In the Matter of the Term. of the Parent-Child Rel. of S.K.W. and D.L.W.J.: D.W. v. Indiana Dept. of Child Services and Lake County Court Appointed Special Advocate

• Court: Indiana Court of Appeals
• Decided: February 19, 2013
• Docket: 45A03-1206-JT-293
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED Feb 19 2013, 9:13 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court,

collateral estoppel, or the law of the case. court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: JOANN M. PRICE ROBERT J. HENKE Merrillville, Indiana Indiana Department of Child Services Indianapolis, Indiana EUGENE M. VELAZCO, JR. Indiana Department of Child Services Gary, Indiana DONALD W. WRUCK Wruck Paupore PC Dyer, Indiana

IN THE COURT OF APPEALS OF INDIANA IN THE MATTER OF THE TERMINATION OF ) THE PARENT-CHILD RELATIONSHIP OF ) S.K.W. and D.L.W.J.: ) ) D.W., ) ) Appellant-Respondent, ) ) vs. ) No. 45A03-1206-JT-293 ) INDIANA DEPARTMENT OF CHILD SERVICES ) and LAKE COUNTY COURT APPOINTED ) SPECIAL ATTORNEY, ) ) Appellees-Petitioners. )

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable Mary Beth Bonaventura, Judge Cause No. 45D06-1101-JT-29 and 45D06-1101-JT-30

February 19, 2013 MEMORANDUM DECISION - NOT FOR PUBLICATION NAJAM, Judge STATEMENT OF THE CASE

D.W. (“Mother”) appeals the trial court’s termination of her parental rights over

her minor children S.K.W. and D.L.W.J. (“the children”). Mother raises the following

issues for our review:

1. Whether the trial court’s conclusion that continuation of the parent- child relationships poses a threat to the children is clearly erroneous;

2. Whether the trial court’s conclusion that termination of Mother’s parental rights over the children is in the children’s best interests is clearly erroneous; and

3. Whether the trial court’s conclusion that the Indiana Department of Child Services (“DCS”) has a satisfactory plan for the care and treatment of the children is clearly erroneous.

We affirm.

FACTS AND PROCEDURAL HISTORY

Mother gave birth to S.K.W. on February 11, 1999, and to D.L.W.J. on June 18,

2006. The children’s fathers did not marry Mother, and the fathers did not participate in

the children’s lives in a consistent or meaningful way.1 In April 2009, DCS filed

petitions alleging that the children were children in need of services (“CHINS”) due to

Mother’s substance abuse and “physical neglect” and abuse of the children. Appellant’s

App. at i. The children became wards of DCS and were placed in foster care.

The trial court issued the following findings and conclusions setting out the

remaining facts and procedural history of this case:

A case plan for reunification was set up for the parents which included psychological evaluations, psychiatric evaluation, substance abuse

1 The children’s fathers’ parental rights have also been terminated, but they do not participate in this appeal. 2 assessment, random drug screens, parenting classes, individual counseling, supervised visitations and mother to attend A/A meetings. Numerous contacts were initiated with mother. Mother would schedule meetings with the service providers and case manager, but would not show up for the meetings. Numerous attempts were made to try to contact mother, but to no avail. Mother’s whereabouts were unknown to the Department of Child Services. Mother knew that the Department of Child Services had custody of her children, but [she] made no attempts to notify the case manager or see her children until November 2009, seven months after the children were taken into custody. Mother admitted to having a long term substance abuse problem. Mother was referred to Transitions for inpatient treatment. Mother was put on the waiting list, but never attended. Transitions closed out their case with mother because mother did not keep in contact with Transitions. Mother did not participate in any services offered to her by the Department of Child Services. Mother was not compliant with the case plan. Mother moved out of Lake County and moved to Lafayette and never completed any services for reunification. All services were closed due to mother’s non-compliance. Mother did not have stable housing. Mother was offered to restart services once she would submit clean drug screens to the case manager, but mother failed to follow through. Mother, by her own testimony, indicated that she had a very long term substance abuse history. Mother indicated that she started counseling in December 2011 when she was homeless, living in a shelter and had just given birth to a third child. Mother has not established any stability in her life. Mother has just recently obtained sobriety for the first time in her life and that does not change the fact that the mother has a long history of substance abuse with only a few short months of sobriety. *** None of the parents are providing any emotional or financial support for the children. None of the parents have completed any case plan for reunification. None of the parents seem interested in caring for their children. None of the parents have maintained any contact with the children. The children have been in placement for three years and have not been returned to parental care or custody.

Appellant’s App. at i-ii. DCS filed petitions to terminate Mother’s parental rights with

respect to the children. Following a hearing, the trial court entered the following

conclusions:

There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of the child in that: for the 3 reasons stated above. Additionally, the children deserve a loving, caring, safe, stable and drug[-]free home. It is in the best interest[s] of the child[ren] and their health, welfare and future that the parent-child relationship between the child[ren] and their parents be forever fully and absolutely terminated. The Lake County Division of Family and Children has a satisfactory plan for the care and treatment of the child which is Adoption.

Id. at ii-iii. Accordingly, the trial court ordered that Mother’s parental rights to both

children were terminated. This appeal ensued.

DISCUSSION AND DECISION

Standard of Review

We begin our review by acknowledging that “[t]he traditional right of parents to

establish a home and raise their children is protected by the Fourteenth Amendment of

the United States Constitution.” Bailey v. Tippecanoe Div. of Family & Children (In re

M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must

subordinate the interests of the parents to those of the child when evaluating the

circumstances surrounding a termination. Schultz v. Porter Cnty. Office of Family &

Children (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a

parent-child relationship is proper where a child’s emotional and physical development is

threatened. Id. 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. Id. at 836.

Before an involuntary termination of parental rights can occur in Indiana, the DCS

is required to allege and prove, among other things:

4 (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.

***

(C) [and] that termination is in the best interests of the child . . . .

Ind. Code § 31-35-2-4(b)(2).2 That statute provides that DCS need establish only one of

the requirements of subsection (b)(2)(B) before the trial court may terminate parental

rights. The DCS’s “burden of proof in termination of parental rights cases is one of

‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs. (In re G.Y.), 904

N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).

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

or judge the credibility of the witnesses. Peterson v. Marion Cnty. Office of Family &

Children (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. Judy S. v. Noble Cnty. Office of Family & Children (In re

L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999). trans. denied.

2 Indiana Code Section 31-35-2-4(b)(2)(B) also allows the DCS to allege that “[t]he child has, on two (2) separate occasions, been adjudicated a child in need of services.” But that additional, alternative provision is not relevant here. 5 Here, in terminating Mother’s parental rights, the trial court entered specific

findings of fact and conclusions thereon. When a trial court’s judgment contains special

findings and conclusions, 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. In re L.S., 717 N.E.2d at 208.

Mother does not challenge the trial court’s findings of fact in its order terminating

her parental rights. Rather, Mother challenges only the court’s legal conclusions that, on

these facts, termination of her parental rights is justified because a continuation of the

parent-child relationships poses a threat to the children’s well-being,3 that the termination

of her parental rights is in the children’s best interests, and that DCS has a satisfactory

plan for the care and treatment of the children. We address each argument in turn.

Issue One: Whether Continuation of the Parent-Child Relationship Poses a Threat to the Children

We first consider Mother’s assertion that continuation of the parent-child

relationships does not pose a threat to the children. A trial court need not wait until a

child is irreversibly influenced by a deficient lifestyle such that his physical, mental, and

social growth is permanently impaired before terminating the parent-child relationship.

3 Mother also asserts that the DCS’s evidence fails to show that Mother will not remedy the conditions that resulted in the children’s removal, but we need not consider that argument given the disjunctive nature of Indiana Code Section 31-35-2-4(b)(2)(B) and our holding that the trial court’s conclusion is justified under on subsection (b)(2)(B)(ii). 6 Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762 N.E.2d 1287, 1290

(Ind. Ct. App. 2002). When the evidence shows that the emotional and physical

development of a child in need of services is threatened, termination of the parent-child

relationship is appropriate. Id.

In support of her contention on this issue, Mother directs us to evidence showing

that she has “gone through the well-established and accepted steps to secure sobriety”

and has become “independent and established on her own.” Brief of Appellant at 10.

Mother further points out that she has made “substantial therapeutic strides” since court-

ordered services were terminated. Id. at 11. Thus, she maintains that the trial court’s

“findings here are insufficient and do not make a plausible connection between Mother’s

present fitness to parent her children and the likelihood that her state, at the time of fact

finding, would expose the children to hurt, harm or danger.” Id.

But Mother’s contention on this issue amounts to a request that we reweigh the

evidence, which we will not do. Indeed, Mother does not challenge any of the trial

court’s findings on appeal. The evidence shows that Mother was non-compliant with the

case plan for reunification and only recently made any effort to comply with services.

Mother’s participation in individual therapy was sporadic, at best, and that therapy was

terminated for her non-compliance; Mother did not maintain contact with the DCS case

worker for months at a time; and Mother did not complete substance abuse treatment.

Moreover, Mother had ceased visitation with the children. Mother’s supervised visits

with S.K.W. had been ordered terminated as of May 2010, as a result of Mother’s

7 noncompliance with the case plan. And at the time of the termination hearing in April

2012, Mother had not seen D.L.W.J. for approximately eighteen months.

Again, the trial court need not wait until a child is irreversibly influenced by a

deficient lifestyle such that his physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship. Shupperd, 762 N.E.2d at 1290.

Given Mother’s long history of substance abuse and inability to maintain stable housing

or employment, the lack of certainty as to whether Mother’s sobriety would be

maintained, as well as Mother’s failure to visit the children for well over a year prior to

the final hearing, Mother cannot show that she will be able to provide adequate care or

permanency for the children in the future. Indeed, while Mother reported that she had

recently maintained sobriety and sought treatment for her substance abuse, she was

unable to produce documentation of those assertions when asked to do so. Mother has

not demonstrated that the trial court’s conclusion that continuation of the parent-child

relationships poses a threat to the children’s well-being is clearly erroneous.

Accordingly, we agree with the trial court that the termination of Mother’s parental rights

over the children was appropriate under Indiana Code Section 31-35-2-4(b)(2)(B)(ii).

Issue Two: Whether Termination is in the Children’s Best Interests

Mother also argues that the DCS failed to show that termination of the parent-

child relationships is in the children’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

DCS and to consider the totality of the evidence. Stewart v. Ind. Dep’t of Child Servs.

(In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). We have previously held that the 8 recommendations of the case manager and CASA to terminate parental rights, in addition

to evidence that the continuation of the parent-child relationship poses a threat to the

child, is sufficient to show by clear and convincing evidence that termination is in the

child’s best interests. M.M. v. Elkhart Office of Family & Children (In re M.M.), 733

N.E.2d 6, 13 (Ind. Ct. App. 2000).

Here, in addition to the evidence described above in Issue One, Wanda Clemmons,

a DCS case manager, testified that termination of Mother’s parent-child relationships

with the children was in the children’s best interests. In particular, Clemmons stated that

termination was in the children’s best interests because she feels they need “stability,

nurturing[,] and. . .a drug-free environment.” Transcript at 130. Accordingly, the trial

court’s conclusion that termination of Mother’s parental rights over the children is in the

children’s best interests is not clearly erroneous. See id.

Issue Three: Satisfactory Plan

Finally, Mother contends that the trial court erred when it concluded that DCS has

a satisfactory plan for the care and treatment of the children. In order for the trial court to

terminate the parent-child relationship the trial court must find that there is a satisfactory

plan for the care and treatment of the child. In re Termination of Parent-Child

Relationship of D.D., 804 N.E.2d 258, 268 (Ind. Ct. App. 2004). This plan need not be

detailed, so long as it offers a general sense of the direction in which the child will be

going after the parent-child relationship is terminated. Id.

Here, Mother maintains that placing the children in separate adoptive homes is

detrimental to their well-being. But the evidence supports the trial court’s determination

9 that DCS has a satisfactory plan for the care and treatment of the children, namely,

adoption. And DCS presented testimony indicating that the children visit one another on

a weekly basis. Finally, the evidence shows that the children’s foster parents intend to

continue visitation between the siblings post-adoption. The trial court’s determination on

this issue is not clearly erroneous.

Conclusion

In sum, the trial court’s order terminating Mother’s parental rights over the

children is not clearly erroneous. The trial court concluded that continuing the parent-

child relationships would pose a threat to the children and is not in the children’s best

interests. In addition, the trial court concluded that DCS has a satisfactory plan for the

care and treatment of the children. The court’s conclusions are supported by its findings

and its findings are supported by the evidence. Accordingly, we affirm the trial court’s

termination of Mother’s parental rights over the children.

Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.