In Re the Termination of the Parent-Child Relationship of S.R. (Minor Child) and V.E. v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 26, 2018
• Docket: 18A-JT-901
• 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 Oct 26 2018, 9:19 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark E. Small Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Termination of the October 26, 2018 Parent-Child Relationship of: Court of Appeals Case No. 18A-JT-901 S.R. (Minor Child) Appeal from the Vigo Circuit and Court V.E., The Honorable Sarah K. Mullican, Appellant-Respondent, Judge The Honorable Daniel W. Kelly, v. Magistrate Trial Court Cause No. The Indiana Department of 84C01-1708-JT-1161 Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 1 of 13 Tavitas, Judge.

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

“Child”). We affirm.

Issue [2] Based upon Mother’s arguments, we restate the issue as whether the

Department of Child Services proved, by clear and convincing evidence, that

termination of Mother’s parental rights is in the best interests of the Child.

Facts [3] The Child was born to Mother and P.R. (“Father”) on September 11, 2012. 1 In

2013 and 2014, Vigo County Department of Child Services (“DCS”)

substantiated claims that Mother’s boyfriend, R.H., physically abused Mother.

DCS also substantiated two claims of neglect by Mother regarding “two

children that were no longer in Mother’s care.” App. Vol. II p. 11.

[4] On December 15, 2015, R.H. held Mother hostage in a standoff with law

enforcement. DCS conducted an assessment regarding the Child and

established that R.H., who periodically lived with Mother, physically abused

1 The trial court also terminated Father’s parental rights as to the Child. Father is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 2 of 13 Mother, “forced her to smoke meth[amphetamine] [and] threaten[ed] to beat

her up if she refused.” Id.

[5] In December 2015, Mother tested positive for methamphetamine,

amphetamine, and marijuana. On December 30, 2015, DCS filed a Child in

Need of Services (“CHINS”) petition regarding the Child and, subsequently,

initiated an “in-home CHINS” matter. 2 Id. at 12.

[6] On February 18, 2016, Mother assaulted the Child’s half-brother at the Boys

and Girls Club in Terre Haute. Investigators went to Mother’s residence, where

“[Mother] appeared erratic and under the influence and refused to screen.” Tr.

Vol. II p. 39. DCS removed the Child and his half-brother from Mother’s care

and placed the Child with his maternal great-grandparents.

[7] The trial court adjudicated the Child as a CHINS in April 2016. At a

subsequent hearing, on May 17, 2016, the trial court entered a dispositional

order under which Mother was ordered to undergo addictions and mental

health treatment, case management assessments, medication management, and

skills building. Mother was also ordered to follow the service providers’

recommendations stemming from the assessments, including participation in

individual and group therapy, regular drug screens, and supervised visits.

Lastly, Mother was to obtain employment and to comply with DCS’s case plan.

2 In an “in-home CHINS” matter, the trial court allows the child to remain in the care of the parent, while the parent receives services from service providers.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 3 of 13 [8] During the pendency of the CHINS proceedings, Mother made minimal

progress toward the case plan objectives. Mother failed to timely complete her

addictions assessment, to obtain employment, to secure stable housing, to

regularly submit to drug screens, and to refrain from drug use. On September 6,

2017, DCS filed a petition to terminate Mother’s and Father’s parental rights to

the Child. On March 5, 2018, the trial court conducted a fact-finding hearing.

[9] At the hearing, Julie McBride, who served as the initial family case manager at

the outset of the DCS matter, testified that Mother: (1) failed to complete an

addictions assessment until March 2017, which was ten months after DCS’s

initial referral; (2) failed to obtain employment; (3) was evicted and periodically

“homeless or couch surfing, [or] staying with friends”; (4) “no-show[ed]” for

the first six months of drug screens; and (5) “struggled with parenting and

maintaining the children” 3 during the supervised visits. Tr. Vol. II pp. 13, 15.

[10] McBride also testified that, during her tenure as family case manager, Mother

no-showed for twenty-one of sixty-five scheduled drug screens, refused five drug

screens, and failed thirty-four drug screens. Mother tested positive for

methamphetamine, amphetamine, marijuana, opiates, and tramadol. Id. at 9,

13. McBride also testified that, for a five-month period during the proceedings,

Mother lived with her brother, against whom DCS had substantiated claims of

sexual abuse of Mother’s older children. McBride testified that DCS would not

3 Child and his half-brother were involved in the supervised visits.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 4 of 13 restore S.R. to Mother’s care if Mother continued to reside with her brother.

Lastly, McBride testified that “[Mother] didn’t engage really in any of the

services that could have been helpful to her with her addiction during the time

that [McBride] worked with her.” Id. at 13.

[11] Next, DCS permanency family case manager, Kylie Hickmon, testified that

Mother failed to successfully establish stable housing and employment.

Hickmon also testified as follows regarding the twenty-three drug screens that

were administered to Mother during Hickmon’s tenure as family case manager:

[Only] [f]ive [screens] . . . were clean of all substances, one was a refusal, two [were] no-shows, four were positive for THC [marijuana], the last being November 27th, [2017], and one positive for methamphetamine on February 21st[, 2018].

Id. at 22. Hickmon testified that she lacked confidence in Mother’s ability to

remedy Mother’s substance abuse issues, housing instability, and

unemployment; she testified further that termination of Mother’s parental rights

was in the Child’s best interests. Lastly, Hickmon testified that the adoptive

placement offers support and “long term permanency” for the Child, who has

special needs and “needs structure and stability.” Id. at 33.

[12] Amanda McCullough of the Hamilton Center testified that, for two years, she

supervised Mother’s visitation with the Child. According to McCullough,

although Mother attended most of her scheduled supervised visits and exhibited

some improvement, Mother also exhibited frustration from “[c]hild behavior,”

had “an attitude that . . . [Mother] didn’t want to be there[,]” and “would end

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 5 of 13 [supervised visits] on her own or get frustrated with the way things were going

and just wouldn’t stay the whole time.” Id. at 56, 59.

[13] Court appointed special advocate (“CASA”), Amy Jukes, served as CASA for

the Child for two years and “maybe spoke to the mother one time.” Id. at 63.

Jukes testified that, “although I’ve reached out to [Mother], she has not had any

contact with me.” Id. at 66. Jukes testified that, after observing some

visitations, she “does not believe that there is a bond from what I can see with

[the Child and Mother].” Id. at 63. Lastly, Jukes testified that she supported

the termination of Mother’s parental rights.

[14] At the close of the hearing, the trial court took the matter under advisement.

On March 9, 2018, the trial court entered an order terminating Mother’s and

Father’s parental relationships with the Child. In its order, the trial court

acknowledged that Mother, “in very recent weeks ha[d] begun taking some

steps forward”; however, the trial court determined that DCS established, by

clear and convincing evidence, the allegations contained in the petition to

terminate Mother’s parental rights. The trial court’s order stated:

4. There is a reasonable probability that the conditions which resulted in the removal of the child from his parents will not be remedied or the reasons for placement outside of the home of the parents will not be remedied or that the continuation of the parent-child relationship poses a threat to the well-being of the child as follows:

*****

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 6 of 13 c. Mother did meet with her assigned case manager during supervised visits with [the Child], but never was involved in drug treatment by the time the case was transferred to FCM Kylie Hickmon at the end of March, 2017.

d. During the CHINS case, Mother was unable to secure stable housing. She lived with her grandparents a couple of different times and otherwise generally slept on friends’ couches. There was a brief period where Mother lived at her grandparents’ home with her own mother and brother, but that was not continued because her brother had a substantiation for sexual molestation against Mother’s older children. Mother lived for a short time in Club Soda, a sober living environment, and then moved in with her mother until she was arrested in December 2017 for battering her mother and was kicked out of her home.

e. Transportation was also a challenge for Mother throughout the CHINS case. DCS gave her bus passes, but they weren’t frequently utilized.

j. Mother expressed feelings of anxiety and depression in August, 2017, but didn’t see a doctor for those conditions until January, 2018, at which time her physician prescribed Prozac, which Mother has already discontinued.

5. Termination is in the best interest of the child.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 7 of 13 6. The Department of Child Services has a satisfactory plan for the care and treatment of the child, which is adoption.

7. It is in the best interests of the minor child for the parent- child relationship to be terminated.

Id. at 12-14. Mother now appeals.

Analysis [15] Mother challenges 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. v. Indiana Dept.

of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]

parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of

the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting

Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of

course, that parental interests are not absolute and must be subordinated to the

child’s interests when determining the proper disposition of a petition to

terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when

the parents are unable or unwilling to meet their parental responsibilities by

failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,

989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.

2004), trans. denied).

[16] When reviewing the termination of parental rights, we do not reweigh the

evidence or judge witness credibility. In re. C.G., 954 N.E.2d 910, 923 (Ind.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 8 of 13 2011). We consider only the evidence and reasonable inferences that are most

favorable to the judgment. Id. We must also give “due regard” to the trial

court’s unique opportunity to judge the credibility of the witnesses. Id. (quoting

Ind. Trial Rule 52(A)).

[17] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter

findings of fact that support the entry of the conclusions required by subsections

(a) and (b).” 4 Here, the trial court did enter findings of fact and conclusions of

law in granting DCS’s petition to terminate Mother’s parental rights. When

reviewing findings of fact and conclusions of law entered in a case involving the

termination of parental rights, we apply a two-tiered standard of review. First,

we determine whether the evidence supports the findings, and second, we

determine whether the findings support the judgment. Id. We will set aside the

trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly

erroneous if the findings do not support the trial court’s conclusions or the

conclusions do not support the judgment. Id.

4 Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a delinquent child or CHINS, provide as follows:

(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.

(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 9 of 13 [18] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the

allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,

the court shall terminate the parent-child relationship.” Indiana Code Section

31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship

involving a child in need of services must allege, in part:

(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

(D) that there is a satisfactory plan for the care and treatment of the child.

DCS must establish these allegations by clear and convincing evidence. In re

V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 10 of 13 [19] In appealing the trial court’s order terminating her parental rights, Mother

challenges only the court’s finding that termination of her parental rights is in

the Child’s best interests. In determining what is in the best interests of a child,

the trial court is required to look at the totality of the evidence. In re D.D., 804

N.E.2d at 267. In doing so, the trial court must subordinate the interests of the

parents to those of the child involved. Id. Termination of a parent-child

relationship is proper where the child’s emotional and physical development is

threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court need not wait until

a child is irreversibly harmed such that his or her physical, mental, and social

development is permanently impaired before terminating the parent-child

relationship. Id. Additionally, a child’s need for permanency is an important

consideration in determining the best interests of a child. Id.

[20] Moreover, a parent’s historical inability to provide a suitable, stable home

environment along with the parent’s current inability to do so supports a finding

that termination is in the best interest of the child. In re A.P., 981 N.E.2d 75, 82

(Ind. Ct. App. 2012). Testimony of the service providers, as well as evidence

that the conditions resulting in removal will not be remedied, are sufficient to

show by clear and convincing evidence that termination of parental rights is in

the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014),

trans. denied.

[21] Here, Mother’s substance abuse, housing instability, and unemployment were

DCS’s primary concerns throughout the proceedings. As the trial court

acknowledged in its order of termination, it was not until mere weeks before the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 11 of 13 March 2018 fact-finding hearing that Mother finally began to make some

positive, but insufficient, strides regarding the case plan objectives.

Unfortunately, by then, the Child had been out of Mother’s care for two years,

and DCS had shifted its goal from reunification to adoptive placement.

[22] DCS presented the following evidence in support of its petition for termination

of Mother’s parental rights. Family case manager McBride testified that, during

the proceedings, Mother: (1) failed to obtain steady employment; (2) failed to

obtain safe and stable housing; (3) failed to regularly submit to drug screens; (4)

failed an alarming number of drug tests; (5) relapsed on methamphetamine

“less than two weeks before the termination fact-finding hearing”; (6) failed to

timely complete DCS’s addictions assessment and substance abuse treatment;

and (7) “didn’t engage really in any of the services that could have been helpful

to [Mother] with her addiction.” App. Vol. II p. 13.

[23] Additionally, family case manager Hickmon testified that: (1) Hickmon lacked

any confidence in Mother’s ability to remedy the conditions that prompted the

removal of the Child; and (2) stability, structure, and permanency are vitally

important for the Child, who has special needs. See In re K.T.K., 989 N.E.2d at

1235 (“[A] child’s need for permanency is an important consideration in

determining the best interests of a child.”). CASA Jukes also testified that she

was “in agreement with the termination.” Tr. Vol. II p. 63.

[24] Based on the totality of the evidence, we find that DCS proved, by clear and

convincing evidence, that termination of Mother’s parental rights was in the

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 12 of 13 Child’s best interests. We cannot conclude that the trial court’s finding is

clearly erroneous.

Conclusion [25] The evidence is sufficient to support the termination of Mother’s parental rights.

We affirm.

[26] Affirmed.

[27] Brown, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-901 | October 26, 2018 Page 13 of 13