In re the Termination of the Parent-Child Relationship of M.W. and L.W., minor children, and their Mother, W.W. v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 30, 2016
• Docket: 26A04-1510-JT-1808
• Status: Published

Opinion

FILED Jun 30 2016, 8:05 am MEMORANDUM DECISION CLERK Indiana Supreme Court Court of Appeals Pursuant to Ind. Appellate Rule 65(D), and Tax Court

this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Cochren Gregory F. Zoeller Princeton, Indiana Attorney General of Indiana Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the June 30, 2016 Parent-Child Relationship of Court of Appeals Case No. M.W. and L.W., minor children, 26A04-1510-JT-1808 and their Mother, W.W., Appeal from the Gibson Circuit Appellant-Respondent Court The Honorable Jeffrey F. Meade, v. Judge. Trial Court Cause Nos. The Indiana Department of 26C01-1412-JT-8 Child Services, 26C01-1412-JT-9 Appellee-Petitioner

Mathias, Judge.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 1 of 14 [1] W.W.’s (“Mother”) parental rights were terminated to her minor children,

M.W. and L.W. in Gibson Circuit Court.1 Mother appeals the involuntary

termination of her parental rights and presents two issues, which we restate as:

I. Whether the evidence was sufficient to support the trial court’s termination order; and,

II. Whether the trial court abused its discretion in admitting Mother’s positive alcohol screens into evidence.2

[2] We affirm.

Facts and Procedural History

[3] In June 2013, two-year-old, L.W. and one-year-old, M.W.3 (“Children”) were

removed from their Mother’s care and placed with Mother’s mother

(“Grandmother”) after several prior incidents occurred involving Mother’s use

of alcohol or drugs.4 On May 21, 2013, Mother called the police to report an

incident of people acting inappropriately in her home. When the officers

arrived, they determined that Mother was hallucinating because she was under

1 The trial court also terminated the parental rights of Children’s Father, J.M., who does not participate in this appeal. 2 Mother phrases this as a due process argument in her brief, but we find her argument more akin to one that is evidentiary in nature. 3 M.W. was born THC-positive. DCS then initiated a CHINS case after Mother later tested positive for methamphetamines. DCS provided Mother with substance abuses services, and the case closed in July 2012. 4 Children were later moved to a foster care placement in February 2014, after the trial court determined that Grandmother was not able to meet the Children’s academic and medical needs.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 2 of 14 the influence of drugs.5 The incident was reported to the Indiana Department of

Child Services (“DCS”). Ten days later, DCS received another report that

Mother returned to Grandmother’s home intoxicated and was acting erratically.

Mother was throwing things, and then, while holding L.W., assaulted

Grandmother, and fell to the ground. Grandmother asked Mother to leave, but

Mother later returned to Grandmother’s home after breaking the back door

window with her hand, which required immediate medical treatment. The

Children were present during both of these incidents, and Grandmother’s

neighbor called the police.

[4] On June 4, 2013, DCS filed a child in need of services (“CHINS”) petition for

L.W. and M.W. Shortly thereafter, Mother left Indiana, and she was reported

to be staying in Tennessee, Florida, and Georgia between June 6, 2013 and

November 13, 2013. During that time, Mother failed to appear for five hearings

related to the CHINS matters. After first returning to Indiana, Mother stayed at

a homeless shelter for about four months.

[5] A CHINS fact-finding hearing was held on November 20, 2013, at which

Mother admitted that due to her continuing drug abuse issues, she was unable

to provide the supervision and care needed to ensure Children’s safety. She also

agreed to participate in the following services: random drug screens, substance

5 Mother claimed that she was experiencing hallucinations from prescription medication, while the State contends that Mother was under the influence of methamphetamine. The record reflects that Mother tested positive for amphetamines, methamphetamines, and opiates, specifically, oxycodone and hydrocodone in June 2013.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 3 of 14 abuse evaluation and treatment, supervised visitation, and a parent aide

program. On February 6, 2014, the court entered its adjudication order and on

February 24, 2014, entered its dispositional order ordering Mother to comply

with the agreed services.

[6] After leaving the homeless shelter, between January and March 2014, Mother

moved around and was inconsistent in participating in services. However,

between March and June 2014, Mother improved her compliance with services

and was sober for eight weeks. Around the same time, Mother began substance

abuse treatment and regularly submitted to drug tests, so Mother’s visitation

changed to monitored from supervised. Mother also obtained a two-bedroom

apartment, where she was able to visit with Children.6

[7] In October 2014, Mother missed numerous substance abuse treatment sessions

and drug screens and DCS reinstated supervised visitation once again. Between

September and December 2014, Mother participated in a parent aide program

at Ireland Home Based Services to help her obtain employment and improve

parenting skills but she was ultimately unable to achieve these goals. Also in

December 2014, Mother completed substance abuse treatment but still struggled

with binge drinking on weekends. On December 18, 2014, DCS filed a petition

to terminate Mother’s parental rights.

6 Living in this apartment is contingent-upon Mother living with Children. Mother could be evicted for failure to comply with the terms of the subsidized housing agreement.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 4 of 14 [8] In early 2015, Mother testified positive for alcohol on at least four occasions.7

In January 2015, DCS held a family team meeting to discuss relapse prevention

with Mother. At the meeting, Mother indicated that she was participating in a

support group but did not provide DCS with the documentation that they

requested. At this time, Mother still had not found regular employment even

with the parent aide services. Mother babysat, walked dogs, and scrapped metal

to support herself.

[9] The trial court held evidentiary hearings on the termination petition on March

3, 2015, April 1, 2015, June 3, 2015, and June 15, 2015. At the June 3 hearing,

family case manager at Ireland Home Based Services, Seth Clark (“Clark”)

testified that Mother made slow to minimal progress on the outlined goals.

Clark provided Mother with parent aide services and conducted the supervised

visitation with Children. He was concerned that Mother was still unable to find

stable employment8 and indicated that even though she completed the

substance abuse program, she still struggled with binge drinking on weekends.

Melani Catt (“Catt”), regional manager at Hi-Tech Investigative9 testified that

Mother tested positive for alcohol at least four times in early 2015. Catt

explained that on one occasion when she came to Mother’s home to conduct

7 Before each drug test, Mother reported that she was taking Mucinex, an over-the-counter cold and flu medication. She also indicated that she mixed vanilla extract in her milk several times per week. 8 Mother testified at the termination hearing that on a good week she would bring home approximately $200. 9 Hi-Tech Investigative contracts with companies and organizations to conduct drug screens.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 5 of 14 the drug screen that Mother appeared under the influence and indicated to Catt

that she did not want to take the test because she would test positive for alcohol.

[10] During the June 15 hearing, the Children’s court-appointed special advocate

(“CASA”), Sondra Segura (“Segura”), testified that termination of Mother’s

parental rights was in the best interests of Children due to Mother’s continued

alcohol abuse and her inability to keep a stable job. Segura explained that

Children both have special needs related to speech delay. Children also have

had issues with recurring staph-infected boils that need continuous medical

monitoring and treatment. Segura reported that Children’s speech has improved

and they are less withdrawn and more outgoing in their foster home. DCS

family case manager, Marcia Loving-Wilkerson (“Loving-Wilkerson”), testified

that Mother is unable to maintain sobriety and has had multiple relapses within

the past two years. Loving-Wilkerson also expressed concern with Mother’s

unstable housing and employment and several domestic violence incidents that

occurred throughout the CHINS and termination proceedings.10

[11] On August 31, 2015, the trial court entered an order terminating Mother’s

parental rights. Mother now appeals.

10 On June 7, 2014, just one week from the last termination hearing, Mother was involved in a domestic violence altercation with her boyfriend. Mother admitted to the police that she was drinking before this incident occurred, but no charges were filed against either individual.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 6 of 14 Sufficiency of the Evidence

[12] Mother argues that the trial court’s judgment terminating her parental rights is

not supported by sufficient evidence. “The purpose of terminating parental

rights is not to punish parents but to protect their children. Although parental

rights have a constitutional dimension, the law allows for their termination

when parties are unable or unwilling to meet their responsibility as parents.” In

re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004) (citation omitted). Indeed,

parental interests “must be subordinated to the child's interests” in determining

the proper disposition of a petition to terminate parental rights. In re G.Y., 904

N.E.2d 1257, 1260 (Ind. 2009).

[13] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

rights must meet the following relevant requirements:

(2) The petition 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 wellbeing 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. Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 7 of 14 [14] However, Indiana Code section 4(b)(2)(B) is written in the disjunctive;

therefore, the trial court is required to find that only one prong of subsection

(2)(B) has been established by clear and convincing evidence. In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). DCS must prove “each and every

element” by clear and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind.

Code § 31-37-14-2. Clear and convincing evidence need not establish that the

continued custody of the parents is wholly inadequate for the childs very

survival. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

(Ind. 2005). Rather, it is sufficient to show by clear and convincing evidence

that the child’s emotional development and physical development are put at risk

by the parent’s custody. Id. 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] The trial court must enter findings of fact to support its conclusions. Ind. Code

§ 31-35-2-8(c). Moreover,

We do not reweigh the evidence or determine the credibility of witnesses, but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment.

In re E.M., 4 N.E.3d 636, 642 (Ind. 2014).

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 8 of 14 [16] Mother only challenges that DCS did not present sufficient evidence to support

that a reasonable probability exists that the conditions that resulted in the

children’s removal or the reasons for placement outside the home of the parents

will not be remedied.11 Specifically, Mother contends that she has completed

substance abuse counseling, complied with services and visitation, and is

employed. Thus, she argues that she has remedied the conditions which led to

the removal of children.

[17] When making a determination as to whether a reasonable probability exists that

the conditions resulting in a child’s removal or continued placement outside of

a parent’s care will not be remedied, the trial court must judge a parent’s fitness

to care for her child at the time of the termination hearing while also taking into

consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). The trial court is also

required to consider the parent’s habitual patterns of conduct in order to

determine the probability of future neglect or deprivation of the child. Id. at

1157. The trial court may consider evidence of a parent’s prior history of

neglect, failure to provide support, and lack of adequate housing and

employment. Id. The trial court may consider the services offered to the parent

by DCS and the parent’s response to those services as evidence of whether

11 Mother asserts in the “Summary of Argument” section of her brief that DCS failed to present sufficient evidence that termination is in the best interests of Children. However, this argument was not developed in the “Argument” section of her brief and is therefore waived for failure to make a cogent argument. See Ind. Appellate Rule 46(A)(8)(a).

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 9 of 14 conditions will be remedied. Id. DCS is not required to provide evidence ruling

out all possibilities of change. Id. Instead, it needs to establish only that a

“reasonable probability” exists that the parent’s behavior will not change. Id.

[18] In this situation, Children were removed from Mother’s care because she was

hallucinating from drug use, intoxicated, and acting erratically and violently

toward Grandmother. These incidents all occurred while Children were present

in the home.

[19] Despite completing substance abuse counseling, Mother continues to abuse

alcohol. DCS presented evidence that Mother tested positive for alcohol at least

four times in early 2015 and that Mother was involved in a domestic violence

altercation in June 2015, where she admitted to police that she had been

drinking beforehand. Further, family case managers Clark and Loving-

Wilkerson testified that Mother has difficulty maintaining sobriety.

[20] DCS also presented evidence that Mother does not have regular employment

and her housing is contingent upon Mother living with Children. Although

Mother was provided parent aide services to help her find a job, she was unable

to obtain stable employment. Instead, Mother babysits and walks dogs a couple

of times a week in addition to scrapping metal. Mother stated that on a good

week she makes about $200. In addition, Mother was homeless for several

months after she returned to Indiana following a six-month absence spent in

various states. Now, Mother has a two-bedroom apartment but could be evicted

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 10 of 14 if she does not have dependents living with her. This puts Mother at risk of

being homeless once again.

[21] The record reflects that Mother participated most of the time with visitation and

services in the termination stage of the proceedings, in contrast to Mother’s

absence for the first six months of the CHINS case, when she participated in

neither visitation nor services. While Mother never missed a visit with Children

after she retuned to Indiana, Mother failed to attend numerous scheduled drug

screens and substance abuse counseling sessions. Further, after Mother failed

several drug screens, DCS met with her to discuss relapse prevention. Mother

stated that she was in a support group, but never provided proof of participation

to DCS as requested. Then in June 2015, Mother admitted to using alcohol

after a domestic violence altercation with her boyfriend.

[22] Based on these facts and circumstances, the trial court did not clearly err when

it concluded that the conditions that led to Children’s removal from Mother’s

care would not be remedied. Although Mother made an effort to comply with

services, it is clear that she still struggles with addiction, does not have regular

employment, and ultimately has not remedied the conditions that led to

Children’s removal. It is well within the trial court’s discretion to consider

evidence of a parent’s prior history of neglect, failure to provide support, and

lack of adequate housing and employment when determining if the conditions

that led to removal were remedied. See A.D.S., 987 N.E.2d at 1157.

Accordingly, Mother’s argument is simply a request that we reweigh the

evidence, which is not our role as an appellate court.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 11 of 14 Admission of Mother’s Alcohol Screens

[23] Further, Mother argues that the trial court abused its discretion in admitting

evidence of Mother’s positive alcohol screens (“ETG tests”). Specifically,

Mother argues that the ETG tests were unreliable due to possible ethanol

exposure in the lab and because Hi-Tech’s medical review officer would not

sign off as to the test’s reliability.

[24] The decision to admit or exclude evidence lies within the sound discretion of

the trial court, and we will not disturb the trial court’s decision absent a

showing of an abuse of that discretion. Weigel v. Weigel, 24 N.E.3d 1007, 1010

(Ind. Ct. App. 2015). A trial court abuses its discretion only if its decision is

clearly against the logic and effect of the facts and circumstances before the

court. Speybroeck v. State, 875 N.E.2d 813, 818 (Ind. Ct. App. 2007).

[25] Even if an evidentiary decision is an abuse of discretion, we will not reverse if

the ruling constituted harmless error. Techna-Fit, Inc. v. Fluid Transfer Prods., Inc.,

45 N.E.3d 399, 411 (Ind. Ct App. 2015) (citing Spaulding v. Harris, 914 N.E.2d

820, 829-30 (Ind. Ct. App. 2009), trans. denied).

[26] Hi-Tech regional manager Catt stated that the ETG tests have the potential to

be unreliable if environmental exposure to ethanol or ethanol containing

products occurs. Catt testified that no contaminants were in the Hi-Tech testing

facility, and Mother failed to present evidence that contamination occurred

here. Catt also explained that Hi-Tech’s medical review officer would not sign

off on ETG tests because everyone metabolizes alcohol differently and has

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 12 of 14 different “levels.” June 3, 2015 Tr. p. 88-89. However, Catt further testified that

the medical review officers find the ETG tests to be accurate. Tr. p. 88. This

evidence does not establish that the ETG test results were unreliable.

Accordingly, the trial court did not abuse its discretion in admitting Mother’s

positive alcohol screens.

[27] Even if the trial court erred in admitting and relying on Mother’s positive

alcohol screens, any error was harmless. Independent review of the record

reflects evidence of Mother’s continuous struggle with substance abuse. Family

case manager Clark indicated that throughout the time that he provided Mother

with services, she continued to struggle with binge drinking on the weekends. In

January 2015, Catt testified that prior to a home drug screen,12 Mother

expressed that she did not want to take the test because she would test positive

for alcohol. During this time, Mother also failed to report at all for numerous

drug screens. Furthermore, during the course of the termination proceeding,

Mother was involved in a domestic dispute with boyfriend and admitted to the

responding police officer that she had been drinking prior to the incident.

Substantial and independent evidence in the record reflects Mother’s continued

alcohol abuse. Therefore, if any error occurred, it was harmless.

12 Hi-Tech made arrangements to conduct Mother’s drug screens at her home during winter months when the weather was bad.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 13 of 14 Conclusion

[28] This is a heartbreaking situation where Mother and Children appear to be

bonded. Although Mother attempted to engage in services as the likelihood of

termination loomed, the record is clear that Mother still struggles with

substance abuse issues, continues to demonstrate violent and erratic behavior,

and has no stable employment to support Children. Applying our highly

deferential standard of review, we conclude that sufficient evidence supports the

trial court’s judgment terminating Mother’s parental rights to Children. In

addition, the trial court did not abuse its discretion in admitting Mother’s

positive drug screens. Even if admission of the positive drug screens was in

error, such error is harmless in view of the facts and circumstances before us.

[29] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 26A04-1510-JT-1808 | June 30, 2016 Page 14 of 14