MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 31 2016, 9:15 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 Joann M. Price Gregory F. Zoeller Merrillville, Indiana Attorney General of Indiana Donald W. Wruck Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re: The Termination of the August 31, 2016 Parent-Child Relationship of J.B. Court of Appeals Case No. Jr. (Minor Child); 45A03-1602-JT-403 M.D. (Mother) Appeal from the Lake Superior Court Appellant-Respondent, The Honorable Thomas P. v. Stefaniak, Judge Trial Court Cause No. Indiana Department of Child 45D06-1509-JT-236 Services, Appellee-Petitioner.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 1 of 8 Statement of the Case [1] M.D. (“Mother”) appeals the termination of the parent-child relationship with
her son, J.B., claiming that the Department of Child Services (“DCS”) failed to
prove by clear and convincing evidence that: (1) there is a reasonable
probability that the conditions that resulted in the child’s removal or the reasons
for placement outside Mother’s home will not be remedied; (2) a continuation
of the parent-child relationship poses a threat to the child’s well-being; (3)
termination of the parent-child relationship is in J.B.’s best interests; and (4)
there is a satisfactory plan for J.B.’s care and treatment. Concluding there is
sufficient evidence to support the trial court’s decision to terminate the parent-
child relationship, we affirm.
[2] We affirm.
Issue Whether there is sufficient evident to support the termination of the parent-child relationship.
Facts [3] In April 2010, Mother gave herself and J.B.’s disabled father (“Father”)
intravenous doses of heroin. When Father turned blue, Mother telephoned
911. Father was taken to the hospital, and Mother was taken to jail after she
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 2 of 8 became involved in a physical altercation with Father’s mother. 1 Seven-month-
old J.B. was placed in foster care. Mother admitted that she had been
“struggling with drug use for some years.” (Tr. 22).
[4] At a hearing a few weeks later, Mother appeared to be suffering from drug
withdrawal symptoms. She agreed to participate in an inpatient drug treatment
program and immediately entered the Transitions Substance Abuse Program.
J.B. was placed with her in the program in July 2010. Mother was
unsuccessfully discharged from the program for violating the rules in December
2010. At that time, J.B. was placed back with his foster family.
[5] The following year, Mother attended substance abuse classes and supervised
visits with J.B. However, in August 2012, Mother again relapsed on heroin and
was referred to a second inpatient drug treatment program. Mother successfully
completed the program and had several visits with J.B. until she relapsed on
heroin again in July 2013. At that time, DCS suspended all of Mother’s
services and visits. Mother then entered a third treatment program. She was
successfully discharged from the program in April 2015 but relapsed after one
week. After contacting a fourth treatment program in Chicago, Mother
discovered that she was pregnant. Her son was born with heroin in his
meconium.
1 Father later died in 2011.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 3 of 8 [6] Thereafter, DCS filed a petition to terminate Mother’s parental relationship
with J.B. At a January 2016 hearing on the petition, the evidence revealed that
Mother had not seen J.B. for two years. J.B.’s therapist testified that J.B. had
worked very hard and had “formed a good secure attachment” to his foster
family. (Tr. 154). Following the hearing, the trial court issued an order
terminating Mother’s parental rights. Mother appeals.
Decision [7] Mother argues that there is insufficient evidence to support the 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 K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,
the law provides for termination of that right when parents are unwilling or
unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147
(Ind. 2005). The purpose of terminating parental rights is not to punish the
parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[8] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 4 of 8 whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-1230.
[9] 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.
IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[10] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that: (1) the
conditions that resulted in J.B.’s removal or the reasons for placement outside
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 5 of 8 the parent’s home will not be remedied; and (2) a continuation of the parent-
child relationship poses a threat to J.B.’s well-being.
[11] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 31 2016, 9:15 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 Joann M. Price Gregory F. Zoeller Merrillville, Indiana Attorney General of Indiana Donald W. Wruck Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re: The Termination of the August 31, 2016 Parent-Child Relationship of J.B. Court of Appeals Case No. Jr. (Minor Child); 45A03-1602-JT-403 M.D. (Mother) Appeal from the Lake Superior Court Appellant-Respondent, The Honorable Thomas P. v. Stefaniak, Judge Trial Court Cause No. Indiana Department of Child 45D06-1509-JT-236 Services, Appellee-Petitioner.
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 1 of 8 Statement of the Case [1] M.D. (“Mother”) appeals the termination of the parent-child relationship with
her son, J.B., claiming that the Department of Child Services (“DCS”) failed to
prove by clear and convincing evidence that: (1) there is a reasonable
probability that the conditions that resulted in the child’s removal or the reasons
for placement outside Mother’s home will not be remedied; (2) a continuation
of the parent-child relationship poses a threat to the child’s well-being; (3)
termination of the parent-child relationship is in J.B.’s best interests; and (4)
there is a satisfactory plan for J.B.’s care and treatment. Concluding there is
sufficient evidence to support the trial court’s decision to terminate the parent-
child relationship, we affirm.
[2] We affirm.
Issue Whether there is sufficient evident to support the termination of the parent-child relationship.
Facts [3] In April 2010, Mother gave herself and J.B.’s disabled father (“Father”)
intravenous doses of heroin. When Father turned blue, Mother telephoned
911. Father was taken to the hospital, and Mother was taken to jail after she
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 2 of 8 became involved in a physical altercation with Father’s mother. 1 Seven-month-
old J.B. was placed in foster care. Mother admitted that she had been
“struggling with drug use for some years.” (Tr. 22).
[4] At a hearing a few weeks later, Mother appeared to be suffering from drug
withdrawal symptoms. She agreed to participate in an inpatient drug treatment
program and immediately entered the Transitions Substance Abuse Program.
J.B. was placed with her in the program in July 2010. Mother was
unsuccessfully discharged from the program for violating the rules in December
2010. At that time, J.B. was placed back with his foster family.
[5] The following year, Mother attended substance abuse classes and supervised
visits with J.B. However, in August 2012, Mother again relapsed on heroin and
was referred to a second inpatient drug treatment program. Mother successfully
completed the program and had several visits with J.B. until she relapsed on
heroin again in July 2013. At that time, DCS suspended all of Mother’s
services and visits. Mother then entered a third treatment program. She was
successfully discharged from the program in April 2015 but relapsed after one
week. After contacting a fourth treatment program in Chicago, Mother
discovered that she was pregnant. Her son was born with heroin in his
meconium.
1 Father later died in 2011.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 3 of 8 [6] Thereafter, DCS filed a petition to terminate Mother’s parental relationship
with J.B. At a January 2016 hearing on the petition, the evidence revealed that
Mother had not seen J.B. for two years. J.B.’s therapist testified that J.B. had
worked very hard and had “formed a good secure attachment” to his foster
family. (Tr. 154). Following the hearing, the trial court issued an order
terminating Mother’s parental rights. Mother appeals.
Decision [7] Mother argues that there is insufficient evidence to support the 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 K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,
the law provides for termination of that right when parents are unwilling or
unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147
(Ind. 2005). The purpose of terminating parental rights is not to punish the
parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[8] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 4 of 8 whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-1230.
[9] 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.
IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[10] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that: (1) the
conditions that resulted in J.B.’s removal or the reasons for placement outside
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 5 of 8 the parent’s home will not be remedied; and (2) a continuation of the parent-
child relationship poses a threat to J.B.’s well-being.
[11] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). We therefore
discuss only whether there is a reasonable probability that the conditions that
resulted in J.B.’s removal or the reasons for his placement outside Mother’s
home will not be remedied.
[12] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id.
[13] Here, our review of the evidence reveals that J.B. was removed from Mother
because of her heroin use. Six years later, at the time of the termination
hearing, Mother had participated in three treatment programs but was still
using heroin. In addition, she had recently given birth to another son whose
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 6 of 8 meconium had tested positive for heroin. Mother’s habitual heroin use during
the six years that J.B. has been removed from her care is sufficient to show that
the conditions that resulted in J.B.’s removal will not be remedied.
[14] Mother also argues that there is insufficient evidence that the termination was
in J.B.’s best interests. 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 circumstances. In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997). An
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. In addition, a child’s need for permanency is an important
consideration in determining the best interests of a child. In re A.K., 924 N.E.2d
212, 224 (Ind. Ct. App. 2010).
[15] Here, Mother has historically been and is currently unable to provide J.B. with
stability and supervision because of her drug addiction. J.B., however, has
flourished under the care of his foster parents. His therapist testified that he has
developed a strong bond with them. This evidence is sufficient to show that
termination is in J.B.’s best interests.
[16] Last, Mother argues that DCS does not have a satisfactory plan for J.B.’s care
and treatment. This Court has previously explained that the plan for the care
and treatment of the child need not be detailed, so long as it offers a general
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 7 of 8 sense of the direction in which the child will be going after the parent-child
relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008).
Here, the DCS caseworker testified the plan for the care and treatment of J.B. is
foster parent adoption. This is a satisfactory plan. See In re A.N.J., 690 N.E.2d
at 722.2
[17] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cnty. Dep't of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[18] Affirmed.
Bradford, J., and Altice, J., concur.
2 Mother states in her appellate brief that foster parents have “separated from one another.” (Mother’s Br. 3). As support for this statement, Mother directs us to page 43 of her appendix, which is a one-page excerpt from the trial transcript. There, DCS asks J.B.’s therapist if “[f]oster mom and dad are separate.” (App. 43). The following page of the transcript is not included in the appendix. However, the transcript itself reveals that DCS was simply asking J.B.’s therapist if foster mom and dad were given separate assessments. There is no evidence in the record which even suggests that foster parents have separated.
Court of Appeals of Indiana | Memorandum Decision 45A03-1602-JT-403 | August 31, 2016 Page 8 of 8