MEMORANDUM DECISION
                                                                 Jul 01 2015, 8:46 am
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 res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
MOTHER                                                    Gregory F. Zoeller
Erin L. Berger                                            Attorney General of Indiana
Evansville, Indiana                                       Robert J. Henke
ATTORNEY FOR APPELLANT                                    James D. Boyer
                                                          Deputy Attorneys General
FATHER                                                    Indianapolis, Indiana
Thomas G. Krochta
Evansville, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                          July 1, 2015
of the Parent-Child Relationship                          Court of Appeals Case No.
of Je.Q., L.Q., Ja.Q., and N.Q.,                          82A01-1411-JT-504
Children,                                                 Appeal from the Vanderburgh
                                                          Superior Court.
     and                                                  The Honorable Mary Margaret
                                                          Lloyd, Special Judge.
T.Q. (Mother) & A.Q. (Father)                             Cause Nos. 82D01-1403-JT-36
Appellants-Repondents,                                               82D01-1403-JT-37
                                                                     82D01-1403-JT-38
        v.                                                           82D01-1403-JT-39


The Indiana Department of
Child Services,
Appellee-Petitioner




Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015      Page 1 of 11
      Baker, Judge.

[1]   T.Q. (Mother) and A.Q. (Father) appeal the juvenile court’s order terminating

      the parent-child relationship between Mother, Father, and their four youngest

      children. This is the third appeal involving this case, and the parents argue that

      the statutory clock should have been reset after the second appeal. We

      disagree, and affirm.


                                                      Facts
[2]   Mother and Father are the parents of four children under the age of eighteen:

      N.Q. Je.Q., Ja.Q., and L.Q. Mother and Father also have two children over

      the age of eighteen who are not subject to this appeal.


[3]   Mother and Father have a lengthy history with DCS. Beginning in 2007, DCS

      has substantiated four separate allegations of child abuse and neglect against the

      parents: (1) in 2007, DCS substantiated a report of educational neglect; (2) in

      2008, DCS substantiated reports of physical abuse and poor home conditions;

      (3) in 2009, DCS substantiated reports of educational and medical neglect; and

      (4) in 2011, DCS substantiated a report of sexual abuse.


[4]   On December 1, 2009, law enforcement was called to the parents’ home to

      assist medical providers who had been treating Father. Law enforcement

      observed unsanitary home conditions, including animal feces on the floor,

      overflowing ashtrays, and rotting food. DCS was called to the home, found the




      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015   Page 2 of 11
      condition of the home to be “marginal,” and gave the parents over a week to

      clean up the residence. Appellants’ App. p. 87.


[5]   On December 11, 2009, DCS returned to the residence to find that the

      conditions had not been remedied. DCS found trash throughout the home,

      sticky and dirty floors, overflowing ashtrays, rotting food, an overflowing

      litterbox, black toilets, clogged sinks, filthy and unsanitary showers, exposed

      metal springs in A.Q., Jr.’s1 bed, and multiple mattresses in other rooms that

      were piled with dirt and trash. Additionally, both parents tested positive for

      THC, two of the children had significant unexcused school absences, parents

      had failed to provide recommended psychiatric and medical care for A.Q., Jr.,

      none of the children were current with immunizations, and all of the children

      had significant dental problems and head lice. DCS also learned of an

      allegation that N.Q. had been sexually abused by A.Q., Jr. 2


[6]   As a result of the myriad issues outlined above, DCS removed the children from

      Mother and Father’s care and custody on December 11, 2009. DCS placed the

      children in foster care and, on December 15, 2009, filed a petition in the trial

      court alleging that they were children in need of services (CHINS). On April




      1
       A.Q., Jr., was a minor at the time the CHINS petitions were filed, but has since turned eighteen and is not
      part of this appeal.
      2
       Eventually, both parents were convicted of multiple counts of felony child neglect as a result of the
      conditions of the children and the home.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015                 Page 3 of 11
      30, 2010, following a hearing, the trial court entered orders finding all children

      to be CHINS.


[7]   The trial court held a dispositional hearing on May 5, 2010. On December 14,

      2010, DCS filed petitions for involuntary termination of Mother and Father’s

      parental rights as to the children. However, the trial court did not issue

      dispositional decrees until February 14, 2011. On July 13, 2011, the trial court

      granted DCS’s petitions as to each child, terminating Mother and Father’s

      parental rights.


[8]   However, on May 16, 2012, this Court reversed that decision. In re N.Q., No.

      82A05-1109-JT-511, 2012 WL 1744399, (Ind. Ct. App. May 16, 2012). We

      noted that, as the dispositional decrees were actually issued three months after

      DCS had petitioned for termination of parental rights, “the Children had not

      been removed from the Parents for at least six months under a dispositional

      decree when the termination petitions were filed, as required by Indiana Code

      section 31-35-2-4(b)(2)(A)(i).” Id. at *3. We remanded the case for further

      proceedings.


[9]   On May 16 and 17, 2012, DCS filed its second round of petitions to terminate

      Mother and Father’s parental rights as to the children. At the second

      termination hearing, DCS admitted, over the objection of the parents, the

      transcript and exhibits from the first termination proceedings. The additional

      evidence presented by DCS at the second termination hearing was “quite brief.”

      In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). The juvenile court


      Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015   Page 4 of 11
       granted the second termination petitions and the parents appealed. This Court

       reversed, emphasizing that “the trial court based its decision to terminate

       Parents’ parental rights to the Children almost entirely on the evidence

       presented at the initial termination proceedings which occurred between

       January and April of 2011, and it did not adequately account for the current

       conditions as required.” Id. at 393. In reversing and remanding, we held as

       follows:

               it was error for the court to issue its order which did not adequately
               consider the evidence presented by Parents of their current conditions,
               including Parents’ new income and their ability to keep current on
               their bills and maintain a clean residence. Indeed, the court also failed
               to consider the lack of evidence to the contrary presented by DCS,
               despite the fact that it was DCS's burden to prove its case by a
               heightened “clear and convincing” standard. Our review of the record
               reveals that the crux of DCS’s presentation of evidence at the Second
               Termination Hearing was that the Children, who were ages six, seven,
               eight, and twelve at the time, did not want to leave their foster parents
               and be returned to Parents’ care. Also, the court’s lack of consideration
               of the evidence presented at the Second Termination Hearing is
               underscored by the fact that some of its findings which, although
               perhaps were correct findings of the conditions present on July 1,
               2011, were directly contradictory to evidence presented by Parents and
               which DCS failed to refute in October 2012.
       Id. at 395 (internal citation omitted).


[10]   On March 27, 2014, DCS filed a third set of petitions seeking to terminate the

       parent-child relationship. The juvenile court held termination hearings on June




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015   Page 5 of 11
25, July 25, August 1, and August 20, 2014.3 At these hearings, the following

evidence was admitted:


     Mother was unemployed and had been for many years. She has multiple
      health issues but does not receive any Social Security disability
      payments. Tr. p. 8, 9-18.
     Father is unemployed and receives approximately $1,000 per month in
      disability payments. The family’s only additional income is $250 per
      month in food stamps. Id. at 89, 102; Appellants’ App. p. 90.
     At the time of the hearings, the parents were living in a two-bedroom
      apartment. A.Q., Jr., who had sexually molested his sister, N.Q., when
      she was still in the home, was living there as well. Tr. p. 27-28, 38.
     C.Q., who lived with her parents until she turned eighteen, was
      completing community service hours following allegations of marijuana
      possession. Id. at 26. At the time of the hearing, she was eighteen,
      pregnant, and living with her boyfriend and his family. Id. at 181, 183.
      She had not completed high school, had not been getting prenatal care,
      and had already missed six of the first eight days of school. Id. at 368.
     The parents had $5 in their savings account. Id. at 63.
     Father had signed consents for the youngest three children to be adopted
      by their foster family because he believed that would be best for them.
      He did not believe the parents had sufficient income to meet the
      children’s needs. Id. at 132.
     Since this Court issued its decision in N.Q. on October 8, 2013, the
      parents have refused to permit DCS case workers to enter their home on
      five occasions. They have also refused to schedule appointments with
      DCS caseworkers, speak on the phone with DCS caseworkers, or in any
      way communicate with DCS caseworkers in a substantive way. Id. at
      168, 169, 171, 172, 176, 299.




3
 At some point, Special Judge Lloyd was appointed to hear this case. The record does not reveal the precise
date on which this occurred, but Judge Lloyd was in place when the third termination petitions were filed in
March 2014.

Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015              Page 6 of 11
            The parents have not seen the children since 2011. Since that time, the
             parents have not inquired as to the children’s well-being, and except for
             one occasion when Mother requested to see N.Q. in her residential
             placement, the parents have not asked to visit with the children since
             2011. Id. at 164-65, 176.

[11]   On October 22, 2014, the juvenile court entered an order terminating the

       parent-child relationship between Mother, Father, and the four children. The

       parents now appeal.


                                     Discussion and Decision
                                       I. Standard of Review
[12]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015   Page 7 of 11
       the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[13]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:

               (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.
                        (ii)     A court has entered a finding under IC 31-34-21-5.6 that
                                 reasonable efforts for family preservation or
                                 reunification are not required, including a description of
                                 the court’s finding, the date of the finding, and the
                                 manner in which the finding was made.
                        (iii)    The child has been removed from the parent and has
                                 been under the supervision of a local office or probation
                                 department for at least fifteen (15) months of the most
                                 recent twenty-two (22) months, beginning with the date
                                 the child is removed from the home as a result of the
                                 child being alleged to be a child in need of services or a
                                 delinquent child;
               (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.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015   Page 8 of 11
       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                        II. Duration of Removal
[14]   Parents’ primary argument on appeal is that the children had not been removed

       from parents’ care and custody for a sufficient period of time pursuant to the

       statute. They acknowledge that the statute requires that the children must have

       been removed from parents’ care for six months under a dispositional decree.

       I.C. § 31-35-2-4(b)(2).


[15]   Parents argue, with no citation to supporting authority, that “[w]here a

       termination is overturned on appeal, especially where a termination is

       overturned twice, the time period set out in the statute should be reset to give

       the parents the opportunity to meet DCS requests and get their children home.”

       Appellants’ Br. p. 8. In other words, the parents contend that following the

       second reversal of the termination order by this Court in N.Q., DCS should

       have had to wait another six months before again seeking termination.4


[16]   We cannot agree with this assertion. The statute contains no caveats,

       exceptions, or addenda in any way altering the requirements for cases in which

       successive termination petitions are filed. Instead, the statute is quite plain in

       its requirement that DCS need prove only that the child “has been removed




       4
           DCS waited five months and seventeen days following N.Q. before filing the third termination petitions.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015                 Page 9 of 11
       from the parent for at least six (6) months under a dispositional decree.”

       I.C. § 31-35-2-4(b)(2)(A)(i). We decline the parents’ invitation to read words

       into the statute that are not already there.


[17]   It is undisputed that in this case, the children have been removed from parents’

       care and custody since the dispositional decree was issued in February 2011—

       over three years before the third termination petitions were filed. Consequently,

       we find that the juvenile court did not err in concluding that DCS met its

       burden to prove with clear and convincing evidence that the children had been

       removed from parents for at least six months pursuant to a dispositional decree.


[18]   The parents also make a somewhat undeveloped argument that, following the

       second appeal in this case, DCS should have offered services to the parents,

       scheduled a child and family team meeting, and viewed the condition of the

       parents’ home.5 Initially, we note that it is well established that “a failure to

       provide services does not serve as a basis on which to directly attack a

       termination order as contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind.

       Ct. App. 2009). Furthermore, there is evidence in the record establishing that

       the parents refused to permit DCS caseworkers to enter their home or otherwise

       talk to them on October 8, 2013, December 23, 2013, February 21, 2014,




       5
         The parents argue that the second termination was reversed because DCS had “fail[ed] to provide services
       to the family following the first termination being overturned.” Appellants’ Br. p. 8. This is untrue. This
       Court reversed the second termination order because DCS had not presented evidence beyond that presented
       at the first termination hearing. Therefore, there was insufficient evidence regarding the current conditions
       that existed in the parents’ lives at the time of the second termination hearing. In re N.Q., 996 N.E.2d at 393-
       94. That deficit was corrected by DCS during the third termination hearing.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015                 Page 10 of 11
       February 24, 2014, and March 4, 2014. On October 18, 2013, and March 11,

       2014, the parents refused to speak with the caseworker on the phone or allow

       her to come to their residence. On April 8 and April 23, 2014, the caseworker

       saw the parents at court and asked them to schedule a meeting with her. They

       refused. Parents never called their DCS caseworker despite being provided with

       her phone number on multiple occasions. In other words, the record is replete

       with evidence that it was the parents’ refusal to cooperate with DCS that led to

       the lack of contact and DCS’s inability to view their home. Under these

       circumstances, we find no error in the juvenile court’s order terminating the

       parent-child relationship.


[19]   The judgment of the juvenile court is affirmed.


       Najam, J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1411-JT-504 | July 1, 2015   Page 11 of 11
