In the Involuntary Termination of the Parent-Child Relationship of: P.L., C.B.(1), C.B.(2), K.P., and D.R. (Minor Children), and P.M.L. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 19, 2018
• Docket: 18A-JT-456
• 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 Jul 19 2018, 9:13 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 Catherine S. Christoff Curtis T. Hill, Jr. Christoff & Christoff Attorneys Attorney General of Indiana Fort Wayne, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA In the Involuntary Termination July 19, 2018 of the Parent-Child Relationship Court of Appeals Case No. of: P.L., C.B.(1), C.B.(2), K.P., 18A-JT-456 and D.R. (Minor Children), Appeal from the Allen Superior and Court The Honorable Charles F. Pratt, P.M.L. (Mother), Judge Appellant-Respondent, Trial Court Cause Nos. 02D08-1705-JT-100 v. 02D08-1705-JT-101 02D08-1705-JT-102 The Indiana Department of 02D08-1705-JT-103 Child Services, 02D08-1705-JT-104 Appellee-Petitioner

Baker, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 1 of 10 [1] P.M.L. (Mother) appeals the trial court’s order terminating her relationship

with P.L., C.B.(1), C.B.(2), K.P., and D.R. (collectively, the children), her

minor children. Mother argues that there is insufficient evidence supporting the

termination. Finding the evidence sufficient, we affirm.

Facts [2] On September 29, 2014, the children were removed from Mother’s care and

custody after Mother left then-three-year-old D.R. at home alone, marijuana

paraphernalia was found in the home, and Mother was arrested. The

Department of Child Services (DCS) filed a petition alleging the children to be

children in need of services (CHINS) on October 1, 2014.

[3] On October 27, 2014, Mother admitted that the children were CHINS based on

the following: (1) Mother left three-year-old D.R. at home alone for hours;

(2) Mother sped away from law enforcement, driving around a stopped school

bus that was letting children, including her own, off of the bus; (3) Mother was

arrested and ultimately pleaded guilty to resisting law enforcement, criminal

recklessness, reckless driving, and operating a vehicle without a license;

(4) there were marijuana blunts and paraphernalia in the home in reach of the

children; and (5) Mother smokes marijuana. At the dispositional hearing, the

trial court ordered Mother to submit to a diagnostic assessment and a substance

abuse assessment and comply with any recommendations; participate with

home-based case management; submit to random drug screens; and attend

supervised visitation with the children.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 2 of 10 [4] Mother completed a diagnostic assessment and a substance abuse assessment.

It was recommended that she participate in individual counseling, random drug

screens, and home-based case management. Shortly thereafter, Mother moved

to Chicago. DCS referred her services to a nearby location, but she never

followed up to initiate the services.

[5] Mother had “an abundance of no-shows” at the provider that administered her

random drug screens. Tr. Vol. II p. 167. She submitted to screens through

DCS after court hearings and sporadically at other times, continuing to test

positive for marijuana throughout the case.

[6] Mother’s visits with the children were inconsistent. When she attended, the

visits were chaotic, Mother failed to discipline the children, and Mother

frequently made negative comments about the children’s foster parents. In July

2015, the visits became therapeutically supervised visits because of Mother’s

behavior. After Mother failed to attend multiple therapeutically supervised

visits, the service was closed because it was stressful to the children that they

expected to see Mother but she failed to show. Between October 2014 and June

2016, Mother attended only sixteen visits and had multiple no shows. Mother’s

last visit with the children occurred in October 2016. The children did not

express a desire to visit with anyone outside of their sibling group. 1

1 C.B.(1), C.B.(2), and K.P. were placed in the same foster home. P.L. and D.R. were placed together in a different foster home.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 3 of 10 [7] In June 2016, Mother’s services were transferred to another provider to better

accommodate her geographical location—she lived in Chicago and was

employed in Merrillville. She began working with a home-based case manager,

who met with Mother in Merrillville at her place of work. Mother was initially

motivated to participate, but her attendance became sporadic and she

eventually stopped participating altogether. In May 2017, Mother contacted

the home-based case manager and asked to restart the service. Mother met with

the case manager once and then stopped participating again; the service was

closed as unsuccessful.

[8] During the underlying CHINS case, Mother’s housing was unstable. She had

sporadic periods of homelessness, moved between Fort Wayne and Chicago

multiple times, and often lived with different relatives. At the time of the

termination hearing, Mother was living in a one-bedroom apartment in

Chicago. Her employment was also inconsistent. At one point during the

CHINS case she was employed at a nursing home and a restaurant, but at the

time of the termination hearing, she had been unemployed for months.

[9] On June 1, 2017, DCS filed a petition to terminate Mother’s parental rights.

The termination hearing took place on November 6 and 8, 2017. At that time,

all the children were thriving in their respective foster placements. The Family

Case Manager (FCM) and the children’s Court Appointed Special Advocate

(CASA) each testified that they believed termination was in the children’s best

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 4 of 10 interests. On February 7, 2018, the trial court issued an order terminating

Mother’s parental rights. Mother now appeals.2

Discussion and Decision I. Standard of Review [10] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

2 The parental rights of the father of C.B.(1) and C.B.(2) were also terminated; he is appealing in a separate cause. The parental rights of the father of D.R. were also terminated; he is appealing in a separate cause. The parental rights of K.P.’s father were terminated, but he did not appeal. The identity of P.L.’s father was unknown at the time of termination.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 5 of 10 the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[11] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;

(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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 6 of 10 (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 prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

[12] Mother argues that there is insufficient evidence supporting the trial court’s

findings that (1) there is a reasonable probability that the conditions resulting in

the children’s removal will not be remedied; and (2) termination is in the

children’s best interests.

II. Conditions Resulting in Removal [13] Mother first argues that the evidence does not support the trial court’s

conclusion that there is a reasonable probability that the conditions that resulted

in the children’s initial removal and continued placement outside her care and

custody will not be remedied.

[14] The children were initially removed from Mother’s care and custody because of

her arrest, her decision to leave three-year-old D.R. at home alone for hours,

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 7 of 10 and the drug paraphernalia found in the home in reach of the children. They

have continued to be placed outside of her care and custody because of her

failure to comply with court-ordered services, inconsistent visitation with the

children, and instability in housing and employment.

[15] The record reveals that Mother failed to successfully complete any of her court-

ordered services, including random drug screens, home-based case

management, and individual counseling. When Mother did provide drug

screens, they were regularly positive for marijuana. She did not consistently

visit with the children. Indeed, at the time of the termination hearing, she had

not seen them for over a year. It is apparent that despite years to do so, Mother

has not addressed any of the underlying issues in this case. This evidence

readily supports a conclusion that there is a reasonable probability that the

conditions that resulted in the children’s initial and continued removal from

Mother’s care and custody will not be remedied. See Lang v. Starke Cty. Office of

Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (holding that a

“pattern of unwillingness to deal with parenting problems and to cooperate with

those providing social services, in conjunction with unchanged condition, will

support a finding that there exists no reasonable probability that the conditions

will change”).

[16] Mother argues that her geographical location—in Chicago, a three-hour drive

away from where the children lived in Fort Wayne—made “both visits with her

children and completion of services difficult.” Appellant’s Br. p. 23. She

argues that as in In re B.L.P., 91 N.E.3d 625, 633 (Ind. Ct. App. 2018), we

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 8 of 10 should find that termination is unwarranted where it was based on the facts that

“a parent lives out of state, works full-time, and cannot afford to fly to another

state and home again in the same day . . . .” As in B.L.P., Mother insists that

she is being punished for her “geographic location and economic wherewithal.”

Id.

[17] We find B.L.P. to be distinguishable. Here, unlike in B.L.P., DCS made every

effort to transfer Mother’s services to a geographically convenient location. She

still failed to participate consistently. And we acknowledge that although a

multiple hour drive to visit with the children is challenging to do regularly, she

could at least have done so occasionally. At the time of the termination

hearing, she had not seen her children for over a year. Whereas in B.L.P. the

father lived in Georgia, meaning that travel was a major (and expensive)

undertaking, in this case, Mother was just a few hours away by car. We can

appreciate that the distance involved made things challenging for Mother, but

she did not even take advantage of the opportunities available to her. We do

not find this argument to be compelling.

III. Best Interests [18] Finally, Mother contends that the trial court erred by concluding that

termination is in the children’s best interests. At the time of the termination

hearing, the children had been in foster care for three years and deserved

permanency. See K.T.K., 989 N.E.2d at 1235 (observing that permanency and

stability are key considerations in determining the best interests of a child).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 9 of 10 Mother had all that time to begin to address the issues underlying the CHINS

case and simply failed to do so. She failed to complete a single court-ordered

service successfully. She tested positive for marijuana throughout the case. She

had not seen the children in over a year at the time of the termination hearing.

The children no longer even wished to see her. The children’s CASA and FCM

both testified that they believed termination is in the children’s best interests.

We find that this evidence supports the trial court’s conclusion that termination

is in the children’s best interests. Mother’s arguments to the contrary merely

amount to a request that we reweigh the evidence, which we may not do.

[19] The judgment of the trial court is affirmed.

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-456 | July 19, 2018 Page 10 of 10