In re the Termination of the Parent-Child Relationship of: E.M., Minor Child, T.R. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 26, 2016
• Docket: 37A03-1604-JT-912
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 26 2016, 7:59 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Russell Dean Bailey Gregory F. Zoeller Demotte, Indiana Attorney General of Indiana

Robert J. Henke Deputy Attorney General

Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the August 26, 2016 Parent-Child Relationship of: Court of Appeals Case No. E.M., Minor Child, 37A03-1604-JT-912 Appeal from the Jasper Circuit T.R., Court Appellant-Respondent, The Honorable John D. Potter, Judge v. Trial Court Cause No. 37C01-1512-JT-339 Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 1 of 11 Najam, Judge.

Statement of the Case [1] T.R. (“Mother”) appeals the trial court’s termination of her parental rights over

her minor child E.M. (“Child”). Mother raises a single issue for our review,

namely, whether the State presented sufficient evidence to support the

termination of her parental rights. We affirm.

Facts and Procedural History [2] Mother gave birth to Child on September 8, 2013.1 In November and

December 2014, the Indiana Department of Child Services (“DCS”) received

two reports that Mother was abusing illegal drugs. One of those reports was

made after a family member found Mother unconscious outside of her

apartment while Child was alone inside Mother’s apartment. On December 31,

Jody Knoth, a DCS caseworker, made an unannounced visit to Mother’s home

and conducted a drug screen on Mother, which indicated that Mother had

taken methamphetamine. Thereafter, on January 8, 2015, DCS removed Child

from Mother’s care and placed Child with Child’s father.

[3] On January 9, 2015, DCS filed a petition alleging that Child was a Child in

Need of Services (“CHINS”). In particular, DCS alleged that Mother: was

abusing methamphetamine and marijuana, as indicated by a drug screen; was

1 In February 2016, Child’s father, K.M., voluntarily terminated his parental rights and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 2 of 11 reportedly abusing heroin; had left Child home alone when Mother was found

passed out outside of her apartment; and had not provided stable housing for

Child. During the initial hearing on that petition, Mother denied the

allegations. The trial court adjudicated Child to be a CHINS and, following a

factfinding hearing, the court ordered Mother to participate in a drug treatment

program, submit to random drug screens, participate in individual therapy,

complete a substance abuse evaluation, and participate in parenting education.

Mother’s compliance with that dispositional order was inconsistent. While

Mother initially complied with parent education services and visited with Child,

“things dropped off pretty substantially” in terms of Mother’s participation in

services as of April or May of 2015. Tr. at 13. Mother did not comply with the

recommendations of the substance abuse evaluation, and she left an inpatient

substance abuse treatment facility one day after she had checked in. Mother

continued to fail drug screens and had “[c]riminal involvement, including for

drugs.” Id.

[4] On December 23, 2015, DCS filed a petition to terminate Mother’s parental

rights to Child. Following a hearing, the trial court granted that petition. In

support of its order, the trial court entered the following findings and

conclusions:

8. That after the Dispositional Order was entered Mother inconsistently participated with services. Since that time mother failed to complete any drug treatment program; continued to test positive for illegal substances or substances she does not have a prescription for including opiates, marijuana, methamphetamine, tramadol, and heroin; has had criminal charges through the Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 3 of 11 CHINS case and presently a warrant for her arrest; has given different addresses and phone numbers in order to avoid service providers and DCS; and failed to participate in visitations.

9. DCS’ plan for Child is that she be adopted; this plan is satisfactory for Child’s care and treatment.

10. It was established by clear and convincing evidence that the allegations of the petition are true in that:

a. The child has been removed from her parents for at least six (6) months under a dispositional decree. . . .

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

i. That Mother currently has a warrant out for her arrest for a revocation of probation.

ii. That Mother inconsistently participated in services and was not compliant.

iii. That Mother is still continuing to test positive for substances that she does not have a prescription for and for illegal substances.

iv. That Mother has had criminal charges during the underlying CHINS case.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 4 of 11 v. That Mother only made 19 [of] 46 offered visitations.

vi. That Mother failed to complete any drug treatment program.

vii. That Mother has had inconsistent housing and still continues to have unstable housing.

viii. That Mother was only employed once between September and November during the CHINS case and is no longer employed.

ix. That Mother actively tried to avoid service providers and DCS by giving different addresses and phone numbers.

c. Termination is in the best interest of the child in that:

i. The child needs a safe, stable substance abuse[-]free home that mother cannot provide.

ii. That the mother cannot provide the child with permanency that can be provided by the prospective adoptive home.

d. The DCS has a satisfactory plan for the care and treatment of the child, which is adoption.

Appellant’s App. at 8-9. This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 5 of 11 Discussion and Decision [5] We begin our review of this appeal by acknowledging that “[t]he traditional

right of parents to establish a home and raise their children is protected by the

Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe

Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),

trans. denied. However, a trial court must subordinate the interests of the

parents to those of the child when evaluating the circumstances surrounding a

termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750

N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child

relationship is proper where a child’s emotional and physical development is

threatened. Id. Although the right to raise one’s own child should not be

terminated solely because there is a better home available for the child, parental

rights may be terminated when a parent is unable or unwilling to meet his or

her parental responsibilities. Id. at 836.

[6] Before an involuntary termination of parental rights can occur in Indiana, DCS

is required to allege and prove, 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.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 6 of 11 ***

(C) [and] that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only

one of the requirements of subsection (b)(2)(B) before the trial court may

terminate parental rights. DCS’s “burden of proof in termination of parental

rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child

Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-

14-2).

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

evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

Family & Children (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 that

are most favorable to the judgment. Id. Moreover, in deference to the trial

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

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

Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

(Ind. Ct. App. 1999), trans. denied.

[8] Here, in terminating Mother’s parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment

contains special findings and conclusions, we apply a two-tiered standard of

review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

2005). First, we determine whether the evidence supports the findings and,

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 7 of 11 second, we determine whether the findings support the judgment. Id.

“Findings are clearly erroneous only when the record contains no facts to

support them either directly or by inference.” 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. In re L.S., 717 N.E.2d at 208.

[9] Mother contends that the evidence is insufficient to support the trial court’s

findings underlying its conclusions that Mother will not remedy the conditions

that resulted in Child’s removal; that the continuation of the parent-child

relationship poses a threat to the well-being of Child; that termination is in the

best interests of Child; and that there is a satisfactory plan for Child. Because

Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we only

address the sufficiency of the evidence to support the trial court’s conclusions

that continuation of the parent-child relationship poses a threat to Child’s well-

being; that termination is in Child’s best interests; and that there is a satisfactory

plan for Child. And we address each of those contentions in turn.

Continuation of the Parent-Child Relationship

[10] In the opening paragraphs of the Argument section of her brief, Mother

purports to challenge the DCS’ evidence in support of this element of the

statute. However, Mother does not make cogent argument or provide citations

to the record on appeal or case law in support of this contention. Ind. Appellate

Rule 46(A)(8)(a). Accordingly, the issue is waived.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 8 of 11 [11] Waiver notwithstanding, DCS presented ample evidence to support the trial

court’s conclusion that the continuation of the parent-child relationship poses a

threat to Child’s well-being. 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 terminating the parent-child

relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762

N.E.2d 1287, 1290 (Ind. Ct. App. 2002). 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.

[12] Mother does not challenge any of the trial court’s findings. The undisputed

evidence shows that Child was removed from Mother’s care approximately one

year before DCS filed its petition to terminate her parental rights. During the

CHINS proceedings, Mother did not follow recommendations for treatment of

her substance abuse and checked herself out of an inpatient substance abuse

treatment facility after one day; Mother continued to fail drug screens

throughout the CHINS proceedings; Mother avoided contact with DCS; and

Mother attended only nineteen of forty-six scheduled visitations with Child. In

short, Mother failed to comply with the court’s dispositional order in a myriad

of ways. The trial court’s findings support the trial court’s conclusion that there

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

poses a threat to Child’s well-being.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 9 of 11 Best Interests

[13] In determining whether termination of parental rights is in the best interests of a

child, the trial court is required to look at the totality of the evidence. In re A.K.,

924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “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 v. State Office of

Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.

“Additionally, a child’s need for permanency is an important consideration in

determining the best interests of a child, and the testimony of the service

providers may support a finding that termination is in the child’s best interests.”

In re A.K., 924 N.E.2d at 224.

[14] Mother has also waived this issue for failure to present cogent argument. 2

Waiver notwithstanding, both the family case manager and the court appointed

special advocate testified that termination of Mother’s parental rights was in

Child’s best interests. The totality of the evidence, including Mother’s historical

inability to provide a safe and stable home and her refusal to take advantage of

the resources DCS provided her during the CHINS proceedings, supports the

2 After arguing that the trial court “erred in ruling that there was a likely probability that the conditions leading to the removal [of Child] would not be remedied,” Mother’s argument on the remaining two statutory elements consists of the following: “Mother also disputes that the termination was in the best interests of the Child or that DCS had a satisfactory plan for the Child in adoption as Child will now grow up without having her Mother in her life[.]” Appellant’s Br. at 18.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 10 of 11 trial court’s conclusion that termination of Mother’s parental rights is in Child’s

best interests.

Satisfactory Plan

[15] In order for the trial court to terminate the parent-child relationship, the trial

court must find that there is a satisfactory plan for the care and treatment of the

child. A.P. v. Marion Cnty. Ofc. of Family & Children (In re D.D.), 804 N.E.2d 258,

268 (Ind. Ct. App. 2004), trans. denied. This plan does not need to be detailed,

so long as it offers a general sense of the direction in which the child will be

going after the parent-child relationship is terminated. Id.

[16] By again failing to present cogent argument, Mother has waived her contention

that the evidence does not support the trial court’s conclusion that DCS has a

satisfactory plan for the care of Child. Waiver notwithstanding, the undisputed

evidence shows that DCS plans to place Child for adoption in one of four

prospective homes. The trial court’s conclusion on this issue is supported by

clear and convincing evidence. The trial court did not err when it terminated

Mother’s parental rights to Child.

[17] Affirmed.

Vaidik, C.J., and Baker, J., concur.

Court of Appeals of Indiana | Memorandum Decision 37A03-1604-JT-912 | August 26, 2016 Page 11 of 11