MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 07 2020, 10:16 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 Amanda McIlwain Curtis T. Hill, Jr. Legal Aid Corp. of Tippecanoe County Attorney General of Indiana Lafayette, Indiana Natalie F. Weiss Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the February 7, 2020 Parent-Child Relationship of Court of Appeals Case No. S.W. and B.W. (Minor 19A-JT-1899 Children), Appeal from the Tippecanoe T.H. (Mother), Superior Court The Honorable Faith A. Graham, Appellant-Respondent, Judge v. Trial Court Cause Nos. 79D03-1902-JT-23 Indiana Department of Child 79D03-1902-JT-24 Services, Appellee-Petitioner.
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 1 of 16 [1] T.H. (“Mother”) appeals the Tippecanoe Superior Court’s order terminating
her parental rights to her minor children, S.W. and B.W. Mother argues that
the trial court’s order is not supported by sufficient evidence and that her due
process rights were violated because she was not provided with therapeutic
services.
[2] We affirm.
Facts and Procedural History [3] Mother is married to B.J.W. (“Father”),1 and they have two children: S.W.
born in October 2015 and B.W. born in December 2016. The Tippecanoe
County Department of Child Services (“DCS”) received a report on November
25, 2017, alleging neglect of the children due to substance abuse. On that date,
an anonymous person reported to 911 that Mother was suffering from an
overdose. When law enforcement arrived, the front door was open, and Mother
was unconscious and not breathing. Two-year-old S.W. was watching a movie
in her room, and eleven-month-old B.W. was in a crib. There were various
unsafe items in the crib, and the oven was turned on.
[4] Mother was revived with two doses of Narcan and transported to the hospital.
Eventually, law enforcement personnel learned that Christopher McCollum
1 Both parties testified at the fact-finding hearing that they intend to dissolve their marriage. Due to incarceration and other marital issues, they did not reside in the same household at all times during these proceedings. Father was charged with and incarcerated for numerous offenses during this case, including a domestic battery charge against Mother that occurred on or about November 16, 2017. Father’s parental rights to the children were also involuntarily terminated in these proceedings. Father does not appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 2 of 16 provided heroin to Mother, which they used together. He reported Mother’s
overdose to 911. Mother was charged with maintaining a common nuisance
and neglect of a dependent.
[5] The children were placed with paternal grandmother and step-grandfather.
DCS filed a petition alleging that they were Children In Need of Services
(“CHINS”), and a dispositional order was issued in February 2018. Mother was
ordered to complete a substance abuse assessment and treatment, random drug
screening, a mental health assessment, domestic violence victim services,
individual therapy, therapy with Father, and parenting time.
[6] Mother generally complied with services during the first few months of the
CHINS proceedings. She completed a substance abuse assessment in February
2018, and her random drug screens were negative. In April 2018, Mother
completed a mental health assessment and was successfully discharged from a
domestic violence victim class. Mother had stable housing and was
participating in supervised parenting time with the children. Mother began a
trial home visit with the children on June 6, 2018.
[7] However, Mother began to refuse drug screens and failed to attend therapy in
May and June 2018. She also failed to attend a case management session in
July 2018. On July 9, 2018, DCS received a report that Mother’s babysitter
tested positive for marijuana. In August 2018, Mother was observed with
bruises on her arms and face. On August 30, 2018, Mother’s hand was injured
when Father pushed her. DCS received additional reports of domestic violence
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 3 of 16 allegations in September 2018. Mother was referred to additional domestic
violence services, but she did not complete the referral.
[8] During the trial home visit, DCS performed unannounced drop-in visits at
Mother’s home. Safety issues were noted during these visits, including
medications that were accessible to the children and exposure to unauthorized
individuals. During a visit on October 1, 2018, an unknown naked male was
found hiding in Mother’s closet. Mother refused to identify the man to the visit
facilitator.
[9] On October 17, 2018, the trial home visit ended because Mother continued to
allow unauthorized individuals into her home causing safety concerns for the
children, and she was dishonest with DCS service providers. After the children
were removed from her home, Mother attended only one visitation in
November 2018. Mother was unsuccessfully discharged from visitation in
December 2018 due to her lack of contact with DCS. Mother resumed
therapeutically supervised visitation in March 2019, but only attended one visit.
She was discharged again after she failed to attend two scheduled visits. The
children have not visited with Mother since March 2019.
[10] Mother had a traumatic childhood and was placed in foster care. She has
suffered from substance abuse and mental health issues since childhood.
Mother was referred to therapy in this case but discharged three months later
for lack of participation. Mother does not believe she benefits from therapy and
“so she just stops going.” Appellant’s App. p. 20.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 4 of 16 [11] After the trial home visit with the children ended in October 2018, Mother was
admitted to Sycamore Springs mental health facility for two weeks. She was
diagnosed with bipolar disorder and borderline personality disorder in addition
to depression and anxiety. Mother was readmitted three days after her release
for suicidal ideation. She was admitted to the facility three additional times in
2019. Mother was provided with a second referral for therapy in February 2019,
but she was discharged one month later for lack of participation. Mother also
does not take medications as prescribed.
[12] In October 2018, Mother tested positive for morphine. In March 2019, she
tested positive for fentanyl. Mother’s other random drug screens were negative
for the presence of illegal substances, but Mother failed to submit to all
requested drug screens.
[13] Throughout these proceedings, Mother did not make any progress toward
maintaining employment. And she admitted she is unable to so do. Id. During
the CHINS case, Mother’s great grandparents paid the rent for her home.
However, they ceased paying her rent in October 2018, and Mother was evicted
in December 2018. Mother was incarcerated from December 6, 2018 to January
24, 2019.
[14] On February 21, 2019, DCS filed a petition to terminate Mother’s parental
rights to the children. Shortly after the petition was filed, DCS discovered that
Mother was associating with men who had serious criminal records. Mother
had bruises and sores on her body in April 2019. Mother reported that she was
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 5 of 16 “selling herself for money” and living in a “trap house.” Appellant’s App. p.
22; Ex. Vol. 3, p. 148.
[15] In May 2019, Mother was homeless and involved in a relationship with a man
who was incarcerated for a drug offense. Mother was pregnant with his child.
Mother had also violated probation, and there were two outstanding warrants
for her arrest. Mother fled from Tippecanoe County to avoid arrest. She turned
herself in to authorities nine days before the fact-finding hearing was held in
this case.
[16] The fact-finding hearing was held on May 15, 2019. At the hearing, Mother
admitted that she was not in a position to be able to care for her children. Tr. p.
190. But she did not want her parental rights terminated. The family case
manager and court-appointed special advocate (“CASA”) testified that
termination of Mother’s parental rights is in the children’s best interests. Tr. pp.
162, 180. On July 23, 2019, the trial court entered its order terminating
Mother’s parental rights to S.W. and B.W. Mother now appeals.
Standard of Review [17] Indiana appellate courts have long had a highly deferential standard of review
in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867,
871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness
credibility. Id. We consider only the evidence and reasonable inferences
favorable to the trial court’s judgment. Id. In deference to the trial court’s
unique position to assess the evidence, we will set aside a judgment terminating
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 6 of 16 a parent-child relationship only if it is clearly erroneous. Id. Clear error is that
which leaves us with a definite and firm conviction that a mistake has been
made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.
App. 2004), trans. denied.
[18] Mother does not challenge any of the trial court’s factual findings as being
clearly erroneous. We therefore accept the trial court’s findings as true and
determine only whether these unchallenged findings are sufficient to support
the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.
denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.
App. 2012) (holding that when the trial court’s unchallenged findings support
termination, there is no error), trans. denied.
I. Clear and Convincing Evidence
[19] Mother claims that the trial court’s order involuntarily terminating her parental
rights is not supported by clear and convincing evidence. Indiana Code section
31-35-2-4(b)(2) provides that 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.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 7 of 16 (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.
[20] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana
Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is
required to find that only one prong of subsection 4(b)(2)(B) has been
established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010).
[21] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.
Off. of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient
to show by clear and convincing evidence that the child’s emotional and
physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[22] The purpose of terminating parental rights is not to punish parents but instead
to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. Indeed, parental interests must be subordinated to
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 8 of 16 the child’s interests in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d at 1259.
[23] Mother argues that the trial court clearly erred by concluding that there was a
reasonable probability that the conditions that resulted in the children’s removal
from her care, or the reasons for their continued placement outside her home,
would not be remedied. When considering whether DCS has proven this factor
by clear and convincing evidence, the trial court must determine a parent’s
fitness to care for the 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), trans.
denied. The trial court may disregard efforts made only shortly before
termination and give more weight to a parent’s history of conduct prior to those
efforts. In re K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013).
[24] The trial court concluded that Mother has not “demonstrated the ability or
willingness to make lasting changes from past behaviors” and “[t]here is no
reasonable probability that [Mother] will be able to maintain stability to care
and provide for SW and BW.” Appellant’s App. p. 23. The children were
removed from Mother’s care due to her substance abuse. And the children were
removed from the temporary trial home visit because Mother allowed
unauthorized individuals into her home, which caused safety concerns for the
children particularly given Mother’s dishonesty with service providers. Mother
had two positive drug tests and refused to submit to additional drug screens
when they were requested. Although Mother participated in therapy, substance
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 9 of 16 abuse treatment, and domestic violence victim’s treatment, she did not
successfully complete all of the referrals. Mother lacked a stable home for the
last three months of these proceedings and admitted at the fact-finding hearing
that she did not have a present ability to care for her children. Mother admitted
to selling herself for money. She also fled the Lafayette area prior to the fact-
finding hearing because there were two active warrants for her arrest. And she
was involved in a romantic relationship with a man who was incarcerated on
drug charges.
[25] Mother has not addressed her substance abuse and mental health issues and
admits that she does not have the ability to provide a stable home for her
children. For all of these reasons, we conclude that clear and convincing
evidence supports the trial court’s determination that there is a reasonable
probability that the conditions that resulted in the children’s removal from
Mother’s care, or the reasons for their continued placement outside her home,
would not be remedied.2
[26] Mother also argues that the trial court clearly erred in concluding that
termination of her parental rights was in the children’s best interests. In
determining what is in the best interests of a child, the trial court must look
beyond the factors identified by DCS and look to the totality of the evidence.
2 Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, we decline to address Mother’s additional claim that DCS failed to prove that continuation of the parent-child relationship threatens the children’s well-being. In re A.K., 924 N.E.2d at 220.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 10 of 16 A.D.S., 987 N.E.2d at 1158. In so doing, the trial court must subordinate the
interests of the parent to those of the child and need not wait until the child is
irreversibly harmed before terminating the parent-child relationship. Id.
Moreover, a recommendation by the case manager or a child advocate is
sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. Id. at 1158–59.
[27] Mother argues that termination of her parental rights is not in the children’s
best interests because they share a strong bond. Mother loves her children, and
during supervised visitations, Mother’s interaction with the children was
appropriate.
[28] But Mother has only demonstrated that she is able to sustain a safe and
appropriate environment for her children for a short period of time. Mother’s
instability is also reflected in the fact that after the trial home visit ended,
Mother did not consistently participate in visitation with the children. The
children need stability that Mother admittedly cannot provide. Finally, both the
family case manager and CASA testified that termination of Mother’s parental
rights was in the children’s best interests. Tr. pp. 162, 180. For all of these
reasons, we conclude that the trial court’s finding that termination of Mother’s
parental rights is in the children’s best interests is supported by clear and
convincing evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 11 of 16 II. Due Process
[29] Mother also argues that her due process rights were violated throughout these
proceedings.3 When the State seeks to terminate parental rights, “it must do so
in a manner that meets the requirements of due process.” J.K. v. Marion Cty.
Dep’t of Child Servs., 30 N.E.3d 695, 699 (Ind. 2015) (quotations and citations
omitted). Whether due process has been afforded in termination proceedings is
determined by balancing the “three distinct factors” specified in Mathews v.
Eldridge, 424 U.S. 319, 335 (1976): the private interests affected by the
proceeding; the risk of error created by the State’s chosen procedure; and the
countervailing governmental interest supporting use of the challenged
procedure. A.P. v. Porter Cty. Off. of Family & Children, 734 N.E.2d 1107, 1112
(Ind. Ct. App. 2000), trans. denied.
The private interest affected by the proceeding is substantial—a parent’s interest in the care, custody, and control of his or her child. And the State’s interest in protecting the welfare of a child is also substantial. Because the State and the parent have substantial interests affected by the proceeding, we focus on the risk of error created by DCS’s actions and the trial court’s actions.
3 Mother does not state whether her due process claim is pursuant to the federal or state constitution—or both. Regardless, the due process analysis under each constitution is the same. In re D.H., 119 N.E.3d 578, 586 n.16 (Ind. Ct. App. 2019) (citing Cooper v. State, 760 N.E.2d 660, 666 (Ind. Ct. App. 2001), trans. denied), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 12 of 16 S.L. v. Ind. Dep’t of Child Servs., 997 N.E.2d 1114, 1120 (Ind. Ct. App. 2013)
(citing In re C.G., 954 N.E.2d 910, 917 (Ind. 2011)).
[30] DCS must “make reasonable efforts to preserve and reunify families.” Ind.
Code § 31-34-21-5.5(b). And, “due process protections at all stages of CHINS
proceedings are vital because every CHINS proceeding has the potential to
interfere with the rights of parents in the upbringing of their children.” In re
G.P., 4 N.E.3d 1158, 1165 (Ind. 2014) (quotations and citations omitted).
“[T]hese two proceedings—CHINS and TPR—are deeply and obviously
intertwined to the extent that an error in the former may flow into and infect
the latter[.]” Id.
[31] But the “failure to provide services does not serve as a basis on which to directly
attack a termination order as contrary to law.” In re H.L., 915 N.E.2d 145, 148
n.3 (Ind. Ct. App. 2009); see also In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App.
2000) (“[T]he provision of family services is not a requisite element of our
parental rights termination statute, and thus, even a complete failure to provide
services would not serve to negate a necessary element of the termination
statute and require reversal.”). Furthermore, a parent may not sit idly by
without asserting a need or desire for services and then successfully argue that
she was denied services to assist her with her parenting. In re B.D.J., 728 N.E.2d
195, 201 (Ind. Ct. App. 2000).
[32] First, Mother argues that her rights were violated because “DCS failed [to]
make a new referral for intensive therapy after [M]other was discharged in June
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 13 of 16 2018” contrary to the trial court’s order to DCS to “make a referral, or help
Mother enroll in, individual counseling to address domestic violence issues and
decision making.” Appellant’s Br. at 28 (citing Ex. Vol., 1, p. 86). Next, Mother
notes that DCS never made a referral for couples therapy or a psychological
evaluation. Finally, Mother claims that when she began to struggle in August
and September 2018, DCS “failed to look at the reasons why Mother was
struggling and failed to adjust the services appropriately.” Id. at 29.
[33] During the CHINS proceedings, Mother participated in therapy, completed
mental health and substance abuse assessments, completed a domestic violence
victim class, submitted to random drug screens, participated in home-based case
management, and had supervised visitation with the children. As a result of
Mother’s participation in services and visitation, the children were returned to
her care for a temporary trial home visit. But when the children were returned
to her home, Mother’s participation in services became less consistent. She
stopped going to therapy and would either cancel the appointment or fail to
attend without notice.
[34] In October 2018, the children were removed from Mother’s care because she
allowed unauthorized persons into her home causing concern for the children’s
safety and was dishonest with service providers. Shortly before the children
were removed, Mother was referred for therapy at Counseling Partners, but
Mother did not participate in therapy or complete the referral. DCS also
recommended that Mother complete a new mental health assessment, but
Mother declined to do so. DCS re-enrolled Mother in a domestic violence class
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 14 of 16 due to evidence of abuse in August and September 2018. The provider
contacted Mother, but Mother did not follow up with the provider. Mother was
incarcerated on December 6, 2018. She was released shortly before DCS filed
the petition to terminate her parental rights in February 2019.
[35] Mother failed to participate in and benefit from the services provided and
complains that she should have been offered more services. DCS offered
Mother sufficient services in its attempt to preserve and reunify Mother’s
family. Mother has not established that DCS engaged in conduct that affected
Mother’s ability to participate in and complete services aimed at reunifying her
with her children. Cf. In re C.M.S.T., 111 N.E.3d 207, 213 (Ind. Ct. App. 2018)
(holding that “the chaotic and unprofessional handling” of a CHINS case
violated the parents’ due process rights, requiring reversal of the termination
order); A.P., 734 N.E.2d at 1117 (finding parents’ due process rights were
violated in a termination action where DCS made multiple procedural errors,
such as failing to provide parents with copies of case plans and filing CHINS
and termination petitions that did not meet statutory requirements). For all of
these reasons, Mother has not established that her due process rights were
violated.
Conclusion [36] Clear and convincing evidence supports the trial court’s order involuntarily
terminating Mother’s parental rights to her children. And Mother has not
established that her due process rights were violated in the termination and
underlying CHINS proceedings. Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 15 of 16 [37] Affirmed.
Kirsch, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1899 | February 7, 2020 Page 16 of 16