Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIEL G. PAPPAS CHERRIE L. B. WELLS Fort Wayne, Indiana INDIANA DEPT OF CHILD SERVICES Fort Wayne, Indiana
ROBERT J. HENKE DCS CENTRAL ADMINISTRATION Indianapolis, Indiana
IN THE FILED Oct 31 2012, 9:38 am COURT OF APPEALS OF INDIANA CLERK of the supreme court, court of appeals and tax court
In the Matter of the Termination of the Parent-Child ) Relationship of A.A.M., minor child, and ) B.J., mother: ) ) B.J. (Mother), ) ) Appellant-Respondent, ) ) vs. ) No. 02A03-1201-JT-42 ) INDIANA DEPARTMENT OF CHILD SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT, JUVENILE DIVISION The Honorable Charles F. Pratt, Judge Cause Nos. 02D08-1105-JT-81
October 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge B.J. (“Mother”) appeals the involuntary termination of her parental rights to her
child, A.M. In so doing, Mother challenges the sufficiency of the evidence supporting
the trial court’s judgment.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother is the biological mother of A.M., born in September 1998.1 The facts most
favorable to the trial court’s judgment reveal that in December 2009 the local Allen
County office of the Indiana Department of Child Services (“ACDCS”) received and
substantiated a referral for neglect and lack of supervision involving Mother and A.M.
The referral specifically alleged that Mother, who has a history of substance abuse and
prior involvement with ACDCS,2 was unemployed and again using illegal substances.
Later the same month, Mother tested positive for cocaine and was observed by an
ACDCS case worker as appearing to be “under the influence of an illegal drug” and “not
coherent” during a subsequent home visit. State’s Ex. 6 at 1.
ACDCS was initially unable to locate A.M. because Mother refused to disclose the
child’s whereabouts. Mother later admitted, however, that she had placed A.M. with
Mother’s cousin several months earlier, and the trial court entered an order that allowed
1 Paternity of A.M. has not been established. The parental rights of A.M.’s alleged biological father, An.M. (“Father”), were terminated by the trial court in its January 2012 termination order. Father does not participate in this appeal. Consequently, we limit our recitation of the facts to those facts pertinent solely to Mother’s appeal. 2 A.M. was previously determined to be a CHINS in 2000.
2 A.M. to remain in relative placement with the maternal cousin.3 The trial court thereafter
adjudicated A.M. to be a CHINS in April 2010.
Following a dispositional hearing in June 2010, the trial court issued an order
formally removing A.M. from Mother’s care and custody and making the child a ward of
ACDCS. The trial court’s dispositional order further directed Mother to participate in
and successfully complete a variety of tasks and services designed to address her
parenting deficiencies and to facilitate reunification with A.M. Among other things,
Mother was ordered to: (1) refrain from all criminal activities and the use of alcohol,
illegal drugs, and other substances; (2) submit to random drug screens; (3) participate in a
drug and alcohol evaluation and any resulting treatment recommendations; (4) maintain
clean, safe, and appropriate housing at all times; (5) obtain a psychological assessment
and follow all recommendations; (6) take all medications as prescribed; and (7) cooperate
with all caseworkers, the Guardian ad Litem (“GAL”) and the court-appointed special
advocate (“CASA”) and accept all announced and unannounced home visits.
Mother’s participation in court-ordered services was sporadic from the beginning
and ultimately unsuccessful. She repeatedly denied ACDCS caseworkers access to her
home and refused to maintain consistent contact with service providers. After failing to
appear for multiple re-scheduled appointments for a substance abuse evaluation, Mother
eventually completed the assessment in September 2010 and was referred for treatment.
Mother failed to complete the recommended treatment program, however, even after a
3 A.M. was later removed from relative care and placed in foster care in March 2010 after the maternal cousin failed a criminal background check.
3 second referral. Additionally, Mother continued to test positive for cocaine in June and
December 2010, January 2011, and twice in April 2011. Mother also tested positive for
opiates in January, February, and December of 2010, as well as in April 2011. As for
Mother’s mental health issues, Mother refused to participate in individual counseling
notwithstanding her diagnosis of bipolar disorder and depression. Mother also refused to
take her medication as prescribed. Finally, although Mother participated in supervised
visitation, her visitation privileges were suspended three times for failing to appear for
scheduled visits, and she never progressed to unsupervised visits.
Based on Mother’s non-compliance and lack of progress in services, ACDCS filed
a petition seeking the involuntary termination of Mother’s parental rights to A.M. in May
2011. A three-day evidentiary hearing on the termination petition was subsequently held
in September and October 2011. During the termination hearing, ACDCS presented
substantial evidence concerning Mother’s failure to successfully complete and/or benefit
from a majority of court-ordered reunification services available throughout the
underlying CHINS and termination cases. In addition, ACDCS established that Mother
was currently unemployed and without independent housing, continued to struggle with
her addiction to cocaine and unresolved mental health issues, and remained incapable of
providing A.M. with a safe and stable home environment.
At the conclusion of the termination hearing, the trial court took the matter under
advisement. On January 3, 2012, the court entered its judgment terminating Mother’s
parental rights to A.M. Mother now appeals.
4 DISCUSSION AND DECISION
We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental rights. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing a termination of
parental rights case, we will not reweigh the evidence or judge the credibility of the
witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead,
we consider only the evidence and reasonable inferences that are most favorable to the
judgment. Id. Moreover, in deference to the trial court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child relationship
only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999),
trans. denied.
Here, in terminating Mother’s parental rights, the trial court entered specific
findings and conclusions. When a trial court’s judgment contains specific findings of fact
and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine
whether the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. “Findings are clearly erroneous only when the record
contains no facts to support them either directly or by inference.” Quillen v. Quillen, 671
N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. L.S., 717 N.E.2d at 208.
The “traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
5 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. These parental interests, however,
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. In addition, although the
right to raise one’s own child should not be terminated solely because there is a better
home available for the child, parental rights may be terminated when a parent is unable or
unwilling to meet his or her parental responsibilities. K.S., 750 N.E.2d at 836.
Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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; [and]
(C) that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2).4 The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,
904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if
the court finds that the allegations in a petition described in Indiana Code section 31-35-
4 We observe that Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July 1, 2012). The changes to the statute became effective after the filing of the termination petition involved herein and are not applicable to this case.
6 2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-
8(a). Mother challenges the sufficiency of the evidence supporting the trial court’s
findings as to subsections (b)(2)(B) and (C) of the termination statute cited above.
I. Conditions Remedied/Threat to Well-Being
Indiana Code section 31-35-2-4(b)(2)(B) requires the trial court to find that only
one of the three requirements of subsection (b)(2)(B) has been established by clear and
convincing evidence before terminating parental rights. Here, the trial court determined
that ACDCS established, by clear and convincing evidence, subsections (b)(2)(B)(i) and
(ii) of the termination statute. Because we find it to be dispositive under the facts of this
case, we shall consider only the former requirement, namely, whether ACDCS
sufficiently established that there is a reasonable probability the conditions resulting in
A.M.’s removal or continued placement outside of Mother’s care will not be remedied.
See Ind. Code § 31-35-2-4(b)(2)(B)(i).
When making such a determination, a trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),
trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. Pursuant to
this rule, courts have properly considered evidence of a parent’s prior criminal history,
drug and alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children,
762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also
7 consider any services offered to the parent by the county department of child services and
the parent’s response to those services, as evidence of whether conditions will be
remedied. Id. Moreover, ACDCS was not required to provide evidence ruling out all
possibilities of change; rather, it needed to establish only that there is a reasonable
probability the parent’s behavior will not change. In re Kay L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007).
Mother asserts on appeal that ACDCS failed to establish, by clear and convincing
evidence, that the conditions resulting in A.M.’s removal would likely not be remedied
because Mother had already “complied with many of the requirements of her parent
participation plan at the time of the termination trial.” Appellant’s Br. at 4. Mother goes
on to assert that whether or not the trial court considered Mother’s testimony at all
remains “unknown” in light of the trial court’s specific finding that Mother failed to
appear at trial when, in fact, she attended the second day of the termination hearing and
even testified. Id. Mother therefore contends that the trial court’s “clearly erroneous
finding . . . requires that the termination of her parental rights be overturned.” Id. at 4.
In terminating Mother’s parental rights, the trial court made extensive findings
regarding Mother’s unresolved substance abuse and mental health issues, parenting
deficiencies, and lack of stability. Specifically, the court found that Mother had “failed to
complete” the recommended drug treatment program, continued to test positive for
cocaine and opiates throughout the underlying proceedings, “failed to participate” in
individual counseling, and “admitted to the caseworker that she had not taken her
8 medications as prescribed.” Appellant’s App. at 12. Based on these and other findings,
the trial court concluded:
By clear and convincing evidence[,] the Court determines that there is a reasonable probability that [the] reasons that brought about the child’s placement outside the home will not be remedied. The Respondent Mother [has] not completed her addictions counseling. She has not taken her medications as prescribed. She has continued to test positive for controlled or illegal substances . . . [and] the reasons for the child’s removal continued to exist in [Mother’s] behaviors.
Id. at 13-14. Our review of the record leaves us convinced that clear and convincing
evidence supports the trial court’s findings cited above.
Although the evidence confirms Mother participated in a few of the recommended
services, including a substance abuse evaluation and psychological assessment, she
refused to follow through with the ensuing treatment recommendations. For example,
during the termination hearing, ACDCS case manager Faith Jackson (“Jackson”)
confirmed that Mother attended only three of the recommended substance abuse “group
[counseling] sessions,” “never” provided ACDCS with confirmation that she had ever
attended the recommended Alcohol Anonymous and Narcotics Anonymous classes, and
continued to test positive for illegal substances throughout the underlying proceedings.
Tr. at 59. Jackson also informed the trial court that Mother refused to submit to the
recommended psychiatric evaluation and individual counseling following the
psychological assessment, failed to maintain consistent contact with ACDCS, and denied
case workers access to her home “maybe six (6) or seven (7) times.” Id. at 58. Similarly,
Licensed Addictions Counselor and Executive Director of Caring About People, Inc.,
9 Kimbra O’Brien (“O’Brien”) testified that Mother attended only three two-hour sessions
of the recommended “forty (40) hours in substance abuse treatment.” Id. at 228.
The evidence further establishes that Mother failed to achieve any significant,
long-term improvement in her ability to parent A.M. despite a wealth of services
available to her for nearly two years. When asked what was her “greatest concern”
should the trial court not grant ACDCS’s petition for termination of Mother’s parental
rights, Jackson answered, “Reunification.” Id. at 93-94. Jackson went on to explain that
Mother continues to struggle with her “long-lasting addiction to cocaine,” was recently
evicted from her home and had not secured alternative housing, remained involved with a
boyfriend who was “currently incarcerated for domestic violence against [Mother],” and
therefore Mother was “not in a stable environment right now to care for [A.M.].” Id. at
94, 178. CASA Rex McFarren (“McFarren”) likewise informed the trial court that he
recommended termination of Mother’s parental rights to A.M. for the following reasons:
Unfortunately, we have a mother here who is responsible for a thirteen (13) year old child who came into the system because of [the mother’s] drug use. [Mother’s] been ordered . . . to cease and desist [from] the use of drugs, and she continues to test positive for drugs. At the last court hearing, there was testimony that [Mother] had received an eviction notice, and so we’re unsure [if] she has even a residence at this point in time for her child. This case came in in January of 2010, so we are now about twenty (20) months, twenty-one (21) months into this case, and we are no closer to having this child placed back with her mother than we were twenty (20) months ago. . . .
Id. at 242.
As noted above, a trial court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s
10 habitual patterns of conduct to determine the probability of future neglect or deprivation
of the child. D.D., 804 N.E.2d at 266. Where a parent’s “pattern of conduct shows no
overall progress, the court might reasonably find that under the circumstances, the
problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
2005). Here, the record makes clear that throughout the underlying proceedings Mother
demonstrated a persistent unwillingness and/or inability to take the actions necessary to
show that she is capable of overcoming her addiction to cocaine and other substances and
of providing A.M. with the safe, stable, and drug-free home environment the child needs
to thrive. Based on the foregoing, we conclude that the trial court’s determination that
there is a reasonable probability the conditions resulting in A.M.’s removal from
Mother’s care will not be remedied is supported by clear and convincing evidence.
In arriving at our decision today, we acknowledge Mother’s assertion that the trial
court erroneously found that Mother failed to appear for each day of the three-day
termination hearing. The record confirms, and the State concedes on appeal, that
although Mother failed to show on the first and last hearing dates, she did appear mid-
way through the hearing on the second day of evidence and testified on her own behalf.
Contrary to Mother’s assertions, however, the trial court’s erroneous finding does not
mandate reversal because the judgment remains sufficiently supported by numerous other
findings which substantiate its determination that there is a reasonable probability that the
reasons for removal and continued placement of A.M. outside Mother’s care will not be
remedied. See, e.g., A.J. v. Marion Cnty. Office of Family & Children, 881 N.E.2d 706,
715 (Ind. Ct. App. 2008) (to extent a judgment is based on erroneous findings, those
11 findings are superfluous and are not fatal to judgment if remaining valid findings and
conclusions support judgment), trans. denied. Moreover, the trial court was not obliged
to give the same weight to Mother’s self-serving statements as she did, including
Mother’s unsupported testimony that she successfully complied with all of the trial
court’s dispositional orders, never used illegal substances during the underlying
proceedings, and believed the positive drug screen reports were “the fault of the lab.” Tr.
at 216; see also D.D., 804 N.E.2d at 267 (trial court was permitted to judge parents’
credibility and weigh their testimony against significant testimony demonstrating
Mother’s habitual conduct in failing to address her mental health and addiction issues and
of providing safe and stable home environment). We therefore conclude that Mother’s
arguments amount to an impermissible invitation to reweigh the evidence. Id. at 265.
II. Best Interests
We next consider Mother’s assertion that ACDCS failed to prove termination of
her parental rights is in A.M.’s best interests. In determining what is in the best interests
of a child, the trial court is required to look beyond the factors identified by the Indiana
Department of Child Services and look to the totality of the evidence. McBride v.
Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
In so doing, the court must subordinate the interests of the parent to those of the child.
Id. The court need not wait until a child is irreversibly harmed before terminating the
parent-child relationship. Id. Moreover, we have previously held that the
recommendations by both the case manager and child advocate to terminate parental
rights, in addition to evidence that the conditions resulting in removal will not be
12 remedied, is sufficient to show by clear and convincing evidence that termination is in the
child’s best interests. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).
In addition to the findings previously cited, the trial court made several additional
pertinent findings relating to A.M.’s best interests. Specifically, the trial court noted
Therapist Vanessa Hogan’s (“Hogan”) testimony that A.M. “suffers from loss and
separation issues,” that the child “needs stability” to help achieve her “educational goals,”
and that A.M. indicated she would “be sad” if not allowed to see her mother but also
“understood” that Mother is not able to consistently provide for her needs. Appellant’s
App. at 13. The court’s findings also acknowledged Mother’s failure to comply with
court-ordered reunification services, ongoing positive drug screens, and refusal to
participate in counseling. Based on these and other findings, the trial court concluded
that termination of Mother’s parental rights is in A.M.’s best interests, noting CASA
McFarren’s testimony recommending termination, as well as A.M.’s need for
permanency and the negative impact Mother’s ongoing drug use has had on A.M.’s
“mental wellbeing.” Id. at 14. These findings and conclusions, too, are supported by the
evidence.
During the termination hearing, Hogan informed the trial court that A.M. needed
to live in a home environment that was filled with “love,” “consistency,” and “stability”
in order to “grow in a healthy manner and [to] be a successful child and move . . .
successfully into adulthood.” Tr. at 46. Similarly, in recommending termination of
Mother’s parental rights, CASA McFarren testified:
13 [A.M.] deserves permanency[.] [S]he deserves one (1) home to grow up in that’s drug free. She deserves an adult to be responsible for her and for [A.M.] not to be responsible for an adult. Neither [Father] nor [Mother] have indicated -- their behavior [has not] indicated any seriousness about trying to provide that for [A.M.]. . . .
Based on the totality of the evidence, including Mother’s ongoing struggle with
substance abuse, unresolved mental health issues, and failure to successfully complete
and/or benefit from a wealth of reunification services available to her, coupled with the
testimony from the ACDCS case manager, A.M.’s therapist, and CASA McFarren
recommending termination of the parent-child relationship, we conclude that there was
sufficient evidence to support the trial court’s determination that termination of Mother’s
parental rights is in A.M.’s best interests. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind.
Ct. App. 2005) (testimony of court-appointed advocate and family case manager, coupled
with evidence that conditions resulting in continued placement outside home will not be
remedied, is sufficient to prove by clear and convincing evidence termination is in child’s
best interests), trans. denied.
This court will reverse a termination of parental rights ‘“only upon a showing of
“clear error” – that which leaves us with a definite and firm conviction that a mistake has
been made.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly
v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
NAJAM, J., and MAY, J., concur.
14 15