In Re: The Termination of the Parent-Child Relationship of J.H. and D.J. J.J. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 18, 2020
• Docket: 19A-JT-1544
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 18 2020, 7:06 am

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 Katharine Vanost Jones Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Termination of the February 18, 2020 Parent-Child Relationship of Court of Appeals Case No. J.H. and D.J.; 19A-JT-1544 J.J. (Mother), Appeal from the Vanderburgh Superior Court Appellant-Respondent, The Honorable Brett J. Niemeier, v. Judge The Honorable Renee Allen The Indiana Department of Ferguson, Magistrate Child Services, Trial Court Cause No. 82D04-1810-JT-1961 Appellee-Petitioner. 82D04-1810-JT-1962

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 1 of 12 Statement of the Case [1] J.J. (“Mother”) appeals the termination of the parent-child relationship with her

children, J.H. (“J.H..”) and D.J. (“D.J.”) (collectively “the children”), 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 children’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 children’s well-being; and (3) termination

of the parent-child relationship is in the children’s best interests. Concluding

that there is sufficient evidence to support the trial court’s decision to terminate

the parent-child relationships, we affirm the trial court’s judgment.1

[2] We affirm.

Issue Whether there is sufficient evidence to support the involuntary termination of Mother’s parental rights.

Facts [3] Mother is the parent of daughter P.R., who was born in October 2009; son

D.R., who born in February 2011; son J.H., who was born in June 2013; and

1 The children’s fathers voluntarily relinquished their parental rights and are not parties to this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 2 of 12 son D.J., who was born in March 2016. This appeal concerns only sons J.H.

and D.J.

[4] In July 2014, the State charged Mother with felony domestic battery against

J.H.’s father, J.E. (“J.E.”). Mother pleaded guilty and was ordered to complete

a domestic battery intervention program, which she did not do. In June 2015,

before the birth of D.J., the State charged Mother with domestic battery against

D.J.’s father, E.J. (“E.J.”), in the presence of a child under sixteen.

[5] In July 2015, Mother called 911 and reported that her three children saw an

intoxicated E.J. punch her in the face and head, push her, drag her around the

house, and kick her in the back several times while she was on the ground.

When police arrived, E.J. told the officers that Mother had choked him with a

belt and had hit him several times.

[6] The following month, August 2015, pursuant to the terms of an informal

adjustment with DCS, the trial court ordered Mother and E.J. to: (1) contact

DCS weekly; (2) allow a family case manager or other service providers to

make announced or unannounced visits to the home; (3) allow a family case

manager to enter the home; (4) enroll in programs recommended by DSC or

other service providers; (5) maintain suitable housing; and (6) complete a

domestic violence assessment. In December 2015, DCS reported that Mother

and E.J. had substantially complied with terms of the informal adjustment and

did not request a continuation of it.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 3 of 12 [7] In February 2017, Mother called 911 and reported that E.J. was intoxicated and

“causing problems.” (Ex. Vol. 2 at 42). Specifically, she reported that he had

poked Mother in the forehead and had slapped her daughter in the face. Police

officers were dispatched to the scene. When the officers arrived, E.J. told them

that Mother had hit him with her phone.

[8] Two days later, based on a police report of the dispatch, DCS assigned Family

Case Manager William Wargel (“FCM Wargel”) to assess the family. FCM

Wargel went to the family’s home and knocked at the door. When the parents

eventually opened the door, FCM Wargel observed them to have slurred speech

and glassy eyes. The family case manager asked Mother and E.J. if they were

under the influence of alcohol or drugs, and the parents told him to “fuck off”

and shut the door in his face. (Tr. Vol. 2 at 106). FCM Wargel contacted law

enforcement because he was concerned about the children in the home with

intoxicated parents. Parents tested positive for THC and an opioid. FCM

Wargel observed that the home had no bedding or furniture for the children.

[9] In an attempt to keep the children in the home, FCM Wargel referred parents to

the Homebuilders program. Although parents initially agreed to participate in

the program, they attended only one session before the family disappeared.

When FCM Wargel found the family three weeks later, he learned that the

older children had not been to school during that time. In addition, all the

children were dirty and had a strong odor. They said they were hungry and had

not eaten that day.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 4 of 12 [10] The children were removed from the home, and DCS filed petitions alleging

that the children were in need of services (“CHINS”). J.H. and D.J. were

adjudicated to be CHINS in March 2017. In a dispositional order, the trial

court ordered mother to: (1) complete a domestic violence assessment and

follow all treatment recommendations; (2) complete a substance abuse

assessment and follow treatment recommendations; (3) remain drug and

alcohol free; (4) submit to urine drug screens; (5) obtain and maintain suitable,

safe, and stable housing; (6) obey the law; and (7) attend supervised visitation

with the children.

[11] J.H. and D.J. returned home for a trial visit in June 2017. A DCS case worker

stopped by Mother’s home to check on the children and discovered that the

home had no workable utilities. There was trash on the floor, clothing piled in

the bathtub, and the toilets were backed up with feces, causing a foul odor in

the house. In addition, there was no refrigerator or food in the house. The

children were dirty and had bite marks from fleas or mosquitoes. Based on the

conditions in the home, DCS removed J.H. and D.J. and placed them in foster

care.

[12] In October 2017, Mother tested positive for methamphetamine and

amphetamine. She also attended only six of twelve scheduled visits with the

children from August to October 2017. DCS suspended the visits in November

2017 after D.J. contracted MRSA from E.J. during a visit. DCS requested that

Mother and E.J. see a doctor and told them that visits would resume with a

doctor’s note that neither parent was contagious. Mother did not comply with

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 5 of 12 DCS’s request. FCM Meredith further testified that the following month, the

trial court told Mother it would reinstate visits after she had completed two

consecutive drug screens that were negative. Mother did not complete two

consecutive negative drug screens.

[13] In April 2018, Mother texted FCM Meredith and asked what “services that she

needed to do to get her kids back.” (Tr. Vol. 2 at 157). FCM Meredith

responded that she needed to get stable housing and take urine drug screens.

He asked Mother to come to his office at her earliest convenience for a drug

screen. Later that day, he received the following text message from Mother: “I

need clean pee.” (Tr. Vol. 2 at 157). FCM Meredith responded that he thought

the message had been sent to him by mistake. He later received a text saying

that “[t]his was not [Mother].” (Tr. Vol. 2 at 158). Mother never submitted a

drug screen. She was arrested for burglary in August 2018. She subsequently

pleaded guilty to the charged offense and was sentenced to one year of

probation.

[14] Based on Mother’s noncompliance with the CHINS dispositional order, DCS

filed petitions to terminate Mother’s parental relationships with J.H. and D.J. in

October 2018. At the three-day termination hearing in January, March, and

April 2019, DCS Family Case Manager Brandon Meredith (“FCM Meredith”)

testified that he had been assigned to the case in July 2017 after the children had

been removed from Mother for the second time. According to FCM Meredith,

Mother had not complied with the CHINS dispositional order requirements

and had not seen her children in over a year.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 6 of 12 [15] When asked whether Mother was likely to remedy the reasons requiring the

removal of her children, FCM Meredith responded that she was not.

Specifically, FCM Meredith explained as follows:

Because [Mother] has had since 2017 to do services. I have told her services she needs to get done. I’ve given her repeated services over the years. She has shown little – really no interest in completing services. She has also not even talked to ask about her kids and how they’re doing. So at this point I just don’t see that she’s going to complete any service and remedy any of the issues, especially with the housing situation. She’s been to multiple homes over the last two years. When I say multiple, she’s testified about five or more homes.

(Tr. Vol. 2 at 160-61). FCM Meredith also testified that it was in the children’s

best interests to have Mother’s parental rights terminated. According to the

family case manager, the children were in a loving and caring pre-adoptive

home where they had stability. FCM Meredith also testified that although he

remained the case manager on this case until February 2019, all

communication for the case was routed through another case manager after

Mother had threatened FCM Meredith’s child.

[16] Also at the hearing, CASA Deborah Gamache (“CASA Gamache”) testified

that she did not think it was likely that Mother would remedy the reasons

requiring removal of her children. CASA Gamache also testified that it was in

the children’s best interest to have Mother’s parental rights terminated because

she had not developed skills to provide for the children.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 7 of 12 [17] In June 2019, the trial court issued a detailed order terminating Mother’s

parental rights. Mother now appeals the termination.

Decision [18] 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.

[19] 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

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 1229-30.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 8 of 12 [20] 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.

[21] 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 the children’s removal or the reasons for placement

outside Mother’s home will not be remedied; and (2) a continuation of the

parent-child relationship poses a threat to the children’s well-being.

[22] 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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 9 of 12 evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in the children’s

removal or the reasons for their placement outside Mother’s home will not be

remedied.

[23] 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. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).

The trial court may also consider services offered to the parent by DCS and the

parent’s response to those services as evidence of whether conditions will be

remedied. Id. Requiring trial courts to give due regard to changed conditions

does not preclude them from finding that a parent’s past behavior is the best

predictor of her future behavior. E.M., 4 N.E.3d at 643.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 10 of 12 [24] Here, the children were removed from Mother’s home because of neglect and

Mother’s drug use. Our review of the evidence reveals that at the time of the

termination hearing, Mother had not completed the court-ordered requirements

in the CHINS dispositional order. Specifically, she had not completed a

domestic violence program or a substance abuse assessment. She had not

remained alcohol and drug free or obtained suitable, safe, and stable housing.

She had not seen her children in over a year, and she had failed to obey the law

when she was arrested for burglary in August 2018. This evidence supports the

trial court’s conclusion that there was a reasonable probability that the

conditions that resulted in the children’s removal would not be remedied. We

find no error.

[25] Mother also argues that there is insufficient evidence that the termination was

in the children’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 evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

to those of the child involved. Id. Termination of the parent-child relationship

is proper where the child’s emotional and physical development is threatened.

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘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

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1544 | February 18, 2020 Page 11 of 12 Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

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

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003).

[26] Here, our review of the evidence reveals that Mother has historically been

unable to provide stability and supervision for her children and was unable to

provide the same at the time of the termination hearing. In addition, FCM

Meredith and CASA Gamache testified that termination was in the children’s

best interests. The testimony of these service providers, as well as the other

evidence previously discussed, supports the trial court’s conclusion that

termination was in the children’s best interests. There is sufficient evidence to

support the terminations. 2

[27] Affirmed.

May, J., and Crone, J., concur.

2 Mother also argues that the “trial court failed to enter its judgment in imperative form under either subsection (i) or subsection (ii) of the statute inviting the Appellate Court to guess the grounds upon which the trial court entered its judgment.” (Mother’s Br. at 3). According to Mother, “by not entering a decision under either subsection (i) or subsection (ii), the trial court leaves it to the Appellate Court to determine not only whether DCS met its burden but also upon which section of the statute the trial court entered its judgment.” ( Mother’s Br. at 15). We disagree with Mother’s characterization of the trial court’s judgment. Specifically, our review of the trial court’s order reveals that the trial court concluded that DCS had proved both subsection (i), that there is a reasonable probability that the conditions that resulted in the children’s removal or the reasons for placement outside the children’s home would not be remedied, and subsection (ii), that a continuation of the parent-child relationship posed a threat to the children’s well-being. In addition, the trial court set forth specific facts in support of its conclusions. We find no error.

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