Opinion
24A-JT-496
08-22-2024
In the Matter of the Termination of the Parent-Child Relationship of Ti.H. and Tr.H. (Minor Children) and A.W. (Mother), v. Indiana Department of Child Services, Appellee-Petitioner A.W. (Mother) Appellant-Respondent
ATTORNEY FOR APPELLANT Ernest P. Galos Public Defender South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Frances Barrow Deputy Attorney General Savannah L. Muncy Certified Legal Intern Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Probate Court Trial Court Cause Nos. 71J01-2303-JT-19, 71J01-2303-JT-20 The Honorable Ashley M. Colborn, Magistrate Judge
ATTORNEY FOR APPELLANT Ernest P. Galos Public Defender South Bend, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General Frances Barrow Deputy Attorney General Savannah L. Muncy Certified Legal Intern Indianapolis, Indiana
MEMORANDUM DECISION
Vaidik, Judge
Case Summary
[¶1] A.W. ("Mother") appeals the termination of her parental rights to her two children. We affirm.
Facts and Procedural History
[¶2] Mother and T.H. ("Father") have two children: Ti.H., born in November 2011, and Tr.H., born in November 2013. Mother has three other children who are under a guardianship with paternal relatives in Florida stemming from domestic violence between their father and Mother. Father's parental rights to Ti.H. and Tr.H. were also terminated, but he does not participate in this appeal.
[¶3] The Department of Child Services (DCS) has been involved with the family for many years. The children were first removed from Mother's care in 2015 due to allegations of sexual abuse of Ti.H. and neglect of Tr.H. They were adjudicated children in need of services (CHINS) in June 2016. The children were removed again in 2020 when Mother had a seizure and there was no caregiver for them, but "[t]hat case was not open for very long." Tr. p. 29. Another time, DCS got involved after Mother's former boyfriend hit Tr.H. with a piece of a vacuum. See id. at 162.
[¶4] In January 2022, DCS received a report that Mother had left the children, then ten and eight, with family friends and that Tr.H. threatened them with a knife and made suicidal statements. The "family friends" were Mother's former boyfriend (who hit Tr.H. with the vacuum piece) and his wife, and Mother had left the children with them for months. By that point, Mother had a new boyfriend, T.R. While domestic violence wasn't an original reason for DCS's involvement, both children disclosed domestic violence by the former boyfriend, Father, and T.R. T.R. previously lived with Mother, but by the time DCS got involved, he was incarcerated for domestic-battery charges against Mother, specifically for punching her in the face while the children were present. See Ex. 3. Despite the criminal charges and T.R.'s eventual guilty plea, Mother denied any domestic violence.
[¶5] On February 2, DCS filed a CHINS petition alleging the children had been physically abused and weren't attending school because Mother had unenrolled them. The children were removed and placed in separate foster homes, and the trial court authorized Mother to have supervised visitation. At the status hearing a few weeks later, Mother admitted the allegations in the petition. The trial court adjudicated the children to be CHINS on March 30. On May 4, the court entered a dispositional order requiring Mother to, among other things, maintain safe and suitable housing, engage in individual counseling, and undergo a parenting assessment, psychological evaluation, and domesticviolence assessment and complete any resulting recommendations.
[¶6] Later in May, Mother underwent a parenting assessment at Dockside Family Services. She was subsequently referred for parenting education but never participated. Likewise, she completed a domestic-violence assessment but never started the recommended victim's treatment program. Mother was also referred for a psychological evaluation, but the referral was eventually closed for lack of engagement. A new referral was put in with Dr. Jeff Burnett in June, but Mother didn't complete the evaluation until December after missing some scheduled appointments. Mother engaged in casework and therapy through Dockside that was supposed to be home-based, but her apartment was "falling apart" and had a serious black-mold issue, so her providers often had to meet with her virtually or pick her up and take her elsewhere. Tr. p. 133.
[¶7] A goal of Mother's therapy was to work on keeping herself and the children safe, but Mother consistently denied any domestic violence. She told her therapist T.R. "was a really good person" and "treated her like a queen." Id. at 135. The children also engaged in individual therapy and skills training. Ti.H. disclosed that both Father and T.R. sexually abused her, that T.R. hit her, and that she was scared Mother would let T.R. be around her. Tr.H. reported that T.R. abused him and Mother. At one point, Mother told her therapist the children liked T.R., and when her therapist noted that the children reported otherwise, Mother said they "would make up stuff just for drama." Id. at 136.
[¶8] Originally, Mother's visits with the children went well. However, concerns arose about the children's behavior before and after visits. Tr.H. was physically aggressive toward his foster parents and the other siblings in the home, and his aggression increased before visits, once to the point where his foster parents had to call the police. Ti.H. acted out sexually, including trying to take her clothes off in front of others, masturbating in public areas, and wetting herself. During one visit, Mother wore a sweatshirt with T.R.'s face on it, which made Ti.H. "very uncomfortable" and affected her for "days and weeks afterwards." Id. at 38. Because of the children's poor reactions to visits, the trial court suspended visitation on August 16, 2022, and ordered that visits could resume only upon the recommendations of the children's therapists.
[¶9] Mother has a history of strokes and seizures and had several hospital stays throughout the CHINS proceedings. She was first hospitalized in July and then again in August, shortly after visitation was suspended. Some of Mother's providers met with her at the hospital, but her medical issues began interfering with therapy sessions and kept her from making therapeutic progress.
[¶10] In her December psychological evaluation, Mother denied that T.R. abused her or the children but admitted she'd previously been in an abusive relationship. She acknowledged her choice in men was problematic but "dismissed or minimized" the problem. Id. at 15. Dr. Burnett identified a number of parenting risk factors for Mother, including her dysfunctional and violent relationships. Based on his evaluation, Dr. Burnett opined that "the prognosis for long term safe and effective parenting was poor" and reunification "was not a good idea," mostly because of "the discrepancy between [Mother's] position on the violence in the relationship and that in the record and or position of DCS." Id. at 21. He also recommended a neuropsychological evaluation because of Mother's history of seizures and strokes, but Mother never completed it.
[¶11] Mother had another seizure in January 2023 and had to move into the Majestic Care nursing home. Since then, she's had four strokes and a heart attack. For a while, her vision was impaired and she was unable to walk. Mother's health issues required her to participate in physical therapy, occupational therapy, and speech therapy.
[¶12] In March 2023, while Mother was still at Majestic Care, DCS petitioned to terminate her parental rights. That same month, Mother had a therapeutic visit with Tr.H. upon the recommendation of his therapist. A second visit with Tr.H. was set up, but Mother had another seizure, so it had to be canceled. Ti.H.'s therapist never recommended that she resume visits with Mother, so Mother hasn't seen Ti.H. since the trial court suspended visitation in August 2022.
[¶13] Mother's therapist and caseworker visited her at Majestic Care, but they struggled to actually provide her with services. In June, Dockside closed Mother's case-management referral after determining they'd provided as much care for her as they could. By July, Mother's therapy referral was also closed because no therapeutic progress had been made.
[¶14] The termination hearing was held in August. Mother appeared by phone because she couldn't get a ride to court from the nursing home. DCS Family Case Manager (FCM) Crystal Vaughn expressed concern about reunification due to Mother's failure to complete any domestic-violence services and said the need for services is still there. She worried that, because of Mother's health issues, the children would have to take care of her. FCM Vaughn said both children are doing well in their respective foster homes and ultimately opined that termination is in the children's best interests. Similarly, several of the children's mental-health providers testified that the children are making great progress with their current services and in their respective foster homes.
[¶15] Rebekah Neff, the children's court-appointed special advocate (CASA), testified that the children's needs were being met in their foster homes and through their current services. She opined that Mother was not physically or emotionally able to care for the children and that she was in a worse position to care for them than when DCS first got involved. CASA Neff supported termination because the children are "getting to a point of stability" and "it would be very detrimental to do all this work for them and then they just end up unsupported in our [sic] home with their mother." Id. at 122.
[¶16] The court continued the remainder of the hearing until September 18, and Mother appeared in person for that date. She explained she was still living at Majestic Care because her apartment was being renovated, so she didn't have anywhere else to go. She admitted for the first time that T.R. abused her but maintained that he never abused the children. She claimed T.R. was a "good person" and was only violent when he was drunk or high, but when he was sober, he would "treat [her] like a queen." Id. at 150-51. Mother also admitted Father physically abused her and Tr.H. and sexually abused Ti.H. She acknowledged that she'd denied domestic violence throughout the CHINS and termination proceedings but said she was ready to engage in services.
[¶17] In January 2024, the trial court issued an order terminating Mother's parental rights.
[¶18] Mother now appeals.
Discussion and Decision
[¶19] Mother argues there is insufficient evidence to support the termination of her parental rights. When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable inferences most favorable to the trial court's judgment. Id. When a trial court has entered findings of fact and conclusions of law, we will not set aside the court's findings or judgment unless clearly erroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence supports the trial court's findings and whether the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[¶20] A petition to terminate parental rights must allege, 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 wellbeing of the child.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
(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) (2023). DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231. If the trial court finds the allegations are true, the court "shall terminate the parent-child relationship." I.C. § 31-35-2-8(a).
Section 31-35-2-4 was amended effective March 11, 2024. See Pub. L. No. 70-2024, § 4. Neither party argues that this amendment has any bearing on the proceedings in this case.
[¶21] It is undisputed that Ti.H. and Tr.H. have been adjudicated CHINS on two separate occasions. See Appellant's App. Vol. II pp. 18, 27. Because Section 31-35-2-4(b)(2)(B) (2023) is written in the disjunctive and requires proof of only one of the three provisions by clear and convincing evidence, we need not address whether there is a reasonable probability that Mother will not remedy the conditions resulting in the children's removal and continued placement outside the home or that continuation of the parent-child relationship poses a threat to the children's well-being. See In re A.G., 45 N.E.3d 471, 478 (Ind.Ct.App. 2015), trans. denied.
[¶22] Thus, we turn to whether termination is in the best interests of the children. In determining whether termination is in a child's best interests, the trial court must look at the totality of the evidence and subordinate the parent's interests to those of the child. In re Ma.H., 134 N.E.3d 41, 49 (Ind. 2019), reh'g denied. Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. K.T.K., 989 N.E.2d at 1235. Additionally, a child's need for permanency is a "central consideration" in determining the best interests of a child. Id. "Indeed, children cannot wait indefinitely for their parents to work toward preservation or reunification." Ma.H., 134 N.E.3d at 49 (quotation omitted).
[¶23] A parent's historical inability to provide adequate housing, stability, and supervision coupled with a current inability to provide the same supports a finding that termination is in the child's best interests. Castro v. State Off. of Fam. &Child., 842 N.E.2d 367, 374 (Ind.Ct.App. 2006), trans. denied. When DCS intervened in February 2022, Mother had left the children with her abusive former boyfriend and his wife for months. Mother's own apartment was "falling apart" and had a serious black-mold problem. Though the apartment is purportedly being renovated, as of the termination hearing, Mother was still living at Majestic Care because she had nowhere else to go. And even if the apartment were suitable for her return, multiple providers testified that Mother isn't able to care for the children because of her health issues and, instead, the children would have to take care of her. As the trial court aptly noted, "[w]hile Mother's health problems are certainly not her fault, her physical condition presents a concern for [the children]." Appellant's App. Vol. II p. 26.
[¶24] Another concern for the children is Mother's failure to address her issues with domestic violence. Despite losing custody of her three older children because of domestic violence by their father, Mother has been in several more abusive relationships. Yet throughout the CHINS and termination proceedings, Mother denied that she or the children were ever abused. She told her therapist T.R. "was a really good person" and "treated her like a queen" and that the children made up the allegations that he abused them "just for drama." She also denied the domestic violence for which T.R. was criminally charged (and eventually pled guilty) and wore a sweatshirt with his face on it to a visit with the children. Though Mother finally admitted the domestic violence at the termination hearing, she maintained that T.R. never abused the children. And throughout the entirety of the proceedings, Mother never engaged in the referred domesticviolence victim's treatment program.
[¶25] Mother contends she "made efforts to engage in referred services but was slowed by her health, not her unwillingness to engage." Appellant's Br. p. 19. Again, while Mother's health issues are unfortunate and certainly not her fault, she had the opportunity to at least initiate services in the months before her health issues escalated. At her parenting assessment in May 2022, Mother was told whom to contact to set up parenting education, but she never reached out. And Dockside provides home-based parenting education, so Mother could've received the service while at Majestic Care if she'd set it up. Even if she couldn't have participated in the domestic-violence treatment while at Majestic Care, Mother never started the program to begin with.
[¶26] At the termination hearing, both FCM Vaughn and CASA Neff recommended that Mother's parental rights be terminated. While these recommendations together with the above evidence of Mother's inability to provide a safe and stable environment support termination, permanency is also a central consideration. The children, now twelve and ten, have been removed from Mother's care for two-and-a-half years. They are doing well in their respective foster homes and are finally getting to a point of stability after all the work they've done with their mental-health providers. As CASA Neff put it, "it would be very detrimental to do all this work for them and then they just end up unsupported in our [sic] home with their mother."
[¶27] For these reasons, we conclude the totality of the evidence supports the trial court's conclusion that termination of Mother's parental rights is in the children's best interests.
[¶28] Affirmed.
Weissmann, J., and Foley, J., concur.