Opinion
24A-JT-1510
11-26-2024
In the Involuntary Termination of the Parent-Child Relationship of: J.G., Au.G., D.G., Aa.G., and I.G. (Minor Children), v. Indiana Department of Child Services, Appellee-Petitioner and T.G. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Jennifer L. Koethe Wake Forest, North Carolina ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Frances Barrow Supervising Deputy Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 LaPorte Circuit Court The Honorable Thomas J. Alevizos, Judge The Honorable Erika C. Stallworth, Magistrate Trial Court Cause Nos. 46C01-2208-JT-48, 46C01-2208-JT-49, 46C01-2208-JT-50, 46C01-2208-JT-51, 46C01-2208-JT-52
ATTORNEY FOR APPELLANT
Jennifer L. Koethe
Wake Forest, North Carolina
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Frances Barrow
Supervising Deputy Attorney General
Indianapolis, Indiana
Bailey and Foley Judges concur.
MEMORANDUM DECISION
Bradford, Judge.
Case Summary
[¶1] T.G. ("Mother") is the biological mother of J.G., Au.G., D.G., Aa.G., and I.G. (collectively, "the Children"). The Department of Child Services ("DCS") became involved with Mother and the Children in January of 2021, after receiving reports that Mother and the Children were homeless. On August 12, 2022, DCS petitioned to terminate Mother's parental rights to the Children. Following an evidentiary hearing, the juvenile court granted DCS's termination petitions. On appeal, Mother contends that DCS failed to present sufficient evidence to support the termination of her parental rights. We affirm.
Facts and Procedural History
[¶2] J.G. was born to Mother on December 4, 2012. Au.G. was born to Mother on April 4, 2014. D.G. was born to Mother on July 6, 2015. Aa.G. was born to Mother on February 8, 2017. I.G. was born to Mother on June 30, 2018.
The Children's biological father, R.G., does not participate in this appeal.
[¶3] DCS became involved with Mother and the Children after receiving reports of "homelessness and an inability to maintain a home or a place to live." Tr. Vol. II p. 191. DCS received an allegation of "a recent eviction, and [Mother and Children] were residing in a hotel, which they were going to be asked to leave from shortly." Tr. Vol. II p. 191. After an unsuccessful informal adjustment, on August 5, 2021, DCS alleged that the Children were CHINS. After Mother agreed that the Children were CHINS, Mother was ordered, inter alia, to participate in individual therapy, casework services, and supervised visitation. Mother was also ordered to seek and maintain stable housing and income.
[¶4] On August 12, 2022, DCS petitioned to terminate Mother's parental rights to the Children. The juvenile court held an evidentiary hearing over the course of seven days, beginning in November of 2023, and ending in April of 2024. During the evidentiary hearing, the juvenile court heard evidence highlighting Mother's lack of progress towards reunification.
[¶5] Tara Shermak provided services to Mother as part of her employment at Lifeline Youth and Family Services ("Lifeline"). Shermak worked with Mother for roughly nine to eleven months, during which time Mother had made "mild improvement, if that." Tr. Vol. II p. 128. Shermak further testified that to the extent that Mother had made mild improvements to her situation, her progress was "[k]ind of stagnant at times." Tr. Vol. II p. 128. Shermak indicated that Mother had refused to create a budget and had claimed "essentially, that she spent her money on necessities, and there was nothing to budget." Tr. Vol. II p. 146. Mother, however, did not explain what she considered to be necessities. Shermak testified that Mother could be difficult, explaining that "[i]f she was upset or mad, she-sometimes she would just completely shut down. Other times, she would be kind of aggressive and loud in interacting." Tr. Vol. II p. 147.
[¶6] DCS Family Case Manager ("FCM") Asa Reid worked with Mother from January 2021 to November 2021. During this period, Mother had moved into Stepping Stone shelter, but was asked to leave due to "the state of the room." Tr. Vol. II p. 217. Also during this time, Mother's visits with the Children never progressed to less-restrictive visits than fully supervised. FCM Reid had explored the possibility of acquiring a mobile home for Mother to live in, but Mother refused because she "did not want to go outside of Michigan City" and the mobile home had been located in Porter County. Tr. Vol. II p. 225. FCM Reid opined that while Mother had taken advantage of the services that had been offered to her, the services had not remedied the issues that had resulted in the Children's removal from Mother's care.
[¶7] FCM Supervisor Michelle Stowers supervised Mother's case from January 2021 to September of 2022. FCM Supervisor Stowers testified that "[u]nstable housing" had been the underlying issue in Mother's case and that Mother's housing issues had never been alleviated. Tr. Vol. II p. 230. During the period that FCM Supervisor Stowers supervised Mother's case, Mother had had six different residences. Despite receiving economic assistance, including COVID relief, Mother had "never put any of" the economic assistance that she had received towards housing. Tr. Vol. II p. 233. FCM Supervisor Stowers testified that while Mother had been cooperative with the services offered by DCS and had largely complied with her case plan during the period that she had supervised Mother's case, Mother had not obtained stable housing. Mother had declined a cheaper housing option. Mother had also declined to work toward reunification "one child at a time[,]" despite the fact that she had been unable to acquire housing sufficient to provide a safe and stable environment for the Children, claiming that she believed the Children "would be jealous if one child was reunified at a time." Tr. Vol. II pp. 236, 237. Mother also declined housing options that would have required her to move out of Michigan City "[s]everal times." Tr. Vol. II p. 238.
[¶8] FCM Caitlyn Kalisik worked with Mother from February through November of 2022. FCM Kalisik testified that throughout the time she worked with Mother, Mother had failed to secure safe, stable housing. Mother also suffered from untreated mental-health issues, including major depression, bipolar disorder, and borderline-personality disorder; was combative; and was uncooperative. Mother also refused any housing solution that would have required her to move out of Michigan City. FCM Kalisik had also discussed safety concerns regarding Mother's boyfriend, but Mother would not end the relationship. During the time FCM Kalisik worked with Mother, Mother did not make any substantial progress toward alleviating the housing issue, but rather "took steps back." Tr. Vol. III p. 18.
[¶9] FCM Nina Woods worked with Mother from December of 2022 through May of 2023. During this period, Mother did not make any progress towards reunification, failing to address her mental-health and housing concerns. When Mother visited with the Children, "she could not handle all of the children in the visits during that period." Tr. Vol. III p. 27. Mother left some visits early and there were concerns about "increasing violent incidents in the home, and several police incidents of domestic violence during that period." Tr. Vol. III p. 27. Mother's unstable housing situation also continued.
[¶10] FCM Zachary Golab began working with Mother in May of 2023. FCM Golab testified that DCS had been involved with Mother and R.G. (i.e., the Children's father) in 2018, when Mother and R.G. had participated in a program of informal adjustment. FCM Golab further testified that while Mother had largely complied with her case plan by attending scheduled meetings and visitations, she had not remedied her unstable housing situation. Mother has continued to reject housing opportunities "due to some personal feelings" about the areas in which the housing opportunities are located. Tr. Vol. III p. 81. While Mother has consistently participated in services, she has not successfully completed her casework services.
[¶11] FCM Golab indicated that Au.G., Aa.G., and I.G. had expressed that they no longer wanted to participate in visitation with Mother, explaining that "they are tired of visits, .. they're tired of being part of a CHINS case. They're tired of having their lives disrupted. And they have established their lives where they are." Tr. Vol. III pp. 88-89. Au.G. appears "extremely comfortable" in her placement and has "definitely made her home there." Tr. Vol. III p. 89. Aa.G. and I.G. are also comfortable in their current placement, referring to their guardians as "mom and dad," with I.G. looking "to them for comfort and direction." Tr. Vol. III p. 90. Placement for Au.G., Aa.G., and I.G. has expressed a willingness to adopt them and provide them with a safe and suitable home. As of the evidentiary hearing, J.G. and D.G. were placed in a therapeutic foster home, where they were loved and were doing well. While their therapeutic foster parents were "an older couple" and were not willing to adopt them, J.G. and D.G. were in an adoption recruitment program, with the plan of ultimately being adopted. Tr. Vol. III p. 98.
[¶12] While he did not make the "recommendation lightly," FCM Golab opined that it was in the Children's best interests that Mother's parental rights be terminated. Tr. Vol. III p. 94. While FCM Golab does not doubt that Mother loves the Children and wants to visit with them, the Children "are not okay" with the ongoing arrangement of visiting with Mother, which has "caused them a significant amount of trauma." Tr. Vol. III p. 94. The Children desire permanency and have experienced "case fatigue." Tr. Vol. III p. 94. Au.G. has expressed a desire to change her name and "wants to be a new person" who is no longer subjected to the ongoing CHINS case. Tr. Vol. III p. 95. FCM Golab indicated that the Children's relationships with Mother "have degraded over time" and the Children "are frustrated." Tr. Vol. III p. 95. FCM Golab further indicated that he does not believe that there is a reasonable probability that the condition for the Children's initial removal from Mother's care, i.e., housing instability, would be remedied. For instance, while Mother had obtained housing prior to the evidentiary hearing, the housing was not suitable for the Children as it did "not provide sufficient space for five children." Tr. Vol. III p. 96.
[¶13] Caseworker Aaron Beuchley began working with Mother in August of 2023, focusing on life skills, finding housing, and budgeting. Beuchley testified that since he began working with Mother, she had not progressed, noting that she did not have stable housing and had never been able to complete a budget. Beuchley testified that Mother "refuses to see life without" and is not leaving her boyfriend, with whom there had been concerns relating to domestic abuse and his presence around the Children. Tr. Vol. II p. 153. Mother had refused Beuchley's suggestion that she attempt to find a better paying job, stating that she "cannot leave" her employment at Big Lots. Tr. Vol. II p. 163. Based on her current income, Beuchley did not believe that Mother would be able to adequately meet the Children's needs. Beuchley opined that he did not believe that Mother and her boyfriend "could still benefit from casework services[,]" stating "I just don't think that there is any willpower left to make these steps that they need to make." Tr. Vol. II p. 158.
[¶14] Therapist Lisa Sesniak testified that she had worked with Mother since February of 2023. Sesniak testified that while Mother has consistently participated in their sessions and seemed to make some steps forward, homelessness "still presents a barrier to Mother[.]" Tr. Vol. II p. 115. Further, while Mother has indicated to Sesniak that she would choose the Children over her boyfriend, she has remained with her boyfriend and has denied that the Children are afraid of him, despite being told otherwise by service providers. Ella Duff, who oversaw Mother's therapeutic visits with the Children, testified that it is necessary to have two people present to oversee and assist with Mother's visits with the Children. Duff indicated that while she believed that the process for terminating a parent's parental rights should be followed and "should not be violated[,]" she believed that the Children needed "permanency right now. They need it for their stability, for their well-being, for their mental conditions. They need it." Tr. Vol. III p. 203. On May 30, 2024, the juvenile court issued an order terminating Mother's parental rights to the Children.
Discussion and Decision
[¶15] "The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." Bester v. Lake Cnty. Off. of Fam. &Child., 839 N.E.2d 143, 147 (Ind. 2005). Although parental rights are of a constitutional dimension, the law allows for the termination of those rights when parents are unable or unwilling to meet their parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind.Ct.App. 2001), trans. denied. Parental rights, therefore, are not absolute and must be subordinated to the best interests of 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 their physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id.
[¶16] In reviewing termination proceedings on appeal, we will not reweigh the evidence or assess the credibility of the witnesses. In re Involuntary Term. 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.
[¶17] 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.
[¶18] Mother contends that the evidence is insufficient to support the termination of her parental rights to the Children. DCS was required to prove the following:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.. (iii) The child has been removed from the parent .. for at least fifteen (15) months of the most recent twenty-two (22) months ... as a result of the child being alleged to be a child in need of services.
(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) 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). Mother argues that the evidence is insufficient to prove subsections (B) and (C).
Although Indiana Code section 31-35-2-4 has been amended, effective March 11, 2024, those provisions do not apply to this case.
I. The Evidence is Sufficient to Prove Subsection (B)
[¶19] 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 that one of the conditions listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind.Ct.App. 2003), trans. denied. Therefore, where the juvenile court determines that one of the factors has been proven and there is sufficient evidence in the record supporting the juvenile court's determination, it is not necessary for DCS to prove, or for the juvenile court to find, the other factors listed in Indiana Code section 31-35-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
[¶20] When determining whether a reasonable probability exists that the conditions justifying a child's removal and continued placement outside the home will not be remedied, the trial court must judge a parent's fitness to care for his or her children at the time of the termination hearing, taking into consideration evidence of changed conditions. In so doing, the trial court may consider the parent's response to the services offered through [DCS]. 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. Additionally, [DCS] was not required to rule out all possibilities of change; rather, it needed to establish only that there is a reasonable probability that the parent's behavior will not change.In re B.J., 879 N.E.2d 7, 18-19 (Ind.Ct.App. 2008) (internal citations and quotations omitted), trans. denied.
[¶21] The juvenile court made numerous findings to support its conclusion that there was a reasonable probability that the conditions that resulted in the Children's removal from her care would not be remedied. These findings included the following:
1. On or about January 1, 2021, DCS received a report alleging that the Children were victims of neglect by [Mother]. Specifically, the report alleged that the family [was] homeless and was recently evicted from their home. The report also alleged that the family was staying at a homeless shelter, however, was forced to leave the shelter due to the behavior of one of the children. Finally, the report alleged that the family [was] currently staying in motels, however, their funds have been depleted.
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10. Prior to the January 2021 CHINS case, February 2021 Program of Informal Adjustment, and August 2021 CHINS case, DCS was involved with the family in another Program of Informal Adjustment in June 2018 to address housing conditions. DCS Exhibits 21(a), 21(b), 21(c), and 21(d).
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25. [Shermak] testified that over the eleven (11) months she worked with the family, Mother only made mild progress in obtaining and maintaining stable housing. In fact, Mother resided at five (5) different locations, including (2) two different motels, during this period. [Shermak's] efforts with the family were documented in a notebook, which was admitted into evidence as DCS Exhibit 7.
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30. Overall, [Buechley] testified that Mother is not meeting her identified goals, has demonstrated a lack of implementation, and seems to have "less and less will" to meet her stated goals.
31. [Buechley] testified that he, too, would try to budget with Mother and that he discussed obtaining different jobs with higher pay, however Mother was unwilling to leave her current employment. In [Buechley's] opinion, Mother would not be able to meet her children's needs with her current income.
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33. [FCM] Supervisor [Stowers] testified that significant financial resources and case efforts were expended to assist Mother. _ Mother also reported receiving $9,000 in COVID relief and additional funds in tax refunds over the life of the case, however she never applied those funds toward housing. Mother was offered to reunify with one child at a time, due to the limited space in her current housing, however she declined. In [FCM] Supervisor [Stowers's] opinion, Mother was involved in a pattern which resulted in an overall failure to maintain.
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37. Since January 2021, over 3 years ago, Mother has failed to demonstrate the ability to manage the Children and maintain her housing....
38. Despite services ... [being] offered by [DCS] to address Mother's parenting issues, the Children have never returned to the care of Mother during the life of the case.
39. In fact, rather than progressing from more restrictive to less restrictive visitation, Mother has regressed from supervised visitation with the Children to therapeutically supervised visitation with the Children. Mother's boyfriend . was also prohibited by the Court from having contact with the Children
during Mother's visits or during the exchange of the Children for visitation purposes. ****
42. [Duff] ... testified that it requires two (2) supervisors and Mother to ensure the safety of the children at the visits. [Duff] testified that Mother requires redirection during the visits. [Duff] would not recommend that Mother begin a Trial Home Visit at this time, and, in her opinion, the children need permanency right now and even fifteen (15) months is too long.
43. [FCM Golab] testified that all the Children demonstrate notable manifestations of trauma and receive individual therapy.
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48. The Children's fear of Mother's boyfriend . _ has been addressed in Mother's therapy with Lisa Sesniak of Family Focus. Nevertheless, [Sesniak] testified that Mother continues to deny that the Children are afraid of him.
49. Over the life of the CHINS case, Mother has failed to demonstrate her ability to maintain her Children in her care.
50. Additionally, at the present time, nearly one thousand (1,000) days since the Children were removed, Mother is ordered to participate in the most restrictive level of visitation: therapeutically supervised.
51. There exists a reasonable probability that the conditions that necessitated ongoing removal will not be remedied. Mother is still reluctant to work with DCS on a budget that would demonstrate an ability to maintain. Mother refused multiple opportunities for housing over the life of the case. Mother has tied herself to an individual who is not only prohibited from
visiting with her children, but who also has been the subject of the Children's repeated concerns in returning to Mother's care.
Appellant's App. Vol. VII pp. 90-98. The juvenile court further found that Mother "is still unable to provide the Children with permanency." Appellant's App. Vol. VII p. 98. Mother does not challenge any of these findings, which we therefore accept as true. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind.Ct.App. 2020) (providing that unchallenged findings must be accepted as true), trans. denied.
[¶22] FCM Golab testified that he did not believe that there was a reasonable probability that the condition for the Children's initial removal from Mother's care, i.e., housing instability, would be remedied. FCM Golab acknowledged that Mother had obtained housing prior to the evidentiary hearing, but testified that the housing was not suitable for the Children as it did "not provide sufficient space for five children." Tr. Vol. III p. 96. While Mother points to evidence which she claims demonstrates that she has made progress towards reunification and has the ability to remedy the reasons for the Children's removal from her care, Mother's argument on appeal amounts to nothing more than an invitation for this court to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
II. The Evidence is Sufficient to Prove Subsection (C)
[¶23] We are mindful that in considering whether termination of parental rights is in the best interests of the child, the juvenile court is required to look beyond the factors identified by DCS and look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. &Child., 798 N.E.2d 185, 203 (Ind.Ct.App. 2003). In doing so, the juvenile court must subordinate the interests of the parents to those of the children involved. Id. "A parent's historical inability to provide a suitable environment along with the parent's current inability to do the same supports a finding that termination of parental rights is in the best interests of the children." Lang v. Starke Cnty. Off. of Fam. &Child., 861 N.E.2d 366, 373 (Ind.Ct.App. 2007), trans. denied.
The [juvenile] court need not wait until the [children are] irreversibly harmed such that [their] physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Additionally, [the children's] need for permanency is an important consideration in determining the best interests of [the children], and the testimony of the service providers may support a finding that termination is in the [children's] best interests.In re A.K., 924 N.E.2d 212, 224 (Ind.Ct.App. 2010) (internal citations omitted).
[¶24] In concluding that termination of Mother's parental rights is in the Children's best interests, the juvenile court found that the Children had "been under the jurisdiction of DCS, either under a Program of Informal Adjustment or a CHINS case, for over three (3) years." Appellant's App. Vol. VII p. 99. Again, Mother does not challenge this finding, which must be accepted as true. See Moriarty, 150 N.E.3d at 626 (providing that unchallenged findings must be accepted as true).
[¶25] Furthermore, FCM Golab indicated that while he did not make the "recommendation lightly," he believed that it was in the Children's best interests that Mother's parental rights be terminated. Tr. Vol. III p. 93. While FCM Golab does not doubt that Mother loves the Children and wants to visit with them, the Children "are not okay" with the ongoing arrangement of visiting with Mother, which has "caused them a significant amount of trauma." Tr. Vol. III p. 94. The Children's relationships with Mother "have degraded over time" and the Children "are frustrated" and desire permanency. Tr. Vol. III p. 95. FCM Golab's testimony, in addition to the evidence set forth above regarding Mother's continued inability to maintain stable housing, is sufficient to support the juvenile court's conclusion that termination of Mother's parental rights is in the Children's best interests. See Lang, 861 N.E.2d at 374 (providing that the testimony of the case worker, guardian ad litem, or a court-appointed special advocate ("CASA") regarding the children's best interests supports a finding that termination is in the children's best interests). Again, Mother's claim to the contrary amounts to nothing more than an invitation for this court to reweigh the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
[¶26] The judgment of the juvenile court is affirmed.
Bailey, J., and Foley, J., concur.