                                                                                         FILED
                                                                                    08/31/2017, 10:23 am
                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




APPELLANT, PRO SE                                          ATTORNEY FOR APPELLEE
Roberta L. Renbarger                                       (MOTHER)
Fort Wayne, Indiana                                        Donald J. Frew
                                                           Fort Wayne, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Termination of the                              August 31, 2017
Parent-Child Relationship of                               Court of Appeals Case No.
W.M.L. and A.J.L.                                          02A03-1703-JT-479
R.R. (Guardian ad Litem),                                  Appeal from the Allen Superior
                                                           Court
Appellant-Petitioner,
                                                           The Honorable Charles F. Pratt,
        v.                                                 Judge
                                                           Trial Court Cause Nos.
E.L. (Mother), O.H. (Father), et                           02D08-1603-JT-53
                                                           02D08-1603-JT-54
al.,
Appellees-Respondents.




Pyle, Judge.




Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017                Page 1 of 13
                                         Statement of the Case
[1]   Guardian Ad Litem, Roberta Renbarger, (“GAL Renbarger”) appeals the trial

      court’s denial of the Department of Children’s Services’ (“DCS”) petition to

      terminate the relationship between parents, E.L. (“Mother”) and O.H.

      (“Father”), and their children, W.L. (“W.L.”) and A.H. (“A.H.”) (collectively

      “the children”). Concluding that the trial court did not err in denying DCS’s

      petition to terminate the parent-child relationships, we affirm the trial court’s

      judgment.


[2]   We affirm.


                                                      Issue
              Whether the trial court erred in denying DCS’s petition to
              terminate the parent-child relationships.


                                                       Facts
[3]   The evidence most favorable to the judgment reveals that Mother and Father

      are the parents of son, W.L., who was born in October 2008, and daughter,

      A.H., who was born in May 2012. Both children were removed from Mother

      and Father shortly after A.H.’s birth when it was discovered that Mother had

      used marijuana during her pregnancy and that the family was homeless. The




      Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 2 of 13
      children were adjudicated to be Children in Need of Services (“CHINS”), and

      both parents were court-ordered to participate in services.


[4]   The children were returned to their parents’ home in July 2013. However, in

      September 2013, the police arrested Father for battering Mother. The children

      were removed from the home and placed in foster care. Father was convicted

      of domestic battery and placed on probation until September 2014. He was also

      restrained, under a no-contact order, from having any contact with Mother.

      Both parents were ordered to refrain from criminal activity, maintain clean and

      appropriate housing, and cooperate with all service providers. Mother and

      Father were also ordered to obtain diagnostic assessments, obtain drug and

      alcohol assessments, enroll in and successfully complete home-based services

      programs, refrain from the use of alcohol and illegal drugs, and attend all visits

      with the children. Mother was further ordered to obtain and maintain

      employment and to enroll in non-violence counseling at the Center for

      Nonviolence. Father was also ordered to attend and complete a specific

      program at the Center for Nonviolence.


[5]   In March 2016, DCS filed a petition to terminate the parental relationship

      between Mother and Father and their children, W.L. and A.H.1 The trial court

      held five days of hearings from August to November 2016. Testimony at the




      1
        Mother and Father are also the parents of E.H., who was born in January 2016. At the time of the
      termination hearing, he had been adjudicated to be a CHINS but was not the subject of a termination
      petition.

      Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017                      Page 3 of 13
      hearings revealed that Father had completed a six-month batterer’s intervention

      program at the Center for Nonviolence in 2014 and had successfully completed

      the probation imposed following his domestic battery conviction. He had also

      completed a five-month substance abuse group program two weeks before the

      termination hearing. In addition, Father had worked for the same roofing

      company for several years.


[6]   The testimony further revealed that Mother had completed a five-month

      substance abuse program in 2013. She had also completed a program that had

      required her to complete applications for Social Security disability, food stamps,

      and Medicaid. At the time of the hearing, Mother was attending substance

      abuse counseling twice a week. She also had a full-time job with a lawn care

      service. Mother testified that although she still took prescribed methadone for

      pain for her physical ailments, including multiple sclerosis, hip dysplasia,

      rheumatoid arthritis, and osteoarthritis, she had not used illegal substances for

      the past year. According to Mother, she was “willing to do whatever it t[ook]

      to be better for [herself] so [she could] be better for [her] children.” (Tr. 114).


[7]   In addition, Mother and Father, who had been together for sixteen years, had

      recently gotten married and were living together in a three-bedroom house.

      Both parents regularly visited W.L. and A.H. Therapist Nicole Gaunt

      (“Therapist Gaunt”), who treated Mother and supervised the parents’ visitation

      with their children, testified that the children were “ecstatic” to see their parents

      and that W.L. had asked multiple times when he could “move back home with

      his mom and dad.” (Tr. 142). She also explained that the parents engaged in

      Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 4 of 13
       imaginary play with their children and made a “good team as parents.” (Tr.

       146). She recommended allowing the children to visit their parents at the

       parents’ home. Gaunt further testified that Mother had a home with Father

       and a job and was paying her bills. According to Gaunt, Mother’s life was as

       stable as it had ever been. Gaunt also testified that termination of the parent-

       child relationships would be detrimental to the children.


[8]    The children’s foster mother testified that Mother and Father had kept in

       regular communication with the children and that W.L. had a good bond with

       Father. She further testified that it was evident that Mother and Father loved

       their children.


[9]    DCS Family Case Manager Ashley Nichter (“Case Manager Nichter”) testified

       that Father had: (1) maintained contact with her; (2) always been employed;

       (3) never had a positive drug screen; (4) completed a diagnostic assessment; (5)

       completed counseling; (5) maintained stable and appropriate housing; and (6)

       completed a home-based services program. Nevertheless, she recommended

       terminating Mother’s and Father’s parental rights because she was concerned

       about Mother’s current methadone use and past drug abuse. She further

       acknowledged that Father had completed the required services but was

       concerned whether he had benefited from them.


[10]   GAL Renbarger also recommended terminating Mother’s and Father’s parental

       rights because she believed that Father had not benefited from the domestic

       violence program. However, GAL Renbarger further testified that she had


       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 5 of 13
       never met Mother, Father, W.L., or A.H. She had only met the children’s

       foster mother.


[11]   After hearing the evidence, the trial court issued a ten-page, single-spaced order,

       which provides, in relevant part, as follows:


               The parents’ ability to care for the children at the time of the
               Factfinding is determinative. (Rowlett v. Vanderburgh County Office
               of Family & Children, 841 N.E.2d 615 (Ind. Ct. App. 2006), trans.
               denied.) By the time of the close of the bifurcated Factfinding,
               the parents had demonstrated substantial progress with their
               services. The Father had remained drug and alcohol free. He
               had maintained his employment and had secured a safe and
               stable home. The Mother was involved in her therapies and had
               refrained from the use of non-prescribed controlled substances
               and/or illegal substances. They have been living together
               without any report of domestic violence. They have made
               substantial progress in therapeutic visitations with their children
               and were poised to participate in in-home supervised visits if
               referred by the Department. However, there was no evidence
               from any service provider that the children could not be safely
               returned to the care of the parents at the time evidence was
               closed. There was optimism by Therapist Nicole Gaunt that
               reunification could eventually be achieved. In determining
               whether or not the conditions that resulted in the children’s
               removal will be remedied[,] the Court may consider the parties’
               habitual patterns of conduct. (J.K.C. v. Fountain County
               Department of Child Welfare, 470 N.E.2d 88 (Ind. Ct. App. 1984).
               In this case, the Father has been able to demonstrate that he can
               provide for his children.

               The issue has been the Mother’s lack of cooperation with the
               Center for Non Violence services and her abuse of controlled
               substances. The Mother’s inability to manage her anger has also
               been a chronic issue that has frustrated reunification. The Court

       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 6 of 13
                notes, however, that she has recently begun to address her
                emotional challenges and has made progress in therapy. The
                Father has expressed his love for and his commitment to the
                children’s mother. They intend to remain together. The Father’s
                desire to remain with this wife is not sufficient to terminate his
                parental rights. (In re V.A., 51 N.E.3d 1140 (Ind. Sup. Ct. 2016).

       (App. 26). The trial court denied DCS’s petition to terminate the parent-child

       relationships, thereby determining that DCS had failed to meet its burden. In

       addition, the trial court ordered DCS to consider another permanency plan that

       did not permanently sever the children’s relationships with their parents. GAL

       Renbarger appeals.2


                                                        Decision
[12]   The traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment to the United States Constitution. In

       re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied. A

       parent’s interest in the care, custody, and control of his or her children is

       “perhaps the oldest of the fundamental liberty interests.” Bester v. Lake Cty.

       Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v.

       Granville, 530 U.S. 57, 65 (2000)). Indeed, the parent-child relationship is “one

       of the most valued relationships in our culture.” Id. We recognize, however,

       that parental interests are not absolute and must be subordinated to the child’s

       interests in determining the proper disposition of a petition to terminate



       2
        DCS filed a notice of intent not to file an appellee’s brief. Mother filed an appellee’s brief but did not
       challenge the GAL’s authority to appeal in place of DCS. Father did not file an appellant’s brief.

       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017                            Page 7 of 13
       parental rights. Id. Thus, “parental rights may be terminated when the parents

       are unable or unwilling to meet their parental responsibilities.” Id. (quoting In

       re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2014), trans. denied).


[13]   When reviewing the termination of parental rights, we consider only the

       evidence and reasonable inferences that are most favorable to the judgment.

       Bester, 839 N.E.2d at 147. We do not reweigh the evidence or judge witness

       credibility. Id. We also give due regard to the trial court’s opportunity to judge

       the credibility of the witnesses firsthand. K.T.K. v. Ind. Dep’t of Child Servs., 989

       N.E.2d 1225, 1230 (Ind. 2013).


[14]   Before an involuntary termination of parental rights may occur, DCS is

       required to allege and prove, among other things:

               (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

       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 8 of 13
                         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.

       IND. CODE § 31-35-2-4(b)(2).


[15]   The burden of proof in termination of parental rights cases is one of “clear and

       convincing evidence.”3 Bester, 839 N.E.2d at 147. In other words, if the State



       3
         In its notice of intent, DCS conceded that if it had challenged the trial court’s denial of its petition to
       termination the parent-child relationships in this case, it would be appealing a negative judgment and would
       need to show an error of law to prevail. DCS further acknowledges that it could not meet its burden. DCS is
       correct. In Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App.2012), we explained
       that:

                         A judgment entered against a party who bore the burden of proof at trial is a
                         negative judgment. Garling v. Ind. Dep’t of Natural Res., 766 N.E.2d 409, 411
                         (Ind. Ct. App. 2002), trans. denied. On appeal, we will not reverse a negative
                         judgment unless it is contrary to law. Mominee v. King, 629 N.E.2d 1280, 1282
                         (Ind. Ct. App. 1994). To determine whether a judgment is contrary to law, we
                         consider the evidence in the light most favorable to the appellee, together with

       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017                            Page 9 of 13
       fails to prove any one of these four statutory elements, then it is not entitled to a

       judgment terminating parental rights. Angela B. v. Lake Cty. Dep’t of Child Servs.,

       888 N.E.2d 231, 239 (Ind. Ct. App. 2008), trans. denied.


[16]   When the trial court’s judgment contains specific findings of fact and

       conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

       N.E.3d 625, 628 (Ind. 2016). First, we determine whether the evidence

       supports the findings, and second, we determine whether the findings support

       the judgment. Id. We will set aside a trial court’s judgment terminating a

       parent-child relationship only if it is clearly erroneous. Id. Findings are clearly

       erroneous only when the record contains no facts or inferences to be drawn

       therefrom that support them. In re A.G., 6 N.E.3d 952, 957 (Ind. Ct. App.

       2014). A judgment is clearly erroneous if the findings do not support the trial

       court’s conclusions or the conclusions do not support the judgment. Id.




                all the reasonable inferences to be drawn therefrom. J.W. v. Hendricks Cnty. Office of
                Family & Children, 697 N.E.2d 480, 482 (Ind. Ct. App. 1998). A party appealing from a
                negative judgment must show that the evidence points unerringly to a conclusion
                different from that reached by the trial court. Mominee, 629 N.E.2d at 1282.

       However, DCS apparently believes that because GAL Renbarger was not the petitioner in this case, the
       contrary to law standard does not apply to her appeal. We need not determine whether the contrary to law
       standard applies to an appellant who was not a petitioner because: (1) Mother and Father do not argue that
       they are entitled to this less stringent standard of review; and (2) we affirm the trial court’s denial of the
       termination petition even when we apply the more stringent standard.




       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017                         Page 10 of 13
[17]   Here, GAL Renbarger argues that the trial court erred in denying DCS’s

       termination petition. She specifically contends that the “dispositive

       determination is whether the conditions that supported the children being

       removed or the reasons for out of home placement have been remedied.”

       (GAL Renbarger’s Br. 21). According to GAL Renbarger, DCS met its burden

       to prove that there was a reasonable probability that the conditions that resulted

       in the children’s placement outside the home would not be remedied.


[18]   In determining whether the conditions that resulted in a child’s removal or

       placement outside the home will not be remedied, we engage in a two-step

       analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

       conditions that led to removal or placement outside the home and then

       determine whether there is a reasonable probability that those conditions will

       not be remedied. Id. The second step requires trial courts to judge a parent’s

       fitness at the time of the termination proceeding, taking into consideration

       evidence of changed conditions and balancing any recent improvements against

       habitual patterns of conduct to determine whether there is a substantial

       probability of future neglect or deprivation. Id. Habitual conduct may include

       parents’ prior criminal history, drug and alcohol abuse, history of neglect,

       failure to provide support, and a lack of adequate housing and employment.

       A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

       trans. denied. The trial court may also consider services offered to the parent by

       DCS and the parent’s response to those services as evidence of whether

       conditions will be remedied. Id.


       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 11 of 13
[19]   Here, our review of the evidence most favorable to the trial court’s judgment

       reveals that the children were first removed from Mother and Father in 2012

       because Mother had used marijuana during her pregnancy with A.H. and the

       family was homeless. The children were returned to the home but then

       removed again in 2013 after Father battered Mother.


[20]   Evidence at the termination hearing revealed that at the time of the hearing,

       Father had completed a batterer’s intervention program as well as the probation

       imposed following his domestic battery conviction. He had also completed a

       substance abuse group and had worked for the same roofing company for

       several years. He had never had a positive drug screen. Mother had also

       completed court-ordered programs and had a full-time job with a lawn care

       service. She had not used illegal substances for the past year and was willing to

       do “whatever it took” to be a better parent. (Tr. 114).


[21]   Further, Mother and Father, who had been together for sixteen years, had

       recently gotten married and were living together in a three-bedroom home.

       Both parents regularly visited W.L. and A.H. Therapist Gaunt, who supervised

       the visitation, explained that the children were “ecstatic” to see their parents,

       and W.L. had asked multiple times when he could “move back home with his

       mom and dad.” (Tr. 142). She also explained that the parents engaged in

       imaginary play with their children and made a “good team as parents.” (Tr.

       146). She recommended allowing the children to visit their parents at the

       parents’ home. Therapist Gaunt further testified that Mother had a home with

       Father and a job and was paying her bills. According to Therapist Gaunt,

       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 12 of 13
       Mother’s life was as stable as it had ever been. Therapist Gaunt also testified

       that termination of the parent-child relationships would be detrimental to the

       children.


[22]   Because this evidence supports the trial court’s conclusion that DCS did not

       meet its burden to prove that there was a reasonable probability that the

       conditions that resulted in the children’s removal would not be remedied, the

       trial court did not err in denying DCS’s petition to terminate the parent-child

       relationships. GAL Renbarger’s arguments are nothing more than a request

       that we reweigh the evidence, which we cannot do. See Bester, 839 N.E.2d at

       147.


[23]   Affirmed.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 02A03-1703-JT-479 | August 31, 2017   Page 13 of 13
