In re Termination of the Parent-Child Relationship of H.M. (Minor Child), and A.M. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 20, 2018
• Docket: 18A-JT-27
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 20 2018, 7:18 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Don R. Hostetler Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Aaron T. Craft Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re Termination of the Parent- June 20, 2018 Child Relationship of Court of Appeals Case No. 18A-JT-27 H.M. (Minor Child), Appeal from the Marion Superior and Court Juvenile Division A.M. (Mother), The Honorable Marilyn Moores, Appellant-Respondent, Judge The Honorable Scott Stowers, v. Magistrate Trial Court Cause No. Indiana Department of Child 49D09-1702-JT-211 Services, et al. Appellee-Petitioner,

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 1 of 14 Altice, Judge.

Case Summary

[1] A.M. (Mother) appeals following the termination of her parental rights to her

daughter, H.M. (Child). On appeal, Mother argues that the evidence was

insufficient to support the termination of her rights.

[2] We affirm.

Facts & Procedural History

[3] Child was born on April 4, 2014, to Mother and J.F. (Father).1 During the

summer of 2015, Mother and Child lived with Mother’s boyfriend, D.

(Boyfriend D), who sold drugs out of the home. In July 2015, Mother went

through an informal adjustment with the Department of Child Services (DCS),

agreeing to move Child to maternal aunt’s home and keep Child away from

Boyfriend D.’s home. Shortly thereafter, Mother took Child back to Boyfriend

D’s house, which was raided by police while they were there.

[4] As a result, DCS removed Child from Mother’s care, and on July 30, 2015,

filed a child in need of services (CHINS) petition. Around that same time,

Mother tested positive for methamphetamine, marijuana, and cocaine. On

November 18, 2015, the trial court found Child to be a CHINS based on

1 Father consented to Child’s adoption and does not participate in this appeal. Thus, our recitation of the facts is limited to those pertinent to the termination of Mother’s parental rights.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 2 of 14 Mother’s admission that she needed assistance “in providing a stable home

environment free from substance abuse.” Exhibits at 6. The trial court entered a

parental participation order requiring Mother to participate in home based

therapy, home based case management, random drug screens, and intensive

out-patient therapy (IOP) for substance abuse and follow all recommendations.

[5] Mother has been a drug addict since at least the summer of 2015. She prefers

smoking methamphetamine, but also uses or has used marijuana,

benzodiazepines, ecstasy (Molly), and synthetic mushrooms. Mother’s drug

use is complicated by her mental health disorders, such as substance abuse

disorder, anxiety, and post-traumatic stress disorder. Throughout the course of

the CHINS proceedings, Mother used methamphetamines “[s]ometimes daily,

sometimes just weekly” to help her deal with “high anxiety and depression.”

Transcript at 74. Mother explained that methamphetamine helps her “to

basically block out memories and thoughts or emotions pretty much for days.”

Id. at 90.

[6] Since the start of the CHINS proceedings, Mother has had a couple of brief

periods of sobriety, but she has relapsed each time. In March 2016, Mother

spent five days in a detox program at Harbor Lights and then started IOP at

Families First. Mother followed that program up with a program focused on

relapse prevention. She also participated in a domestic violence program.

Mother did not complete these programs because she relapsed after Boyfriend

D died.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 3 of 14 [7] By late summer of 2016 Mother entered a substance abuse treatment center at

Volunteers of America (VOA) and stayed there for thirty-one days. Mother left

because she did not think she “was taking the most out of the program.” Id. at

76. After Mother relapsed, she re-enrolled in the VOA program on December

26, 2016, and stayed for twenty-eight days. At the end of this second stay,

Mother earned a certificate of completion, which was qualified because she did

not meet the program requirements for class attendance.

[8] Mother relapsed yet again after the permanency plan was changed from

reunification to adoption in February 2017. In April 2017, DCS provided

Mother with a referral to the Tara Treatment Center (Tara) for twenty-one

days. Mother completed the program with some difficulty, and a counselor at

Tara noted that Mother’s “prognosis to remain sober is guarded.” Exhibits at

49. The counselor also noted that it “was difficult to assess [Mother’s] level of

motivation and progress due to minimal participation and not completing her

assignments in a timely manner.” Id. Upon her release, Mother did not begin

IOP, but instead entered a program with Seeds of Hope, where she worked with

a therapist who specialized in domestic violence and trauma as well as relapse

prevention. Mother was discharged from Seeds of Hope after she learned she

was pregnant. Mother relapsed again after the termination of her pregnancy

and a domestic violence incident with her then-boyfriend, Boyfriend J. During

the termination fact-finding hearing, Mother admitted that she used

methamphetamine four days prior.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 4 of 14 [9] Mother’s participation in other services was spotty. Although Mother initially

struggled with accountability and time management while in a treatment

facility, her behaviors generally improved and she became attentive and

engaged in the programs. Outside of the highly structured environment of a

treatment facility, however, Mother’s participation in services was inconsistent.

Mother admitted that she has not demonstrated an ability to care for Child.

Although her interactions with Child during visits were generally positive,

Mother would often cancel visits due to her drug use because she did not want

Child to see her under the influence. While Mother was at Tara, she stopped

visits with Child because of the distance. Mother has not seen Child since

August 21, 2017. Due to Mother’s inconsistent visitation and resulting negative

impact on Child, Mother’s visitation with Child was suspended on August 24,

2017.

[10] In addition to her drug addiction, Mother has a history of domestic violence

and has been involved in two abusive relationships. When DCS first became

involved, Mother and Child were living with Boyfriend D, a drug dealer, who

was abusive toward Mother. After Child was removed from Mother’s care, she

attended domestic violence classes, but did not complete the program because

she relapsed after the death of Boyfriend D, with whom she was still

romantically involved. Mother next became involved with Boyfriend J, who

both physically and mentally abused Mother. Mother lived with Boyfriend J

until July 2017, when she obtained a protective order against him. Boyfriend

J’s abusive actions caused Mother to miss several visits with Child.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 5 of 14 [11] Mother’s employment during the proceedings has been both brief and sporadic.

In the year before the fact-finding hearing, Mother had been employed at

Toyota, working on an assembly line, and also at a fire/water restoration

company. Mother was not employed at the time of the hearing, but testified

that if Child were returned to her care that she planned to find work with the

restoration company or through a temporary service.

[12] At the time of the fact-finding hearing, Mother was living with her

grandmother, with whom she has a loving relationship. Mother’s grandmother,

however, has significant health concerns that make it difficult for her to be a

caregiver. Although there are no problems with the house itself, the concern

remains Mother’s drug use and those with whom Mother associates.

[13] Child was removed from Mother’s care when she was sixteen months old. For

the first year, Child was shuffled among different foster placements. Child has

been in her current placement with pre-adoptive foster parents since October

2016. The pre-adoptive foster home provides Child with a loving, stable, and

supportive environment, and Child is well bonded with the pre-adoptive foster

parents. The pre-adoptive foster parents are open to and supportive of

including Child’s great-grandmother, to whom Child is bonded and has

expressed a desire to see, in Child’s life.

[14] Angela Hardy, a home-based therapist, was assigned to work with Child in

April 2017 after Child displayed negative and fearful behaviors, including

accidents at school, nightmares, and feelings of separation anxiety from her

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 6 of 14 foster parents at night. Hardy has worked with Child twice a week and noted

that Child has a strong desire to please and a need for approval, which she

attributes to Child’s feelings of insecurity brought about by the situation. Hardy

noted that Child demonstrated marked improvement and stability after visits

with Mother ceased—she had fewer accidents, was “happier” and more

“carefree childlike.” Transcript at 49. In Hardy’s opinion, termination of

Mother’s parental rights is in Child’s best interest as Child needs permanency

and stability.

[15] Kay Ulery has been Child’s Guardian ad Litem (GAL) for more than two years

and has visited with Child on a monthly basis. Ulery has significant concerns

about Mother’s fitness to parent in light of Mother’s inconsistent participation

in services, unstable housing and employment situations, repeated cancellations

of visits, and her continuing drug use. Ulery testified that Child’s best interests

would be served by placement in a stable, permanent environment and that she

did not believe Child would benefit by giving Mother additional time to

complete services. Zack Inman became the family case manager (FCM) only a

month before the fact-finding hearing, but he reviewed the file and spoke with

the prior case FCM and service providers. FCM Inman believed that Mother

had failed to benefit from services as evidenced by the fact that she continues to

struggle with drug addiction and lacks a stable home environment. FCM

Inman also testified that giving Mother additional time would only delay the

permanency that Child needs. Both Ulery and FCM Inman testified that

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 7 of 14 Child’s best interests would be served by termination of Mother’s parental rights

and adoption by her foster parents.

[16] DCS filed a petition to terminate Mother’s parental rights on February 20,

2017. Fact-finding hearings on the termination petition were held on October

3, 10, and 25, 2017. On December 12, 2017, the trial court entered an order

terminating Mother’s parental rights to Child. Mother now appeals.

Additional facts will be provided as necessary.

Discussion & Decision

[17] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

and reasonable inferences most favorable to the judgment. Id. In deference to

the trial court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous.

In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[18] The trial court entered findings in its order terminating Mother’s parental rights.

When the trial court enters specific findings of fact and conclusions thereon, we

apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family &

Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

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

support the judgment. Id. “Findings are clearly erroneous only when the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 8 of 14 record contains no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

only if the findings do not support the court’s conclusions or the conclusions do

not support the judgment thereon. Id.

[19] We recognize that the traditional right of parents to “establish a home and raise

their children is protected by the Fourteenth Amendment of the United States

Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.

2008). In addition, a court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

[20] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, among other

things:

(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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 9 of 14 (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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child. I.C. § 31-35-2-

4(b)(2)(C).

[21] Mother challenges the court’s conclusions that DCS presented sufficient

evidence to establish that there is a reasonable probability the conditions

resulting in Child’s removal or continued placement outside Mother’s care will

not be remedied and that the continuation of the parent-child relationship poses

a threat to Child’s well-being. See I.C. § 31-35-2-4(b)(2)(B)(i), (ii). We note that

DCS was required to establish only one of the three requirements of subsection

(b)(2)(B) by clear and convincing evidence before the trial court could terminate

parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Here,

we focus our review on the requirements of subsection (b)(2)(B)(i).

[22] In determining whether there is a reasonable probability that the conditions

resulting in Child’s removal or continued placement outside the home will be

remedied, the trial court must judge a parent’s fitness to care for his or her child

at the time of the termination hearing, taking into consideration evidence of

changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans.

denied. The court must also evaluate the parent’s habitual patterns of conduct to

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 10 of 14 determine whether there is a substantial probability of future neglect or

deprivation of the child. Id. In conducting this inquiry, courts may consider

evidence of a parent’s prior criminal history, drug and alcohol abuse, history of

neglect, failure to provide support, and lack of adequate housing and

employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244,

1251 (Ind. Ct. App. 2002), trans. denied. The court may also consider the

parent’s response to the services offered through DCS. Lang v. Starke Cnty. Office

of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.

[23] In terminating Mother’s parental rights, the court found:

There is a reasonable probability that the conditions that resulted in the child’s removal and continued placement outside of the home will not be remedied by her mother. [Mother] has had over two years to address her substance abuse addiction and continues to relapse which has negatively impacted her ability to parent. Despite several attempts at substance abuse treatment she continues to use illegal substances and has used methamphetamine as recently as four days before this Termination Trial began.

Appellant’s Appendix at 27. Mother argues that the court’s finding in this regard

is not supported by clear and convincing evidence because the court did not

consider that Mother entered into an intensive, in-patient drug treatment

program just prior to the second day of the fact-finding hearing. Mother asserts

that her current treatment program was rigorous and afforded her a psychiatric

evaluation for treatment of PTSD, anxiety, and depression. Mother also asserts

that she now fully appreciates the importance of aftercare treatment. In

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 11 of 14 Mother’s view, the court should have waited to see if her most-recent efforts to

gain sobriety would prove successful before terminating her parental rights.

Mother’s request simply boils down to a request to reweigh the evidence.

[24] Child was initially removed and adjudicated a CHINS based on Mother’s

admission that she “need[ed] assistance in providing a stable home

environment free from substance abuse.” Exhibits at 6. DCS presented

overwhelming evidence that Mother is unlikely to remedy these conditions.

[25] Indeed, Mother has had more than two years to achieve and maintain sobriety,

but her efforts have proven unsuccessful. Although she has had brief periods of

sobriety while in treatment programs, her history shows that she relapses after

the structure is removed and life presents another challenge. Mother admits

that she has no control over her addiction and that she uses meth to deal with

stress. Mother agrees that she cannot care for Child when she is on meth and

she does not want Child to see her when she is high. Service providers

explained that a meth addict is not a fit parent because one cannot leave a four-

year-old child to fend for herself while the parent goes on a days-long meth

bender. Mother even testified that meth helps her “to basically block out

memories and thoughts or emotions pretty much for days.” Transcript at 90

(emphasis supplied).

[26] The overarching issue in this case is Mother’s addiction to meth and the

damaging impact her substance abuse has had on other aspects of Mother’s life

and Child’s stability and development. While Mother’s desire for sobriety is

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 12 of 14 commendable, she has not been able to maintain her sobriety time and time

again. Based on the evidence presented by DCS, the court reasonably

concluded that Mother’s last-ditch effort was unlikely to succeed in light of her

two-year history of substance-abuse treatment followed by relapses. The court’s

finding that Mother is unlikely to remedy the conditions that resulted in Child’s

removal and continued placement outside the home is supported by sufficient

evidence.

[27] Mother argues that the trial court’s conclusion that termination is in the best

interests of Child is clearly erroneous. In determining whether termination of

parental rights is in the best interests of a child, the trial court is required to look

beyond the factors identified by DCS and consider the totality of the evidence.

In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court

must subordinate the interest of the parent to those of the child, and the court

need not wait until a child is irreversibly harmed before terminating the parent-

child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798

N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

“[p]ermanency is a central consideration in determining the best interests of a

child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

previously held that the recommendations of the case manager and court-

appointed advocate to terminate parental rights, in addition to evidence that the

conditions resulting in removal will not be remedied, is sufficient to show by

clear and convincing evidence that termination is in the child’s best interests.”

In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 13 of 14 [28] The trial court concluded that termination was in Child’s best interests because

it “would allow her to be adopted into a stable and permanent home where her

needs will be safely met.” Appellant’s Appendix at 8. The court’s finding in this

regard is in line with the recommendation of Child’s home-based therapist,

GAL, and FCM, each of whom testified that Child needs permanency and that

termination of Mother’s parental rights is in Child’s best interests. Further, as

we concluded above, the court did not err in finding that the conditions

resulting in removal or continued placement outside the home will not be

remedied. The court’s conclusion that termination is in the best interests of

Child is not clearly erroneous.

[29] Judgment affirmed.

Najam, J. and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-27 | June 20, 2018 Page 14 of 14