The opinion
MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 24 2016, 8:45 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kristina J. Jacobucci Gregory F. Zoeller
Newby, Lewis, Kaminski & Jones, LLP Attorney General of Indiana
LaPorte, Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- May 24, 2016
Child Relationship of I.C., N.K., Court of Appeals Case No.
L.L., and L.L., III (Minor 46A03-1510-JT-1780
Children), Appeal from the LaPorte Circuit
Court
E.B. (Mother), The Honorable Thomas A.
Appellant-Respondent, Alevizos, Judge
v. The Honorable W. Jonathan
Forker, Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 46C01-1412-JT-449,
46C01-1412-JT-450,
Appellee-Petitioner. 46C01-1412-JT-451, and
46C01-1412-JT-452
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Najam, Judge.
Statement of the Case
[1] E.B. (“Mother”) appeals the trial court’s termination of her1 parental rights over
her minor children, I.C., N.K., L.L., and L.L., III (collectively “the Children”).
Mother raises two issues for our review which we consolidate and restate as
whether the trial court’s termination of Mother’s parental rights to the Children
was clearly erroneous.
[2] We affirm.
Facts and Procedural History
[3] Mother is deaf and uses American Sign Language (“ASL”) to communicate.
She is the mother of the following children: N.K., born July 22, 2010; I.C.,
born December 21, 2011; and twins L.L, III and L.L., born August 7, 2013.
[4] On January 4, 2014, the Department of Child Services (“DCS”) became
involved with the Children and Mother after receiving a report alleging Mother
had unstable housing with no utilities. Upon investigation, DCS discovered
that Mother had made arrangements for the Children to live with her friends,
C. and B., because of her inappropriate housing. Prior to DCS’ investigation,
Mother had signed a notarized document giving C. and B. permission to
1
The parental rights of N.K.’s father, N.K., Sr., I.C.’s alleged father, D.W., or unknown alleged father, and
the twins’ father, L.L., Jr., were also terminated. However, they do not appeal the termination of their
parental rights.
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provide care for the Children until Mother found suitable housing. After its
initial investigation, DCS made a determination that the Children could remain
in the care of C. and B., and it did not immediately initiate Child in Need of
Services (“CHINS”) proceedings.
[5] Mother signed a safety plan stating that she would not remove the Children
from her friends’ care until meeting with DCS to discuss the matter. The initial
scheduled meeting was cancelled due to weather, and DCS Family Case
Manager (“FCM”) Betsey Black attempted unsuccessfully to reach Mother to
reschedule. DCS subsequently learned from C. and B. that Mother had been
very inconsistent in communicating with C. and B. or the Children since the
time she left the Children there. DCS made several more unsuccessful attempts
to reach Mother. On January 22, 2014, DCS removed the Children from C.
and B. because they were not legal caregivers for the Children and Mother
could not be reached. Ultimately, DCS placed N.K. and I.C. in one foster
home and the twins in another foster home.
[6] On January 23, 2014, DCS filed a CHINS petition as to all four children. On
March 19, Mother admitted that the Children were CHINS and the trial court
adjudicated them as such. The court proceeded to a dispositional hearing at
which Mother was ordered to participate in supervised visitation with the
Children, a parenting and family functioning assessment and all
recommendations, case management services, and random drug screens. In a
case review hearing on June 11, the trial court found Mother had not completed
her parenting family functioning assessment, had failed her drug screens, and
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was not making progress with individual counseling, but was participating in
parenting education. The court suspended Mother’s visitation due to her drug
use and inappropriate behavior at visits. At the October 1 permanency hearing,
the court approved concurrent permanency plans of adoption and reunification.
At the January 23, 2015, review hearing, the court found Mother had not
complied with the case plan because she had not found stable housing and had
failed drug screens. In March, Mother gave birth to another child (“Baby”). At
a May 2 review hearing, the court found Mother was compliant with the case
plan.
[7] In the meantime, on January 7, 2015, DCS filed its petitions to termination
Mother’s parental rights to the Children.2 On September 28, following a fact-
finding hearing, the trial court entered the following relevant findings and
conclusions3 in support of terminating Mother’s parental rights:
6. Further, it was established by clear and convincing evidence
that the allegations of the petition are true in that:
a. The [Children have] been removed from parents for at
least six (6) months under a dispositional decree of the
Court, . . .
b. There is a reasonable probability that the conditions that
resulted in the [Children’s] removal or the reasons for
2
DCS did not file a CHINS action or take any other action as to Baby.
3
The trial court issued four separate termination orders, one for each child. However, all four orders
contained the same relevant findings; therefore, for convenience, we cite only the termination order as to I.C.
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placement outside the parent’s home will not be remedied,
and/or there is a reasonable probability that the
continuation of the parent-child relationship poses a threat
to the well-being of the [Children].
c. Termination is in the best interest of the [Children].
d. IDCS has a satisfactory plan for the care and treatment
of the [Children], which is adoption.
7. In support thereof the Court makes the following findings of
fact and conclusions of law:
a. On January 4, 2014, DCS received a report that the
[Children] may be . . . victim[s] of abuse and neglect.
Upon investigation, DCS learned that [parents] had left
the [Children] in the care of friends since December 18,
2013, because they did not have appropriate, stable
housing for the [C]hildren. They were living in a
basement room with no heat or other utilities except an
electrical extension cord which had been run down from
an upstairs apartment.
b. [Parents] were to meet with DCS on January 6, 2014[,]
to discuss the situation, but the meeting did not take place
due to inclement weather. Thereafter, DCS unsuccessfully
tried to contact them, and they did not initiate contact
with DCS. As of January 14, 2014, the friends with whom
the [C]hildren were staying advised that they had not
heard from [parents] since DCS became involved. Then,
on January 22, 2014, after still not having had contact with
[parents], DCS detained the [C]hildren for their safety as
they had no legal caregivers. At a detention hearing held
the next day, the Court ordered that the [C]hildren be
detained and placed in kinship care with the same family
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friends who had been caring for them. The [C]hildren
have not been returned to either [parent’s] care since then.
c. [Parents] eventually contacted DCS on February 5,
2014. After they and DCS attended a Child and Family
Team Meeting and a facilitation meeting, they agreed to
participate in services. Based on [M]other’s admission, the
[C]hildren were adjudicated CHINS and a dispositional
order was entered as to her on March 19, 2014. . . . The
services agreed to and ordered for [parents] included
random drug screens, parenting and family functioning
assessment, case management services and supervised
visitation.
***
e. Prior to the end of January, 2015 [M]other was
consistently positive on her drug screens, usually for THC,
but her screens have all been negative since then. As to
suitable housing, if [M]other has five children in her
custody, she would qualify for a subsidized, three bedroom
apartment. (Four of [M]other’s children are the subjects of
current termination of parental rights (TPR) proceedings.
Her fifth child was born in March[] 2015 and this child is
in her custody and not subject to any juvenile Court
proceedings.) However, there remains a concern even if
[M]other obtains this housing. As noted by Family Care
Manager (FCM) Black, she has a history of not having
stable housing and not staying long in one place. During
the pendency of the CHINS case, [M]other gave FCM
Black about 6 different addresses where she was residing,
and other times she had no address to report as she was
homeless. This concern remains in spite of the fact that
[M]other finally obtained proper identification for herself
earlier this year, and which ostensibly opens up more
housing opportunities for her.
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f. Mother’s supervised visits with [the C]hildren were also
suspended after the altercation with [the twins’ father] on
March 27, 2014. She also was noncompliant with services
for the remainder of 2014. Her visits did not resume until
April 6, 2015, after she had negative drug screens and
began to comply with services. The resumed visits,
however, did not go well. The twins ([L.L., III and L.L.])
became irritable, but more of a concern, the two older
children ([N.K. and I.C.]) exhibited increased aggression
and increased behavioral problems after such visits. As a
result, [M]other’s visits were again suspended.
g. Mother was also referred for individual therapy, with
which she was not initially compliant but recently has
become more compliant and [is] making some progress.
According to Amanda Jennings, [M]other’s therapist since
April[] 2015, [M]other has made progress in meeting with
her consistently and engaging with her. However,
[M]other has not made progress in dealing with her anger,
and in particular, she is not implementing the coping skills
she has learned in dealing with her anger toward the
parenting educator.
h. Susan Lovass, a therapist from Family Focus,
performed a Parenting and Family Functioning
Assessment on [M]other to determine what services were
needed and could be provided to [M]other. Although the
referral for the assessment was made in February, 2014,
[M]other’s unresponsiveness led to it not being completed
until October, 2014. Among other things, Ms. Lovaas
recommended and the Court ordered that [M]other engage
in parenting classes, undergo individual therapy and have
supervised visitation with the [C]hildren. Ms. Lovaas
recommended supervised visits and parenting classes as
[M]other had elevated scores on the abuse scale, which is
indicative of abusers. She also expressed concern that no
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harm come to the [C]hildren as [M]other also scored low
on the corporal punishment scale.
i. Ms. Lovaas has also been the therapist for N.K. since
March, 2014, and for I.C. since August, 2014. She stated
that N.K. is diagnosed with reactive attachment disorder
and ADD. At times, he exhibits aggression, biting,
scratching and inappropriate sexualized behavior. She did
not indicate a diagnosis for I.C., but did state she will
follow and mimic N.K.’s bad behaviors. She further noted
that although a parent would have to deal with I.C. as
well, a parent would have difficulty parenting N.K., and
for mother to effectively parent him, she would have to
acknowledge the existence of the problem and implement
basic parenting skills. Ms. Lovaas would also not
recommend changing the [C]hildren’s current placement,
where they have bonded well with the foster parents whom
they call “mom” and “dad[.”]
***
l. Beni Miller from Dunebrook has been [M]other’s parent
educator since April, 2014. In order for [M]other to
progress and develop appropriate parenting skills, it was
necessary for her to attend parenting classes and master
the skills and goals that were set for each of five levels or
areas of the program to which she was assigned. This
necessitated answering questions correctly and showing
the ability to implement the skills learned at visitations. If
the client was not successful with this, then the session(s)
had to be repeated successfully before moving into the next
chapter, area or level.
m. During [M]other’s first year with the parenting
program, [M]other made no progress. She then started to
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engage in the program about the time her supervised visits
were reinstated two or so months prior to the termination
hearing. Mother attended 25 sessions and either was a
“no-show” or otherwise missed 21 sessions. Most of the
attended sessions were in the past few months.
Notwithstanding that [M]other became engaged in the
program, she has not mastered any program goals. She
has not mastered even the beginning parenting skills, and
has not used the skills she was taught. As Ms. Miller
stated, [M]other needs this education, in the best interests
of the [C]hildren, to understand where the [C]hildren are
developmentally and how to nurture a child, which are
skills [M]other does not possess. She has not learned age
appropriate discipline, or what to feed the [C]hildren and
how often. Instead of learning and implementing positive
parenting skills, [M]other has stubbornly insisted that she
knows how to parent [the C]hildren, and contrary to Ms.
Miller’s recommendations, she will continue to parent the
[C]hildren as she sees fit. By way of example, Ms. Miller
had a 2 1/2 hour session with [M]other concerning
Sudden Infant Death Syndrome. Although Ms. Miller
explained the dangers of having a child sleep on its
stomach, [M]other replied that she would continue to have
the baby sleep on its stomach because the baby liked it.
Mother also does not show the ability to meet the
[C]hildren’s developmental and special needs; instead, she
blames others for interfering with her parenting and she
tends to deny that the needs exist. All of this poses a risk
and concern that the [C]hildren’s health and safety would
be endangered if returned to mother’s care.
n. Of 27 parenting sessions originally scheduled for
mother, she is at a point where 22 to 23 sessions still
remain. Ms. Miller indicates that [M]other has not even
completed chapter one, and under the circumstances, she
cannot tell how long it would take [M]other to complete
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the parenting program if she continued to attend. In terms
of [M]other’s progress in the parenting program, Ms.
Miller indicates that she is in the same place now as in
April, 2014. Ms. Miller does not believe that [M]other is
capable of caring for the [C]hildren on her own, and even
if she had safe, stable housing it would not benefit her
parenting.
o. Cheryl Highsmith, director of Harmony House,
observed [M]other’s supervised visits with the [C]hildren.
She does not believe [M]other understands parenting or
child safety issues, and she does believe that the [C]hildren
would not be safe with [M]other alone. Mother does not
or cannot supervise the [C]hildren, and she never saw
where intervention between [M]other and the [C]hildren
was not needed. When the visit supervisor or parent
educator would offer her direction, [M]other instead
became upset and told them they can’t tell her what to do.
Mother viewed the offered direction as criticism, not help.
Ms. Highsmith attributes this to [M]other’s attitude toward
parenting education and not due to the fact that [M]other
is deaf.
p. CASA believes that termination of parental rights is in
the [C]hildren’s best interests. She does not believe
[M]other would address the [C]hildren’s special needs or
that [M]other grasps the gravity of what is going on with
them. Her opinion would not change even if [M]other has
her own apartment and had clean drug screens. She also
opines that [M]other is not justified in refusing to follow
direction from her parent educator.
q. Mother’s testimony confirmed other witnesses’
observations of the interaction between her and the parent
educator, Beni Miller. Rather than receiving positive
direction from Ms. Miller during visitations, [M]other
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believes that Ms. Miller’s efforts amounted to constant
interference with her parenting of the [C]hildren.
Mother’s testimony also revealed and confirmed her lack
of appreciation and understanding of the [C]hildren’s
needs. At one point she stated that she realized that N.K.
has autism, but at another point she said that he basically
has emotional problems like a lot of kids, so she clearly
does not grasp the importance of N.K.’s special needs.
Instead of referring to applying specific parenting skills
which she learned to meet N.K.’s needs, she said only
generally that those needs would be met by her being
careful and understanding. Mother also believes that
having her own apartment will help her understand
parenting skills to parent five children, but instead of
explaining why that is so, she responded only that it is
because she was a good mother before. The Court agrees
with Ms. Miller that having her own apartment will not
benefit [M]other’s parenting.
r. The Court finds that [M]other’s deafness did not play
any significant role in either the [C]hildren being
adjudicated CHINS or with respect to the facts and
reasons leading to the termination of parental rights
proceeding.
***
IT IS ORDERED AND ADJUDGED that the parent-child
relationship between [the Children] and . . . E.B. be
terminated, . . .
Appellant’s Br. at 35-46. This appeal ensued.
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Discussion and Decision
[8] Mother maintains that the trial court’s order terminating her parental rights was
clearly erroneous. We begin our review of this issue 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 Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.
Ct. App. 1996), trans. denied. However, a trial court must subordinate the
interests of the parents to those of the child when evaluating the circumstances
surrounding a termination. Schultz v. Porter Cnty. Ofc. of Family & Children (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.
[9] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove, 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.
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(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) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements
of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.
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).
[10] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of
Family & Children (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 trial
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 Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208
(Ind. Ct. App. 1999). trans. denied.
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[11] Here, in terminating Mother’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cnty. Ofc. 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 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 trial court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[12] Mother contends that the trial court erred in concluding that she will not
remedy the conditions that resulted in the Children’s removal; that the
continuation of the parent-child relationships poses a threat to the well-being of
the Children; and that termination is in the best interests of the Children.
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive,
we only address whether the trial court erred in concluding that continuation of
the parent-child relationships poses a threat to the Children and that
termination is in the Children’s best interests. We address each of these issues
in turn.
Continuation of the Parent-Child Relationships
[13] Mother contends that the trial court’s finding that continuation of the parent-
child relationships would pose a threat to the Children is not supported by the
evidence. However, Mother’s arguments are simply requests that we reweigh
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the evidence, which we cannot do. In re D.D., 804 N.E.2d at 265. Instead, we
must determine whether the evidence most favorable to the judgment supports
the trial court’s conclusion. Id.; Quillen, 671 N.E.2d at 102. We hold that it
does.
[14] The trial court’s conclusion is supported by the following evidence. FCM
Black, Court Appointed Special Advocate (“CASA”) Titi Akhigbe, Parent
Educator Benny Miller, and Cheryl Highsmith, the Director of Harmony
House where Mother and the Children had their supervised visits, all testified
that the Children have special needs that Mother has neither acknowledged nor
understood. Susan Lovass, the therapist for N.K. and I.C., testified that both
children have exhibited aggression and behavioral problems that became worse
after visits with Mother, and Highsmith testified that Mother either did not or
could not supervise the Children during visits. Black, Akhigbe, Lovass, Miller
and Highsmith all testified that they do not believe Mother has the parenting
skills necessary to safely care for the Children, especially those with special
needs. Both Black and Miller testified that, based on Mother’s lack of any
progress in parenting classes, Mother is not able to care for any of the four
Children, even if she had stable, safe housing. All of this evidence clearly
supports the trial court’s finding that continuation of the parent-child
relationships would pose a threat to the Children.
[15] A trial court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his physical, mental, and social growth is permanently
impaired before terminating the parent-child relationship. Shupperd v. Miami
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Cnty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). When the evidence shows that the emotional and physical development
of a child in need of services is threatened, as it does here, termination of the
parent-child relationship is appropriate. Id.
Best Interests
[16] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. A.S. v.
Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
“A parent’s historical inability to provide adequate housing, stability and
supervision coupled with a current inability to provide the same will support a
finding that termination of the parent-child relationship is in the child’s best
interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.
App. 2006), trans. denied. “Additionally, a child’s need for permanency is an
important consideration in determining the best interests of a child, and the
testimony of the service providers may support a finding that termination is in
the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, in
addition to evidence that continuation of the parent-child relationship poses a
threat to the children, is sufficient to show by clear and convincing evidence
that termination is in the child’s best interests. L.S. v. Ind. Dep’t of Child Servs.
(In re A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.
[17] Again, Mother’s contentions on this issue amount to requests that we reweigh
the evidence, which we will not do. Both the FCM and CASA testified that
termination of Mother’s parental rights is in the Children’s best interests.
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Moreover, there was evidence that all four of the Children are doing well in
their foster placements and could be adopted. Given that testimony, in addition
to evidence that the Children need stability, supervision and care that Mother
cannot provide, we hold that the totality of the evidence supports the trial
court’s conclusion that termination is in the Children’s best interests.
[18] Although Mother contends that the trial court improperly failed to consider that
her deafness played a part in her parenting time and compliance issues, there is
no evidence that Mother’s deafness caused her to miss more than half of the
parenting classes or to refuse to acknowledge or address the Children’s special
needs. And her claims that her inadequate supervision of the Children during
visits and her poor relationship with the parenting educator “could have been”
caused by her inability to communicate without an interpreter are speculation.
Appellant’s Br. at 31, 32. The trial court’s finding that Mother’s deafness did
not play any significant role in either the Children being adjudicated CHINS or
with respect to the facts and reasons leading to the termination of parental
rights proceedings is supported by the evidence.
[19] The trial court did not err when it terminated Mother’s parental rights to the
Children.
[20] Affirmed.
Robb, J., and Crone, J..
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