MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Dec 29 2016, 9:22 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 Kimberly A. Jackson Gregory F. Zoeller Indianapolis, 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 December 29, 2016 Parent-Child Relationship of Court of Appeals Case No. N.B. (Minor Child), and 49A02-1605-JT-1105 Appeal from the Marion Superior Court A.H. (Mother), The Honorable Larry E. Bradley, Appellant-Respondent, Magistrate
v. The Honorable Marilyn A. Moores, Judge Trial Court Cause No. Indiana Department of 49D09-1507-JT-492 Child Services, Appellee-Petitioner
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 1 of 15 [1] A.H. (“Mother”) appeals the termination of her parental rights to N.B.
(“Child”), challenging the sufficiency of the evidence supporting termination.
We affirm.
Facts and Procedural Posture
[2] Child was born to Mother, then eighteen years old, in Marion County on
January 9, 2014.1 Child was found to have been born with marijuana,
benzodiazepines, and opiates in her body, and Mother tested positive for
marijuana and benzodiazepines at the time of delivery. At the same time,
Mother lacked stable housing and income and was being prosecuted in an
ongoing criminal matter.
[3] For these reasons, the Marion County office of the Indiana Department of
Child Services (“DCS”) petitioned to have Child declared a child in need of
services (“CHINS”) on January 17, 2014. Child had already been removed
from Mother’s care and was then in the hospital. The same day, the Marion
Superior Court held a detention hearing and ordered Child to be placed in the
care of relatives or a foster family on Child’s release from the hospital. The
court further authorized Mother to have supervised parenting time with Child.
[4] The court declared Child a CHINS on January 31, 2014, based on Mother’s
admission that she abused drugs, needed drug abuse treatment, and lacked
1 The parental rights in Child of R.B., Child’s alleged father, have also been terminated, but he does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 2 of 15 stable housing. After a dispositional hearing on February 28, 2014, the court
ordered Mother to complete a drug abuse assessment and treatment program,
submit to random drug screens, and participate in home-based case
management. Mother was warned at that time that failure to participate in this
plan could lead to termination of her parental rights. At that time, Child was in
the care of a relative, and that placement was continued. The long-term
(“permanency”) plan for Child and Mother remained reunification.
[5] About a year and a half later, after a hearing on July 17, 2015, the court
changed Child’s permanency plan from reunification to adoption. Child had
already been placed in foster care. Mother did not appear at the hearing and her
whereabouts were unknown. Mother had not been in contact with her family
case manager from DCS, had so far failed to participate in the services required
by the court’s earlier dispositional order, and had not visited Child. For these
reasons, the court concluded that adoption was now in Child’s best interests.
DCS petitioned to terminate Mother’s parental rights on July 31, 2015.
[6] A few months after the termination petition was filed, in November 2015, the
family’s DCS case manager found Mother in state prison. Mother requested
and was appointed counsel from the Marion County public defender in January
2016. From January 2016 to March 2016, however, the public defender was
unable to speak with Mother in prison. Mother refused to accept his calls, did
not return them, and did not respond to his letters. Proceedings on the
termination petition were repeatedly continued for Mother’s failure to appear.
On March 16, 2016, the public defender gave Mother notice by letter that he
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 3 of 15 intended to withdraw from her case, that she would then be unrepresented, and
that she could be subject to default judgment if she continued to fail to appear.
Appellant’s App. p. 58.
[7] On April 20, 2016, the court proceeded to trial on the petition. Mother again
failed to appear, and her public defender was permitted to withdraw. The
family’s DCS case manager and Child’s guardian ad litem (“GAL”) both
thought that termination of Mother’s rights and Child’s adoption by a relative,
Child’s relative caregiver at the time, would be in Child’s best interests. The
case manager testified that, since Child was first removed from Mother’s case,
Mother had not participated in court-ordered services, visited Child, nor taken
steps to remedy her drug abuse. Child’s current relative caregiver, by contrast,
was able to “provide [a] safe[,] stable home” for Child with “running water”
and “stable employment.” Tr. p. 9. Child’s GAL submitted an affidavit
agreeing with the case manager’s recommendations because Mother “is unable
to provide permanency for [Child].” Ex. Vol., GAL Ex. I. The court ordered
Mother’s parental rights in Child terminated on April 21, 2016.
[8] This appeal followed. Mother asserts that DCS failed to prove by clear and
convincing evidence that conditions leading to Child’s removal from Mother’s
care were unlikely to be remedied, that continuing the parent-child relationship
was a threat to Child, that termination of that relationship was in Child’s best
interests, and that adoption was a satisfactory plan for Child.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 4 of 15 Standard of Review
[9] DCS bore the burden below to prove its allegations by clear and convincing
evidence. Santosky v. Kramer, 455 U.S. 745 (1982); Ind. Code § 31-37-14-2
(2016). On appellate review of an order terminating a parent’s rights to her
child, we do not reweigh the evidence or determine the credibility of witnesses.
In re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016). We consider only the evidence
that supports the judgment and the reasonable inferences to be drawn from it.
Id. We proceed in two steps, first asking whether the evidence clearly and
convincingly supports the findings made below, and second, whether the
findings clearly and convincingly support the judgment. Id. We will set aside
neither unless clearly erroneous. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). It is
“not enough that the evidence might support some other conclusion[; rather,] it
must positively require the conclusion contended for by the appellant before
there is a basis for reversal.” Best v. Best, 941 N.E.2d 499, 504 (Ind. 2011)
(internal quotation and citation omitted).
[10] Requiring proof by clear and convincing evidence does not give this court any
broader license to reweigh the evidence than we would have if proof were by a
simple preponderance. In re E.M., 4 N.E.3d at 642. The question is not whether
we find the evidence to be clear and convincing, In re B.H., 770 N.E.2d 283, 288
(Ind. 2002) (internal citation and quotation omitted), but whether there is
probative evidence from which a reasonable fact-finder could have found proof
by clear and convincing evidence. In re N.G., 51 N.E.3d at 1170.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 5 of 15 Discussion and Decision
[11] The right of a parent to establish a home and raise her child is protected by the
due process clause of the Fourteenth Amendment to the federal constitution. In
re B.R., 875 N.E.2d 369, 372 (Ind. Ct. App. 2007), trans. denied. Like all rights,
this right is not absolute. Id. A parent’s rights to her child may be terminated
when the parent is unable or unwilling to meet her parental responsibilities. Id.
Here, the parent’s interests must be subordinated to those of her child. Id. The
purpose of termination is not punishment of the parent but protection of the
child. Id.
[12] By statute, as relevant here, a court “shall terminate” a parent-child
relationship, I.C. § 31-35-2-8(a), if it finds the following conditions satisfied as
alleged in a termination petition:
(B) that one . . . 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 . . . ;
(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 49A02-1605-JT-1105 | December 29, 2016 Page 6 of 15 Id. at § 4(b)(2)(B) through (D). We note that DCS was required to show the
truth of only one allegation under subsection (B), i.e., that there was a
reasonable probability either that the adverse conditions would not be remedied
or that continuation of the relationship posed a threat to Child’s well-being. See
In re K.E., 39 N.E.3d 641, 646 (Ind. 2015).
[13] As required by statute, I.C. § 31-35-2-8(c), the court below entered findings and
conclusions in support of its termination order. Specifically, as relevant here,
the court found that
9. [Mother] failed to engage in services or visit [Child] and on July 17, 2015, the plan for permanency was changed from reunification to adoption.
10. There is a reasonable probability that the conditions that resulted in [Child’s] removal and continued placement outside the home will not be remedied by her mother[,] who has demonstrated by her almost total lack of effort that she is unable or unwilling to parent.
11. Continuation of the parent-child relationship poses a threat to [Child’s] well-being in that it would pose as a barrier to obtaining permanency for her through an adoption. . . .
13. Termination of the parent-child relationship is in the best interests of [Child]. Termination would allow her to be adopted into a stable and permanent home where her needs will be safely met.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 7 of 15 14. There exists a satisfactory plan for the future care and treatment of [Child],2 that being adoption.
Appellant’s App. p. 16.
[14] Mother argues that these findings are unsupported by sufficient evidence, that
they are therefore clearly erroneous, and that, without them, the court’s
ultimate judgment is unsupported by its findings and clearly erroneous.
Appellant’s Br. pp. 17 (findings 9, 10), 20 (findings 11, 13), 22 (finding 14). The
court’s remaining findings are unchallenged, and we accept them as true.
McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997). We review the
factual components of the challenged findings before proceeding to the legal
conclusions embodied in them.
[15] As a general observation, we agree with Mother that the factual record is not as
full as it might be. However, we think this is largely due to Mother’s own
evasion of any contact with Child, DCS, and the court during the two years of
Child’s life. Critically, she failed to appear for the April 20, 2016, termination
hearing with full knowledge that she was unrepresented at the time and thus
would have no one to speak for her. Mother has had numerous chances to rebut
DCS’s allegations but has refused to avail herself of any of them. Mother
2 The court’s order here uses the name “Aaliyah,” which is not the name of Child, Mother, or anyone connected to this case. At all other points in its order, however, the court referred to Child by her correct name. Mother makes no claim that her rights or Child’s were prejudiced by this scrivener’s error. We therefore disregard it as harmless. Ind. Appellate Rule 66(A) (Errors “sufficiently minor so as not to affect the substantial rights of the parties” are not grounds for relief.).
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 8 of 15 cannot convert this two-year refusal to participate into a one-time success on
appeal.
[16] As to finding 9, Mother argues that “[t]he record only establishes Mother failed
to complete services,” Appellant’s Br. p. 17 (emphasis added), not that she
“failed to engage in services or visit [Child],” as found by the court. Appellant’s
App. p. 16 (emphasis added).
[17] The family’s case manager testified that, “to [her] knowledge,” Mother never
participated in any drug screens, drug abuse treatment, or visitation with Child
as ordered by the court in its February 28, 2014, dispositional order. Tr. p. 11;
see also Tr. p. 8 (“Mom has not participated . . . .”). Mother responds that,
because the case manager was not assigned to the case until July 2015, “the
record is silent” as to Mother’s involvement prior to that date. Appellant’s Br.
p. 18. This is not at all true. The case manager had familiarized herself with
Child’s case when she was assigned to it and testified on that basis. Tr. p. 10.
Moreover, the case manager testified that, at the time of the court’s July 17,
2015, permanency hearing, Mother had not been in contact with DCS and had
been “noncompliant” with the dispositional order up to that time. Tr. p. 6. At
the July 17, 2015, permanency hearing, at which Mother appeared by counsel
but not in person, the court expressly found that Child’s “parents’ whereabouts
are unknown,” that “they have not engaged in services,” and that they had not
visited Child. Ex. Vol., Pet.’s Ex. 1. No evidence appears in the record, and
Mother does not now assert, that Mother did ever participate in the services or
visitation ordered by the court.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 9 of 15 [18] The record discloses probative evidence from which the court could find that
DCS had shown by clear and convincing evidence that Mother “failed to
engage in services or visit [Child].” Appellant’s App. p. 16. Finding 9 is not
clearly erroneous.
[19] As to finding 10, Mother raises various possibilities which might have excused
her failures to participate, such that it was error for the court to find an “almost
total lack of effort” on her part demonstrating that she is “unable or unwilling
to parent.” Appellant’s App. p. 16. Mother speculates that DCS might have
never referred her to services, which might have justified her failure to
participate in them. Appellant’s Br. p. 17. Mother further speculates that DCS
might not have offered services to Mother while in prison, which might have
been available to her there. Id. at 17-18. Mother finally speculates that her
failure to participate in services and to visit Child might have been the result of
her incarceration.3 Id.
[20] DCS responds correctly that Mother assumed the risk of being unable to
participate in Child’s upbringing by engaging in criminal conduct. In re A.C.B.,
598 N.E.2d 570, 572 (Ind. Ct. App. 1992). DCS responds further that, even if
Mother failed to participate in the first instance because she was incarcerated, it
is undisputed that she never notified DCS of this fact in an attempt to remedy
her and Child’s situation. “[A] parent may not sit idly by without asserting a
3 The nature and timing of Mother’s criminal matter are not clear from the record.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 10 of 15 need or desire for services and then successfully argue that [s]he was denied
services to assist [her] with [her] parenting.” In re B.D.J., 728 N.E.2d 195, 201
(Ind. Ct. App. 2000). Most importantly, however, Mother’s speculative
inferences, drawn in her own favor rather than in favor of the judgment below,
are not entitled to any consideration under the applicable standard of review.
[21] From the same facts that supported finding 9, the court below was permitted to
find by clear and convincing evidence that Mother demonstrated “an almost
total lack of effort” to parent Child. Appellee’s App. p. 16. Finding 10 is not
[22] As to the conclusion embodied in finding 10, that there was a reasonable
probability that Mother would not remedy the conditions that led to Child’s
removal and continued placement outside Mother’s care, Mother claims that
“no evidence” supported that conclusion. Appellant’s Br. p. 18. Again,
Mother’s arguments amount to speculation about alternative conclusions the
record might sustain. Two conditions led to Child’s removal from Mother’s
care at the time of the CHINS proceedings in January and February 2014:
Mother’s admitted drug abuse and need for treatment, and Mother’s admitted
lack of stable housing. Mother claims that there is no evidence showing these
conditions persisted at the time of the termination hearing on April 20, 2016.
[23] As outlined above, however, the court found that Mother had not participated
in the treatment services required of her. For more than eighteen months
between the first dispositional hearing on February 28, 2014, and November
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 11 of 15 2015, when DCS located her in state prison, Mother made no attempt
whatsoever to communicate with DCS and with Child. After being found in
prison in November 2015, Mother refused to even speak with the public
defender representing her in the termination proceedings. The family’s case
manager testified that Mother had been “given . . . a length of time to co[-
]operate and participate . . . and she hasn’t done that.” Tr. p. 8. “[T]he
responsibility to make positive changes will stay where it must, on the parent.”
Prince v. Dep’t of Child Servs., 861 N.E.2d 1223, 1231 (Ind. Ct. App. 2007).
[24] In the eighteen months before DCS discovered her in state prison, Mother’s
complete failure to remedy the conditions warranting removal, and her evident
unwillingness or inability to show that she had, would, or cared to do so,
entitled the court below to find a reasonable probability that Mother would not
do so in the future. See Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d
366, 372 (Ind. Ct. App. 2007) (“A pattern of unwillingness to deal with
parenting problems and to cooperate with those providing social services, in
conjunction with unchanged conditions, support a finding that there exists no
reasonable probability that the conditions will change.”), trans. denied. The
court’s conclusion was supported by probative evidence and is not clearly
erroneous.4
4 Under I.C. § 31-35-2-4(b)(2)(B), DCS had to prove either the conclusion embodied in finding 10, that there was a reasonable probability that Mother would not remedy the adverse conditions, or the conclusion embodied in finding 11, that there was a reasonable probability that continuation of the parent-child
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 12 of 15 [25] As to the conclusion embodied in finding 13, that termination of the parent-
child relationship was in Child’s best interests, Child’s GAL and the family’s
case manager were both of the opinion that it was because it would facilitate
Child’s adoption. Ex. Vol., GAL Ex. I, ¶ 7; Tr. p. 8. As Mother herself points
out, Child has already been placed in four different homes, Appellant’s Br. 23,
heightening the need for permanency that adoption of Child by Child’s relative
would provide. GAL Ex. I, ¶ 7. Child’s GAL thought that Mother was unable
to provide such permanency. Id. Mother argues that she should be given more
time to participate in services to and “prov[e] herself to be an appropriate
parent.” Appellant’s Br. p. 24. More time, Mother argues, would not
undermine adoption and could facilitate it if, “upon further reflection,” Mother
changes her mind about wanting or being able to parent Child. Appellant’s Br.
p. 21.
[26] Mother points to Rowlett v. Vanderburgh Cty. Office of Family & Children, 841
N.E.2d 615 (Ind. Ct. App. 2006), trans. denied, reversing termination of a
father’s parental rights to allow him time to “demonstrate the desire and ability
to achieve a meaningful reunification with his children.” Id. at 623. That case,
however, is replete with evidence of the father’s serious, good faith efforts to
reform his conduct while incarcerated: more than 1,000 hours of individual and
group services, twelve hours of college credit, employment and housing already
relationship posed a threat to Child’s well-being. Because we have determined that DCS prevailed on the former, we do not address the latter.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 13 of 15 secured prior to release from prison, and his testimony at the termination
hearing that drugs “[had] ruined everything about [him].” Id. at 622. No
evidence appears here that Mother has made any similar effort.
[27] Under the facts and circumstances before it, the court was permitted to find that
Child’s need for permanency outweighed Mother’s desire for additional time.
See Castro v. Ind. Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.
2006) (“A parent's historical inability to provide adequate housing, stability and
supervision coupled with a current inability to provide the same will support a
finding that termination of the parent-child relationship is in the child's best
interests. . . . [Child] is in need of stability and permanency now . . . and . . .
there is no guarantee that Castro will be a suitable parent once he is released . . .
.”). The court’s conclusion that termination was in Child’s best interests was
not clearly erroneous.
[28] Finally, as to the conclusion embodied in finding 14, that DCS’s plan to have
Child adopted by her relative is satisfactory, Mother argues that it is not
satisfactory because DCS has not shown the relative to be a fit parent.
Appellant’s Br. pp. 20-21. DCS responds that no statute or decision required it
to do so, and, moreover, that the adoption court, not the termination court, is
charged with deciding whether a particular adoption is in the child’s best
interests. Appellee’s Br. p. 29.
[29] In addition, Mother relies on no authority for the proposition that DCS must
show or the termination court must find that, where the permanency plan is
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 14 of 15 adoption, the intended adoptive parent “is capable [of] and willing to
[undertake] a lifetime of parenting” Child. Appellant’s Br. p. 20. To the
contrary, given a willing adoptive parent and no indication that the adoptive
parent would be unfit, adoption may be per se satisfactory. In re A.K., 755
N.E.2d 1090, 1098 (Ind. Ct. App. 2001); see also In re D.D., 804 N.E.2d 258, 268
(Ind. Ct. App. 2004) (To be satisfactory, the “plan need not be detailed, so long
as it offers a general sense of the direction in which the child will be going after
the parent-child relationship is terminated.”), trans. denied. Moreover, Child’s
GAL, with first-hand knowledge, was of the opinion that Child’s current
placement with her relative safely met Child’s needs. Ex. Vol., GAL Ex. I, ¶ 4.
The family’s case manager was of the same opinion. Tr. p. 9. The court’s
conclusion that this constitutes a satisfactory plan was not clearly erroneous.
Conclusion
[30] For these reasons, we conclude that the court’s order terminating the parental
rights of Mother in Child was not clearly erroneous.
[31] Affirmed.
Baker, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-JT-1105 | December 29, 2016 Page 15 of 15