In Re: The Termination of the Parent/Child Relationship of Mak.B and Mar.B D.C. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 16, 2018
• Docket: 20A04-1709-JT-2154
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 16 2018, 9:04 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 Nancy A. McCaslin Curtis T. Hill, Jr. McCaslin & McCaslin Attorney General of Indiana Elkhart, Indiana Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Termination of the March 16, 2018 Parent/Child Relationship of Court of Appeals Case No. Mak.B and Mar.B; 20A04-1709-JT-2154 Appeal from the Elkhart Circuit Court D.C. (Mother), The Honorable Michael A. Appellant-Defendant, Christofeno, Judge

v. The Honorable Deborah A. Domine, Magistrate Trial Court Cause Nos. Indiana Department of Child 20C01-1701-JT-1 Services, 20C01-1701-JT-2 Appellee-Plaintiff.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 1 of 10 Statement of the Case [1] D.C. (“Mother”) appeals the termination of the parent-child relationship with

her children, Mak.B. (“Mak.B.”) and Mar.B. (“Mar.B.”) (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; (2) a

continuation of the parent-child relationship poses a threat to the children’s

well-being; and (3) termination of the parent-child relationship is in the

children’s best interests. 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 is the parent of two daughters, Mak.B., who was born in January 2010,

and Mar.B., who was born in January 2011. In August 2015, Mother and her

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 20A04-1709-JT-2154 | March 16, 2018 Page 2 of 10 boyfriend became involved in a physical altercation as they were driving. The

children were in the back seat. A police officer who happened to be driving

behind their car saw the fight and was getting ready to pull them over when

their car crashed into another vehicle. The officer approached the car and

noticed methamphetamine pipes within the children’s reach as well as coffee

filters with methamphetamine residue and oxycodone pills. Mother was

arrested for domestic battery in the presence of a child, and the children were

placed in foster care.

[4] The children were adjudicated to be CHINS in September 2015, and Mother

was court-ordered to: (1) complete a domestic violence assessment and follow

all recommendations; (2) attend supervised visits with the children; (3)

complete a drug and alcohol assessment and follow all recommendations; (4)

remain drug fee and submit random urine drug screens; (5) complete a

psychological assessment; and (6) obtain and maintain stable employment and

housing. DCS also offered Mother home-based case management services,

individual therapy, and a medication evaluation.

[5] When Mother failed to comply with the court’s orders, DCS filed a petition to

terminate her parental rights in January 2017. Testimony at the May 2017

termination hearing revealed that Mother had completed a domestic violence

assessment but had failed to follow recommendations. Mother had also

completed a drug and alcohol assessment and intensive outpatient program but

had failed to complete the aftercare program. Her visits with her children had

been inconsistent, and she had attended only twenty of fifty-five scheduled

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 3 of 10 visits. She had failed more than half of her urine drug screens and was arrested

for the possession and use of drugs. She had been twice incarcerated in 2016.

During the pendency of the CHINS proceedings, Mother had given birth in

February 2016 to a son that had multiple drugs, including methamphetamine,

in his system. At the time of the hearing Mother was pregnant with her fourth

child. She had been “on the run” avoiding arrest from October 2016 until

January 2017 when she turned herself in and was incarcerated. (Tr. 134).

Mother had never obtained stable housing or employment.

[6] When asked whether the conditions that had resulted in the children’s removal

had been remedied, DCS Family Case Manager Laura Stapleton (“Case

Manager Stapleton”) responded:

No. . . . Because it’s been the history that [Mother] is incarcerated, then she gets out, and she does well for a month or two. And then she tests positive again and she breaks probation and then she’s on the run, and the - - it’s just been up and down with the kids, and I don’t foresee that stopping.

(Tr. 134). Case Manager Stapleton further explained that the children, who

were then six and seven years old, were in foster care with relatives that

planned to adopt them and that the children had “made it clear that they [did

not] want to see [Mother] again. They’re happy where they’re at; they call the

foster parents Mom and Dad . . . .” (Tr. 138). According to Case Manager

Stapleton, termination was in the children’s best interests.

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 4 of 10 [7] The children’s therapist, Kami Brenneman, testified that the children were

“extremely happy” and were “in a very stable situation.” (Tr. 183). CASA

Jean Rupp (“CASA Rupp”) testified that the children were “doing absolutely

fantastic.” (Tr. 194). They were extremely happy and excelling in school.

According to CASA Rupp, termination was in the children’s best interests

because “they deserve the life that they have right now, and I can see great

things for these children in . . . the future. I think if this adoption were to fall

through, it would put these kids over the edge.” (Tr. 197).

[8] At the end of the hearing, the trial court noted that the children had “been in

limbo waiting for about a third of their lives . . . .” (Tr. 217). Two days after

the hearing, the trial court issued a detailed order terminating Mother’s parental

rights. Mother now appeals the termination.

Decision [9] 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

parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 5 of 10 [10] 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.

[11] 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

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

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 6 of 10 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.

[12] 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.

[13] 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.

[14] 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

fitness at the time of the termination proceeding, taking into consideration

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 7 of 10 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.

[15] Here, the children were removed from Mother’s home because of domestic

violence and Mother’s drug use. Our review of the evidence reveals that at the

time of the termination hearing, Mother had not followed the recommendations

of either the domestic violence or drug and alcohol assessments. Rather, during

the pendency of the CHINS proceeding, Mother had continued to use drugs,

including methamphetamine, and had been incarcerated more than once. She

had also given birth to a third child that had drugs in his system. This evidence

supports the trial court’s conclusion that there was a reasonable probability that

the conditions that resulted in the children’s removal would not be remedied.

We find no error.

[16] Mother also argues that there is insufficient evidence that the termination was

in the children’s best interests. In determining whether termination of parental

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 8 of 10 rights 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 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

to those of the child involved. Id. Termination of the parent-child relationship

is proper where the child’s emotional and physical development is threatened.

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘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

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

providers may support a finding that termination is in the child’s best interests.

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003).

[17] Here, our review of the evidence reveals that Mother has historically been

unable to provide stability and supervision for her children and was unable to

provide the same at the time of the termination hearing. In addition, Case

Manager Stapleton and CASA Rupp testified that termination was in the

children’s best interests. The testimony of these service providers, as well as the

other evidence previously discussed, supports the trial court’s conclusion that

termination was in the children’s best interests. There is sufficient evidence to

support the terminations.

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 9 of 10 [18] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 20A04-1709-JT-2154 | March 16, 2018 Page 10 of 10