                                                                             FILED
                                                                         Jan 23 2020, 9:10 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Jennie Scott                                                Curtis T. Hill, Jr.
Muncie, Indiana                                             Attorney General of Indiana
                                                            Marjorie Lawyer-Smith
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                            January 23, 2020
of the Parent-Child Relationship                            Court of Appeals Case No.
of B.F. and C.F. (Minor                                     19A-JT-1857
Children),                                                  Appeal from the Delaware Circuit
C.B. (Mother),                                              Court
                                                            The Honorable Kimberly S.
Appellant-Respondent,
                                                            Dowling, Judge
        v.                                                  Trial Court Cause Nos.
                                                            18C02-1810-JT-118, -119
Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                             Page 1 of 16
[1]   C.B. (Mother) appeals the trial court’s order terminating her parent-child

      relationship with her children, B.F. and C.F. (the Children). Mother argues

      that there is insufficient evidence supporting the order.


[2]   The only lingering issue for Mother is a lack of stable and suitable housing. She

      and the Children are bonded and her parenting skills are appropriate.

      Moreover, the trial court denied the petition to terminate the parental rights of

      the Children’s father, meaning that terminating Mother’s rights will not achieve

      permanency for the Children. Under these circumstances, we find that

      termination is not in the Children’s best interests. Therefore, we reverse and

      remand.


                                                       Facts
[3]   B.F. was born in December 2012 and C.F. was born in May 2014 to Mother

      and R.F. (Father).1 Mother also has four older children who are cared for by

      Mother’s parents under a guardianship.


[4]   In June 2015, Mother and the Children were living in Muncie. On June 14,

      2015, the Department of Child Services (DCS) filed a petition alleging that the

      Children were Children in Need of Services (CHINS). DCS also removed the

      Children from Mother’s care and custody, placing them in relative care. The




      1
        Father and Mother were not in a relationship (nor did they appear to be engaged in co-parenting) during the
      relevant period of time. As the trial court denied the petition to terminate Father’s relationship with the
      Children, he is not a party to this appeal.

      Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                            Page 2 of 16
      Children were later moved into kinship care with Ashley Geheb, a close family

      friend who lives in Lafayette.


[5]   Mother ultimately admitted that she left the Children unattended on June 12,

      2015, that she was transported to the hospital for a drug overdose, and that she

      was subsequently arrested and charged with possession of a controlled

      substance and neglect of a dependent. On August 10, 2015, the trial court

      found the Children to be CHINS based on these admissions.


[6]   At a later dispositional hearing, Mother was ordered to complete parenting,

      substance abuse, and psychological assessments and comply with any

      recommendations, submit to random drug screens, obtain stable housing, and

      participate in supervised visitation with the Children. At some point during

      2015, Mother moved to Lafayette, which was where the Children were placed.

      DCS considered transferring the case from Delaware to Tippecanoe County,

      but ultimately decided against it.


[7]   Throughout the end of 2015 and the first half of 2016, Mother had sporadic

      participation and contact with DCS. But in June 2016, she re-engaged in

      services and communicated more regularly with DCS. She began to make

      progress, albeit slowly. Sometime in October 2016, Mother gave birth to a




      Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020    Page 3 of 16
      baby.2 DCS did not file a CHINS petition with respect to that baby, who

      remained in her care and custody.


[8]   By the beginning of 2017, Mother was involved with home-based case

      management, home-based therapy, individual therapy, and supervised

      visitation. She had also secured housing with the help of DCS and her service

      providers. By December 2017, Mother had secured a bigger apartment and had

      stable employment with Purdue University (through a temporary employment

      agency). She had consistently provided clean drug screens, DCS was no longer

      concerned about substance abuse, and visits with the Children were going well.


[9]   DCS and Mother’s service providers continued to be concerned about her

      ability to maintain stable housing. Because she has a prior felony conviction,

      she does not qualify for Section 8 housing with the Department of Housing and

      Urban Development. Additionally, Mother struggled to maintain a sufficient

      income, which was a barrier to achieving stable housing. One of Mother’s

      Family Case Managers (FCM)3 explained that another part of the problem was

      that Mother “was not always very—real great at following through. . . . Uh, as

      long as somebody was there and willing to come in with her and work with her

      and walk her through the process, she did a good job of—of getting things done.




      2
       That baby has a different father. There was domestic violence between Mother and the baby’s father, but
      once their relationship ended and Mother continued to participate with services, DCS had no lingering
      concerns about domestic violence.
      3
          She had four different FCMs over the course of the case.


      Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                          Page 4 of 16
       Um, but if you just gave her a directive to do it on her own and get it done, um,

       it was pretty hit and miss as to whether she would follow through or not.” Tr.

       Vol. II p. 206.


[10]   Also acting as a barrier to achieving stable housing and income was the fact that

       Mother has a seizure disorder, which renders her unable to apply for the many

       factory jobs available in Lafayette. Additionally, it prevents her from being able

       to drive and leaves her reliant on public transportation.


[11]   Notwithstanding these lingering concerns, the Children were placed on a trial

       home visit with Mother and the baby in February 2018. DCS and Mother’s

       service providers helped her obtain vouchers4 for childcare so that she could

       continue to go to work at Purdue, but they were unable to find one center with

       room for all three children. The Children went to one center and the baby went

       to another, which was across town. As a result of this situation, it took Mother

       six hours every day to get her kids to and from daycare. They got on the bus

       each morning at 6:00 a.m. and rode to the Children’s daycare. After dropping

       them off, Mother and the baby then got back on the bus and rode to the other

       daycare. Then, Mother had to take the bus to Purdue. The whole journey took

       close to three hours. It also cut into her work hours, forcing her to become a




       4
         To obtain vouchers, Mother had to first be employed—which is a challenge to begin with, given that lack of
       childcare would hinder the job-seeking process. Moreover, the daycare centers often have long waiting lists,
       meaning that “even if she were to get a job, she may not be able to work at that job” because of the lack of
       childcare. Tr. Vol. II p. 88. Her home-based case manager acknowledged that this system is a “vicious
       circle.” Id.

       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                            Page 5 of 16
       part-time, instead of a full-time, employee. Mother explained that she “went

       from working from nine to five p.m. to ten to two p.m.” Tr. Vol. III p. 3.


[12]   At some point, Mother stopped working for Purdue. She explained that when

       Purdue recessed for the summer, the work that she provided was not necessary;

       therefore, she did not have employment at the university until the students

       returned in the fall. When her work stopped at Purdue, she stopped taking the

       Children to daycare. But when using vouchers, if a parent stops taking her

       children to daycare for two weeks or more, she loses those spots. Therefore, at

       that point, Mother no longer had childcare in place.


[13]   Mother’s service providers worked to help her find steady employment. They

       helped her create a resume, gave her a list of resources to use to find open jobs,

       and even drove her to interviews with the Children in the vehicle after Mother

       had lost the daycare spots. Mother got discouraged, reporting that nothing ever

       “seemed to pan out,” given her health and legal limitations as well as the fact

       that she did not have a high school diploma or GED. Tr. Vol. II p. 67. She

       began to feel “like people were just waiting for her to fail.” Id. at 89. Service

       providers got frustrated because “there was always an excuse as to why she

       couldn’t get out . . . and look for jobs or interview for jobs. . . . There was just

       always a lot of help needed in whatever she needed to have done.” Id. at 71.

       Mother “was working pretty diligently” and cooperating with her service

       providers, but was simply unable to find steady employment. Id. at 74.




       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020        Page 6 of 16
[14]   Mother and the Children were living in an apartment provided by Seeds of

       Hope. At some point after Mother’s employment with Purdue ended, Seeds of

       Hope offered to let her clean the apartments in the complex in exchange for her

       rent, and even found another tenant to provide childcare while Mother was

       working. That arrangement worked for a while, but over time, the quality and

       consistency of Mother’s work lessened to a point that Seeds of Hope was no

       longer satisfied with the arrangement. At that point, Mother and the Children

       were going to be evicted. Consequently, on June 16, 2018, DCS again removed

       the Children from her care and custody and placed them back with Geheb. 5 6

       Shortly after that, the Children’s permanency plan was changed from

       reunification to adoption.


[15]   After the Children were removed from Mother’s care and custody, she

       continued to visit with them consistently. All service providers who have

       observed Mother’s interactions with the Children have noted that they have an

       obvious bond and that Mother parents them in a caring and appropriate way.

       At the time of the termination hearing, Mother was not participating with

       services in this CHINS case, but she was doing so consistently in the

       Tippecanoe County CHINS case.




       5
         DCS also filed a petition alleging that the baby was a CHINS. That is a separate case from this appeal and
       is ongoing in Tippecanoe, rather than Delaware, County.
       6
        In July 2018, Mother’s employment at Purdue resumed, but as she noted, the Children “were already out of
       my care.” Tr. Vol. III p. 6.

       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                             Page 7 of 16
[16]   On October 31, 2018, DCS filed a petition to terminate the parent-child

       relationship between Mother, Father, and the Children. On February 14, 2019,

       DCS filed a motion to dismiss its termination petition given the progress that

       Father had made towards being an appropriate parent to the Children. The

       trial court denied the motion to dismiss, finding that DCS’s reasoning was not

       compelling because the Children had been removed from their parents for

       “nearly four years.” Appellant’s App. Vol. II p. 25.


[17]   The termination hearing took place over four days in April 2019. At that

       hearing, Mother reported that she had a full-time job at Wendy’s and had been

       working there for approximately nine months.7 She was living with her pastor,

       who would not allow the Children to live there as well. Mother conceded that

       at that time, she was not ready for the Children to be placed with her, given her

       lack of suitable housing, but she does not believe that adoption is in the

       Children’s best interests because “I still wanna be—I mean, they’re my children

       at the end of the day.” Tr. Vol. III p. 18. Mother reported that she is continuing

       to work very hard to achieve the stability needed to have the Children placed

       safely back in her care and custody.


[18]   On July 15, 2019, the trial court denied the termination petition as to Father but

       granted it as to Mother. In pertinent part, it found as follows:




       7
        Mother left her job with Purdue because her job hours there would not have permitted her to visit with the
       Children. She reported that she got the job at Wendy’s “right away” after she left Purdue. Tr. Vol. III p. 11.

       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                              Page 8 of 16
        118. There is a reasonable probability that the conditions that
             resulted in the [Children’s] removal or the reasons for
             placement outside of the home of Mother will not be
             remedied. Throughout the duration of the [Children’s]
             CHINS case, Mother either failed to participate in or
             benefit from services ordered to assist her. DCS has
             presented clear and convincing evidence upon which the
             Court can reasonably conclude that Mother has not
             remedied the conditions that resulted in the [Children’s]
             removal from her care and continued placement outside of
             her home.


        119. Throughout the duration of the [Children’s] CHINS case,
             Mother had multiple opportunities for assistance with
             housing and employment and benefitted greatly from
             community support and resources in Tippecanoe County.
             She has, in fact, obtained housing and employment on
             more than one occasion. However, Mother has
             established through a pattern of conduct over the past 46
             months that she is unable or unwilling to maintain her
             employment or to maintain suitable housing for her
             children. Notably, Mother testified at the Fact-Finding
             Hearing that she is not currently stable and could not care
             for her children if they were returned to her care.


        120. Despite having numerous services and resources to assist
             her, Mother is of the opinion that she did not receive
             enough help from others. Mother does not accept
             responsibility for her own actions and inactions leading to
             the repeated loss of her housing and employment, and her
             lack of accountability at the time of the Fact-Finding
             Hearing weighs against her ability or willingness to make
             the necessary changes to provide a safe and stable
             environment for her child[ren].



Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020       Page 9 of 16
        121. The [Children] need[] a safe, stable, secure and permanent
             environment in order to thrive. Mother has not shown the
             inclination or the ability to provide the [Children] with
             such an environment and has not demonstrated that she is
             able to provide a home free of abuse or neglect for the
             [Children]. Mother’s habitual patterns of conduct support
             the substantial probability of future neglect or deprivation
             of the [Children].


        122. Termination of the parent/child relationship between
             Mother and the [Children] is in the best interest of the
             [Children].


        123. [DCS] has a satisfactory plan for the care and treatment of
             the [Children], which includes adoption. An alternative
             satisfactory plan for the care and treatment of the
             [Children] includes reunification with Father.


                                                   ***


        134. Father’s conditions have changed since the outset of the
             CHINS case. Father now has stable housing and has
             shown that he is financially capable of supporting the
             [Children]. Father has established and maintained a
             relationship with the [Children]. Father is visiting
             consistently with the [Children] and wishes to obtain
             custody of the [Children]. Father is willing and able to
             provide for the [Children’s] needs.


                                                   ***


        137. The [Children have] been in [their] current placement with
             Ashley Geheb for the majority of the time spent out of
             [their] parents’ care. [They are] strongly bonded to [their]

Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020    Page 10 of 16
                        placement and know[] it as [their] home. The [Children’s]
                        need for permanency is a factor in determining whether
                        termination is in the [Children’s] best interest. However, a
                        child’s need for immediate permanency is not reason
                        enough to terminate parental rights where the parent has
                        an established relationship with his child and has taken
                        positive steps toward reunification.


               138. Termination of Father’s parental rights here does not serve
                    the best interest of the [Children]. Father and [the
                    Children] share a bond and the [Children] know[] Father
                    as [their] “dad.” Ms. Geheb has provided the [Children]
                    with a caring, stable home for an extended length of time,
                    and the Court does not minimize the loving relationship
                    that she has with the [Children]. However, a parent’s
                    constitutional right to raise his own child may not be
                    terminated solely because there may be a better home
                    available for the child.


       Appealed Order p. 9-12 (internal citations omitted). Mother now appeals.


                                      Discussion and Decision
                                        I. Standard of Review
[19]   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 of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020       Page 11 of 16
       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

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

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


[20]   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;
       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020           Page 12 of 16
               (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.


       DCS must prove the alleged circumstances by clear and convincing evidence.

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


                                             II. Best Interests
[21]   In this case, we choose to turn first to DCS’s obligation to prove, by clear and

       convincing evidence, that termination of the parent-child relationship is in the

       Children’s best interests. To determine what is in the best interests of the

       Children, we must examine the totality of the circumstances. In re A.W., 62

       N.E.3d 1267, 1275 (Ind. Ct. App. 2016).




       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020            Page 13 of 16
[22]   Mother has undeniably struggled over the years. She has battled issues of

       substance abuse, domestic violence, and mental health, and has progressed so

       much on these issues that they are no longer a concern. She is bonded to the

       Children and, while not always perfect (though we wonder which parents are?),

       she has generally showed appropriate and loving parenting skills.


[23]   Therefore, at the time of the termination hearing, the only lingering issue was

       Mother’s inability to find stable housing. It is evident that she has been given

       many resources and a great deal of help with these issues, but by the time of the

       termination hearing, while Mother had stable, full-time employment,8 she had

       not yet secured stable housing for herself and the Children. We must

       acknowledge that her patterns of conduct over the years could lead to a

       reasonable conclusion that she is not likely to achieve and maintain success in

       these areas.


[24]   We must also acknowledge, however, the many barriers that have been, and

       continue to be, in the middle of her path to success. Her seizure disorder

       renders her unqualified for many of the most stable factory jobs. It also

       prevents her from driving, meaning that she is wholly reliant on public

       transportation. The childcare arrangements that DCS helped her find required

       six hours of travel each day, meaning that Mother had to decrease her hours to




       8
         The trial court noted that Mother had not provided proof of her employment at Wendy’s to DCS, though
       the FCM admitted that she had not requested that verification. Tr. Vol. II p. 134. Furthermore, no one at
       the hearing questioned whether she had, in fact, acquired and maintained that job.

       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                          Page 14 of 16
       a point that she was only a part-time employee. She does not have a high

       school diploma or G.E.D. She has a prior felony conviction, which makes

       finding housing very challenging.


[25]   It may be that in a vacuum, the evidence in the record related to Mother’s

       history of housing and employment, as well as her reluctance or unwillingness

       to fully take advantage of the services in place would support a termination

       order. But here, the time she spends with her children is appropriate and there

       is no reason that visitation could not continue.9 Normally, we would focus on

       the length of time a CHINS case has been open—here, a relatively lengthy four

       years—and conclude that the Children deserve permanency. In this case,

       however, terminating Mother’s parental rights does not achieve permanency for

       the Children because the trial court denied the petition to terminate Father’s

       parental rights. In other words, even after the termination of Mother’s rights,

       the Children remained in kinship care, with a possibility that they will reunify

       with Father.


[26]   The involuntary termination of parental rights is “the most extreme measure

       that a court can impose and is designated only as a last resort when all other

       reasonable efforts have failed.” In re N.Q., 996 N.E.2d 385, 391 (Ind. Ct. App.




       9
         We acknowledge the caselaw providing that it is not per se erroneous to terminate the rights of one parent
       but not the other. Z.B. v. Ind. Dep’t of Child Servs., 108 N.E.3d 895, 903 (Ind. Ct. App. 2018), trans. denied. In
       cases where the child’s well-being suffers when visiting with the parent whose rights were terminated
       (because of, for example, substance abuse or serious mental health issues), we can see why this course of
       action might possibly be appropriate. But in the case before us, the Children are bonded to Mother, her
       parenting is appropriate, and there are no safety concerns related to the time they spend together.

       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020                                 Page 15 of 16
       2013). In this case, DCS explicitly concedes that “[t]here are other ways the

       court could have potentially structured or set out the plan of care for Child[ren]

       given that it did not terminate Father’s rights” and that “there may be less

       restrictive means than termination . . . .” Appellee’s Br. p. 29. If there are

       “other ways” the Children’s well-being can be assured and “less restrictive

       means” of achieving that than terminating their relationship with their mother,

       then the judicial system is obligated to explore those options before arriving at

       the last resort of termination.


[27]   Even though Mother was not in a place at the time of the termination hearing

       where she was able to be a safe and appropriate caregiver for the Children, we

       simply cannot conclude that termination is in their best interests so long as

       reunification with Father is an option. There is no reason whatsoever that

       Mother cannot continue to spend time with her Children while they are in

       kinship care or, if they are reunified with Father, once they are in his care.

       Obviously, if the situation reaches a point where reunification with Father is no

       longer an option and permanency for the Children can be achieved, the analysis

       would change. But at this point, it is not in their best interests to impose the

       most extreme measure possible when there are less restrictive options available.

       Therefore, we find that the trial court’s order granting the termination petition

       was erroneous.


[28]   The judgment of the trial court is reversed and remanded.


       Riley, J., and Brown, J., concur.

       Court of Appeals of Indiana | Opinion 19A-JT-1857 | January 23, 2020      Page 16 of 16
