In re the Termination of the Parent-Child Relationship of M.R. and L.R. (Minor Children) and L.R. (Mother) L.R. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 24, 2019
• Docket: 19A-JT-992
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Oct 24 2019, 9:27 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 Renee M. Ortega Curtis T. Hill, Jr. Lake County Juvenile Public Attorney General Defender’s Office Benjamin M. L. Jones Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the October 24, 2019 Parent-Child Relationship of Court of Appeals Case No. M.R. and L.R. (Minor Children) 19A-JT-992 and L.R. (Mother) Appeal from the L.R. (Mother), Lake Superior Court The Honorable Appellant-Respondent, Thomas P. Stefaniak, Jr., Judge v. Trial Court Cause Nos. 45D06-1811-JT-341 45D06-1811-JT-342 Indiana Department of Child Services, Appellee-Petitioner

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 1 of 10 Case Summary [1] L.R. (“Mother”) appeals the termination of her parental rights to two of her

three children. We affirm.

Facts and Procedural History [2] Mother is the biological parent of three children: M.R., born in 2004, S.R., born

in 2006, and L.R., born in 2010. The facts that follow are taken primarily from

the trial court’s findings of fact, none of which Mother challenges on appeal. 1

[3] In September 2012, Mother, M.R., S.R., and L.R. lived with E.R., biological

father to L.R. and stepfather to M.R. and S.R. (hereafter, “Stepfather”). On

September 13, the Department of Child Services (DCS) received a report that

M.R. and S.R. were being sexually abused by Stepfather. Mother kicked

Stepfather out of the house and sought a no-contact order against him. Later,

she divorced Stepfather. DCS filed petitions alleging that M.R. and S.R. were

children in need of services (CHINS) due to the allegations of sexual abuse by

Stepfather. DCS did not remove M.R. and S.R. from Mother’s care but

recommended that Stepfather not enter Mother’s house and have no contact

with M.R. and S.R. At the initial hearing, Mother admitted the allegations in

the CHINS petition regarding Stepfather’s sexual abuse of M.R. and S.R. The

1 Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 2 of 10 trial court found that M.R. and S.R. were CHINS and ordered that Mother,

M.R., and S.R. participate in counseling, clinical assessments, and home-based

caseworker services.

[4] About two weeks later, on September 28, DCS received a report that there were

“a lot of people” coming and going from Mother’s house, that the house was

being used for drug dealing, that the house and children were filthy, and that

there was “not a lot of food” in the house. Ex. H. That same day, DCS

removed M.R., S.R., and L.R. from Mother’s care and placed them at

Carmelite Home for Children. Thereafter, DCS filed a CHINS petition

regarding L.R., alleging that Mother’s house and L.R. were filthy, that there

were lots of people coming and going from the house, and that suspected drug

dealing was taking place. Mother admitted the allegations of the CHINS

petition, and the trial court adjudicated L.R. a CHINS. The trial court also

ordered that M.R., S.R., and L.R. continue in their placement at Carmelite

Home.

[5] In October 2012, following a dispositional hearing, the court ordered that

Mother participate in services, including a substance-abuse assessment, drug

and alcohol screens, individual and family counseling, a clinical assessment,

and supervised visitation. In the beginning, Mother participated in some

services but then over the next six years, her participation became sporadic. At

the 2013 review hearings, the trial court found that Mother was not complying

with services and was still testing positive for marijuana but that she was

receiving treatment for her drug addiction at Transitions. See Ex. O. At the

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 3 of 10 2014 review hearings, the trial court found that Mother had checked herself out

of treatment at Transitions, missed a group therapy session, and continued to

test positive for marijuana. See Ex. W. At the March 2015 review hearing, the

trial court found that Mother had begun engaging in some services but was

inconsistent with drug screens. See Ex. OO. By the June 2015 review hearing,

the trial court found that Mother had become inconsistent with services and

that most of her drug screens were positive. See Ex. QQ. A year later, in May

2016, Mother had reengaged in some services but remained inconsistent with

drug screens. See Ex. VV. In August 2016, Mother tested positive for alcohol,

and in October 2016, she tested positive for cocaine. See Ex. BBB. In March

and April 2017, Mother tested positive for marijuana, and in June 2017 she was

evicted from her subsidized housing for not paying rent. See Exs. III, LLL. At

the December 2017 review hearing, Mother failed to appear, and DCS reported

that Mother had not participated in services since September 2017 and that

DCS had been unable to contact her. See Exs. NNN, OOO. In February 2018,

Mother contacted DCS and told them that she had just returned to Indiana

from living in Iowa for the past four months. Mother did not inform DCS that

she was moving to Iowa before doing so. Throughout the remainder of 2018,

Mother continued to be non-compliant with services and tested positive for

marijuana. See Ex. RRR. Meanwhile, M.R., S.R., and L.R. remained placed

at Carmelite Home for Children from September 2012 until October 2014,

when they were placed in a pre-adoptive foster home.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 4 of 10 [6] In November 2018, DCS filed petitions to terminate Mother’s parental rights as

to M.R. and L.R. (collectively, “Children”). A termination petition was not

filed regarding S.R. because DCS had not located a pre-adoptive home for her.

In December 2018, S.R. was separated into a different foster placement than

her siblings due to some behavioral issues she was having.

[7] A fact-finding hearing on the termination petitions was held in March 2019.

Family Case Manager (FCM) Shani Brown testified that in the year she was

assigned to the case, Mother completed some, but not all, services ordered by

the court. Tr. p. 12. FCM Teresa Abell testified that she was the family’s case

manager for almost two years and that during that time Mother moved to Iowa

for four months without informing DCS. Id. at 16. FCM Abell said that since

Mother returned from Iowa in February 2018, “she never consistently

participated in her services.” Id. at 18. FCM Abell recommended that

Mother’s parental rights be terminated and that Children be available for

adoption. Id. at 22. FCM Abell said that Children had been placed in their pre-

adoptive foster home for “over four years” and that allowing them to be

adopted “will allow [Children] to have permanency and achieve stability in

their lives.” Id. Harold Barnwell, M.R.’s homebased caseworker, testified that

he had been working with M.R. for over two years on “emotional behavior

modification, interaction skills, honesty,” and that since M.R. had been placed

in the pre-adoptive foster home his maturity level has improved and he stopped

lying. Id. at 43. Barnwell said that he agreed with termination of Mother’s

parental rights because he did not want to see M.R. regress. See id. at 44-45.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 5 of 10 Mother testified that she had “been smoking marijuana since [she] was sixteen”

and has “PTSD, depression and anxiety.” Id. at 36. In April 2019, the court

issued its order terminating Mother’s parental rights.

[8] Mother now appeals.

Discussion and Decision [9] 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 of law, 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).

[10] 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-992 | October 24, 2019 Page 6 of 10 (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).

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

conclusion that 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.

“The court first identifies the conditions that led to removal and then

determines whether there is a reasonable probability that those conditions will

not be remedied.” In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct. App. 2016)

(citing In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)). A parent’s fitness is

measured at the time of the termination hearing, and changed circumstances

are balanced against habitual patterns of conduct to see if there is a “substantial

probability of future neglect or deprivation.” Id. Trial courts have discretion to Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 7 of 10 weigh a parent’s history more heavily than efforts made shortly before

termination, and the court may find that a parent’s past behavior is the best

predictor of future behavior. Id.

[12] Here, Mother has failed to demonstrate that she is any closer to providing

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

The evidence shows that Mother did not follow through with the services

offered to her, has not maintained stable housing, continues to test positive for

marijuana, and is unable to provide for the basic needs of Children. Appellant’s

App. Vol. II p. 52. The trial court found that “[f]or over six years, [Mother]

failed to utilize the available services and make the necessary efforts to remedy

the conditions, which led to intervention by DCS and the Court.” Id. at 52-53;

see In re E.M., 4 N.E.3d at 644 (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 reengage in

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

Mother made only shortly before termination and to weigh more heavily

Mother’s history of conduct before those efforts. 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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 8 of 10 reasonable probability that the conditions resulting in removal will not be

remedied.2

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

in Children’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 parent to those of the child. Id. We have

previously held that recommendations by both the DCS manager and child

advocate to terminate parental rights, in addition to evidence that conditions

resulting in removal will not be remedied, is clear and convincing evidence that

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

[14] Here, FCM Abell and caseworker Barnwell both testified that terminating

Mother’s parental rights is in Children’s best interests. See Tr. pp. 22, 45.

Furthermore, the trial court found that Children “have been in the same

placement for four years and are bonded and thriving in their placement.”

Appellant’s App. Vol. II p. 52; 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.”).

2 Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that resulted 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-992 | October 24, 2019 Page 9 of 10 Finally, the trial court concluded that “[i]t would be unfair to [Children] to

delay such permanency on the very remote likelihood of [Mother] committing

to and completing services,” and that “after six years, . . . [Children] certainly

have a right to permanency.” Appellant’s App. Vol. II p. 53; see In re A.D.S.,

987 N.E.2d at 1159 (“permanency is a central consideration in determining the

best interests of a child”); 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). Accordingly, the trial

court did not err when it concluded that termination is in Children’s best

interests.

[15] Affirmed.

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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-992 | October 24, 2019 Page 10 of 10