MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 15 2017, 9:04 am regarded as precedent or cited before any court except for the purpose of establishing CLERK 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 Brian K. Alsip Curtis T. Hill, Jr. Alsip Law Office, P.C. Attorney General of Indiana Franklin, Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Termination of the December 15, 2017 Parent-Child Relationship of: Court of Appeals Case No. 41A01-1706-JT-1333 M.R. and M.R. Appeal from the Johnson Circuit J.S. and K.G., Court Appellants-Respondents, The Honorable K. Mark Loyd, Judge v. The Honorable Andrew Roesener, Juvenile Magistrate The Indiana Department of Trial Court Cause Nos. Child Services, 41C01-1701-JT-1 Appellee-Petitioner. 41C01-1701-JT-2
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 1 of 9 Statement of the Case [1] K.P. (“Mother”) appeals the termination of the parent-child relationship with
her children Mas.R (“Mas.R”) and Mal.R. (“Mal.R.”) (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; and (2) a
continuation of the parent-child relationship poses a threat to the children’s
well-being. Concluding that there is sufficient evidence to support the trial
court’s decision to terminate the parent-child relationship, 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 has two children, son Mas.R., who was born in May 2012, and
daughter Mal.R., who was born in February 2014. In August 2015, DCS
received a report of drug use and unclean and unsafe conditions in Mother’s
1 The children’s father voluntarily relinquished his parental rights and is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 2 of 9 home. DCS Assessor Bradley McCarty (“Assessor McCarty”) went to
Mother’s home to investigate the allegations. Mother was not home, but her
husband answered the door and refused to allow Assessor McCarty to enter.
Assessor McCarty noticed that eighteen-month-old Mal.R. had dog feces on her
foot and was wearing nothing but a diaper that was full of urine and feces.
Later than evening, a neighbor noticed Mal.R. wandering around outside
wearing only a diaper and a pajama top. Mal.R. was cold and shivering, and
her legs and feet were covered with grass and dirt. Assessor McCarty
subsequently returned to Mother’s home with an emergency custody detention
order and removed the children, who were placed with paternal grandmother.
[4] DCS filed a petition alleging that the children were children in need of services
(“CHINS”) because of a lack of supervision, inappropriate housing, and drug
use in the home. In September 2015, Mother was charged with Level 5 felony
dealing in a controlled substance. The following day, she admitted that her
children were CHINS, and the trial court ordered her to maintain appropriate
housing, abstain from drug use, and complete a substance abuse assessment and
follow all recommendations.
[5] In October 2015, Mother was assessed by a substance abuse counselor at Adult
and Child Health. She entered an intensive outpatient treatment program but
was discharged from the program two months later because of numerous
positive drug screens and because she had violated the program’s attendance
policy. In March 2016, Mother was assessed by another substance abuse
counselor and entered another intensive outpatient treatment program. She
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 3 of 9 was discharged from the program two months later because of positive drug
screens. She was referred to inpatient drug and alcohol treatment but failed to
follow the recommendation.
[6] Ten months later, in August 2016, Mother gave birth to a baby who tested
positive for drugs. Following the baby’s birth, Mother attempted to smuggle a
syringe, spoon, and tourniquet into the hospital in her undergarments. The
baby died in October 2016. The following month, Mother entered an inpatient
treatment program. She was discharged after detox and was given follow-up
recommendations, which she failed to follow.
[7] Two months later, in January 2017, DCS filed a petition to terminate Mother’s
parental rights. In February 2017, Mother met with a DCS supervisor and
admitted that she had used heroin five days before the meeting. She requested
additional services from DCS and was referred to Adult and Child Health for
another evaluation that was scheduled for March 2, 2017. Mother, however,
failed to attend the scheduled appointment and was arrested for drug-related
charges on March 7.
[8] Testimony at the April 2017 termination hearing revealed that Mother had used
methadone, controlled substances, such as tramadol and hydrocodone, and
heroin during the course of the CHINS proceedings. Mother admitted at the
hearing that she had used drugs as recently as one to two weeks before the
hearing. The testimony further revealed that Mother had demonstrated
inconsistent attendance at supervised visitation with her children. When she
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 4 of 9 did attend visitation, Mother did not interact appropriately with her children,
and the visitation supervisor suspected that Mother was under the influence of
drugs at some of the visitations. Mother was eventually unsuccessfully
discharged from the supervised visitation program. At the time of the hearing,
Mother had only seen her children twice in the previous four to five months.
In addition, the evidence revealed that Mother had not demonstrated stable
housing during the almost two years that her children had been in foster care.
Specifically, Mother had lived with her mother until Mother stole from her.
Mother had also lived with her husband’s family and was “floating around with
people.” (Tr. 40). Both the DCS family case manager and court-appointed
special advocate testified that termination was in the children’s best interests.
The plan was for paternal grandmother to adopt the children.
[9] Following the hearing, the trial court issued a detailed order terminating
Mother’s parental rights. Mother now appeals the termination.
Decision [10] 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
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 15 2017, 9:04 am regarded as precedent or cited before any court except for the purpose of establishing CLERK 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 Brian K. Alsip Curtis T. Hill, Jr. Alsip Law Office, P.C. Attorney General of Indiana Franklin, Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In Re the Termination of the December 15, 2017 Parent-Child Relationship of: Court of Appeals Case No. 41A01-1706-JT-1333 M.R. and M.R. Appeal from the Johnson Circuit J.S. and K.G., Court Appellants-Respondents, The Honorable K. Mark Loyd, Judge v. The Honorable Andrew Roesener, Juvenile Magistrate The Indiana Department of Trial Court Cause Nos. Child Services, 41C01-1701-JT-1 Appellee-Petitioner. 41C01-1701-JT-2
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 1 of 9 Statement of the Case [1] K.P. (“Mother”) appeals the termination of the parent-child relationship with
her children Mas.R (“Mas.R”) and Mal.R. (“Mal.R.”) (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; and (2) a
continuation of the parent-child relationship poses a threat to the children’s
well-being. Concluding that there is sufficient evidence to support the trial
court’s decision to terminate the parent-child relationship, 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 has two children, son Mas.R., who was born in May 2012, and
daughter Mal.R., who was born in February 2014. In August 2015, DCS
received a report of drug use and unclean and unsafe conditions in Mother’s
1 The children’s father voluntarily relinquished his parental rights and is not a party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 2 of 9 home. DCS Assessor Bradley McCarty (“Assessor McCarty”) went to
Mother’s home to investigate the allegations. Mother was not home, but her
husband answered the door and refused to allow Assessor McCarty to enter.
Assessor McCarty noticed that eighteen-month-old Mal.R. had dog feces on her
foot and was wearing nothing but a diaper that was full of urine and feces.
Later than evening, a neighbor noticed Mal.R. wandering around outside
wearing only a diaper and a pajama top. Mal.R. was cold and shivering, and
her legs and feet were covered with grass and dirt. Assessor McCarty
subsequently returned to Mother’s home with an emergency custody detention
order and removed the children, who were placed with paternal grandmother.
[4] DCS filed a petition alleging that the children were children in need of services
(“CHINS”) because of a lack of supervision, inappropriate housing, and drug
use in the home. In September 2015, Mother was charged with Level 5 felony
dealing in a controlled substance. The following day, she admitted that her
children were CHINS, and the trial court ordered her to maintain appropriate
housing, abstain from drug use, and complete a substance abuse assessment and
follow all recommendations.
[5] In October 2015, Mother was assessed by a substance abuse counselor at Adult
and Child Health. She entered an intensive outpatient treatment program but
was discharged from the program two months later because of numerous
positive drug screens and because she had violated the program’s attendance
policy. In March 2016, Mother was assessed by another substance abuse
counselor and entered another intensive outpatient treatment program. She
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 3 of 9 was discharged from the program two months later because of positive drug
screens. She was referred to inpatient drug and alcohol treatment but failed to
follow the recommendation.
[6] Ten months later, in August 2016, Mother gave birth to a baby who tested
positive for drugs. Following the baby’s birth, Mother attempted to smuggle a
syringe, spoon, and tourniquet into the hospital in her undergarments. The
baby died in October 2016. The following month, Mother entered an inpatient
treatment program. She was discharged after detox and was given follow-up
recommendations, which she failed to follow.
[7] Two months later, in January 2017, DCS filed a petition to terminate Mother’s
parental rights. In February 2017, Mother met with a DCS supervisor and
admitted that she had used heroin five days before the meeting. She requested
additional services from DCS and was referred to Adult and Child Health for
another evaluation that was scheduled for March 2, 2017. Mother, however,
failed to attend the scheduled appointment and was arrested for drug-related
charges on March 7.
[8] Testimony at the April 2017 termination hearing revealed that Mother had used
methadone, controlled substances, such as tramadol and hydrocodone, and
heroin during the course of the CHINS proceedings. Mother admitted at the
hearing that she had used drugs as recently as one to two weeks before the
hearing. The testimony further revealed that Mother had demonstrated
inconsistent attendance at supervised visitation with her children. When she
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 4 of 9 did attend visitation, Mother did not interact appropriately with her children,
and the visitation supervisor suspected that Mother was under the influence of
drugs at some of the visitations. Mother was eventually unsuccessfully
discharged from the supervised visitation program. At the time of the hearing,
Mother had only seen her children twice in the previous four to five months.
In addition, the evidence revealed that Mother had not demonstrated stable
housing during the almost two years that her children had been in foster care.
Specifically, Mother had lived with her mother until Mother stole from her.
Mother had also lived with her husband’s family and was “floating around with
people.” (Tr. 40). Both the DCS family case manager and court-appointed
special advocate testified that termination was in the children’s best interests.
The plan was for paternal grandmother to adopt the children.
[9] Following the hearing, the trial court issued a detailed order terminating
Mother’s parental rights. Mother now appeals the termination.
Decision [10] 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
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 5 of 9 parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[11] 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.
[12] 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
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 6 of 9 (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.
[13] 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.
[14] 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). 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.
[15] 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 Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 7 of 9 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.
[16] Here, the children were removed from Mother’s home because of a lack of
supervision, inappropriate housing, and drug use in the home. Our review of
the evidence reveals that at the time of the termination hearing, Mother had
been unsuccessfully discharged from the supervised visitation program because
she had demonstrated inconsistent attendance visiting her children. The
visitation supervisor had noticed that Mother did not interact appropriately
with her children. The supervisor also suspected that Mother was under the
influence of drugs at some of the visitations. Mother had only seen her children
twice in the previous four to five months. Mother had not found appropriate
housing during the course of the CHINS proceedings and she had continued to
use drugs. Specifically, the evidence reveals that Mother had used
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 8 of 9 methamphetamine, controlled substances, and heroin during the course of the
proceedings. She had been unsuccessfully discharged from two intensive
outpatient programs because of positive drug screens and for violating the
attendance policy of one of the programs. Mother admitted at the hearing that
she had used drugs one to two weeks before the termination hearing. This
evidence supports the trial court’s conclusion that 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. There is
sufficient evidence to support the involuntary termination of Mother’s parental
rights.
[17] Affirmed.
Kirsch, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A01-1706-JT-1333 | December 15, 2017 Page 9 of 9