In the Matter of the Term. of the Parent-Child Rel. of: M.R. and L.P. v. The Indiana Dept. of Child Services

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jun 07 2013, 9:19 am 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:

MARK SMALL AARON S. LAWSON Indianapolis, Indiana DCS Jay County Local Office Portland, Indiana

ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE INVOLUNTARY ) TERMINATION OF THE PARENT-CHILD ) RELATIONSHIP OF: ) ) M.R. (Minor Child) ) ) And ) ) L.P. (Mother) ) ) Appellant-Respondent, ) ) vs. ) No. 38A04-1211-JT-573 ) THE INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee-Petitioner. ) )

APPEAL FROM THE JAY CIRCUIT COURT The Honorable Brian D. Hutchison, Judge Cause No. 38C01-1206-JT-1 June 7, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

Case Summary

L.P. (“Mother”) appeals the termination of her parental rights to her young

daughter, M.R. Mother challenges the trial court’s conclusion that termination of her

rights is in M.R.’s best interests. However, Mother was incarcerated at the time of the

termination hearing due to her neglect of M.R. and other criminal activity. Not scheduled

to be released for another eight months, she was unable to provide for M.R. and would be

on probation in Ohio after her release. M.R., meanwhile, who had spent most of her life

in foster care, was thriving and bonded to her foster family. This is sufficient evidence to

support the conclusion that termination was in M.R.’s best interests.

Mother also argues that the guardian ad litem (“GAL”) assigned to her case

performed deficiently because he did not personally speak to Mother, Mother’s family, or

M.R., and therefore we must reverse. But the GAL was well aware of the history of the

case and M.R.’s progress in foster care. And Mother does not explain, nor is it apparent,

how the case would have been affected had the GAL acted differently; thus, there is no

basis for reversal. We affirm.

Facts and Procedural History

Mother is the biological mother of M.R., born on February 18, 2010. Mother’s

first involvement with the local Jay County Office of the Indiana Department of Child

Services (“JCDCS”) came in August 2010, because Mother, M.R., and M.R.’s biological

2 father were homeless.1 M.R. was removed from her parents’ care and adjudicated a child

in need of services (“CHINS”). The parents were ordered to obtain suitable housing, find

employment, and participate in services. M.R. was returned to their care a short time

later.

In March 2011, JCDCS learned that the parents had been arrested on drug-related

charges. M.R. was removed and placed in foster care a second time. In May 2011,

Mother was charged with Class C felony possession of a controlled substance and Class

D felony neglect of a dependent. Mother pled guilty, and the possession charge was

decreased to a Class D felony. She was sentenced to two concurrent, three-year

sentences, with two years of each sentence suspended.

Shortly after Mother’s release in early 2012, she was arrested in Ohio for illegal

assembly or possession of chemicals to manufacture methamphetamine. Mother

admitted that she helped cook meth in someone’s home in Ohio in exchange for free

drugs. Tr. p. 80, 82. Mother’s guilty plea to the Ohio charges triggered a probation

violation in Indiana, where she returned to serve the rest of her sentence.

By the time Mother returned to Indiana, two-year-old M.R. was thriving in her

foster-care placement, where she had been living for approximately eighteen months.

She had bonded with her foster parents, whom she called mommy and daddy. Id. at 53-

54. She treated the other child in the home as her sibling, and the two children “did

everything together.” Id. at 51. M.R. was happy, developing normally, and her foster

parents hoped to adopt her. Id. at 54.

1 Biological father’s parental rights have also been terminated. Because he does not participate in this appeal, we limit our discussion to Mother where possible. 3 In June 2012, JCDCS filed a petition to terminate Mother’s parental rights. The

trial court held a hearing on the petition in September 2012. At the hearing, a DCS case

supervisor, Joy Woolfe, told the court that M.R. was thriving in her foster-care placement

and recommended termination, saying that M.R. needed permanency. Id. at 11. The

GAL assigned to the case, Tom Diller, also recommended termination, citing the history

of the case and the fact that M.R. was doing well in her foster placement. Id. at 68-69.

Mother admitted her criminal history and inability to provide for M.R., but asked the trial

court for another chance, saying that while she was not “what’s best for [M.R.] right now,

it doesn’t mean eventually I won’t be.” Id. at 90. However, at the time of the termination

hearing, Mother’s release date was eight months away and after her release, she was

required to return to Ohio to comply with probation requirements for her guilty plea in

that state. At the end of September, the trial court entered its order with findings

terminating Mother’s parental rights. See Appellant’s App. p. 9-11.

Mother now appeals.

Discussion and Decision

On appeal, Mother challenges the trial court’s conclusion that termination of her

parental rights is in M.R.’s best interests. She also argues that the GAL assigned to the

case performed so deficiently that reversal is required.

I. Termination of 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 I.A., 934

N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of

4 his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting

Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Indeed[,] the parent-child relationship is

‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty.

Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parental

rights 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. (citing

In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans. denied).

When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family

& Children, 839 N.E.2d 143, 147 (Ind. 2005) (citation omitted). Instead, we consider

only the evidence and reasonable inferences that are most favorable to the judgment. Id.

Here, the trial court made specific findings and conclusions in its termination order.

When a trial court enters specific findings of fact and conclusions thereon, we apply a

two-tiered standard of review. First, we determine whether the evidence supports the

findings, and second, we determine whether the findings support the judgment. Id. We

will set aside the court’s judgment terminating 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. In re A.B., 888 N.E.2d 231, 235 (Ind. Ct. App.

2008) (citation omitted), trans. denied.

In Indiana, before parental rights may be involuntarily terminated, the State is

required to allege and prove, among other things:

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

5 (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.

Ind. Code § 31-35-2-4(b)(2). In addition, the State has the burden of pleading and

proving each element of Indiana Code section 31-35-2-4(b) by “‘clear and convincing

evidence’” before the trial court can involuntarily terminate parental rights. In re G.Y.,

904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Here, the trial

court found that all the requirements of Section 31-35-2-4 were met, but Mother

challenges only the court’s conclusion that termination of her rights was in M.R.’s best

interests. See I.C. § 31-35-2-4(b)(2)(C).

A determination of what is in the best interests of a child should be based on the

totality of the circumstances. See Lang v. Starke Cnty. Office of Family & Children, 861

N.E.2d 366, 373 (Ind. Ct. App. 2007), trans. denied. A parent’s historical inability to

provide a suitable environment along with the parent’s current inability to do the same

supports a finding that termination of parental rights is in the child’s best interests. Id. A

trial court need not wait until a child is irreversibly harmed such that his or her physical,

mental, and social development are permanently impaired before terminating the parent-

6 child relationship. In re A.D.W., 907 N.E.2d 533, 540 (Ind. Ct. App. 2008). Permanency

is a central consideration in determining the best interests of a child. In re G.Y., 904

N.E.2d at 1265.

Here, the trial court concluded that termination was in M.R.’s best interests

because Mother was unable to care for M.R., termination would spare M.R. the trauma of

being separated from her foster family, she was thriving in her foster-care placement, and

her foster family wished to adopt her and was very capable of providing for her. See

Appellant’s App. p. 11. Mother does not challenge these findings; she challenges only

the conclusion that they support termination of her rights. We cannot agree.

The record shows that Mother has been historically unable to provide M.R. with a

suitable home due to homelessness and incarceration. At the time of the termination

hearing, Mother was not scheduled to be released for another eight months and then was

required to return to Ohio to comply with probation requirements for her guilty plea in

that state. Critically, the record also shows that M.R. is well cared for and thriving in her

foster-care placement, is bonded to her foster parents and her foster sibling, and her foster

parents hope to adopt her. Those involved with the case, including case supervisor Joy

Woolfe and GAL Diller, cited M.R.’s need for permanency and recommended the

termination of Mother’s parental rights.

Based on the totality of the evidence, we conclude that the trial court’s finding that

termination was in M.R.’s best interests was supported by clear and convincing

evidence. See McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185,

203 (Ind. Ct. App. 2003) (testimony regarding a child’s need for permanency, coupled

7 with the fact that the children were thriving in their current foster home, supports a

finding that termination is in the child’s best interests). Although Mother asked the court

for another chance to parent M.R., “[i]ndividuals who pursue criminal

activity run the risk of being denied the opportunity to develop positive and meaningful

relationships with their children.” Castro v. State Office of Family & Children, 842

N.E.2d 367, 375 (citing In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App. 1992)), trans.

denied. And M.R. should not be forced to wait and see if Mother will eventually be able

to parent her. See In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d

874, 883 (Ind. Ct. App. 2004) (children’s needs are too substantial to force them to wait

while determining if their parents will be able to parent them). We conclude that there is

sufficient evidence to support the trial court’s conclusion that termination of Mother’s

rights is in M.R.’s best interests.2

II. Performance of the Guardian Ad Litem

Mother also argues that GAL Diller’s performance was deficient and deprived the

trial court of “additional evidence” necessary to its determination, so we must reverse.

Appellant’s Br. p. 12. In support of her claim that the GAL’s performance was deficient,

Mother cites this Court’s opinion in Wagner v. Grand County Department of Public

Welfare, 653 N.E.2d 531 (Ind. Ct. App. 1995).

2 Mother argues that her case is like In re G.Y., 904 N.E.2d at 1257, where our Supreme Court reversed a termination judgment. But G.Y. is distinguishable. The mother in G.Y. never committed an offense during her child’s lifetime; she was incarcerated for a crime that took place before the child’s conception. In G.Y., the mother’s release was imminent and she had secured post-release employment and housing. Here, Mother committed offenses during M.R.’s lifetime; her incarceration in Indiana was due in part to her neglect of M.R. Mother continued to engage in criminal activity in Ohio after her initial release from the DOC. At the time of the termination hearing, Mother’s release was still eight months away and after her release, she was required to return to Ohio to comply with probation requirements there. Mother’s reliance on G.Y. is misplaced. 8 The purpose of appointing a GAL is to represent and safeguard the best interests

of the child. See Ind. Code § 31-9-2-50. In Wagner, this Court found that the GAL had

performed this duty despite the fact that the GAL relied on DCS’s case reports and did

not speak with biological father Wagner or his family. 653 N.E.2d at 534. The Court

explained that in Wagner’s case, “the [GAL] based her recommendation that Wagner’s

parental rights be terminated on his repeated incarceration and resulting lack of contact

with [his child],” which were easily confirmed facts. Id. The GAL’s report also

indicated that after being released from prison and before the filing of the termination

petition, Wagner stole a car, which showed his continuing pattern of criminal activity.

Finally, the Court noted that the GAL attempted to contact Wagner several times but was

unable to locate him. The Wagner Court concluded that the GAL had not failed to

represent and protect the best interests of Wagner’s child.

We reach the same conclusion here. The GAL assigned to this case was a former

attorney and senior judge with many years of legal experience. See Tr. p. 67. The GAL

did not personally speak with Mother, Mother’s family, or two-year old M.R.3 Instead,

he based his recommendation on JCDCS records and his knowledge of the case, focusing

on Mother’s criminal history and the fact that M.R. was thriving in her foster-care

placement. These facts were confirmed at the termination hearing. Although Mother

makes much of what the GAL did not do, she does not explain, nor is it apparent, what

additional evidence he might have gleaned or how this might have affected the outcome

of the case; thus, there is no basis for reversal.

3 GAL Diller testified that he spoke to M.R.’s foster mother by phone. See Tr. p. 120. 9 Affirmed.

KIRSCH, J., and PYLE, J., concur.