MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jan 12 2016, 8:30 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 M.B. ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Gregory F. Zoeller Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana ATTORNEY FOR APPELLANT J.W. Robert J. Henke David E. Corey Mark Small Deputy Attorneys General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination January 12, 2016 of the Parent-Child Relationship Court of Appeals Case No. of M.B., Mother, and J.W., 35A02-1505-JT-360 Father, and W.B., Child, Appeal from the M.B. and J.W., Huntington Circuit Court The Honorable Appellants-Respondents, Thomas M. Hakes, Judge v. Trial Court Cause No. 35C01-1312-JT-9 Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 1 of 24 Kirsch, Judge.
[1] M.B. (“Mother”) and J.W. (“Father”) (together, “Parents”) appeal the juvenile
court’s order terminating their parental rights to their child, W.B. Parents raise
the following restated issue on appeal: whether sufficient evidence was
presented to support the termination of Parents’ parental rights.
[2] We affirm.
Facts and Procedural History [3] Mother and Father are the biological parents of W.B., who was born September
19, 2012.1 At birth, W.B. had methadone in his system due to Mother’s use
during pregnancy. At that time, Father was incarcerated,2 and he remained
incarcerated through and after the termination hearing. The facts most
favorable to the judgment reveal that, on October 12, 2012, Mother and her
male companion brought W.B. to Parkview Huntington Hospital (“Hospital”)
out of concern for his size and weight. W.B. was admitted to the Hospital for
failure to thrive due to dehydration and weight loss. While at the Hospital,
personnel observed that Mother and her companion seemed impaired. Family
Case Manager Colleen Crawley (“FCM Crawley”) arrived at the Hospital and
spoke with Hospital employees, who told her that W.B. was born methadone
positive. FCM Crawley observed that Mother was slurring her words, swaying,
1 Father’s paternity was established later, in May 2014. 2 Father was incarcerated in August 2012 on a Class C felony escape conviction. Father’s Br. at 6.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 2 of 24 unable to keep eye contact, and could not spell her children’s names. 3 Mother
took and failed a drug test. On October 16, 2012, the Indiana Department of
Child Services (“DCS”) filed a Child in Need of Services (“CHINS”) petition
on the basis of W.B.’s failure to thrive and Hospital admission, Mother’s
intoxication, and Father’s inability to care for W.B. given his incarceration.
W.B. was removed and placed in foster care.4 At the November 15, 2012 fact-
finding hearing, the juvenile court found that Mother tested positive for
methadone and hydrocodone and that the children’s physical or mental
condition was endangered as a result of Mother’s use of drugs while caring for
her children; it then adjudicated W.B. to be a CHINS.
[4] At the December 11, 2012 dispositional hearing, the juvenile court ordered
Parents to participate in services, including: (1) Mother was to undergo an
evaluation at the Otis T. Bowen Center in Huntington (“the Bowen Center”)
and complete twenty weeks of Chemical Dependency group classes; (2) Father,
upon release from incarceration, was to be assessed for services at the Bowen
Center and progressively establish a relationship with W.B.; (3) Mother was
required to submit to random drug screens; (4) Mother was to abstain from use
of illegal drugs, only consume drugs as prescribed to her, and complete
parenting classes through Youth Service Bureau and/or home-based counseling
3 The record indicates that Mother is also the biological mother of J.B., P.N., and D.N. Father is not the biological father of those children. 4 W.B.’s three half-siblings were also removed from Mother’s care.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 3 of 24 through the Bowen Center; (5) Mother was to maintain contact with the family
case manager; and (6) Mother was to actively seek employment to provide for
her children.
[5] At the six-month periodic case review hearing, in May 2013, Mother appeared
in person, and Father was still incarcerated and did not appear. The juvenile
court found, among other things, that Parents “have not complied with
[W.B.’s] case plan” and “have not regularly visited with [him].” DCS Ex. 18.
Mother’s visitations were suspended “until she gets a clean drug screen.” Id.
The projected date for reunification was October 12, 2013. At the next periodic
case review hearing, in August 2013, the juvenile court found that Parents had
not complied with the case plan, had not regularly visited W.B., and had not
cooperated with DCS. It noted that Mother was entitled to supervised visits
with W.B. “once [M]other succeeds in having three consecutive clean drug
screens.” DCS Ex. 19. The permanency plan remained to have W.B. return
home by October 12, 2013.
[6] At a September 2013 review hearing, the juvenile court found that W.B. had
been residing in foster care for approximately one year and was doing well. It
found that Mother was not in compliance as follows: Mother continued to test
positive in drug screens; she failed to appear for drug screens; her supervised
visits were suspended due to her testing positive for methadone and would
continue to be suspended until she tested clean on three consecutive occasions;
she only sporadically attended Chemical Dependency group sessions, and when
she did regularly attend, she showed “no transfer of learning” as she continued
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 4 of 24 to test positive for drugs. DCS Ex. 20. Father remained incarcerated with his
earliest possible release date being August 27, 2015. The juvenile court found
that Father “has not contacted DCS with information of participating in any
services.” Id. The juvenile court found the most appropriate permanency plan
was termination of parental rights, and on December 9, 2013, DCS filed a
petition to terminate the parental rights of Parents. Father’s App. at 23-26. DCS
alleged that at least one of the following was true: (1) there was a reasonable
probability that the conditions that resulted in W.B.’s removal or the reasons for
placement outside the home of Parents will not be remedied; (2) there was a
reasonable probability that the continuation of the parent-child relationship
poses a threat to the well-being of W.B. It also alleged that termination was in
W.B.’s best interest and that there was a satisfactory plan for the care and
treatment of W.B., namely termination of parental rights and adoption. Id. at
24.
[7] Several day later, on December 12, 2013, Mother was criminally charged with
welfare fraud and perjury, concerning her receipt of social security income
benefits for a son that was at that time in foster care. DCS Ex. 22. In September
2014, she pleaded guilty to Class C felony welfare fraud and Class D felony
perjury. For the welfare fraud conviction, the trial court sentenced her to two
years, plus two years for aggravating circumstances, with two years suspended
to probation. For the perjury conviction, the trial court imposed a sentence of
one and one-half years, all suspended to probation and to be served
concurrently with the welfare fraud sentence. She was released from
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 5 of 24 incarceration to a work release program in fall 2014 and released entirely in
January 2015.
[8] Shortly thereafter, the juvenile court held the termination hearing, on January
23, 2015, at which the following testimony and evidence was presented.5 DCS
first presented the testimony of Marla McQuinn (“McQuinn”), a substance
abuse therapist at the Bowen Center. She stated that Mother was evaluated in
October 2012, as recommended by DCS, and began a substance abuse group
counseling program in November 2012, which she attended for a year, before
her incarceration. McQuinn stated that although Mother, for the most part,
attended consistently for a year, she sometimes came to meetings appearing
intoxicated, and she admitted relapses. McQuinn referred Mother to a couple
of inpatient residential treatment programs, which McQuinn explained
“absolutely” would need to be followed by sixteen weeks of intensive outpatient
therapy. Tr. at 53. Mother did not follow through in obtaining inpatient
treatment. McQuinn opined that Mother did not achieve “transfer of learning”
in the group sessions and never successfully completed substance abuse
treatment. Id. at 51-52. McQuinn recognized that at the time of the
termination hearing, Mother had been “clean for thirteen months,” but
McQuinn opined that because that period was during incarceration, and thus a
“controlled environment,” it did not provide a good assessment of Mother’s
5 W.B.’s termination hearing was consolidated with the termination proceedings relative to his three half- siblings, J.B., P.N., and D.N., although we limit our discussion to that which is relevant to W.B.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 6 of 24 ability to voluntarily stay sober. Id. at 53. Days after her release from
incarceration, Mother resumed services with the Bowen Center, and she
attended three group sessions prior to the termination hearing, appearing sober
and participating at those sessions.
[9] Diane Nei (“Nei”), a provider of home-based services for the Bowen Center,
also testified. She began seeing Mother in December 2012 with the goal of
providing parenting services, such instruction regarding budgeting,
employment, and obtaining a G.E.D., and Nei also supervised some of
Mother’s visitations. Nei testified that Mother missed some appointments,
“either canceled, or . . . no shows or I wasn’t able to find her,” meaning no one
came to the door upon Nei’s arrival. Id. at 61. As for visitations, Nei described
Mother as “warm and concerned” with the children. Id. at 67-68. As far as
employment, Nei stated that Mother had a job at a factory for a few weeks but
quit, and Mother did not obtain her G.E.D. Kellie Woll (“Woll”), also of the
Bowen Center, provided individual counseling to Mother for coping and
calming skills and for depression. She testified that those goals were not
achieved, as Mother “was not being consistent” in therapy, and did not take the
learned skills and apply them outside of the therapy session. Id. at 73. Mother
also shared with Woll her difficulty in remaining sober “and not doing any type
of drug.” Id. at 74. When asked if Mother successfully completed her
individual therapy, Woll replied, “I would have to say no.” Id. at 74.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 7 of 24 [10] FCM Crawley testified regarding provision of services and attempts to reunify
W.B. with Parents.6 FCM Crawley testified that W.B. was first removed from
Mother’s home on October 13, 2012, and that he was never returned to
Mother’s care. Mother was initially in compliance with recommended services,
as she attended services at the Bowen Center, regularly met with FCM
Crawley, and took drug screens. But by the end of January 2013, Mother
started testing positive for drugs, and visitation returned to being supervised.
After she tested positive for methadone during a visitation in March or April
2013, DCS suspended her visitations and informed Mother that to resume visits
with W.B. she needed three consecutive clean drug screens, which never
occurred. FCM Crawley testified that DCS attempted other services at the
Bowen Center to assist Mother with maintaining sobriety, but Mother was not
consistent, having multiple cancellations and no shows. Although Mother
attended group sessions, “[T]here was not transfer of learning.” Tr. at 96.
Mother’s communication with FCM Crawley lessened as she “got more heavily
involved with the drugs.” Id. at 97. In total, Mother tested positive for drugs
sixty-three times during the course of the proceedings. Id. at 156. With regard
to employment and housing, FCM Crawley testified that Mother had one job
for a few weeks and that was the only employment during the pendency of the
case. FCM Crawley stated that Mother’s housing was not stable, moving from
the original house from which W.B. was removed, to an apartment, where
6 FCM Crawley also testified about DCS services provided to the other children, but we limit our discussion to W.B.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 8 of 24 during one of FCM Crawley’s visits there was no power as it had been turned
off, to living with her aunt and then her parents, to incarceration.
[11] FCM Crawley stated that she may have received one letter from Mother during
her incarceration, which was approximately December 2013 to January 2015.
Mother’s original release date was December 2014, but it was extended until
January 8, 2015 for conduct violations. FCM Crawley heard from Mother via
text communications a couple of times during her five-month work release
period, and FCM Crawley met with Mother on one occasion after her January
8, 2015 release and before the January 23 termination hearing. Mother also
took and passed a drug screen in that period between her release and the
termination hearing, and Mother asked FCM Crawley for additional screens.
[12] FCM Crawley’s biggest concern about Mother was her ability to maintain
sobriety. FCM Crawley testified that during the pendency of the action Mother
tested positive for a wide range of substances including, methamphetamines,
methadone, Xanax, morphine, hydrocodone, and marijuana. “So basically it
appeared that any substance that she could obtain would be used.” Tr. at 108.
On one occasion after a drug screen, the lab contacted FCM Crawley with
concerns about the morphine level to “mak[e] sure that I was having contact
with her to find out even if she was alive [] cause her levels were so high.” Id.
at 108. FCM Crawley explained her serious concerns about Mother’s ability to
stay sober and maintain a safe and stable environment, particularly since she
had not completed an intensive drug abuse program. Mother’s lack of
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 9 of 24 employment was also a concern because “employment and financing [] go hand
in hand in helping [] to have a stable home life.” Id. at 109.
[13] Mother acknowledged her drug usage and her addiction. She stated that the
counseling helped, but “just wasn’t enough” and that she “needed . . . . rehab.”
Id. at 161-62. She testified that she repeatedly attempted to get off the drugs,
but she would “go right back to it.” Id. She stated that being incarcerated gave
her the chance to get sober. Mother maintained that she “would never take
another substance” and “would never go back to that again.” Id. at 171. As far
as having a relationship with W.B., she acknowledged that she had not seen
him in approximately two years.
[14] Turning to Father’s situation, at the time of W.B.’s birth, Father was
incarcerated for Class C felony escape, stemming from an incident when he
attempted to run from a court hearing, and his projected date of release was
September 11, 2015. Father acknowledged that he originally had an earlier
release date but it was extended due to conduct violations and that he was
deemed a habitual rule violator.
[15] Father testified that he attempted to contact DCS on multiple occasions while
he was incarcerated and that he sought visitation with W.B. FCM Crawley
acknowledged at the hearing that DCS received “ten to twenty” letters from
Father and that he asked “what services he could do or what he could do to be
a better parent.” Id. at 126. FCM Crawley testified that she told Father that he
needed to maintain good behavior in the prison system and upon release he
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 10 of 24 should begin services and visitation through the Bowen Center. With regard to
services offered or completed, Father testified that he voluntarily took a
Department of Correction (“DOC”) course called Inside/Out Dad Program.
Id. at 197. He testified that he earned/completed an auto collision repair
specialist certification and that he would have employment upon his release.
Id. at 201. DCS presented records reflecting that while he was in DOC, Father
was enrolled in a therapeutic drug rehabilitation program, but was removed
from the program because Father “was not serious about sobriety” and was
“disruptive” and broke rules. DCS Ex. 40.
[16] With regard to visitation, clinical psychologist Lynn Baker (“Baker”), who was
employed at the Bowen Center, testified that pursuant to Father’s request to
have visitation with W.B., DCS asked her to assess whether it would be in
W.B.’s best interest to have visitation with Father at DOC. She concluded that
it would not be in W.B.’s best interest based on a number of factors, including:
he was two years old; he did not know Father, having never met him; he was
afraid of strangers; and “It would have been extremely terrifying for him to
have that introduction occur in a prison setting.” Id. at 136. She elaborated
that the prison setting is traumatic even for older school-aged children, given
the “loud noise, the stark setting . . . it is very foreign to a child and very
difficult to effectively manage.” Id. at 146. Father disagreed, stating that DOC
had a specific “kid’s safe zone” designed for visitations, which was quiet and
monitored. Id. at 201. FCM Crawley testified that visitation with Father had
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 11 of 24 not occurred because of the results of Baker’s evaluation and the subsequent
court order. Id. at 103-04.
[17] Prior to his most recent incarceration, Father had been in and out of prison a
number of times. His criminal history extended back to at least 1996, and he
had at least ten convictions between 1996 and 2009.7 Father testified that his
latest period in DOC served “as a wakeup call.” Id. at 203. Father
acknowledged that he made mistakes but maintained, “I’m a good parent, I’m a
good dad” and that “all[] I’m asking for is to give me a chance to show that[.]”
Id. FCM Crawley expressed “serious concerns” about Father’s ability to parent
W.B. given his criminal history and his admitted substance abuse issues. Id. at
110.
[18] FCM Crawley testified that she did not believe that the problems that led to
W.B.’s removal were likely to be remedied. Id. She also stated that Mother,
given her substance use, posed a threat to W.B.’s well-being, and that Father
likewise posed a threat to W.B.’s well-being, given Father’s criminal history,
past drug use, and “lack of being able to be involved in [W.B.’s] life” at all. Id.
at 111-12. She testified that, while “we would have loved to be able to reunify .
. . there was never a time that there was a safe and stable environment to do
so,” and thus it was her belief that it was in W.B.’s best interest that Parents’
7 At the beginning of the termination hearing, Father objected to DCS’s plan to introduce his criminal records, arguing those convictions occurred prior to W.B.’s birth and were irrelevant to Father’s ability to parent W.B. at the present time. The juvenile court deferred ruling at that time, but ultimately admitted them into evidence.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 12 of 24 parental rights be terminated. Id. at 112. Baker likewise testified to her opinion
that, based on the circumstances and factors of this case, including that Parents
were “absent or chronically substance abusing parents,” such that W.B. was
placed in foster care at three weeks of age and had never met Father, she
believed termination of parental rights was in W.B.’s best interest. Id. at 142-
43.
[19] With regard to W.B.’s current situation and permanency plan, FCM Crawley
explained that there had been a fairly recent placement change, in November
2014, when W.B. was transferred from his first foster home due to a report of
safety concerns, and he was placed in another foster home with one of his older
half-siblings. Although the safety report on the first home was later determined
to be unsubstantiated, W.B. remained in the second foster home because he
was “doing very well” there and because those foster parents expressed interest
for long term care and eventual adoption, if that became an available option.
Tr. at 105; see also id. at 112, 244 (plan is adoption if court terminates parental
rights). She stated that the current foster parents “have an ongoing relationship
with the older two children . . .and it would be a placement that would be able
and willing to meet and exceed the needs of the children long term[.]” Id. at
105. With regard to the possibility of placing W.B. with the maternal
grandparents (“Grandparents”), who had an ongoing relationship with all the
four children, FCM Crawley testified that Grandparents did voluntarily
complete a parenting class at the Youth Services Bureau, but that the reports
from that were that Grandparents were good at handling the children for short
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 13 of 24 periods, but full time care for the four children would be more than they could
handle. FCM Crawley further testified that she had concerns about
Grandparents’ ongoing failure to recognize the severity of Mother’s drug usage,
noting that, until Mother was incarcerated, “the [Grandparents] did not believe
that [Mother] had any kind of a substance abuse problem at all.” Id. at 124.
[20] On April 15, 2015, the juvenile court issued its findings of fact, conclusions, and
order terminating Parents’ parental rights to W.B. Parents separately appeal. 8
Discussion and Decision [21] As our Supreme Court has recently reiterated, “Decisions to terminate parental
rights are among the most difficult our trial courts are called upon to make.
They are also among the most fact-sensitive—so we review them with great
deference to the trial courts[.]” In re E.M., 4 N.E.3d 636, 640 (Ind. 2014).
When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). 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
8 The record indicates that W.B.’s half-siblings were also adjudicated CHINS. DCS Exs. 5, 8. According to DCS, those siblings “were also the subject of consolidated termination proceedings, but Mother only appeals [W.B.’s] termination.” DCS Br. at 1, n.1.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 14 of 24 set aside the court’s judgment terminating a parent-child relationship only if it is
clearly erroneous. Id. at 148-49.
[22] Here, in terminating Parents’ parental rights to W.B., the juvenile 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. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. First,
we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. A finding is clearly
erroneous only when the record contains no facts or inferences drawn therefrom
that support it. Id. If the evidence and inferences support the trial court’s
decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1156 (Ind. Ct. App. 2013), trans. denied.
[23] The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment to the United States Constitution. Id.
at 1155. 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. In re H.L., 915 N.E.2d at 149. 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. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 15 of 24 [24] 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;
(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). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a
petition described in section 4 of this chapter are true, the court shall terminate
the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
[25] Parents argue that DCS failed to prove the required elements for termination by
sufficient evidence. Specifically, they contend that DCS failed to present
sufficient evidence that the conditions that resulted in W.B. being removed
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 16 of 24 would not be remedied. Father also argues that DCS failed to present sufficient
evidence that the continuation of the parent-child relationship posed a threat to
W.B. Both parents allege that DCS failed to present sufficient evidence that
termination of their parental rights was in the best interests of W.B. and that
there was a satisfactory plan in place for W.B.
Remediation of Conditions
[26] Mother asserts that the reasons for W.B.’s removal, namely her substance
abuse, were remedied, and Father asserts that he was incarcerated before W.B.
was born, was not present when W.B. was removed from Mother’s care, and
thus “had nothing to do with the circumstances of the child’s removal.”
Father’s Br. at 6. In determining whether there is a reasonable probability that
the conditions that led to a child’s removal and continued placement outside
the home would be remedied, we engage in a two-step analysis. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must
ascertain what conditions led to their placement and retention in foster care,
and, second, we determine whether there is a reasonable probability that those
conditions will not be remedied. Id. (quotations omitted). In the second step,
the trial court must judge a parent’s fitness at the time of the termination
proceeding, taking into consideration evidence of changed conditions and
balancing a parent’s recent improvements against “ ‘habitual pattern[s] of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at
1231). Pursuant to this rule, “trial courts have properly considered evidence of
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 17 of 24 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. In addition, DCS need not provide evidence ruling
out all possibilities of change; rather, it need 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). “We entrust that delicate balance to the
trial court, which has discretion to weigh a parent’s prior history more heavily
than efforts made only shortly before termination.” In re E.M., 4 N.E.3d at 643.
Although trial courts are required to give due regard to changed conditions, this
does not preclude them from finding that a parent’s past behavior is the best
predictor of their future behavior. Id.
[27] Here, the evidence showed that W.B. was born in September 2012, with
methadone in his system. Several weeks later, Mother brought W.B. to the
Hospital, where he was admitted for failure to thrive and dehydration. Hospital
personnel observed that Mother appeared impaired, and she tested positive for
methadone and hydrocodone in her system. W.B. was removed from Mother’s
care; at that time, Father was unable to care for W.B. due to his incarceration.
W.B. was later adjudicated as a CHINS. W.B. continued to be placed outside
of the home because Mother failed to benefit from the services offered by DCS,
she continued using illegal drugs, and she was unable to maintain stable
housing and employment. Although she had a short period of unsupervised
visits, they were suspended in April 2013 when she was found to be under the
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 18 of 24 influence of drugs during a visitation. She was not able to resume visitations
with W.B. because she never had three consecutive clean drug screens. In
December 2013, she was arrested and incarcerated for approximately one year
for welfare fraud. At the time of the January 2015 termination hearing, Mother
had been released from incarceration and work release for approximately two
weeks. Mother had not seen or had contact with W.B. since April 2013.
Mother never completed a residential treatment program, although at the
termination hearing she acknowledged that she could not quit the drugs and
needed rehabilitation. We further observe that, contrary to Mother’s suggestion
that W.B. was removed solely due to her drug usage, W.B. was not returned to
her also because of other issues, including her lack of both employment and
stable housing. Mother had been employed only for a few weeks during the
course of the case, and at the time of the hearing, she was looking for, but had
not yet obtained, employment.
[28] As for Father, the evidence showed that Father had been in and out of
incarceration since 1996. He was incarcerated in October 2012, when W.B.
was admitted to the Hospital and thereafter removed from Mother’s care.
W.B.’s continued placement outside of Father’s care was due to Father’s
continuing incarceration, which rendered Father incapable of providing W.B.
with food, clothing, shelter, and other basic life necessities. At the time of the
January 2015 termination hearing, these conditions had still not been remedied.
Specifically, Father remained incarcerated with an earliest possible release date
of September 2015. Father had an extended and continuous criminal history
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 19 of 24 and history of prior substance abuse. We have previously recognized that
“[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, 374 (Ind.
Ct. App. 2006) (concluding that trial court did not commit clear error in finding
conditions leading to child’s removal from father would not be remedied where
father, who had been incarcerated throughout CHINS and termination
proceedings, was not expected to be released until after termination hearing),
trans. denied.
[29] Mother and Father both asserted at the termination hearing that they were
ready to stay clean and sober and provide a stable life for W.B.; however, FCM
Crawley testified that, in her respective opinion, there was not a reasonable
probability that the problems that led to removal would be remedied. Based on
the evidence presented, we conclude that the juvenile court did not err in
finding that there was a reasonable probability that the conditions that resulted
in the removal and the reasons for continued placement of W.B. outside the
home would not be remedied.
Threat to Well-Being
[30] Father also contends that DCS failed to prove by clear and convincing evidence
that there was a reasonable probability that the continuation of the parent-child
relationship posed a threat to the well-being of W.B. However, we need not
address such argument. Indiana Code section 31-35-2-4(b)(2)(B) is written such
that, to properly effectuate the termination of parental rights, the juvenile court Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 20 of 24 need only find that one of the three requirements of subsection (b)(2)(B) has
been established by clear and convincing evidence. A.D.S., 987 N.E.2d at 1156.
Therefore, as we have already determined that sufficient evidence supported the
conclusion that the conditions that resulted in the removal of W.B. would not
be remedied, we will not address any argument as to whether sufficient
evidence supported the conclusion that the continuation of the parent-child
relationship posed a threat to the well-being of W.B.
Best Interests
[31] Parents next argue that insufficient evidence was presented to prove that
termination is in the best interest of W.B. In determining what is in the best
interests of the child, the trial court is required to look at the totality of the
evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re
D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied), trans. dismissed.
In doing so, the trial court must subordinate the interests of the parents to those
of the child involved. Id. Termination of a parent-child relationship is proper
where the child’s emotional and physical development is threatened. Id. (citing
In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied). The trial
court need not wait until the child is irreversibly harmed such that his or her
physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. Id. Additionally, a child’s need for
permanency is an important consideration in determining the best interests of a
child, and the testimony of the service providers may support a finding that
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 21 of 24 termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty.
Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).
[32] Here, the evidence showed that Mother and Father both had a history of
substance abuse. Mother attempted some services, but never successfully
completed services aimed at helping her maintain sobriety. During the course
of the proceedings, she tested positive sixty-three three times for the following
drugs, either individually or in combinations: codeine; hydrocodone;
methadone; THC; Xanax; amphetamine; methamphetamine; oxycodone; and
morphine. She conceded that, although she attempted to quit drugs, she would
return to them, and that she needed rehabilitative treatment. Mother argues
that she had been sober for about a year at the time of the termination
proceeding; however, her period of sobriety was while she was incarcerated and
the two weeks that followed. Substance abuse therapist McQuinn testified that
incarceration was a controlled environment and not a good gauge of Mother’s
ability to voluntarily stay sober. Moreover, Mother did not maintain stable
housing and had very little employment. She also did not obtain her G.E.D. as
ordered.
[33] Father was incarcerated during W.B.’s entire life. Father’s current
incarceration for Class C felony escape occurred because, during a hearing on
criminal non-support of another dependent, Father became upset and tried to
leave the courthouse. Father admitted to having had substance abuse issues
prior to incarceration, and there is no evidence that he received or successfully
completed any treatment for that. In fact, the record reflects that while Father
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 22 of 24 was in DOC, he was enrolled in a therapeutic drug rehabilitation program, but
was removed from the program because he “was not serious about sobriety”
and was “disruptive” and broke rules. DCS Ex. 40. Mother was incarcerated
for a year during the proceedings, and Father was incarcerated the entirety of
W.B.’s life. He has at least ten convictions between 1996 and 2009, plus
multiple probation violations. Father had no bond with W.B., having never
met him. W.B. had been in foster care since his removal in October 2012,
living first with one family through November 2014, and then with a second
family that expressed interest in long term care and adoption, if that option
became available. The Bowen Center’s clinical psychologist Baker and FCM
Crawley both testified that they believed that termination of the Parents’
parental rights was in W.B.’s best interest. Accordingly, we conclude that
sufficient evidence was presented to prove that termination was in the best
interest of W.B.
Satisfactory Plan
[34] Parents also assert that DCS failed to establish that there is a satisfactory plan
for the care and treatment of W.B. For a plan to be “satisfactory,” for purposes
of the statute, it “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.” In re D.D., 804 N.E.2d at 268. Here, the juvenile court concluded
that a satisfactory plan existed for W.B., “that being adoption.” Mother’s App.
at 191.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 23 of 24 [35] On appeal, Mother claims that DCS failed to prove that the current foster
placement “or anyone else for that matter” intended to adopt W.B., and Father
states that any plan for W.B. “was, at best, ‘general.’” Mother’s Br. at 4; Father’s
Br. at 14. Our review of the record reflects otherwise. FCM Crawley stated
that the current foster family had an ongoing relationship with W.B.’s older
half-siblings, at least one of whom was placed with W.B., and that the family
expressed interest in long term care of W.B. and eventual adoption of him. Tr.
at 104-05. To the extent that Parents’ argument is that DCS’s plan needed to be
more specific, we reject that claim. We have held,
A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the children. In other words, there need not be a guarantee that a suitable adoption will take place, only that DCS will attempt to find a suitable adoptive parent. Accordingly, a plan is not unsatisfactory if DCS has not identified a specific family to adopt the children.
In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014), trans. denied (internal
citations omitted).
[36] We 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.” McBride, 798 N.E.2d at 199 (citing In re A.N.J., 690 N.E.2d
716, 722 (Ind. Ct. App. 1997)). Based on the record before us, we cannot say
that the juvenile court’s termination of Parents’ parental rights to W.B. was
clearly erroneous. We therefore affirm the juvenile court’s judgment. Affirmed.
MATHIAS, J., and BROWN, J., concur.
Court of Appeals of Indiana | Memorandum Decision 35A02-1505-JT-360 | January 12, 2016 Page 24 of 24