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

• Court: Indiana Court of Appeals
• Decided: August 29, 2019
• Docket: 19A-JT-779
• 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 Aug 29 2019, 7:17 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Yvonne M. Spillers Curtis T. Hill, Jr. Fort Wayne, Indiana Attorney General Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the August 29, 2019 Parent-Child Relationship of Court of Appeals Case No. J.R. (Minor Child) and 19A-JT-779 A.P. (Mother), Appeal from the A.P. (Mother), Wells Circuit Court The Honorable Appellant-Respondent, Kenton W. Kiracofe, Judge v. Trial Court Cause No. 90C01-1807-JT-27 Indiana Department of Child Services, Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 1 of 12 Case Summary [1] A.P. (“Mother”) appeals the termination of her parental rights to her daughter,

J.R. (“Child”). We affirm.

Facts and Procedural History [2] Mother and J.M.R. (“Father”) are the biological parents of Child, born in

August 2006. Father consented to Child’s adoption and does not participate in

this appeal; therefore, we limit our narrative to the facts relevant to Mother.

[3] In June 2016, Mother was living with her boyfriend, B.J., in Madison County

when they got into a domestic dispute that ended with B.J. pointing a gun at

her head. Child was in the house at the time. Afterwards, Mother went to

court to get a protective order against B.J., and the Department of Child

Services (DCS) got involved due to the domestic-violence issues. Mother and

DCS agreed to an informal adjustment (IA) to try to resolve the domestic-

violence issues. However, Mother did not comply with the IA. That is,

Mother tested positive for marijuana and did not obtain stable housing. In

October, Mother told DCS that she was going to enlist in the National Guard

and transfer custody of Child to someone else. Apparently taking Mother at

her word, DCS closed the IA; however, there is no evidence that Mother ever

enlisted or transferred custody of Child. After the IA was closed, B.J. moved

back into the house with Mother and Child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 2 of 12 [4] Less than a year later, in March 2017, DCS received multiple reports of abuse

or neglect of Child. On March 8, Family Case Manager (FCM) Kristen Beer

conducted an assessment and discovered that Mother had taken Child to

maternal grandmother’s (“Grandmother”) house in Wells County, Indiana.

FCM Beer went to Grandmother’s house and interviewed Child, who said that

she witnessed domestic violence between Mother and B.J. Child also told

FCM Beer that Mother told her “they do weed.” Tr. p. 29. At the time of

Child’s interview, Mother was in Madison County, and FCM Beer spoke to her

by phone. Mother explained that she “had been planning to come back to

Wells County that evening when she could get a ride.” Id. After speaking with

Mother, DCS removed Child from Mother’s care, placed Child with

Grandmother, and filed a petition alleging that Child was a Child in Need of

Services (CHINS).1 The trial court determined that Child was a CHINS after

Mother admitted the allegations in DCS’s petition. Following the hearing, the

trial court ordered that Mother participate in numerous services, including a

substance-abuse assessment, a psychological assessment, home-based case

management, and drug screens. The trial court also ordered Mother to contact

the FCM every week and notify the FCM of “any changes in address,

household composition, employment or telephone number within five (5) days

of said change.” Appellant’s App. Vol. II p. 26. Child remained placed with

Grandmother. Around that same time, in April 2017, Mother met and married

1 DCS also removed Child’s half-sibling, J.H, from Mother’s care. In June 2018, J.H. was placed with his father, who has since been granted full physical and legal custody. See No. 48C01-1205-JP-186.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 3 of 12 R.M. Three days after they were married, Mother filed for divorce from R.M.

because of domestic violence. See Tr. p. 120.

[5] In May 2017, DCS removed Child from Grandmother’s care because adults

living in Grandmother’s house tested positive for marijuana. Child was then

placed in foster care. Meanwhile, Mother began dating R.S. and stopped

contacting DCS.

[6] In June, Child was placed in relative placement with paternal aunt (Aunt).

Child’s therapist, Kristen Keuhl, worked with Child during the transition and

found that Child was showing signs of significant anxiety—panic attacks, chest

pains, crying spells, sleep problems—the day before, the day of, or the day after

visitation with Mother. See id. at 91. Keuhl recommended that Child’s visits

with Mother be suspended until Child learned how to relax and cope with her

feelings of anxiety and distress.

[7] In mid-August 2017, Mother reconnected with DCS and began engaging in

some services. She completed a substance-abuse assessment, which

recommended that Mother undergo individual substance-abuse counseling,

group counseling, and submit to random drug screens. When Mother began

individual substance-abuse counseling, she agreed to abstain from alcohol,

among other things. Mother also completed some drug screens but failed to

complete others, and on August 15 tested positive for marijuana. By

September, Child had improved her ability to manage her anxiety and began

having supervised therapeutic visitation with Mother. Around this same time,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 4 of 12 Mother broke up with R.S. “due to his consistent substance use” and because

she wanted to “do what’s best for [Child].” Tr. p. 64. Two months later,

however, Mother reunited with R.S., and they married in December 2017.

[8] For a time, Mother remained somewhat engaged in drug screens and visits with

Child. Then, in March 2018, she had two positive drug screens; that is, on

March 1 and 15, she tested positive for alcohol despite having previously agreed

not to consume alcohol. In mid-March, Mother stopped DCS services

altogether. First, Mother missed a special full-day visit with Child and some of

her extended family. Mother did not call to explain her absence and then

missed her next three visits with Child. Mother also started missing

appointments at Park Center, where she was completing individual and group

substance-abuse counseling. From mid-March to August 2018, Mother’s

whereabouts were unknown, and DCS was unable to locate her. When Mother

first went missing, Child was “fearful of where Mother was at . . . but then

became complacent,” telling DCS workers that Mother “has a history and

routine of leaving and coming back.” Id. at 57. Later, DCS discovered that

Mother and R.S. had left Indiana and moved to Florida at the end of March.

In July, DCS filed a petition to terminate Mother’s parental rights to Child.

[9] On August 3, Mother returned to Indiana to address a bench warrant that was

issued after she failed to appear for Child’s April 16 permanency hearing. On

August 19, after Mother was baptized in the Pentecostal Church, she turned

herself in. Mother was released on her own recognizance, but a condition of

her release was to contact DCS and speak with the FCM. After reconnecting

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 5 of 12 with FCM Lindsey Timmons, Mother began attending home-based case

management and submitted to drug screens.

[10] In December, the trial court held a fact-finding hearing on the termination

petition. FCM Beer testified that when Child was removed from Mother’s care,

she was concerned that there were several instances where Mother would leave

Child with Grandmother because the domestic violence with B.J. had been

“going on for over a year.” Id. at 44. FCM Timmons testified that when she

took over the CHINS case, Mother was complying with services until July

2017, when Mother’s phone changed and “her whereabouts were unknown.”

Id. at 48. FCM Timmons said that Mother reconnected with DCS in late

August or early September 2017, but then went missing again from March to

August 2018. See id. FCM Timmons stated that since March 2017, Mother has

had “nine separate households.” Id. at 49. FCM Timmons said that Mother

never told her when someone moved in or out of her house and did not tell her

when she was married or divorced. FCM Timmons stated that Mother’s failure

to disclose her marital history was a concern for DCS because “it continues to

show instability.” Id. Aside from FCM Timmons’s concern about Mother’s

instability, she testified that throughout the CHINS case Mother “has not called

or not showed-[up] for over a hundred and twenty drug screens.” Id. at 53.

FCM Timmons also confirmed that Mother’s most recent drug screen was

positive for methamphetamine and stated that Mother’s husband, R.S., had also

been ordered to take drug screens and “almost every drug screen – was positive

for an illegal substance.” Id. at 51. FCM Timmons stated that she believed that

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 6 of 12 termination of Mother’s parental rights is in Child’s best interests because Child

“had to overcome severe anxiety, depression, night tremors . . . and has

maintained consistent . . . bonds with the family [Child is] with now.” Id. at 60.

Regarding DCS’s plan for Child, FCM Timmons said the plan is adoption and

that Aunt is willing to adopt Child.

[11] Child’s therapist, Kristen Keuhl, testified that when she first started working

with Child, she was having “panic attacks, crying spells” and at one point had

to be “taken to the emergency room for chest pains.” Id. at 84. Keuhl believed

that the instability in Child’s life had been significant and caused Child to have

difficulties maintaining relationships with caregivers, particularly female

caregivers. Keuhl said that by the end of her treatment with Child in May

2018, Child “no longer wanted to be reunified with [Mother].” Id. at 93.

Child’s Guardian ad Litem (GAL), Beth Webber, testified that Mother had

“moved around and demonstrated huge instability.” Id. at 97. The GAL stated

that Mother did not complete services, specifically individual and group

counseling, and did not obtain stable housing. Ultimately, the GAL said, “I

whole-heartedly believe that termination of parental rights and subsequent

adoption is in the best interests of [Child].” Id. at 100. Mother also testified

that in March 2017, it was her intention to have Child stay with Grandmother

for a few days so that she could “obtain our property” from the house she

shared with B.J. Id. at 114. Mother also explained that in March 2018 when

she went to Florida with R.S., it was for her to “take a breath and make sure

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 7 of 12 [she] was okay to make sure [Child] [is] okay.” Id. at 121. In March 2019, the

trial court issued its order terminating Mother’s parental rights.

[12] Mother now appeals.

Discussion and Decision [13] Mother contends that the evidence is insufficient to support the trial court’s

order terminating her parental rights to Child. When reviewing the termination

of parental rights, we do not reweigh the evidence or judge witness credibility.

In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the

evidence and reasonable inferences that are most favorable to the judgment of

the trial court. Id. When a trial court has entered findings of fact and

conclusions, we will not set aside the trial court’s findings or judgment unless

clearly erroneous. Id. To determine whether a judgment terminating parental

rights is clearly erroneous, we review whether the evidence supports the trial

court’s findings and whether the findings support the judgment. In re V.A., 51

N.E.3d 1140, 1143 (Ind. 2016).

[14] A petition to terminate parental rights must allege, 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.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 8 of 12 (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. In re K.T.K., 989 N.E.2d at 1231. If the court

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

parent-child relationship. Ind. Code § 31-35-2-8(a).

[15] Mother first argues that there is insufficient evidence to support the trial court’s

conclusion that the conditions resulting in Child’s removal will not be

remedied. In determining whether the conditions that resulted in a child’s

removal will not be remedied, the trial court engages in a two-step analysis.

First, the trial court must ascertain what conditions led to the child’s placement

and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial

court determines whether there is a reasonable probability that those conditions

will not be remedied. Id. “The trial court must consider a parent’s habitual

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

future neglect or deprivation.” Id. The trial court has discretion to weigh a

parent’s prior history more heavily than efforts made only shortly before Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 9 of 12 termination, and the court may find that a parent’s past behavior is the best

predictor of his future behavior. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct.

App. 2016).

[16] Here, Mother failed to demonstrate that she was any closer to providing Child a

safe, stable home than she was at the beginning of the CHINS case. The trial

court’s unchallenged findings on this issue support its conclusion that the

conditions resulting in Child’s removal will not be remedied. See, e.g., In re

E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-

compliance with services support trial court’s conclusion that conditions

resulting in children’s removal from father’s care would not be remedied). That

is, the trial court found that Mother had lived in nine different households

during the CHINS case and did not notify DCS of her household composition,

marriages, or divorces. See Appellant’s App. Vol. II p. 40 (Findings 18, 20).

The trial court also found that Mother failed to call in to see if she needed to

take a drug screen more than 120 times and did not complete substance-abuse

services.2 See id. at 40-41 (Findings 22, 23). Finally, the trial court found that

twice during the CHINS case, Mother’s whereabouts were unknown because

Mother moved without notifying DCS. See id. at 41 (Finding 24). To the

extent Mother recently began engaging in services after being baptized into the

2 In arguing that the conditions resulting in Child’s removal will not be remedied, the State directs us to evidence that Mother tested positive for methamphetamine on October 31, 2018. Appellee’s Br. p. 18. However, Mother testified that she has never used meth and that the positive test was erroneous, see Tr. p. 126, and the trial court did not make a finding that Mother used meth.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 10 of 12 Pentecostal Church, we are hopeful that she has begun to turn her life around;

however, the trial court was well within its discretion to disregard the efforts

Mother made only shortly before termination and to weigh more heavily her

history of conduct. See In re K.T.K., 989 N.E.2d at 1234. Accordingly, the trial

court did not err when it concluded that there is a reasonable probability that

the conditions resulting in Child’s removal and continued placement outside

the home will not be remedied.3

[17] Next, Mother challenges the trial court’s conclusion that termination is in

Child’s best interests. To determine what is in the child’s best interests, the trial

court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150,

1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must

subordinate the interests of the parents to those of the child. Id. A trial court

need not wait until a child is irreversibly influenced by a deficient lifestyle such

that her physical, mental, and social growth is permanently impaired before

terminating the parent-child relationship. 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.

3 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires the trial court to find only one of the two requirements of subsection (B) has been established by clear and convincing evidence), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 11 of 12 [18] Here, in addition to the domestic-violence and substance-abuse issues that

necessitated DCS involvement and Mother’s lack of progress since then, both

FCM Timmons and the GAL testified that terminating Mother’s parental rights

would serve the best interests of Child. See Tr. pp. 60, 100. Furthermore,

Child’s therapist testified, and the trial court found, that Child exhibits

behaviors consistent with having suffered past trauma. That is, Child suffered

from “panic attacks, crying spells” and at one point had to be “taken to the

emergency room for chest pains.” Id. at 84. Finally, the trial court concluded

that “Mother has had nearly twenty-one (21) months to accomplish the steps

necessary to have [Child] returned to her care,” and “[Child] cannot wait

indefinitely for [Mother] to work toward preservation and reunification.”

Appellant’s App. Vol. II p. 43; see In re K.T.K., 989 N.E.2d at 1230 (finding that

“children have an interest in terminating parental rights that prevent adoption

and inhibit establishing secure, stable, long-term, continuous relationships”); see

also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are

too substantial to force them to wait while determining if their parents will be

able to parent them). For all of these reasons, we find that the trial court did

not err when it determined that termination is in Child’s best interests.

[19] Affirmed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 12 of 12