Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
purpose of establishing the defense of                                Jul 30 2014, 9:52 am
res judicata, collateral estoppel, or the
law of the case.

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

ERIN L. BERGER                              GREGORY F. ZOELLER
Evansville, Indiana                         Attorney General of Indiana

                                            ROBERT J. HENKE
                                            Deputy Attorney General
                                            Indianapolis, Indiana

                                            CHRISTINE REDELMAN
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF:   )
                                    )
A.W., (Minor Child),                )
                                    )
And                                 )
                                    )
J.W., (Mother)                      )
                                    )
       Appellant-Respondent,        )
                                    )
               vs.                  )            No. 82A05-1311-JT-581
                                    )
THE INDIANA DEPARTMENT OF CHILD     )
SERVICES,                           )
                                    )
       Appellee-Petitioner.         )
             APPEAL FROM THE SUPERIOR COURT OF VANDERBURGH
                       The Honorable Brett J. Niemeier, Judge
                    The Honorable Renee A. Ferguson, Magistrate
                           Cause No. 82D01-1305-JT-49




                                      July 30, 2014



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Judge




                                Case Summary and Issue

       J.W. (“Mother”) appeals the “Finding of Facts and Conclusions of Law”

terminating her parental rights to her son, A.W. She contends the State failed to present

sufficient evidence to support the termination, specifically arguing that the State “failed

to prove [it] made reasonable efforts to provide family services or to preserve and reunify

her family.” Appellant’s Brief at 4. Concluding the State is not required to present

evidence regarding the provision of services and that it presented clear and convincing

evidence of each element of the termination statute, we affirm.

                              Facts and Procedural History

       A.W. was born prematurely on January 6, 2012, and spent his first several months

in the Neonatal Intensive Care Unit of the hospital. The Indiana Department of Child

Services (“DCS”) in Vanderburgh County became involved with the family “due to

                                            2
statements [Mother] made while in the hospital after giving birth to the child and the

concern for [Mother’s] mental health.” DCS Exhibit 2, page 3. Specifically, Mother was

reportedly homeless while pregnant with A.W. and received no prenatal care. She was

admitted to a mental health facility approximately one month before A.W. was born and

remained hospitalized until his birth. While hospitalized, Mother made comments to staff

about being evil and controlled by the devil, spoke in several voices, and asked “what if I

hurt my baby?” DCS Exhibit 3, page 5. Moreover, Mother voluntarily readmitted

herself to the mental health facility shortly after A.W.’s birth and was unable to make

medical decisions for A.W. The juvenile court adjudicated A.W. a child in need of

services (“CHINS”) while he was still in the hospital, ordering that he be placed in foster

care upon his release. A parental participation plan was entered in the CHINS case

requiring Mother to remain drug- and alcohol-free, have a psychological evaluation, have

supervised visitation with A.W., and participate in parenting classes and counseling,

among other things. Accordingly, DCS offered referrals for in-home based services,

participation in counseling sessions, participation in parenting classes, and arranged for

supervised visits, but Mother failed to cooperate with any of the court-ordered services,

failed to keep in contact with DCS representatives, and visited with A.W. only once,

while he was still in the hospital. In addition, Mother was arrested several times during

the pendency of this case and was incarcerated at the time of the termination hearing.

DCS filed a petition for termination of Mother’s parental rights in May of 2013.1




         1
             A.W.’s father was unidentified, and the unknown father’s parental rights were also terminated as part of
this case.
                                                          3
Following a fact-finding hearing, the juvenile court entered an order terminating

Mother’s parental rights to A.W. on November 19, 2013.2 Mother now appeals.

                                           Discussion and Decision

                                             I. Standard of Review

         The Fourteenth Amendment to the United States Constitution protects the right of

parents to establish a home and raise their children. In re J.S.O., 938 N.E.2d 271, 274

(Ind. Ct. App. 2010). The involuntary termination of parental rights is an extreme

measure to be used only when all other reasonable efforts have failed. Id. The interests

of the child trump the interest of the parent, though, when evaluating the circumstances

surrounding termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind.

Ct. App. 2009), trans. denied.

         When we review the termination of parental rights, we give deference to the trial

court’s unique position to assess the evidence. Id. Therefore, we consider only the

evidence and reasonable inferences that are most favorable to the judgment. In re G.Y.,

904 N.E.2d 1257, 1260 (Ind. 2009). When we review findings of fact and conclusions of

law involving a termination of parental rights, we apply a two-tiered standard of review:

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


         2
             The proceedings in this case, including the fact-finding hearing, were presided over by the magistrate of
the juvenile division of the court, as allowed by Indiana Code section 33-23-5-5(11) setting forth the powers of a
magistrate. However, the appealed order was signed only by the magistrate, which is not allowed: “a magistrate
shall report findings in an evidentiary hearing . . . to the court. The court shall enter the final order.” Ind. Code §
33-23-5-9(a). We therefore held this appeal in abeyance and remanded the case to the trial court to review and issue
a final appealable order. The trial court did so, approving the findings and recommendations of the magistrate. The
trial court’s final order also “notes that the court previously approved said findings, but that order was not filed with
the appeal.” Assuming that is the case, nothing in the record reflects that fact. There is no order showing a
countersignature by the trial court, nor is there an entry in the chronological case summary (“CCS”) reflecting the
same. The CCS is the official record of the court and the court speaks through its docket. Gibson v. State, 910
N.E.2d 263, 267 (Ind. Ct. App. 2009); Ind. Trial Rule 77(B). The court should therefore endeavor to ensure that the
CCS accurately reflects the judicial events in each case as we will not assume the appropriate process was followed
based on a silent record.
                                                           4
findings support the judgment. Id. We will not reweigh the evidence or judge witness

credibility and will set aside the trial court’s judgment only if it is clearly erroneous. Id.

       The elements of involuntary termination of the parent-child relationship are

codified in Indiana Code section 3l-35-2-4(b)(2). The State must show:

       (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.
              ***
       (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.
              ***
       (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.

The State must present clear and convincing evidence of each of those elements. Ind.

Code § 31-37-14-2.

                             II. Proof Supporting Termination

       Mother argues that DCS failed to meet the requirements of the statute that

termination be in the best interests of the child “because DCS failed to make reasonable

efforts to provide family services or to preserve and reunify [Mother’s] family.”

Appellant’s Brief at 6. Mother cites Indiana Code sections 31-34-21-5 and 31-34-21-5.5

in support of her argument. Those statutes, however, are found in the CHINS provisions

of the juvenile code. In determining whether termination is appropriate, a juvenile court

can consider the services offered by DCS and the parent’s response to the services during

the CHINS proceeding, but the law concerning termination does not require a specific

showing regarding services. In re B.D.J., 728 N.E.2d 195, 201 (Ind. Ct. App. 2000).
                                               5
Services are routinely offered by DCS as part of a parental participation plan designed to

assist parents in meeting their obligations, but termination of parental rights may occur

independently of them as long as the elements of the termination statute are proven by

clear and convincing evidence. Id.

       Notwithstanding that the provision of family services is not an element of the

termination statute, DCS did offer services to Mother and did make efforts to preserve

and reunify the family. Mother wholly failed to avail herself of the services or to make

any effort of her own to preserve her family. She visited with A.W. only once, shortly

after his birth while he was still in the hospital. The DCS family case manager testified at

the termination hearing about the issues that precipitated the CHINS proceedings and

ultimately led to the filing of a petition seeking termination:

       Housing issues, unemployment, mental health issues that needed to be
       addressed that weren’t being addressed. She was very uncooperative. I had
       a hard time getting ahold of her throughout the entire case. I made several
       attempts to track her down, engage her, and offered her services such as
       parent aide, visitation, and other Court ordered services that she didn’t
       cooperate with.
       ***
       She was very reluctant to participate in any services. Didn’t feel like she
       needed mental health care. Never asked for visitation.

Transcript at 25-26, 31. Mother argues DCS did not make sure that Mother participated

in the mental health services she was offered—especially while she was incarcerated—

and contends that had it followed through, she could have recovered from her mental

illness and learned to be an appropriate parent. Even assuming it is the responsibility of

DCS rather than the parent to follow through on services, it is clear that Mother did not

believe she needed services and there is no reason to believe she would have benefitted

from being forced to participate in them.
                                              6
        Mother makes no other specific challenge to the juvenile court’s findings or to the

State’s proof. Nonetheless, our review of the record shows the juvenile court’s judgment

terminating her parental rights was supported by the evidence presented by the State.

Mother’s testimony at the termination hearing amply demonstrates the mental health

issues that concerned DCS and led to A.W.’s adjudication as a CHINS. Her answers to

questions were often non-responsive or non-sensical.                         Given Mother’s lack of

participation in services designed to help her manage her mental health, learn parenting

skills, and maintain a relationship with her child, the State showed a reasonable

probability that the conditions that resulted in A.W.’s removal from her care will not be

remedied. Further, Mother was incarcerated at the time of the termination hearing, did

not know when she would be released, and had no plan for taking control of her life and

providing A.W. a safe, stable environment if he were to be placed in her custody upon

her release. The court-appointed special advocate testified:

        I don’t believe she can care for [A.W.] with the extensive criminal history
        she has, the amount of time that she’s been in and out of jail. Most times
        she’s homeless, she has no financial support. She has no family support.

Tr. at 42.     Both the family case manager and the court-appointed special advocate

testified that they saw no possibility of Mother improving her parenting abilities and that

it was in A.W.’s best interests for her parental rights to be terminated. Accordingly, the

State provided clear and convincing evidence of each element required to support

termination.3

                                                Conclusion


         3
            A.W. had been removed from Mother under a dispositional decree for more than six months and the DCS
plan for his future care and treatment was adoption by his foster family.
                                                      7
      The judgment of the trial court involuntarily terminating Mother’s parental rights

to A.W. is affirmed.

      Affirmed.

RILEY, J., and BRADFORD, J., concur.




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