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

• Court: Indiana Court of Appeals
• Decided: October 4, 2018
• Docket: 18A-JT-585
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 04 2018, 9:14 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mary P. Lake Curtis T. Hill, Jr. Lake Law Office Attorney General of Indiana LaPorte, Indiana Katherine A. Cornelius Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the October 4, 2018 Parent-Child Relationship of Court of Appeals Case No. A.S., M.M., and T.S. (Minor 18A-JT-585 Children) and Appeal from the LaPorte Circuit J.M. (Mother), Court The Honorable Thomas J. Appellant-Respondent, Alevizos, Judge v. The Honorable W. Jonathan Forker, Magistrate Indiana Department of Child Trial Court Cause Nos. Services, 46C01-1606-JT-213 46C01-1606-JT-214 Appellee-Petitioner. 46C01-1606-JT-215

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 1 of 11 Mathias, Judge.

[1] The LaPorte Circuit Court granted the Department of Child Services’s (“DCS”)

petition to terminate J.M.’s parental rights to her three minor children. J.M.

appeals and argues that there was insufficient evidence to support the trial

court’s order terminating her parental rights.

[2] We affirm.

Facts and Procedural History [3] Three of J.M.’s four children are the subject of these termination proceedings:

M.M. born in February 2005, T.S. born in July 2006, and A.S. born in

February 2008.1 The fourth child now resides with his biological father.

[4] Until the fall of 2014, Mother and the children lived in White County. DCS

investigated multiple allegations of abuse while the family lived in White

County. DCS continued their involvement with the family after they moved to

LaPorte County, and J.M. agreed to an informal adjustment because she

wanted to receive assistance for her addiction issues. J.M. was participating in a

suboxone program, and she agreed to participate in urine screens, parenting

education, and case management services.

[5] J.M. was dismissed from the suboxone program in March 2015. J.M. stopped

communicating with DCS and refused to submit to a drug screen. Eventually, a

1 M.M.’s, T.S.’s, and A.S.’s biological father is deceased.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 2 of 11 DCS caseworker was able to speak to one of the children at school, and she

learned that the children were being disciplined inappropriately by J.M.’s

boyfriend.

[6] DCS removed all four children from J.M.’s home in May 2015 due to

allegations of neglect. Specifically, DCS discovered that J.M.’s home lacked

electricity, the children did not have adequate food, J.M.’s boyfriend was using

a belt to discipline the children, and the landlord was planning to evict the

family from the home. J.M. finally submitted to a drug screen and tested

positive for THC and methadone.

[7] A Child(ren) In Need of Services petition (“CHINS”) was filed shortly

thereafter, and on June 24, 2015, the children were adjudicated CHINS. J.M.

admitted that the children were CHINS. In March 2016, DCS moved to dismiss

the CHINS adjudication with regard to J.M.’s youngest child because his father

had been granted custody in a related proceeding in LaPorte Superior Court.

[8] J.M. has struggled with drug abuse since she was approximately ten years old.

J.M. is addicted to opiates and has used heroin. She also has a number of health

conditions requiring numerous prescription medications. J.M. has participated

in a methadone clinic and a suboxone program to address her addiction to

opiate drugs to no avail.

[9] During the first few months of the CHINS proceedings, J.M. made little

progress and failed to keep in contact with case managers. When J.M. met with

her service providers, she expressed interest in working on issues, but she could

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 3 of 11 not retain what she had learned. J.M. failed to follow through on finding

employment or housing. J.M.’s application for disability social security benefits

was denied and she failed to appeal the decision. J.M. was encouraged to seek

in-patient treatment for her drug abuse, but she chose to enroll in a methadone

program.

[10] In October 2015, J.M. was accepted into a shelter called the Caring Place. She

made significant progress for approximately three months while she resided at

the shelter. Caring Place provided substance abuse treatment and other

programs that assisted J.M. in addressing her anger, parenting, and mood

issues. J.M. obtained employment, and her visits with the children proceeded

from supervised to partially supervised. DCS planned to allow J.M. to start

overnight visitation with the children toward the end of December 2015.

[11] However, in early January 2016, J.M. was evicted from the Caring Place for her

third violation of possession of an e-cigarette, which was against the shelter’s

rules. J.M.’s visits with the children were returned to fully supervised. J.M. also

lost her job and resumed living with her former boyfriend. Once again, J.M.

stopped communicated with her service providers.

[12] In January 2016, J.M. was accepted into another shelter, Day Spring. Shortly

thereafter, J.M. had a positive drug screen. J.M. was insistent that she had not

used illegal substances and took two additional drug screens that day, which

were negative. However, Day Spring would not allow J.M. to continue to

reside at the shelter because she often fell asleep during shelter programming.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 4 of 11 [13] Thereafter, J.M. did not have a stable home and her participation in services

became inconsistent. She attended visits with the children but was often late

and would fall asleep during the visit. She also refused to submit to urine

screens after visits. At one of her last visits with the children, J.M. told them she

had a dream in which the entire family was violently murdered. J.M. refused a

drug screen after the visit. J.M. also missed the next scheduled visitation.

[14] In March 2016, J.M. was arrested for theft and incarcerated for twenty-nine

days. After she was released from jail, J.M.’s case manager had trouble

contacting her, and J.M. would not participate in random drug screens. DCS

requested that the CHINS court suspend J.M.’s visits with the children because

caseworkers felt that she needed to address her mental and emotional health.

The CHINS court agreed and suspended J.M.’s visits with the children. The

court ordered that J.M. would not have visitation with the children until she

attended at least three counseling sessions and her counselor recommended that

visits with the children should resume.

[15] J.M. participated in one counseling session between March and July 2016. She

began a suboxone program in June 2016. At a July 6, 2016 hearing, the trial

court found that J.M. had not complied with the case plan since the last

hearing, had not improved her ability to parent the children, her visitation with

the children was suspended, and she had not cooperated with DCS. Therefore,

the court ordered J.M. to participate in an inpatient drug treatment program.

J.M. chose a treatment center, and DCS provided transportation to the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 5 of 11 admissions interview. J.M. checked herself out of the treatment center after two

weeks before the program was complete.

[16] On September 7, 2016, DCS filed a petition to involuntarily terminate J.M.’s

parental rights to the children. In October 2016, the trial court ordered services

suspended except for drug screens because J.M. had not complied with services,

had not completed inpatient drug treatment, and had not participated in the

services required before visitation with the children could resume.

[17] The termination fact-finding hearing was held on December 2, 2016, January

23, 27, and 30, 2017. For reasons not apparent in the record, the trial court did

not issue its findings of fact and conclusions of law until January 31, 2018. The

trial court terminated J.M.’s parental rights after concluding termination was in

the children’s best interests and

[t]here is a reasonable probability that the conditions that resulted in the child[ren]’s removal or the reasons for placement outside the parent’s home will not be remedied, and/or there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child[ren].

Appellant’s App. p. 50. J.M. now appeals.

Termination of Parental Rights [18] We have consistently noted that the purpose of terminating parental rights is

not to punish parents but instead to protect their children. In re S.P.H., 806

N.E.2d 874, 880 (Ind. Ct. App. 2004). Although parental rights have a

constitutional dimension, the law allows for the termination of such rights Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 6 of 11 when the parents are unable or unwilling to meet their responsibilities as

parents. Id. Indeed, the parent’s interests must be subordinated to the children's

interests in determining the proper disposition of a petition to terminate

parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).

[19] The termination of parental rights is controlled by Indiana Code section 31-35-

2-4(b)(2), which provides that a petition to terminate parental rights must allege:

(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.

[20] The burden is on DCS to prove each element by clear and convincing evidence.

Ind. Code § 31-37-14-2; G.Y., 904 N.E.2d at 1260. As Indiana Code section 31-

35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 7 of 11 only one prong of that subsection has been established by clear and convincing

evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). If the court

finds the allegations in a petition are true, the court shall terminate the parent-

child relationship. I.C. § 31-35-2-8(a). If the court does not find that the

allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).

[21] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

2011). We neither reweigh the evidence nor assess witness credibility. Id. We

consider only the evidence and reasonable inferences favorable to the trial

court’s judgment. Id. In deference to the trial court's unique position to assess

the evidence, we will set aside a judgment terminating a parent-child

relationship only if it is clearly erroneous. Id. Clear error is that which leaves us

with a definite and firm conviction that a mistake has been made. J.M. v. Marion

Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.

denied.

[22] Indiana Code section 31-35-2-8(c) provides that the trial court “shall enter

findings of fact that support the entry of the conclusions required by subsections

(a) and (b)” to either terminate a parent-child relationship or to dismiss the

termination petition. When the trial court enters such findings and conclusions

of law, we apply a two-tiered standard of review. A.D.S. v. Indiana Dep’t of Child

Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. We first

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

determine whether the findings support the judgment. Id. “Findings are clearly

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 8 of 11 erroneous only when the record contains no facts to support them either

directly or by inference.” Id. (quoting Quillen v. Quillen, 671 N.E.2d 98, 102

(Ind. 1996)). If the evidence and inferences support the trial court’s decision, we

must affirm. Id.

[23] J.M. argues that the evidence was insufficient to support the trial court’s finding

that there is a reasonable probability that continuation of the parent-child

relationship poses a threat to the well-being of the children. J.M. acknowledges

that her efforts after leaving the Caring Place shelter in January 2016 were

sporadic but argues that she has a strong bond with the children. She also

claims that her housing was stable and adequate, and DCS did not evaluate her

housing situation after she was released from jail in May 2016.

[24] As we address J.M.’s argument, we initially observe that a trial court need not

wait until a child is irreversibly influenced by a deficient lifestyle such that his

physical, mental, and social growth is permanently impaired before termination

of the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.

2002). And to evaluate whether continuation of the parent-child relationship

poses a threat to the child, a trial court “should consider a parent’s habitual

pattern of conduct to determine whether there is a substantial probability of

future neglect or deprivation” while also judging a parent’s fitness to care for his

child as of the time of the termination proceedings, taking into consideration

evidence of changed conditions. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App.

2012).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 9 of 11 [25] Throughout the CHINS and termination proceedings, J.M. failed to address her

substance abuse issues and tested positive for methadone and THC on multiple

dates. DCS provided numerous services to assist J.M. over the course of these

proceedings, but she failed to take advantage of the offered services. J.M.’s

participation in services, including therapy, was sporadic. J.M. was unable to

maintain employment or stable housing for any significant length of time after

she was terminated from the Caring Place for rules violations. The children’s

behavior declined during visitations with J.M., therapeutic intervention at the

visits was ineffective, and the visitation negatively impacted the children. In the

months before J.M.’s visitation with the children was suspended, she appeared

to be impaired during visitation or failed to attend visitation. J.M. also failed to

complete parenting education and individual therapy. J.M.’s therapist

concluded that J.M. failed to make progress in her ability to parent the children.

[26] The DCS proved by clear and convincing evidence that J.M. failed to address

her substance abuse addiction, participate in therapy, maintain a stable home

and income, and improve her parenting skills. For all of these reasons, we

conclude that the trial court’s finding that continuation of the parent-child

relationship poses a threat to the children’s well-being is supported by sufficient

evidence.

[27] We therefore do not address J.M.’s arguments directed at the removal prong of

Indiana Code section 31-35-2-4-(b)(2)(B). See In re A.K., 924 N.E.2d at 220

(noting that section 4(b)(2)(B) is written in the disjunctive and that the trial

court is required to find that only one prong of subsection (b)(2)(B) has been

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 10 of 11 established). Also, J.M. does not challenge the trial court’s finding that

termination of her parental rights is in the children’s best interests, and

therefore, we do not address that issue on appeal.

Conclusion [28] J.M. has not established that she is entitled to relief on appeal. We therefore

affirm the trial court’s order terminating J.M.’s parental rights.

[29] Affirmed.

Bailey, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-585 | October 4, 2018 Page 11 of 11