 Page 10 of 15 [19] Mother challenges the trial court’s findings as to subsection (b)(2)(B)(i) and (ii).

We note that DCS was required to establish only one of the three requirements

of subsection (b)(2)(B) by clear and convincing evidence before the trial court

could terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct.

App. 2003). Here, the trial court found that DCS presented sufficient evidence

to satisfy two of those requirements, namely, that there is a reasonable

probability the conditions resulting in the Children’s removal or continued

placement outside Mother’s care will not be remedied and that the continuation

of the parent-child relationship poses a threat to the Children’s well-being. See

I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We focus our inquiry on the requirements of

subsection (b)(2)(B)(i)—that is, whether there was sufficient evidence to

establish a reasonable probability that the conditions resulting in the Children’s

removal or continued placement outside Mother’s care will not be remedied. [20] In making such a determination, the trial court must judge a parent’s fitness to

care for his or her child at the time of the termination hearing, taking into

consideration evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512

(Ind. Ct. App. 2001), trans. denied. The court must also evaluate the parent’s

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation of the child. Id. In making this

determination, courts may consider evidence of a parent’s prior criminal

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

and lack of adequate housing and employment. A.F. v. Marion Cnty. Office of

Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

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The court may also consider the parent’s response to the services offered

through DCS. Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366,

372 (Ind. Ct. App. 2007), trans. denied. “A pattern of unwillingness to deal with

parenting problems and to cooperate with those providing social services, in

conjunction with unchanged conditions, support a finding that there exists no

reasonable probability that the conditions will change.” In re L.S., 717 N.E.2d

at 210. [21] Additionally, DCS need not provide evidence ruling out all possibilities of

change; rather, it need establish only that there is a reasonable probability the

parent’s behavior will not change. In re Involuntary Termination of Parent-Child

Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust

that delicate balance to the trial court, which has discretion to weigh a parent's

prior history more heavily than efforts made only shortly before termination.”

In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Although a trial court is required to

give due regard to changed conditions, this does not preclude a finding that a

parent’s past behavior is the best predictor of his or her future behavior. Id. [22] On appeal, Mother focuses solely on whether the conditions leading to the

Children’s initial removal in March 2014—physical abuse—have been

remedied. According to Mother, there is no indication that the physical abuse

continued after the Children were removed. This argument misses the point. It

is of course true that Mother and other adults in Mother’s life did not continue

to abuse the Children after their removal because there was no opportunity for

them to do so. However, given that Mother has not fully participated in

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services, it was within the trial court’s discretion to conclude that such abuse

was likely to recur if the Children were returned to Mother’s care. [23] Moreover, the language of Indiana’s termination statute makes it clear that it is

not only the basis for a child’s removal that may be considered, but also the

reasons for the child’s continued placement outside of the home. In re A.I., 825

N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Although physical abuse of

L.P. formed a significant part the basis for the Children’s removal from the

home, the Children’s continued placement outside the home was based on a

number of factors, including Mother’s ongoing substance abuse and failure to

complete substance abuse treatment, Mother’s criminal involvement, the

Children’s exposure to domestic violence in the home and Mother’s failure to

complete domestic violence education, Mother’s inability to control the

Children and ensure their safety during visits, Mother’s failure to ensure that

L.P. attended school, Mother’s inappropriate sexual behavior in the presence of

the Children, and sexual abuse occurring in Mother’s home. In light of

Mother’s failure to participate in services, her ongoing substance abuse,

domestic violence occurring just weeks before the termination hearing, and the

impending potential revocation of Mother’s four-year suspended sentence, the

trial court’s finding that there was a reasonable probability that the conditions

leading to the Children’s removal and continued placement outside Mother’s

care would not be remedied is amply supported by the evidence. [24] Mother also argues that the evidence was insufficient to support the trial court’s

finding that termination was in the Children’s best interests. In determining

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whether termination of parental rights is in the best interests of a child, the trial

court is required to look beyond the factors identified by DCS and consider the

totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013).

In so doing, the trial court must subordinate the interest of the parent to those of

the child, and the court need not wait until a child is irreversibly harmed before

terminating the parent-child relationship. McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme

Court has explained that “[p]ermanency is a central consideration in

determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265

(Ind. 2009). “Moreover, we have previously held that the recommendations of

the case manager and court-appointed advocate to terminate parental rights, in

addition to evidence that the conditions resulting in removal will not be

remedied, is sufficient to show by clear and convincing evidence that

termination is in the child’s best interests.” In re J.S., 906 N.E.2d at 236. [25] We have already concluded that the evidence is sufficient to support the trial

court’s finding that the conditions resulting in the Children’s removal and

continued placement outside Mother’s care will not be remedied. We note

further that both the family case manager and the court-appointed special

advocate recommended termination of Mother’s parental rights. This is

sufficient standing alone to support the trial court’s finding that termination is

in the Children’s best interests. We note further, however, that there was

significant evidence presented concerning the negative effect contact with

Mother had on the Children’s behavior.

Court of Appeals of Indiana | Memorandum Decision 71A03-1610-JT-2441 | May 2, 2017 Page 14 of 15 [26] Nevertheless, Mother directs our attention to the testimony of L.P. and K.P.’s

therapist that terminating Mother’s parental rights would be “traumatic” for the

girls. Transcript at 30. Our review of the therapist’s testimony, however, reveals

that the therapist also indicated that the Children had suffered a number of

traumas while in Mother’s care. The therapist testified further that many of the

girls’ issues stemmed from “the unknown”, that is, uncertainty concerning the

status of their relationship with Mother, and that with ongoing support services,

the girls would have the opportunity to process their trauma. Id. at 31. [27] It is inevitable that the termination of parental rights will leave a scar for any

child, but it is nevertheless sometimes necessary to protect a child from further

abuse, neglect, and trauma. The evidence presented in this case was more than

sufficient to support the trial court’s finding that termination of Mother’s

parental rights was in the Children’s best interests. [28] Judgment affirmed. [29] Kirsch, J. and Mathias, J., concur.

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