In re the Termination of the Parent-Child Relationship of K.H., Ne.W., and Ny.W. (Minor Children) and S.W. (Mother), S.W. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 25, 2019
• Docket: 19A-JT-45
• 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 Jun 25 2019, 9:52 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 Megan Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General Indianapolis, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the June 25, 2019 Parent-Child Relationship of Court of Appeals Case No. K.H., Ne.W., and Ny.W. (Minor 19A-JT-45 Children) and S.W. (Mother) Appeal from the S.W. (Mother), Marion Superior Court, Juvenile Division Appellant-Respondent, The Honorable v. Marilyn Moores, Judge The Honorable Larry Bradley, Magistrate Indiana Department of Child Services, Trial Court Cause Nos. 49D09-1807-JT-827 Appellee-Petitioner 49D09-1807-JT-830 49D09-1807-JT-831 and

Child Advocates, Inc.,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 1 of 11 Appellee-Guardian Ad Litem

Vaidik, Chief Judge.

Case Summary [1] S.W. (“Mother”) appeals the termination of her parental rights to three of her

children. We affirm.

Facts and Procedural History [2] The undisputed facts are set forth in the trial court’s order. 1 Mother and R.B.

are the biological parents of Ny.W., born in 2014, and Ne.W., born in 2015.2

Mother has another child—K.H., born in 2011—from a previous relationship

with A.H., who died in 2017.3

1 Mother asserts that the trial court’s findings that Mother “has not been able to maintain employment” and that she “was receiving unemployment at the time of trial” are “either unsupported or misleading.” Appellant’s Br. p. 21. That is not so. Mother, herself, testified that at the time of trial she had quit her job, was receiving unemployment, and was “still looking for employment.” Tr. p. 35. As such, we conclude that the trial court’s findings regarding Mother’s employment are supported by evidence and not misleading. Because Mother does not otherwise challenge the findings, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind 1992). 2 R.B.’s parental rights were also terminated; however, he does not participate in this appeal and we therefore limit our narrative to the facts relevant to Mother. 3 Mother also has two teenaged children: A.W., born in 2002, and X.I., born in 2003, who are not the subject of this appeal. A.W. is in Aunt Tw.’s care under a guardianship, and X.I. is in Aunt Tr.’s care under a guardianship.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 2 of 11 [3] In May 2014, Ohio’s Children Services Board filed a complaint alleging that

K.H. and Ny.W. were dependent and abused children due to a domestic-

violence incident between Mother and A.H. in which Mother suffered

significant injuries. The Ohio complaint also alleged that Ny.W. was born

exposed to marijuana and that Mother tested positive for marijuana and

cocaine at Ny.W.’s birth. Mother admitted using cocaine and marijuana during

her pregnancy with Ny.W. K.H. and Ny.W. were removed from Mother’s care

and placed in foster care because Mother had no housing and was unwilling to

go to a domestic-violence shelter. The Ohio case resulted in reunification, and

K.H. and Ny.W. were returned to Mother. Thereafter, Mother moved to

Indiana with K.H. and Ny.W., and thereafter, Ne.W. was born.

[4] In August 2016, Mother was arrested for Level 5 felony attempted trafficking

with an inmate, Level 6 felony possession of a legend drug, and Class B

misdemeanor possession of marijuana. The Department of Child Services

(DCS) conducted an assessment regarding allegations of abuse and neglect due

to Mother’s arrest, drug use, and failure to enroll her school-aged children in

school. Family Case Manager (FCM) Kristina Clanin met with Mother at the

Delaware County Jail. Mother said that she and K.H., Ny.W., and Ne.W.

(collectively, “Children”) had been evicted from their apartment on July 30 and

that K.H. was staying with her sister, Aunt Tr., and Ny.W. and Ne.W. were

staying with her other sister, Aunt Tw. A few days later, Mother posted bail,

was released from jail, and moved to South Bend to live with an ex-boyfriend.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 3 of 11 [5] On August 15, DCS filed a petition alleging that Children were in Need of

Services (CHINS). DCS also requested that K.H. remain placed with Aunt Tr.

and that Ny.W. and Ne.W. remain placed with Aunt Tw. In September, the

trial court adjudicated Children CHINS after Mother admitted the allegations

in DCS’s petition. Thereafter, the trial court issued a dispositional order

requiring Mother to participate in reunification services, including: home-based

case management, a substance-abuse assessment, random drug screens, and

visitation with Children. K.H. remained placed with Aunt Tr., and Ny.W. and

Ne.W. remained placed with Aunt Tw. At some point, Mother moved to

Indianapolis. Then, in August 2017, DCS requested that the CHINS case be

transferred to Marion County because Children’s respective placements and

Mother lived in Marion County. The trial court granted DCS’s request, and the

CHINS case was transferred to Marion Superior Court Juvenile Division.

[6] After Mother moved to Indianapolis, she never obtained adequate housing for

herself or Children. Mother stayed in different hotels for about a month at a

time, she lived in a friend’s apartment for two months, and for about six months

she lived at an address on Udell Street. During this time, Mother sporadically

participated in home-based case management but was inconsistent and did not

progress in obtaining stable housing or managing her budget. Throughout the

CHINS case, Mother repeatedly tested positive for marijuana, cocaine, and

alcohol and sometimes refused to submit to drug screens. In March 2018,

Mother agreed to plead guilty to all three charges in the 2016 criminal case and

was sentenced to thirty months with fifteen months executed through home

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 4 of 11 detention and fifteen months suspended to probation. She was also ordered to

complete a substance-abuse assessment within thirty days.

[7] On July 5, DCS filed petitions to terminate Mother’s parental rights to

Children, and the trial court set a fact-finding hearing for December 2018.

Before the termination hearing, Mother finally completed a substance-abuse

assessment in October. The substance-abuse assessment recommended twelve

weeks of outpatient treatment. Mother was scheduled to begin outpatient

treatment on October 30, but she did not show up.

[8] On December 3, the trial court held the fact-finding hearing on the termination

petitions. At the time, Mother was on probation for the 2016 criminal case and

awaiting a hearing on probation violations for failing to appear for drug screens,

attend probation appointments, attend outpatient treatment, and verify

employment. See Ex. 81. During the hearing, Mother’s Delaware County

FCM, Mischa Davis, testified that from September 2016 through December

2016, all of Mother’s drug screens, except for one, were positive. See Tr. p. 17.

FCM Davis also said that during the time she worked with Mother, “[Mother]

did a lot of deflecting and blaming placement at times for reasons why things

were not progressing.” Id. at 19. Mother’s home-based caseworker, Dellonda

Richardson, testified that Mother would sometimes miss visits with Children

and gave excuses that “she had to work,” “she was not feeling well,” “she had

some illnesses,” or that “she didn’t have transportation.” Id. at 42. Children’s

Guardian ad Litem, Greg Cannon, testified that “[Mother] doesn’t have stable

housing, employment, continues to either not screen or provide positive drug

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 5 of 11 screens.” Id. at 47. GAL Cannon said, “We are essentially at the same place

two years since the case opened . . . there has been no progress. . . . There

continue[s] to be issues with positive screens or lack of screening. There

continue[s] to be issues with lack of stable housing, lack of employment, the

inability or unwillingness to meet [Children’s needs].” Id. at 51. GAL Cannon

recommended termination of Mother’s parental rights and that Children be

adopted. See id. at 47.

[9] Mother’s Marion County FCM, Zachary Inman, testified that Mother had not

been compliant with home-based case management or random drug screens

since the case was transferred to Marion County in 2017. FCM Inman also

testified that Mother did not complete a substance-abuse assessment until

October 2018. FCM Inman recommended termination of Mother’s parental

rights and adoption by Children’s current placements. See id. at 59. Mother

testified and said that she was staying at a hotel but had found a house that she

hoped to move into by the end of the week. Mother also said that although she

was currently unemployed, she was going to interview for a job at a gas station.

Finally, Mother said that she was willing to complete the twelve weeks of

outpatient treatment recommended by the substance-abuse assessment. On

December 11, the trial court issued an order terminating Mother’s parental

rights.

[10] Mother now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 6 of 11 Discussion and Decision [11] 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).

[12] 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.

(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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 7 of 11 (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).

[13] First, Mother contends that there is insufficient evidence to support the trial

court’s conclusion that there is a reasonable probability the conditions resulting

in Children’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.

[14] Here, Mother failed to demonstrate that she was any closer to providing

Children a safe, stable home than she was at the beginning of the CHINS case.

The evidence shows that Mother was incarcerated when Children were placed

with Aunt Tr. and Aunt Tw., she did not comply with home-based case

management, she did not comply with random drug screens, and in December

2018 she was alleged to have violated probation by failing to appear for drug

screens, failing to attend probation appointments, failing to attend outpatient Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 8 of 11 treatment, and failing to verify employment. The trial court’s unchallenged

findings on this issue support its conclusion that there is a reasonable

probability the conditions resulting in Children’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

continued non-compliance with services support trial court’s conclusion that

conditions resulting in children’s removal from father’s care would not be

remedied). To the extent that Mother argues that she recently attempted to

engage in services by completing a substance-abuse assessment in October

2018, we commend her for taking the first step to free herself from addiction.

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 removal will not be remedied.4

[15] Next, Mother argues that the trial court erred in concluding that termination is

in Children’s best interests. To determine what is in a child’s best interests, the

trial court is required to 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

4 Because we affirm the trial court’s conclusion that there is a reasonable probability the conditions resulting in Children’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 Children. 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-45 | June 25, 2019 Page 9 of 11 court must subordinate the interest of the parent to those of the child. Id. The

trial court need not wait until a child is irreversibly harmed before terminating

the parent-child relationship. Id. We have previously held that

recommendations by both the DCS case manager and GAL to terminate

parental rights, in addition to evidence that the conditions resulting in removal

will not be remedied, is sufficient to show by clear and convincing evidence that

termination is in the child’s best interests. Id. at 1158-59.

[16] Here, in addition to Mother’s substance-abuse and housing issues that

necessitated DCS involvement and her complete lack of progress since then,

both GAL Cannon and FCM Inman testified that terminating Mother’s

parental rights would serve the best interests of Children. See Tr. pp. 47, 59.

Furthermore, the trial court found that Mother “appears to lay blame on others,

and makes excuses, for her poor choices.” Appellant’s App. Vol. II p. 93

(Finding 26); see also In re A.P., 981 N.E.2d 75, 82-83 (Ind. Ct. App. 2012).

Meanwhile, the trial court found that Children were happy in their pre-adoptive

placements and “clearly bonded with their caregivers.” Appellant’s App. Vol.

II p. 93 (Finding 34); see also 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.”).

Accordingly, the trial court did not err when it concluded that termination is in

Children’s best interests.

[17] Finally, Mother challenges the trial court’s conclusion that there is a

satisfactory plan for Children’s care and treatment. DCS’s plan need not be

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 10 of 11 detailed, so long as it offers a general sense of the direction the child will go

after the parent-child relationship is terminated. Lang v. Starke Cty. Office of

Family & Children, 861 N.E.2d 366, 374 (Ind. Ct. App. 2007), trans. denied.

Adoption is generally a satisfactory plan, even when a potential adoptive family

has not been identified. Id. at 375. Part of the reason for this is that it is within

the authority of the adoption court, not the termination court, to decide

whether an adoptive placement is appropriate. In re A.S., 17 N.E.3d 994, 1007

(Ind. Ct. App. 2014), trans. denied.

[18] Here, DCS’s plan is adoption. FCM Inman and GAL Cannon agreed with this

plan, and Aunt Tr. was willing to adopt K.H. and Aunt Tw. was willing to

adopt Ne.W. and Ny.W. Mother contends that adoption of Ne.W. and Ny.W.

by Aunt Tw. is not a satisfactory plan because she alleges that Aunt Tw. is

married to a woman whose parental rights to her own children have been

terminated. Regardless of whether those allegations are true or false, it is the

adoption court, not the termination court, who will decide who adopts Ne.W.

and Ny.W. Therefore, the trial court did not err in concluding that adoption is

a satisfactory plan for Children.

[19] Affirmed.

Kirsch, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-45 | June 25, 2019 Page 11 of 11