MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 02 2018, 9:59 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Emily A. Fehr Curtis T. Hill, Jr. Public Defender Attorney General of Indiana Fortville, Indiana Robert J. Henke Nicole A. Zelin Abigail Recker Pritzke & Davis, LLP Deputy Attorney General Greenfield, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re The Termination of The July 2, 2018 Parent-Child Relationship of: Court of Appeals Case No. Ca.B. and C.B. (Minor Children), 30A05-1711-JT-2788 and Appeal from the Hancock Circuit Court T.B. (Mother), Appellant-Respondent, The Honorable Jeffrey Eggers, Judge v. The Honorable R. Scott Sirk, Court Commissioner The Indiana Department of Child Services, Trial Court Cause Nos. Appellee-Petitioner. 30C01-1704-JT-129 30C01-1704-JT-130
Barnes, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 1 of 24 Case Summary [1] T.B. (“Mother”) appeals the termination of her parental rights to her children,
C.B. and Ca.B. We affirm.
Issue [2] The restated issue before us is whether there is sufficient evidence to support the
termination of Mother’s parental rights.
Facts [3] Mother gave birth to C.B. on August 3, 2009, and to Ca.B. on July 13, 2013.
C.B.’s father is C.H.1 Ca.B.’s father is T.W.2 On January 28, 2016, the
Hancock County Office of the Department of Child Services (“DCS”) received
a report alleging that Mother was abusing heroin and methamphetamine,
neglecting the children, and failing to properly supervise them. DCS family
case manager Lauren Johnson made an unannounced visit to Mother and her
boyfriend, T.W., and “observed [them] to be under the influence.” App. Vol. II
p. 3. Mother and T.W. “were sweating profusely,” “had scabs on their faces
1 C.H. is not a party to this appeal. He was incarcerated at the outset of the underlying CHINS action and could not take custody of C.B. C.B. was placed with C.H.’s mother, Roxann Swann, during the pendency, and she intends to adopt C.B. 2 T.W.’s parental rights as to Ca.B. remain in effect. DCS is “giving him more time” because “[h]e has started to turn things around and he has been working on sobriety”; “he’s been getting services and he’s been consistently reporting to those services, he’s been attending the meetings, [and] he’s been in compliance.” Tr. Vol. II pp. 94, 96.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 2 of 24 and arms,” and “there was a distinct odor in the master bedroom . . . that is
similar to the smell of methamphetamine.” Supp. Tr. Vol. II p. 10.
[4] Mother subsequently tested positive for methamphetamine, amphetamine,
opiates, and THC. C.B. told Johnson that “he often has to take care of Ca.B.”;
that Mother and T.W. are “always in their bathroom and the door is locked”;
he “has to feed [Ca.B.] and stay with him”; and “that he does not feel safe with
[Mother] and T.W.” Id. at 12. DCS removed the children from Mother’s care.
[5] On February 2, 2016, DCS filed petitions alleging that C.B. and Ca.B. were
Children in Need of Services (“CHINS”). The trial court conducted an initial
and fact-finding hearing on February 11, 2016, and entered these findings:
e) Mother and Father admit that [C.B.] is a Child in Need of Services;
f) Mother used illegal drugs while [C.B.] was in her care and custody;
*****
i) Due to her illegal drug use, Mother could not adequately supervise [C.B.];
j) Mother continues to struggle with substance use;
k) [C.B.] needs services that would not otherwise be provided or accepted without the coercive intervention of the Court; . . . .
App. Vol. II p. 4. The trial court made identical findings as to Ca.B. Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 3 of 24 [6] The trial court conducted a dispositional hearing on April 6, 2016. In its
ensuing order, the trial court found that the children should remain under
DCS’s wardship. Under DCS’s case plan, Mother was to: (1) maintain contact
with DCS and to provide updates regarding her contact information,
household, employment, and criminal charges, if any; (2) allow
scheduled/unscheduled DCS visits to assess her parenting; (3) keep
appointments with DCS, the children’s court-appointed special advocate
(“CASA”), and their service providers; (4) obtain and maintain housing as well
as sufficient means of income or support to raise the children; (5) ensure and
actively participate in home-based counseling; (6) complete substance abuse
and parenting assessments and follow all service providers’ recommendations;
(7) submit to random drug screens upon request; (8) abstain from possessing or
using illegal drugs; (9) comply with supervised visitation; and (10) provide a
safe, secure, abuse- and neglect-free environment for the children.
[7] During the CHINS pendency, DCS referred Mother to Medicaid, out-of-home
placement, supervised visitation, sibling visitation, individual therapy, random
drug screens, and substance abuse treatment services. Mother, however, grew
increasingly apathetic and “was unsuccessfully closed out of all services due to
non-compliance.” Id. at 6. In the twenty-month CHINS pendency, she visited
the children only once; consistently failed to comply with DCS’s case plan; and
failed to maintain contact with DCS. Her counsel was allowed to withdraw
“due to [M]other’s lack of participation.” Id.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 4 of 24 [8] The record reveals that, after various review hearings, permanency hearings,
and hearings on motions for rule to show cause, the trial court consistently
found Mother’s efforts to be lacking as follows: Mother (1) “has not complied
with the child[ren]’s case plan”; (2)” has not complied with the dispositional
order”; (3) “has not maintained contact with the Department”; (4) “has not
engaged in services as ordered”3; (5) “has not provided any changes in address,
household composition, employment or contact information” such that as of
January 25, 2017, DCS did “not have a current address or phone number for
Mother” and was “unable to verify that Mother’s home is suitable, safe and
stable for the children; (6) has “provided false information to the DCS that she
completed an intensive outpatient treatment program, but the alleged service
provider had not provided that treatment for mother, and [M]other had failed to
attend the scheduled intake appointment”; (7) was “unsuccessfully discharged
from supervised visitation due to noncompliance”; (8) “had open referrals for
substance abuse treatment since 2/2/2016, but has not completed any
treatment programs”; (9) “was unsuccessfully discharged from home-based
casework, individual therapy, and parenting education due to non-compliance”;
(10) “never completed her clinical interview and assessment”; (11) “has not
provided consistent drug screens”; (12) “has done nothing [in the twenty-month
pendency] to improve her ability to parent the child safely”; (13) was
3 Mother contacted the family case manager in July 2016 following a hearing in which she was found in contempt and admonished to communicate with DCS. “However, when she would contact the family case manager, she would typically provide an excuse as to why she was not able to come in to submit a drug screen.” App. Vol. II p. 10.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 5 of 24 unsuccessfully discharged from home-based casework and home-based therapy
programs due to noncompliance; (14) failed to complete a clinical interview and
assessment; (15) no-call-no-showed for multiple appointments with the family
case manager; (16) “has not provided any proof of any legal and stable sources
of income” such that DCS “is unable to determine if Mother has sufficient
income to financially support her children”; (17) provided no drug screens from
April 2016 until July 2017, after which she “provided a few drug screens” but
again failed to submit to drug screens as requested after July 20, 2017, such that
DCS “[wa]s not able to verify that Mother [wa]s not currently using,
manufacturing, trading, selling, possessing or distributing any illegal controlled
substances”; (18) was unsuccessfully discharged from parenting education for
noncompliance; (19) “was discharged from supervised visitation due to
noncompliance”; and (20) “[d]ue to Mother’s lack of compliance and failure to
appear to court hearings throughout her case,” she was unsuccessfully
discharged from all services [and] cease of services was ordered on
04/12/2017.”4 App. Vol. II pp. 6-7.
4 DCS referred Mother to the following non-exhaustive list of services during the pendency; she was unsuccessfully discharged from each one for non-compliance: (1) LifeLine Youth and Family Services for Supervised Visitation on February 8, 2016; (2) LifeSolutions for home-based case work and individual therapy on April 6, 2016; (3) Volunteers of America for inpatient substance abuse treatment on February 2, 2016; (4) LifeLine Youth and Family Services for parenting education on April 6, 2016; and (5) Indianapolis Treatment Center.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 6 of 24 [9] DCS’s wardship of the children resulted from Mother’s drug abuse. During the
twenty-month pendency of the CHINS action, she was arrested for dealing ten
or more grams of methamphetamine. The trial court’s findings state,
Mother is currently facing felony 2 charges under cause 49G21- 1703-F2-9974 for dealing in Methamphetamine Manufacture/Deliver/Finance - 10 or more grams. Mother’s co- defendant is also facing charges for dealing. The prosecutor indicated that the co-defendant is an illegal [alien] in this country and is facing multiple charges on the federal level due to his illegal [alien] status as well as his drug charges. Mother made phone calls while incarcerated. Those calls were to her associates. She told her associates that if they did not bail her out of jail, she would tell law enforcement everything she knows about the drug business. Mother was subsequently bailed out. The prosecutor informed DCS that these individuals are not your “run-of-the-mill pot smokers” but are trafficking large amounts of drugs into our community. Mother’s involvement in a dangerous criminal enterprise, along with her drug use, pose a safety threat to her, as well as any children that may be in her care. At this time, the Department does not believe it is safe or appropriate to allow [M]other to have access to her children, as their safety and best interest is paramount in this CHINS matter.
Id. at 9.
[10] Although Mother often stated that she wanted to reunite with the children, she
failed to undertake the necessary steps to effect reunification. The trial court’s
findings state,
4. Mother has been given the opportunity by the Court and DCS to re-engage in services in an attempt to reunify with her child[ren]. DCS has offered random drug screens and
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 7 of 24 scheduled a case plan conference to discuss further services. Mother has not come in to submit to drug screens as asked. Mother has been unsuccessfully discharged from all services referred by the Department;
12. The Court, at the permanency hearing on 7/12/2017, continued the TPR hearing regarding the child and changed the permanency plan to a concurrent plan of adoption and reunification. The Court made it clear that this was [M]other’s last opportunity to make a change and comply with services. Mother has not complied with services, has not improved in her parenting ability, and continues to put her own desires before the best interest of her child[ren].
13. Mother testified, under oath, that she has not used any illegal substances since the permanency hearing on 7/12/17. She testified that she has no positive drug screens during the period from that date until the court hearing today.
14. The Court entered an order for release of [M]other’s records from Indianapolis Treatment Center.
15. Mother then informed the court that her previous statement of not using illegal substances was untrue and there were positive screens for illegal substances. Mother thereby admitted to committing perjury at the hearing on 8/16/17 in this cause.
Id. at 11-12.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 8 of 24 [11] On April 18, 2017, DCS filed petitions to terminate Mother’s parental rights to
C.B. and Ca.B. The trial court conducted a fact-finding hearing on the petitions
for termination on October 25, 2017. DCS assessment family case manager
Lauren Johnson testified that she received the initial report about Mother’s
substance abuse and that she interviewed Mother and T.W. Johnson
performed a home environment check, administered drug screens, and removed
the children after Mother and T.W. tested positive for methamphetamine.
Johnson testified that she referred Mother to supervised visitation, residential
substance abuse treatment, home based casework, home-based therapy, and
parenting education, among other services. Tr. Vol. II p. 18.
[12] DCS family case manager Connor McCarty testified that he took over Mother’s
case in July 2016, but that Mother “did not stay in contact” and, except for
“brief[ ]” contact in July and August 2016 and “one or two phone calls” before
December 2016. Id. at 30. He testified that Mother failed to provide up-to-date
contact information, failed to submit to regular drug screens, failed to complete
her substance abuse assessment and was unsuccessfully discharged, and
provided inaccurate information regarding her enrollment in intensive
outpatient classes to address her substance abuse.
[13] Mother failed to engage in services, even after DCS filed multiple rule to show
cause motions regarding her lack of effort. He testified that Mother lied about
remaining sober, but “went back and stated that she had lied and . . . did test
positive.” Id. at 34. He testified further,
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 9 of 24 Since the time of removal Mother has continued to test positive as well as received unsuccessful discharges from any service that has tried to help her and change – and address her challenges, as well as now she has legal involvement and has been incarcerated quite a few times.
Id. at 39. Mother contacted McCarty in March 2017 and “indicated . . . that
she would like to meet and go over services again.” Id. at 32. He testified that
DCS did not restart services because she failed to demonstrate consistency and
because she “was not clean and sober during the summer.” Id. at 111.
[14] McCarty testified as follows regarding the children’s progress in placement:
[C.B.] has had ups and downs as far as his emotions and being very angry and having anger outbursts, not being able to control that anger or being able to express a lot of the trauma that he went through. He’s very – was very agitated. He was diagnosed with ADHD and PTSD, they had a lot of – or had a lot of issues in school as far as being able to focus and listen as well as trouble at home being able to – to there again follow, obey rules and things of that nature.
[C.B.] still has ups and downs, he’s got some really good—good weeks, and then as things come up he processes through them. But he’s fully engaged in his therapy with—he’s got two . . . therapists at this point. He’s got an individual therapist that he sees outside of school and then he also sees a therapist at school that’s able to do—work on social skills and group activities after school. And he’s able to—has done a lot better at being able to express his emotions, and grandparents have done a phenomenal job as well as working in that therapy and being engaged to help
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 10 of 24 take what he learns in therapy and be able to engage that at home to help calm him down, learn appropriate coping skills and things of that nature.
Id. at 42-43. McCarty testified that he recommends adoption by C.B.’s paternal
grandparents and that delaying adoption to allow Mother to more time to “get
things together” would exacerbate C.B.’s behavioral issues and anxiety and
could “caus[e] continued trauma” because C.B. craves permanency. Id. at 44.
[15] As to Ca.B., McCarty testified that, upon removal, he was developmentally-
delayed, nonverbal, and had dietary issues. In placement, Ca.B. “is engaged in
services . . . . receives speech therapy as well as individual therapy and he—
we’re working towards visitation with Father [T.W.].” Id. at 47. McCarty
testified that it is in Ca.B.’s best interest to be adopted in his foster placement or
reunified with T.W.
[16] Child mental health therapist Becky Vandenburgh testified that she provided
biweekly therapy services to C.B. for almost two years. At the outset of his
therapy, C.B. “was a very sad, distraught little boy”; had “witnessed a lot of
things . . . that he should not have” and “was very scared and broken and angry
and hungry.” Id. at 54. C.B. has “ADHD, PTSD, parent/child neglect,
[and]anxiety.” Id. Vandenburgh focused on “get[ting] him to feel safe and
secure in an environment [with] rules and structure and food and doctor’s
appointments and clothing” because
if you don’t have those you can’t start to have safety, security, emotional development, you can’t focus in school. If you’re
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 11 of 24 always hungry, that’s your focus of where am I going to get my next meal. And I say that because he would tell me he wasn’t fed.
When we first started drawing together he drew a picture of this Mother with a chainsaw and he was chopping her up, so we saw a lot of anger. And in talking about that it’s—it’s hurt right? It’s pain. And he would say I love her but I hate her because she does drugs. Those are her—his words right. Lots of guns, I would see lots of scribbling of red, anger, hurt, pain. Sometimes he would draw a picture and then he would yell at it and cuss at it and I said you can say whatever you need to say in here. In our sandbox therapy you have a bunch of different toys you can pick from and they play out—they re-enact kind of their experience and what they’ve been through. So a lot of times he would be picking police officers and army people, guys with guns and swords and they – they would be fighting. So again, he— he’s seen police come to the house, he’s seen—he would say Mom would lock herself up in the bathroom or bedroom and not come out because – and he knew she was doing drugs, he would say he’d see needles and syringes. And over and over again he would say I hate her, I wish she would get sober, I don’t want to talk to her until she gets sober.
Id. at 55-56. Vandenburgh testified that C.B.’s paternal grandmother, Roxann
Swann, is consistent, reliable, actively participates in his therapy, adopts his
therapists’ recommendations and suggestions, and “has been a huge protective
factor in his being a successful, loving, productive individual when he grows
up.” Id. at 59. Vandenburgh testified that Mother has never participated in
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 12 of 24 C.B.’s therapy and that she has “never once heard from her.” Id. at 59.
Vandenburgh has observed “[a] ton” of progress”:
[C.B. is] happier. He’s—he’s engaged, he can play games and he can cooperate, he can share, he can—he’s polite . . . . He’s doing better in school. I remember one of the things he said to me was Mommy—I never went to school, they never made me go to school and I like school, I like to go and learn. Now since he’s started there he’s had ups and downs at school which is normal for what he’s been through that he’s gonna have some issues with focusing and anxiety and some of the stomachaches and headaches that he would have. But we’ve seen a lot of progress.
* * * * * One of the last times I asked him to draw something that was—draw a picture of the rain. So it was very open to him and he drew a picture of himself in the rain with an umbrella over him which is an indicator that now he has some . . . coping skills that he now knows when I’m in the rain in need this protection. So the umbrella is a symbol of where and how he’s progressed from guns and chainsaws and anger and sadness to now I’m safe and I have protection.
Id. at 57-58. Vandenburgh testified that delaying termination of Mother’s
parental rights would deny C.B. “a better prognosis”
[because] he needs the stability. . . .[H]e needs just to kind of be done and to know that he has a safe place that he can call home and it’s now—well, what’s gonna happen next, do I have to go back with her, will she be sober, how long will this take.
Id. at 59.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 13 of 24 [17] C.B.’s paternal grandmother, Roxann Swan, testified that, among other times,
C.B. “lived with [her] “from 2009 through 2013” and “from January through
April 2015,” when “Mother needed some assistance, she was trying to help
herself get off of drugs . . . . .” Id. at 65. Swann had the following concerns
while C.B. was in Mother’s care:
[C.B.] had PTSD, he was in need of glasses and had not gotten his exam, he was six and had never been to the dentist, he was catching strep throat a lot. I think it was just – that was due to immune system breakdown because he was not getting an adequate amount of sleep.
Id. at 65. She also testified about C.B.’s linked issues relating to food and
anxiety, including devouring his food, obsessing about the availability of food
in the future, and being fearful of “tak[ing] the last piece of [food].” Id. at 66.
She testified further,
. . . [H]e would have to play his Xbox all day because—so he wouldn’t think about being hungry. He was raising and taking care of his brother and he would give up his food to make sure his brother was taken care of. There—he would—he had mentioned being locked in the closet so he did not—he does not like doors closed most of the time.
It was basically that they weren’t feeding the kids. He said—he had told me that they—there was not much food other than maybe ice cream once in a while or juice. It was not accessible to him. He had mentioned to me one time—he said that Mommy had gone to the store and she came home with a bunch of food
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 14 of 24 and he was so happy but it all got put up and it was never accessible to him. He stated that on a couple of occasions that [T.W.] had fixed a meal and he said I could smell it, I could see it looked so good, I was so hungry but he took it upstairs to the bedroom and ate and I didn’t get any. He did state that he was given a box of food for Christmas but that there was a note in it saying that he had to pay for it.
Id. at 67-68. In Mother’s care, C.B. had a record of excessive school absences
and tardy notices; and in placement, Swann remedied his school attendance
record and participation. C.B. is enjoying “the normal things” in family life
and visiting with Ca.B., while also “relinquish[ing] that caregiver role.” Id. at
75.
[18] Abby Jackson, foster mom to Ca.B, testified that, when Ca.B. was placed with
her, he had a compromised immune system, was underweight,
developmentally-delayed, had an extremely limited diet, struggled with
different textures of foods, hoarded toys, and “just wasn’t functioning as a
normal child.” Id. at. 82. She testified that, although he has demonstrated
improvement after referrals for speech therapy, developmental special needs
preschool, he still displays some abnormal behaviors:
For one, he doesn’t know how to be carried. * * * * * He don’t [sic] even know how to ride on your hip like any child knows from an infant. When he goes to bed at night he does not get out of his bed in the morning. He waits for you to come get him still to this day. He um – he will lay there forever and ever and ever until you either come get him or now he’ll say Mama, Mama and he’ll let me know he’s awake and then I’ll come in and get him and then he’ll get out of his bed. He doesn’t like any doors
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 15 of 24 closed . . . . He’s scared to death of having closet doors shut. He – he’s scared to death to be left alone in a dark car (inaudible) be riding in a dark car at night. He’s still voicing those concerns now two years after being removed.
Id. at 83-84. Jackson noted that (1) she has participated in Ca.B.’s therapies
and has learned skills to help him cope; (2) Mother has not engaged in any of
Ca.B.’s services; (3) Ca.B. is now “extremely bonded” to her; (4) Ca.B. eats a
broader, healthier range of foods; (5) Ca.B.’s speaking ability is much
improved; and (6) Ca.B. enjoys a more normal sibling relationship with C.B,
whom he sees “at least every other week if not once a week.” Id. at 85, 87.
Lastly, she testified that she and her husband want to adopt Ca.B. and that
“he’s happy, . . . thriving, . . . bonded with us . . . . [and] he gets to be a normal
child and in a loving, stable home.” Id. at 88.
[19] The CASA testified that, based on her “consistent positive [drug] tests, her
criminal activity” and lack of engagement or progress, allowing Mother to have
an ongoing relationship with the children would put their safety at risk. Id. at
95.
[20] Mother testified that she was sober at the termination hearing dating back to her
September 2017 incarceration for failing a drug test and testing positive for
methamphetamine. Tr. Vol. II p. 12. She asked for additional time to receive
services, demonstrate improvement, and to work toward reunification. She
admitted that she was arrested during the pendency; that she used drugs in jail,
but that she had remained sober for “a little bit over a month” at the time of the
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 16 of 24 termination hearing. Id. at 125. On November 8, 2017, the trial court entered
its order terminating Mother’s parental rights. App. Vol. II pp. 86. As to each
child, the trial court found, among other things:
23.) * * * * * a) . . .[M]other has not participated in services, visited with the child, or obtained or maintained sobriety;
b) The child’s mother has failed to establish or maintain a relationship with the child since the opening of the related CHINS proceedings in this county for the child, which has been a period of 20 months;
c) None of the conditions resulting in the child’s removal from the parents’ home and care have been remedied or even addressed by the child’s mother;
d) Mother’s criminal dealings, including her associations with dangerous criminals, pose a threat to the child’s safety and wellbeing;
e) Mother has stated that she wants to reunify with her children, but she has made no efforts to make that happen. Her actions speak louder than her words, and she continues to act only out of self-interest, to the determent [sic] of her child;
24.) . . . [T]here is a reasonable probability that the continuation of the parent-child relationship between the biological mother and child poses a threat to the well-being of the child, and also that there is a reasonable probability that the conditions that resulted in the child’s removal from and continued placement outside the care and custody of the biological mother will not be remedied.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 17 of 24 25.) The child has been removed from the home and care of the biological parents since January of 2016, a time period of approximately twenty (20) consecutive months through the date of the completion of the termination trial. The child has resided with his current pre-adoptive relative family since January of 2016, a time period of approximately twenty (20) months at the close of the termination trial. The child knows this family as his own and expresses the desire and intention to remain in this home permanently as a member of that family. The child has positively responded to the stability and structure, as well as the love and nurturing, provided by this family, which was previously entirely lacking in his life.
26.) The child’s DCS case managers, CASA, therapist, and relative caregiver have all testified that termination of the parent—child relationship and adoption of the child are in the child’s best interests. The Court agrees with these opinions, and now accepts and adopts them as its own finding of fact in these proceedings.
27.) The description of the care, love, and attention given to the child by the relative caregivers, as well as the opinions cited above, also demonstrate that adoption is a satisfactory plan for the care and treatment of the child, which is now also found as fact for purposes of these termination proceedings.
Id. at 18. Mother now appeals.
Analysis [21] Mother challenges the sufficiency of the evidence supporting termination of her
parental rights. The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and raise their
children. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 18 of 24 the care, custody, and control of his or her children is ‘perhaps the oldest of the
fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the
most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize that
parental interests are not absolute and must be subordinated to the child’s
interests when determining the proper disposition of a petition to terminate
parental rights. Id. Thus, “‘[p]arental 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. 2004), trans. denied).
Courts need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his or her physical, mental, and social growth is permanently
impaired before terminating the parent-child relationship. Castro v. State Office of
Family & Children, 842 N.E.2d 367, 372 (Ind. Ct. App. 2006), trans. denied.
“Rather, when the evidence shows that the emotional and physical
development of a child in need of services is threatened, termination of the
parent-child relationship is appropriate.” Id.
[22] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re I.A., 934 N.E.2d at 1132. We
consider only the evidence and reasonable inferences that are most favorable to
the judgment. Id. We must also give “due regard” to the trial court’s unique
opportunity to judge the credibility of the witnesses. Id. (quoting Ind. Trial
Rule 52(A)). Here, the trial court entered findings of fact and conclusions
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 19 of 24 thereon in granting DCS’s petition to terminate Mother’s parental rights, as
required by Indiana Code Section 31-35-2-8(c). See In re N.G., 61 N.E.3d 1263,
1265 (Ind. Ct. App. 2016). When reviewing findings of fact and conclusions
thereon entered in a case involving a termination of parental rights, we apply a
two-tiered standard of review. First, we determine whether the evidence
supports the findings, and second, we determine whether the findings support
the judgment. In re I.A., 934 N.E.2d at 1132. We will set aside the trial court’s
judgment only if it is clearly erroneous. Id. 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.
[23] Indiana Code Section 31-35-2-8(a) provides that, “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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 wellbeing of the child.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 20 of 24 (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 establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
[24] Mother contends there is insufficient evidence that there is a reasonable
probability the conditions leading to the children’s removal from her care would
not be remedied.5 In order to prove this element, DCS must establish (1) what
conditions led to DCS placing and retaining the children in foster care; and (2)
whether there is a reasonable probability that those conditions will not be
remedied. I.A., 934 N.E.2d at 1134. When analyzing this issue, courts may
consider not only the basis for the initial removal of the children, but also
reasons for the continued placement of the children outside the home thereafter.
In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. Courts 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 circumstances. A.D.S. v.
5 Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only one of the requirements of subsection (B). We conclude there is sufficient evidence of a reasonable probability that the conditions resulting in the children’s removal from Mother’s care would not be remedied, and we need not address whether there is sufficient evidence that continuation of the parent-child relationship posed a threat to C.B. and Ca.B. See A.D.S., 987 N.E.2d at 1158 n.6.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 21 of 24 Indiana Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans.
denied. The parent’s habitual patterns of conduct should be evaluated to
determine the probability of future neglect or deprivation of the child. Id.
Factors to consider include a parent’s prior criminal history, drug and alcohol
abuse, history of neglect, failure to provide support, and lack of adequate
housing and employment. Id. Courts also may consider services offered to the
parent by DCS and the parent’s responses to those services. Id. DCS is not
required to prove a parent has no possibility of changing; it need only establish
a reasonable probability that no change will occur. Id.
[25] Here, DCS removed the children because of Mother’s substance abuse and
resulting inability to meet their basic, educational, and emotional needs.
Mother’s house smelled of methamphetamine. Her addiction was so acute that
she locked herself in the bathroom for hours to use methamphetamine and
would eventually emerge only to remain in a stupor for hours. During the
twenty-month long CHINS pendency, Mother did not make any progress
toward achieving sobriety. Mother failed to submit to drug screens as asked.
She lied under oath when she testified that she had not used illegal substances
since July 2017. She was arrested during the pendency for dealing in
methamphetamine and pled guilty to assisting a criminal in violation of the
court’s orders that she abstain from possessing or using drugs. She failed to
complete her court-ordered substance abuse assessment and was unsuccessfully
discharged for noncompliance. Lastly, Mother lied to DCS about her
enrollment in intensive outpatient classes for her substance abuse. Although
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 22 of 24 Mother asked on multiple occasions for services to be resumed, DCS family
case manager McCarty testified that she failed to give a consistent string of
negative drug screens, so DCS doubted her willingness and her ability to
engaged in those services given that “[Mother] was not clean and sober during
the summer[.]” Tr. Vol. II p. 111.
[26] Mother’s addiction adversely affected the children in significant ways. Child
therapist Vandenburgh testified that C.B. was “sad,” “distraught,” “angry,” and
“hungry.” Id. at 54. He had a compromised immune system, was diagnosed
with ADHD, PTSD, anxiety, behavioral problems, and obsessed about food
availability because he and Ca.B frequently went unfed. Mother’s inability to
properly parent and provide for the children prompted then-six-year-old C.B.,
who understood that Mother was abusing drugs, to assume a parental posture
and to feel responsible for caring for, feeding, and even forgoing meals to ensure
that Ca.B had food to eat. He frequently missed or was late to school and failed
to complete his homework. C.B. had violent ideations and mixed emotions
regarding Mother. Ca.B., on the other hand, was underweight,
developmentally-delayed, had dietary issues, and was not functioning normally.
The trial court heard considerable testimony regarding the “trauma” that the
children suffered due to Mother’s lack of supervision, inattention, and neglect.
Id. In sum, there is clear and convincing evidence that Mother’s substance
abuse led to the children’s removal from Mother’s care and that there was a
reasonable probability—given her complacency and failure to engage in any
related services—that the condition could not be remedied.
Court of Appeals of Indiana | Memorandum Decision 30A05-1711-JT-2788 | July 2, 2018 Page 23 of 24 [27] Mother also asserts that DCS failed to prove that termination of her parental
rights was in the children’s best interests. “A parent’s historical inability to
provide adequate housing, stability, and supervision, coupled with a current
inability to provide the same, will support a finding that termination of the
parent-child relationship is in the child’s best interests.” Castro, 842 N.E.2d at
374. The testimony of a child’s guardian ad litem or special advocate or
professional caseworkers also can be evidence that termination is in a child’s
best interests. McBride v. Monroe County Office of Family & Children, 798 N.E.2d
185, 203 (Ind. Ct. App. 2003). Both factors are present here: Mother’s inability
to maintain sobriety, along with testimony from the CASA and the DCS case
managers opining that termination was in the children’s best interests.6
Conclusion [28] There is sufficient evidence to support the termination of Mother’s parental
rights to her children. We affirm.
[29] Affirmed.
[30] Vaidik, C.J., and Pyle, J., concur.
6 We do not reach Mother’s contention that DCS failed to make reasonable efforts to reunify or preserve her family as this is not among the Indiana Code Section 31-35-2-4(b)(2) statutory factors.
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