In the Matter of R.R. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2020
• Docket: 20A-JT-1297
• 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 Dec 21 2020, 10:47 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ana M. Quirk Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Robert J. Henke Monika P. Talbot Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of December 21, 2020

R.R., Court of Appeals Case No. 20A-JT-1297 Appellant-Respondent, Appeal from the Delaware Circuit v. Court The Honorable Kimberly S. Indiana Department of Child Dowling, Judge Services, Trial Court Cause No. 18C02-1908-JT-189 & 18C02-1908- Appellee-Petitioner. JT-190

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 1 of 13 STATEMENT OF THE CASE [1] Appellant-Respondent, R.R. (Mother), appeals the trial court’s Order

terminating her parental rights to her minor children, Jy.R. and Ju.R.

(collectively, Children).

[2] We affirm.

ISSUE [3] Mother presents the court with three issues, which we consolidate and restate as

the following single issue: Whether the Department of Child Services (DCS)

presented sufficient evidence to support its petition to terminate the parent-child

relationship.

FACTS AND PROCEDURAL HISTORY [4] Mother and J.R. (Father) 1 are the biological parents of Jy.R., born February 22,

2016, and Ju.R., born January 11, 2018. On March 27, 2018, DCS received a

report regarding an incident of domestic violence between Mother and Father,

and Father was subsequently arrested. A protective order in favor of Mother

and Children was ordered against Father. At that time, newborn Ju.R. was at

the neonatal intensive care unit because “she was born with her intestines

outside of her body” and required surgery to correct the issue. (Transcript Vol.

II, p. 170). On March 28, 2018, Mother was arrested for public intoxication

1 Father’s parental rights to Children were terminated and he does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 2 of 13 and neglect of a dependent. On March 29, 2018, due to the protective order

against Father and coupled with Mother’s arrest, DCS removed Children from

Mother’s care and placed them together in a foster home.

[5] On April 4, 2018, DCS filed a petition alleging that Children were children in

need of services (CHINS). In May 2018, Children had unsupervised visitation

with Father at Father’s residence, but Mother was not permitted to be there

because of her substance abuse issues. DCS received a report that Jy.R. was

walking down the street alone. When the police arrived, they found Mother in

the home. Mother knew that she was not supposed to be with Father when

Father had unsupervised visitation with Children. In addition, Mother tested

positive for methamphetamine on that day.

[6] During a status hearing in June 2018, Mother and Father admitted that

Children were CHINS. Also, Father admitted that he had engaged in domestic

violence with Mother while Jy.R. was present, and Mother admitted that she

had been arrested for public intoxication while with Jy.R. Following those

admissions, the trial court adjudicated Children as CHINS, and it ordered

Mother and Father to maintain contact with the family case manager (FCM),

allow the FCM to make unannounced visits to their homes, and not to commit

further crimes.

[7] On August 31, 2018, Mother entered a substance abuse treatment program at

Winchester House, and she successfully completed an inpatient twenty-one-day

program, which Winchester House calls Phase 1. During Phase 1, the residents

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 3 of 13 do not leave the facility, their calls on the facility’s phone are supervised, and

they only have one visit per week with “their support system.” (Tr. Vol. II, p.

73).

[8] On September 4, 2018, the trial court conducted a dispositional hearing and the

trial court ordered Mother to continue with her treatment at Winchester House.

On September 29, 2018, Mother, who had progressed to Phase 2 of her

treatment at Winchester House, which allowed her to be outside the facility for

a period of time with a pass, returned to the facility and was drug screened and

tested for alcohol. Mother’s blood alcohol content (BAC) was 0.2. On another

occasion, Mother had sexual intercourse with Father in a van on Winchester

House’s property while she was supposed to be on a thirty-minute walk outside

the facility. Due to the setbacks with her treatment, Mother was returned to

Phase 1. On October 6, 2018, Mother was unsuccessfully discharged from

Winchester House. Although Mother would have had the opportunity to

reenter the program, she did not do so. Thereafter, Mother was only able to

maintain sobriety for about a month or one and a half months at a time. On

March 21, June 27, July 18, August 29, September 17 and 29, and November

22, 2019, Mother tested positive for either methamphetamine, THC, or alcohol.

[9] In April 2019, Park Center alcohol and drug therapist Valerie Runyon

(Runyon) assessed Mother, and Mother disclosed to Runyon that she had been

abusing substances such as methamphetamine, alcohol, and cannabis for years.

Mother said that she abused methamphetamine daily. Mother also participated

in therapy groups sessions at Park Center, but there had “been a pattern of lack

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 4 of 13 of follow–through” with the services. (Tr. Vol. II, p. 134). In October or

November 2019, Mother started going to a methadone clinic. FCM Samantha

Winans (FCM Winans) was concerned about Mother obtaining methadone

because Mother had never tested positive for opiates during the CHINS case.

[10] As for visitations with Children, Mother had supervised visitation with

Children while she resided at Winchester House from August 31 through

October 6, 2018. Mother thereafter had supervised visitation through Lifeline.

Visit Supervisor Sherry Earls (Earls) supervised Mother on fifteen visits and she

observed that Mother and Children had a bond. However, Mother interacted

more with child Jy.R. than with child Ju.R., and Earls had to redirect her.

Earls also reminded Mother that she had to provide healthy snacks for the

Children during the visits. Earls, who has experience with addicts, noticed that

Mother was under the influence during one of the visits, and Earls later learned

that Mother tested positive for illegal substances on that day. Mother later

admitted to Earls that she was “trying not to use” drugs, but “she had just had a

bad time.” (Tr. Vol. II, p. 88). Earls also observed that Mother was only

comfortable parenting one child at a time. There were occasions when Mother

was unable to handle both children and she would walk away. Earls never

recommended that Mother have unsupervised visits because Mother did not

appear capable of handling Children by herself.

[11] On January 10, 2020, Mother had a visit with Children, and she was “very

flustered” and “extremely excited.” (Tr. Vol. II, p. 245). Mother did

everything very fast, and she was “jerky, twitchy.” (Tr. Vol. II, p. 245). Based

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 5 of 13 on Mother’s behavior, Earls believed that Mother had used methamphetamine.

(Tr. Vol. II, p. 248).

[12] From November 2018 through April 2019, Mother worked with Centerstone

Family Support Specialist Stacy O’Neal (O’Neal). The two worked on

parenting skills, employment, and housing. Mother was largely cooperative,

but sometimes she did not appear for scheduled meetings. Mother also failed to

obtain employment through O’Neal’s help and lived with friends.

[13] On April 21, 2019, the trial court approved a concurrent plan for reunification

and adoption for Children. On August 16, 2019, DCS filed its petitions to

terminate Mother’s and Father’s parental rights to Children. On December 11,

2019, and February 11, 2020, the trial court held evidentiary hearings on DCS’s

petitions.

[14] At the time of the termination hearing, Mother still had supervised visitation

with Children. FCM Winans had safety concerns because Mother was

sometimes under the influence of substances during visits, and she also had

other concerns as well, which involved Mother saying inappropriate things to

Children during the visits. FCM Winans also did not think Mother would be

able to care for Children on her own. FCM Winans opined that Children’s

foster placement was appropriate and that Children were well bonded with the

foster family and the other children in the household. Mother also had not

obtained stable housing and she was living in a motel in Muncie with her

boyfriend who was on house arrest. FCM Winans opined that the motel was

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 6 of 13 not a safe place for Children because during supervised visits, individuals with

ankle monitors were seen in the common areas of the motel.

[15] CASA Miles Hill (CASA Hills) testified that he began visiting Children’s foster

home in June 2018. CASA Hill opined that Children’s needs were met at the

foster parents’ home and that Children were thriving and well-bonded in their

pre-adoptive home. CASA Hill supported the plan for Children’s adoption and

opined that adoption was in Children’s best interests.

[16] On June 11, 2020, the trial court entered its detailed Order terminating

Mother’s parental rights to Children.

[17] Mother now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION A. Standard of Review

[18] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “A

parent’s interest in the care, custody, and control of his or her children is

‘perhaps the oldest of the fundamental liberty interests.’” Id. (quoting Troxel v.

Granville, 530 U.S. 57, 65 (2000)). However, parental rights “are not absolute

and must be subordinated to the child’s interests in determining the proper

disposition of a petition to terminate parental rights.” Id. If “parents are unable

or unwilling to meet their parental responsibilities,” termination of parental

rights is appropriate. Id. We recognize that the termination of a parent-child Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 7 of 13 relationship is “an ‘extreme measure’ and should only be utilized as a ‘last

resort when all other reasonable efforts to protect the integrity of the natural

relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child

Servs., 39 N.E.3d 641, 646 (Ind. 2015) (quoting Rowlett v. Vanderburgh Cty. Office

of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006)).

[19] Indiana courts rely on a “deferential standard of review in cases concerning the

termination of parental rights” due to the trial court’s “unique position to assess

the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010), trans.

dismissed. Our court neither reweighs evidence nor assesses the credibility of

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

2013). We consider only the evidence and any reasonable inferences that

support the trial court’s judgment, and we accord deference to the trial court’s

“opportunity to judge the credibility of the witnesses firsthand.” Id.

B. Termination of Parental Rights Statute

[20] In order to terminate a parent’s rights to his or her child, DCS must prove:

(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. **** (iii) The child has been removed from the parent and has been under the supervision of a local office . . . 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 [CHINS] . . . ;

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 8 of 13 (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 [CHINS];

(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.

Ind. Code § 31-35-2-4(b)(2). DCS must prove each of the foregoing elements by

clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,

92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the

existence of a fact to be highly probable.” Id.

[21] Mother’s main claim focuses on the allegation that there is insufficient evidence

to support the trial court’s determination that the conditions which resulted in

the removal of the Children have not been remedied. 2 It is well established that

“[a] trial court must judge a parent’s fitness as of the time of the termination

2 Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, DCS is required to prove only one of three listed elements. See In re A.K., 924 N.E.2d at 220-21.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 9 of 13 hearing and take into consideration evidence of changed conditions.” Stone v.

Daviess Cty. Div. of Children & Family Servs., 656 N.E.2d 824, 828 (Ind. Ct. App.

1995), trans. denied. In judging fitness, a trial court may properly consider,

among other things, a parent’s substance abuse and lack of adequate housing

and employment. McBride v. Monroe Co. OFC, 798 N.E.2d 185, 199 (Ind. Ct.

App. 2003). The trial court may also consider a parent’s failure to respond to

services. Lang v. Starke Co. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007),

trans. denied. “[H]abitual patterns of conduct must be evaluated to determine

whether there is a substantial probability of future neglect or deprivation.”

Stone, 656 N.E.2d at 828. A trial court “need not wait until the children are

irreversibly influenced by their deficient lifestyle such that their physical, mental

and social growth is permanently impaired before terminating the parent-child

relationship.” Id. Furthermore, “[c]lear and convincing evidence need not

reveal that the continued custody of the parents is wholly inadequate for the

child’s very survival. Rather, it is sufficient to show by clear and convincing

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

the respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.

[22] DCS first became involved after Mother and Father engaged in domestic

violence in front of their child in March 2018. Mother claims that she no longer

lives with Father, and “any issues of domestic violence, were therefore,

resolved.” (Appellant’s Br. p. 19). Even if we were to accept that Mother’s

argument is true, there were other issues that resulted in the placement of

Children outside Mother’s home, namely Mother’s substance abuse issues,

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 10 of 13 unstable housing, and employment, have not been addressed. See In re A.I., 825

N.E.2d 798, 806 (Ind. Ct. App. 2005) (“it is not just the basis for the initial

removal that may be considered . . . but also those bases resulting in the

continued placement outside of the home”), trans. denied.

[23] Prior to the inception of this CHINS case, Mother had been abusing substances

such as methamphetamine, alcohol, and marijuana for years. The trial court

ordered Mother to participate in a number of services to address her substance

abuse, housing instability, and unemployment, but she did not consistently

engage in those services or benefit from them when she did engage. For

instance, in August 2018, Mother completed an inpatient twenty-one-day

residential substance abuse treatment program at Winchester house, but she

never progressed to other phases of her treatment and was unsuccessfully

discharged in October 2018. While Mother would have had the opportunity to

reenter the substance abuse program, she did not do so.

[24] Evidence at the termination hearing showed that despite being offered

numerous treatment programs and other opportunities to address her substance

abuse addiction, Mother continued to use drugs throughout these proceedings.

Mother was only able to maintain sobriety for about a month or one and a half

months at a time. On March 21, June 27, July 18, August 29, September 17,

and 29, and November 22, 2019, Mother tested positive for either

methamphetamine, THC, or alcohol. Although Mother had enrolled in AA

and NA meetings in December 2019 while the termination of her parental

rights proceeding was ongoing, a court is free not to give more weight to a

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 11 of 13 parent’s last-ditch remedial effort. See In re J.S., 133 N.E.3d 707, 715 (Ind. Ct.

App. 2019) (“The trial court has discretion to weigh a parent’s prior history

more heavily than efforts made only shortly before termination. Requiring trial

courts to give due regard to changed conditions does not preclude them from

finding that parents’ past behavior is the best predictor of their future

behavior.”) (internal citation and quotation omitted).

[25] Further, the record reflects that at the time of the termination hearing, Mother

lived in a motel in Muncie with her boyfriend who was on house arrest, and

FCM Winans opined that the motel was not a safe place for Children. Mother

was also unemployed with the date of her last employment being 2018.

[26] Although it is apparent from the record that Mother loves her children and was

compliant with some of the services offered by DCS, she did not make progress

in the services that matter most: those that will help her overcome her drug

addiction and remain sober to parent Children. Thus, we hold that the trial

court’s determination that there is a reasonable probability that the conditions

that resulted in Children’s removal or the reasons for their placement outside

Mother’s home will not be remedied is supported by clear and convincing

evidence.

CONCLUSION

[27] Based on the foregoing, we hold that the trial court did not clearly err in

determining that there was sufficient evidence to support the termination of the

Mother’s parental rights.

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 12 of 13 [28] Affirmed.

[29] Najam, J. and Crone, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-JT-1297 | December 21, 2020 Page 13 of 13