In the Matter of the Termination of the Parent-Child Relationship of A.F. (Minor Child) and J.B. (Mother) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 2, 2019
• Docket: 18A-JT-1647
• Status: Published

Opinion

MEMORANDUM DECISION FILED Apr 02 2019, 10:21 am Pursuant to Ind. Appellate Rule 65(D), CLERK this Memorandum Decision shall not be Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

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 Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Natalie F. Weiss Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination April 2, 2019 of the Parent-Child Relationship Court of Appeals Case No. of A.F. (Minor Child) and J.B. 18A-JT-1647 (Mother); Appeal from the Montgomery Circuit Court J.B. (Mother), The Honorable Harry A. Siamas, Judge Appellant-Respondent, Trial Court Cause No. v. 54C01-1712-JT-340

Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 1 of 8 May, Judge.

[1] J.B. (“Mother”) appeals the termination of her parental rights to A.F.

(“Child”). Mother argues termination is not in Child’s best interests. We

affirm.

Facts and Procedural History [2] Child was born to Mother and J.A. (“Father”) 1 on July 20, 2016. At the time of

Child’s birth, the Department of Child Services (“DCS”) received a report that

Mother tested positive for opiates when Child was born. On July 27, 2016,

DCS removed Child from Mother’s care because Father overdosed on heroin

and Mother would not tell DCS where the family lived. DCS placed Child with

Child’s maternal grandparents. On July 29, 2016, DCS filed a petition to

declare Child a Child in Need of Services (“CHINS”) based on Mother’s drug

use, the fact she would not tell DCS where the family lived, and the voluntary

termination of her parental rights to another child in 2013.

[3] On August 11, 2016, Mother admitted Child was a CHINS and the trial court

adjudicated Child as such on September 22, 2016. The trial court also held a

dispositional hearing on September 22, 2016, and ordered Mother to complete

the following services: substance abuse assessment, random drug screens,

1 J.A., Child’s father, consented to the termination of his parental rights and does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 2 of 8 counseling, and supervised visitation with Child. Mother was never in

compliance with services.

[4] Between August 2016 and March 2017, Mother tested positive for marijuana

eleven times. Mother tested positive for methamphetamine on June 5, 2017,

July 3, 2017, and July 7, 2017. Mother tested positive for opiates on June 16,

2017, and June 29, 2017. Mother refused to take a drug screen multiple times

despite being ordered to do so by the court.

[5] Between August 2016 and October 2017, Mother was offered fifty-nine

appointments for substance abuse and mental health counseling. She attended

only forty of those appointments. Mother last visited with Child on July 3,

2017. On August 6, 2017, Mother was arrested for violating her probation on

an earlier conviction by committing another crime, Level 6 felony possession of

a narcotic drug. On November 27, 2017, Mother was convicted of Level 6

felony possession of a narcotic drug and sentenced to 728 days probation. She

was then admitted to Amethyst House, an in-patient drug rehabilitation center.

Mother was unsuccessfully discharged from the program on January 22, 2018,

for violation of the center’s zero fraternization policy. Mother relapsed into

drug use shortly thereafter. Mother went to another drug rehabilitation center,

Harbor Lights, after she left Amethyst House, but left after one day.

[6] On December 4, 2017, DCS filed a petition to involuntarily terminate Mother’s

parental rights to Child. On February 14, 2018, Mother was admitted to the

Seeds of Hope drug recovery facility, where she was actively engaged in

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 3 of 8 treatment at the time of the fact-finding hearings. The trial court held fact-

finding hearings on DCS’s termination petition on March 2, 2018, and June 1,

2018. On July 10, 2018, the trial court entered an order involuntarily

terminating Mother’s parental rights to Child.

Discussion and Decision [7] We review termination of parental rights with great deference. In re K.S., D.S.,

& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh

evidence or judge credibility of 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 most favorable to the judgment. Id. In deference to the

juvenile court’s unique position to assess the evidence, we will set aside a

judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,

717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied

534 U.S. 1161 (2002).

[8] “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., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

subordinate the interests of the parents to those of the children, however, when

evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

at 837. The right to raise one’s own children should not be terminated solely

because there is a better home available for the children, id., but parental rights

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 4 of 8 may be terminated when a parent is unable or unwilling to meet parental

responsibilities. Id. at 836.

[9] To terminate a parent-child relationship, the State must allege and prove:

(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 must provide clear and convincing proof

of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

denied. If the court finds the allegations in the petition are true, it must

terminate the parent-child relationship. Ind. Code § 31-35-2-8.

[10] When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 5 of 8 Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the

evidence supports the findings and 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.” 2 Quillen v. Quillen, 671 N.E.2d 98,

102 (Ind. 1996). If the evidence and inferences support the juvenile court’s

decision, we must affirm. In re L.S., 717 N.E.2d at 208. Mother argues the

involuntary termination of her parental rights is not in Child’s best interests.

[11] In determining what is in Child’s best interests, the juvenile court is required to

look beyond the factors identified by DCS and consider the totality of the

evidence. See In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans.

dismissed. A parent’s historical inability to provide a suitable environment,

along with the parent’s current inability to do so, supports finding termination

of parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d

896, 900 (Ind. Ct. App. 2002). The recommendations of a DCS case manager

and court-appointed advocate to terminate parental rights, in addition to

evidence that conditions resulting in removal will not be remedied, are

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

Child’s best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

[12] In its order, the trial court concluded:

2 Herein, Mother does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court, they must be accepted as correct.”).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 6 of 8 40. The DCS has proved by clear and convincing evidence that 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. The child was removed from her parents on July 27, 2016. The DCS has offered reunification services to both parents but neither parent was able to participate in these services in order to overcome their parenting deficits. Father consented to termination of his parental rights. Mother failed to take advantage of reunification services offered to her. She continued an unstable lifestyle. She continued to abuse drugs. At the time of the termination hearing it is true that mother was doing well in her rehab treatment at Seeds for Hope and she should be commended for maintaining her sobriety and employment. However, she has not had the responsibility to care for Child since Child was five weeks old. Mother has not seen the child since July 3, 2017. Mother’s absence from Child’s life is due to her inability to maintain a stable, sober life. She has had frequent drug abuse interventions in the past and she relapsed every time. Hopefully this time will be different. Unfortunately, Child cannot wait. Child has been cared for and nurtured by others for the past two years. Child would not recognize mother as her parent.

41. The DCS has proven by clear and convincing evidence that termination is in the best interests of the child. Neither parent is in any better position to provide the child with appropriate care, supervision or a safe, nurturing and stable home than they were at the beginning of DCS’ involvement with the family. Neither parent can meet the child’s needs. Both the DCS case manager and the CASA believe that termination is in the bet interest of the child.

(App. Vol. II at 11) (errors in original). Mother argues, based on her recent

progress with substance abuse treatment at Seeds of Hope and current

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 7 of 8 employment, that termination of her parental rights is not in Child’s best

interests.

[13] However, as the trial court noted, Child cannot be left in a state of parental

instability indefinitely. See In re G.Y., 904 NE.2d 1257, 1265 (Ind. 2009),

(“Permanency is a central consideration in determining the best interests of a

child.”), reh’g denied. Additionally, termination being the Child’s best interests

is supported by the testimony of the Court Appointed Special Advocate

(“CASA”) who said Child was “clean, healthy, happy and very well cared for

and loved” by maternal grandparents, with whom she had been placed since

she was removed from Mother’s care. (Tr. Vol. II at 90.) See A.F. v. Marion Cty.

Office of Family & Children, 762 NE.2d 1244, 1253 (Ind. Ct. App. 2002)

(termination in child’s best interests in part because child was thriving in foster

placement), trans. denied. Mother’s arguments are invitations for us to reweigh

the evidence, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate

court cannot reweigh evidence or judge the credibility of witnesses).

Conclusion [14] DCS presented evidence to support the trial court’s findings, which support the

trial court’s conclusion that the involuntary termination of Mother’s parental

rights was in Child’s best interests. Accordingly, we affirm.

[15] Affirmed.

Mathias, J., and Brown, J., concur. Court of Appeals of Indiana | Memorandum Decision 18A-JT-1647 | April 2, 2019 Page 8 of 8