MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 30 2017, 9:22 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 30, 2017 of the Parent-Child Relationship Court of Appeals Case No. of B.J.R., Mother, J.F., Father, 21A04-1701-JT-104 and M.R., Minor Child, Appeal from the B.J.R., Fayette Circuit Court The Honorable Appellant-Respondent, Beth A. Butsch, Judge v. Trial Court Cause No. 21C01-1606-JT-205 Indiana Department of Child Services, Appellee-Petitioner.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 1 of 23 [1] B.J.R. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her child, M.R. (“Child”).1 On appeal, Mother raises the following
restated issues:
I. Whether the juvenile court abused its discretion when it denied Mother’s motion for a continuance of the termination hearing; and
II. Whether the judgment terminating Mother’s parental rights was clearly erroneous because it was based on insufficient evidence.
[2] We affirm.
Facts and Procedural History2 [3] We begin by noting that, throughout the proceedings relevant to this case, the
location of Child’s father, J.F. (“Father”), was unknown. Mother and Father
are the biological parents of Child, who was born July 30, 2004. On or about
December 5, 2014, the Indiana Department of Child Services (“DCS”) received
a report that Child was living with Mother, who had been admitted the
previous day to Options Behavioral Health (“Options”) due to “suicidal
1 The juvenile court terminated the parental rights of Child’s mother and father. While father does not participate in this appeal, pursuant to Indiana Appellate Rule 17(A), a party of record in the trial court shall be a party on appeal. 2 Like the juvenile court, we rely on: (1) testimonial and documentary evidence from the CHINS proceedings, cause number 21C01-1412-JC-333; and (2) Mother’s criminal proceedings under cause number 21C01-1501-F4-90, both of which the juvenile court took judicial notice. Appellant’s App. at 7 n.2. Because Child’s father does not appeal, we set forth only the facts pertinent to Mother.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 2 of 23 intentions with a plan to overdose on heroin.” DCS Ex. 1 That report also
stated: (1) Mother used 3.5 to 5 grams of heroin per day; (2) Mother used
“Subutex and Klonopin, but sold most of the pills to pay for heroin”; (3) Child
smoked cigarettes every day, all day long; (4) Mother began giving Child
cigarettes as a reward at the age of four years old, and Mother continued to buy
them and even roll them for Child; (5) Mother was Child’s sole caregiver; and
(6) Mother had been admitted more than once to Options to address problems
with heroin addiction. Id. at 1-2. Based on this report, Child was removed
from Mother’s care.
[4] On December 15, 2014, DCS filed a petition alleging that Child was a child in
need of services (“CHINS”). In addition to the above factors, the CHINS court
learned: (1) Mother had been using heroin for the prior two months; (2)
Mother’s heroin addiction was affecting “many lives, including her ability to
parent”; (3) Mother took heroin daily by “IV”; (4) Mother had personal
property and prescriptions stolen from her home; (5) Mother admitted to
“dealing drugs” in the past; and (6) Mother said she needed “2 to 3 months to
‘get her head straight.’” Id. at 2. As part of the petition, DCS informed the
CHINS court that, in December 2014, Mother and Child’s maternal
grandmother (“Grandmother”) agreed with DCS to a “safety plan” that
provided: (1) Grandmother would supervise Mother and Child at all times, and
if Mother appeared under the influence of drugs or tried to take Child away,
Grandmother would call law enforcement; (2) Grandmother and Mother would
keep Child safe and meet her basic needs; and (3) Grandmother and Mother
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 3 of 23 agreed that Child would stay with Grandmother throughout the DCS
investigation. Id. Two days after agreeing to the safety plan, Mother said she
wanted to take Child home and “wanted out of the safety plan.” Id.
[5] The CHINS petition also contained the following information obtained by a
family case manager during a DCS follow-up visit to Grandmother’s home: (1)
Grandmother allowed Child to have a couple of puffs of a cigarette to combat
symptoms from Child’s nicotine withdrawal; (2) Mother admitted she could not
supervise Child enough to keep her from smoking; (3) Grandmother has health
problems and admitted she cannot control Child at times and cannot care for
Child on a long-term basis; and (4) Mother intended to “give” Child to
Grandmother or an uncle to “get DCS out of our lives.” Id. at 2-3. Following a
detention hearing, the CHINS court ordered that Child remain in DCS’s care
while awaiting a fact-finding hearing on the CHINS petition.
[6] On January 28, 2015, Mother was arrested and charged with dealing in a
narcotic drug in the presence of a minor and taking a minor to a common
nuisance.3 Mother pleaded guilty to both counts and was sentenced to
concurrent sentences with an aggregate executed term of eight and a half years.
Mother’s sentence was affirmed on appeal. Accordingly, Mother has been
incarcerated since her January 2015 arrest.
3 Child was not the minor referenced in Mother’s criminal charges.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 4 of 23 [7] About two weeks after Mother’s arrest, the CHINS court held a fact-finding
hearing. Based on Mother’s admission, Child was adjudicated a CHINS.4 The
CHINS court issued a dispositional order in March 2015, finding that Child’s
needs included, “appropriate medical, dental, educational, and mental health
services.” DCS Ex. 4. The CHINS court ordered Mother to participate in the
plan of care necessary to ensure Child’s safety and well-being and granted
wardship of Child to DCS, with the permanency plan of reunification. Id.
[8] On June 3, 2015, the CHINS court held a review hearing and found that DCS
had complied with the case plan. The court recognized that Mother, while
incarcerated, had visited with Child on two or three occasions. DCS Ex. 5.
DCS had offered Mother “therapy and substance abuse services” prior to her
incarceration and had contacted a service provider to “determine the level of
services Mother [could] be provided while . . . incarcerated.” Id. However,
Mother did not comply with the case plan, did not cooperate with DCS, and
did not “enhance her ability to fulfill her parental obligation.” Id. Additionally,
the “cause of [Child]’s out-of-home placement or supervision had not been
alleviated due to Mother’s incarceration.” Id. On December 2, 2015, the
CHINS court held a permanency hearing and changed Child’s permanency
plan to reunification with a concurrent plan of adoption. DCS Ex. 6.
4 Although Mother was incarcerated throughout most of the CHINS proceedings, she appeared by telephone or in person at each CHINS of the hearings.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 5 of 23 [9] On May 25, 2016, the CHINS court held a review hearing. DCS Ex. 7. At that
time, Mother’s projected release date was June 2021. Id. During that hearing,
DCS reported that an Interstate Compact on the Placement of Children,
requesting a potential placement of Child with relatives in Kentucky, had been
denied. DCS also reported that DCS was unable to provide Mother services
due to her incarceration in the DOC. Id. at 1, 2.
[10] On June 17, 2016, DCS filed a petition for termination of parental rights
(“TPR”), and a TPR fact-finding hearing was held on November 18, 2016.
At the start of that hearing, Mother’s counsel made an oral motion for a
continuance on the basis that the adoption plan for child was premature
because DCS was still looking for permanent placement with family
members. Tr. at 13. DCS objected, stating “DCS does not need to know
specifically where a child will be as long as we can establish that the
permanency plan uh, is being [] sought.” Id. at 14. Addressing the motion,
the juvenile court, off the record, obtained and reviewed Child’s CHINS
records and denied Mother’s motion for a continuance. The juvenile court
noted that Child had been removed from Mother’s care for almost two
years, and that it was the recommendation of DCS and Child’s court
appointed special advocate that the case proceed to termination
proceedings. Id. The juvenile court concluded, “[T]here has been more
than ample time for [] the child’s mother to identify if there are any people
potential placements and relatives for [Child].” Id. at 15.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 6 of 23 [11] Three witnesses testified at the TPR hearing, Mother, DCS family case
manager Anna Maria Lankford (“FCM Lankford”), and Child’s court
appointed special advocate Michelle Richardson (“CASA Richardson”).
The following evidence was presented during the TPR hearing. In 2013,
Mother voluntarily sought treatment at Options due to having suicidal
thoughts and ongoing substance abuse issues. Tr. at 35. FCM Lankford
testified that Mother successfully completed the program, but just prior to
DCS’s involvement, she relapsed on heroin. Id. Mother returned to
Options, but “she later checked herself out before completing those
services.” Id. Approximately one month prior to her arrest, DCS referred
Mother to therapy and substance abuse treatment at Centerstone and to
Lifeline Services to oversee Mother’s visitation with Child. Id. at 27. FCM
Lankford testified that, although Mother used “visiting supervised parenting
time,” she did not “set up for the substance abuse treatment.” Id.
[12] FCM Lankford testified that Mother had been incarcerated since her
January 28, 2015 arrest on drug-related charges and that Mother “admitted
to um, professionals, that she has had an ongoing substance use factor since
approximately age 14.” Id. at 20. While at the Fayette County Jail, Mother
completed a parenting class and a 12-week substance abuse program. Id. at
27-28, 44-45. Mother also had a “few visits” with Child. Id. at 31. Later in
2015, Mother pleaded guilty to dealing in a narcotic drug, a Level 4 felony,
and taking a minor to a common nuisance, a Class A misdemeanor.
Mother’s sentence of eight and a half years was affirmed on appeal. FCM
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 7 of 23 Lankford testified, “At this time, the earliest possible release date is June of
2021.”5 Id. at 24. FCM Lankford also testified that Mother is “not able to
care for her child or participate in parenting time with her child based on
her incarceration[].” Id. at 31.
[13] Regarding Child, FCM Lankford testified that Child has mental health
needs, and she has been placed in residential treatment and in numerous
foster homes. Id. at 22. Child has had behavioral issues in the home and at
school. Id. On August 27, 2015, Child was placed in Courage Center, a
residential facility. Id.; DCS Ex. 6. While the record is unclear as to when
Child was released from that facility, she was placed in a therapeutic foster
home on May 19, 2016. DCS Ex. 7. At the time of the termination hearing,
Child was staying with Grandmother in order to provide the therapeutic
foster home “rest care.” Tr. at 26.
[14] FCM Lankford testified that Child had made a lot of progress within the six
months prior to the TPR hearing, compared with the progress made during
the initial year and a half. Id. at 22. However, Child still had behavioral
issues and ongoing mental health needs. Id. FCM Lankford testified that
DCS was recommending termination because Mother’s continued use of
illegal substances poses a safety risk to Child, and Child struggles with her
own behavioral and mental health issues. Id. at 19-20. FCM Lankford
5 Mother disagrees with FCM Lankford’s estimate and testified at the TPR hearing that she was anticipating being released in December 2018. Reply Br. at 3 (citing Tr. at 41).
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 8 of 23 testified that Mother has been previously incarcerated for substance abuse,
has sought treatment, and has relapsed. Id. at 24.
[15] CASA Richardson testified that Mother is unable to care for Child because
she cannot create and maintain a stable and safe environment for Child. Id.
at 37. Mother also cannot parent due to her incarceration. Id. CASA
Richardson believed that Mother and Child love each other, yet it was still
in Child’s best interest that Mother’s parental rights be terminated. Id.
CASA Richardson testified that Child is “very special,” and “she needs a
permanent home so she can grow and so she can get the services that she
needs.” Id. CASA Richardson stated that Child is only twelve years old,
“has a long hard road ahead of her,” and needs stability. Id.
[16] On December 9, 2016, the juvenile court issued its order terminating
Mother’s parental rights. Id. at 75-83. Mother now appeals.
Discussion and Decision
I. Motion to Continue [17] Mother contends the juvenile court abused its discretion in denying her motion
for a continuance, which she presented at the start of the TPR hearing. Mother
reasons that if she had been provided additional time, she could have located a
family member to care for Child, thereby negating the need for termination of
her parental rights. Appellant’s Br. at 26-27. Under the trial rules, “a trial court
shall grant a continuance upon motion and ‘a showing of good cause
established by affidavit or other evidence.’” Gunashekar v. Grose, 915 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 9 of 23 953, 955 (Ind. 2009) (citing Ind. Trial Rule 53.5). Generally speaking, a trial
court’s decision to grant or deny a motion to continue is subject to abuse of
discretion review. In re K.W., 12 N.E.3d 241, 243-44 (Ind. 2014). “An abuse of
discretion may be found in the denial of a motion for a continuance when the
moving party has shown good cause for granting the motion, but no abuse of
discretion will be found when the moving party has not demonstrated that he or
she was prejudiced by the denial.” Id. (internal quotation marks omitted).
[18] Good cause is determined based on “the circumstances present,” “particularly
in the reasons presented to the trial judge at the time the request was denied.”
F.M. v. N.B., 979 N.E.2d 1036, 1040 (Ind. Ct. App. 2012) (quoting Ungar v.
Sarafite, 376 U.S. 575, 589 (1964)). Here, Mother’s stated basis for requesting a
continuance was that DCS was still considering other “permanency places” for
Child to be with family. Tr. at 13. We note that the juvenile court did not
immediately deny Mother’s request for a continuance; instead, the judge went
off the record, obtained the underlying CHINS case, and reviewed it. In
denying Mother’s motion, the juvenile court calculated that Child had been
removed from Mother’s care for almost two years. The court then noted that in
the CASA’s most recent report, which was filed with the court two days prior to
the TPR hearing, CASA Richardson stated she agreed with DCS’s
determination that “this case proceed to the termination of parental rights.” Id.
at 14-15. The juvenile court determined that there had been “ample time” for
Mother “to identify if there are any . . . potential placements and relatives” for
Child. Id. at 15.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 10 of 23 [19] Mother contends that FCM Lankford’s testimony at the TPR hearing—that
DCS “is diligently searching for relative option care”—reflects it was premature
to terminate her parental rights. Appellant’s Br. at 27 (citing Tr. at 22). Mother
asserts that she has been prejudiced by the denial of the continuance because,
had one been granted, and Mother’s relatives were deemed to be appropriate as
Child’s guardian, the juvenile court would have had no legitimate basis for
terminating Mother’s parental rights. Id. We disagree.
[20] Here, the CHINS court approved Child’s removal from Mother around
December 15, 2014, based on Mother’s inability to care for Child due to her
drug abuse. In January 2015, a time when Mother should have known her
actions would be scrutinized, Mother sold drugs to an undercover police officer
and was arrested, charged, and placed in jail. Tr. at 20. In August 2016,
Mother requested, and the juvenile court granted Mother a continuance, which
delayed the TPR fact finding from November 4 to November 18, 2016.
Appellant’s App. at 18.6 Mother did not file another motion for a continuance
until the morning of the fact-finding hearing. We are not persuaded that
Mother was prejudiced by the denial of her motion. Here, it was Mother’s own
actions that supported the termination of her parental rights. The juvenile court
did not abuse its discretion when it denied Mother’s motion for a continuance.
6 For ease of reference, we refer to volume two of Mother’s appendix as “Appellant’s App.”
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 11 of 23 II. Termination of Parental Rights [21] Mother argues that the judgment terminating her parental rights was clearly
erroneous because it was based on insufficient evidence. “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 J.W., Jr., 27
N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), 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.” Id. at 1188.
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.
[22] Before an involuntary termination of parental rights may occur, DCS 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.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 12 of 23 (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).7 DCS’s burden of proof for establishing these
allegations is one of clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child
Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). If the court finds that the allegations
in a petition described in section 4 of this chapter are true, the trial court shall
terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[23] When reviewing a termination of parental rights issue, our court will not
reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56
N.E.3d 625, 628 (Ind. 2016). We consider “only the evidence and any
reasonable inferences therefrom that support the judgment,” and give “‘due
regard’ to the trial court’s opportunity to judge the credibility of the witnesses
firsthand.” K.T.K., 989 N.E.2d at 1229. Here, in terminating Mother’s
parental rights to Child, 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 R.S.,
7 Mother does not challenge the juvenile court’s conclusion that Child had been removed for the requisite period of time under Indiana Code § 31-35-2-4(b)(2)(A).
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 13 of 23 56 N.E.3d at 628. 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 trial court’s judgment terminating a parent-child
relationship only if it is clearly erroneous, i.e., if the findings do not support the
trial court’s conclusions or the conclusions do not support the judgment. Id. If
the evidence and inferences support the judgment, we must affirm.
A. Findings of Fact
[24] In its December 9, 2016 order terminating Mother’s parental rights to Child, the
juvenile court entered findings of fact and conclusions thereon. Regarding the
findings, Mother challenges only Finding 17, which stated, “Mother’s earliest
scheduled release date is June 2021.” Appellant’s Br. at 17; Appellant’s App. at
11. Mother contends that this date was only supported by the testimony of
FCM Lankford. Appellant’s Br. at 17 (citing Tr. at 24). Mother argues that, in
light of both her testimony that she would be released in December 2018, and
FCM Lankford’s testimony on cross examination that there was a “possibility”
that Mother would be released sooner, it was error for the juvenile court to find
that Mother’s earliest release date was June 2021. Appellant’s Br. at 17-18. We
disagree. The juvenile court was presented with two different dates. FCM
Lankford stated, without qualification, that the earliest release date was June
2021. Mother, however, qualified her own answer. When counsel asked how
she “arrive[d] at” the date of December 2018, Mother stated, “I’m eligible for .
. . up to two years in time cuts and um, since this being my first felony in
the State of Indiana I should be able to pull for a CTP at the time of the
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 14 of 23 completion of the programs that I do.” Tr. at 41 (emphasis added). Under
the clearly erroneous standard of review, reversal is only appropriate if an
appellate court finds that the trial court’s decision is “against the logic and effect
of the facts and circumstances before the court.” Matter of A.F., 69 N.E.3d 932,
942 (Ind. Ct. App. 2017). Here, FCM Lankford specifically testified that the
earliest release date was June 2021, while Mother testified that she should be able
to obtain a release date of December 2018. It was not clearly erroneous for the
juvenile court to find that the only certain date, was the earliest release date.
Because Mother challenges only Finding 17, the remaining findings stand as
proven. See McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997)
(accepting as true trial court findings that appellant did not challenge).
B. Conclusions
[25] Mother challenges the juvenile court’s conclusions that: (1) there is a
reasonable probability that: (a) conditions that resulted in the removal of Child
or the reasons for placement outside Mother’s home will not be remedied; and
(b) continuation of the parent-child relationship poses a threat to the well-being
of Child; (2) termination was in the best interests of Child; and (3) that there is a
satisfactory plan for the care and treatment of Child.
1. Conditions not Remedied
[26] Mother contends that DCS failed to prove by clear and convincing evidence
that the conditions resulting in Child’s removal will not be remedied. In
determining whether there is a reasonable probability that parents will not
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 15 of 23 remedy the conditions resulting in their child’s removal from home, a trial court
engages in a two-step inquiry. First, the court must “ascertain what conditions
led to [the child’s] placement and retention” outside a parent’s care. In re
K.T.K., 989 N.E.2d at 1231. Here, Mother admits that Child was removed
from her home due to her drug use and her arrest and incarceration on the drug
charges for which she ultimately was convicted in December 2015. Appellant’s
Br. at 19. Child was not returned to Mother, who remained incarcerated
throughout the CHINS and TPR proceedings.
[27] Second, the court must determine whether a reasonable probability exists that
the conditions justifying a child’s continued “placement outside the home will
not be remedied.” In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004) (citing
In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied), trans. denied.
To make that determination, the trial court must judge a parent’s fitness to care
for her child as of the time of the termination hearing, taking into consideration
evidence of changed conditions. In re S.P.H., 806 N.E.2d 874, 881 (Ind. Ct.
App. 2004). A parent’s habitual patterns of conduct must also be evaluated to
determine the probability of future negative behaviors. K.T.K., 989 N.E.2d at
1234. DCS need not rule out all possibilities of change; rather, it must establish
that there is a reasonable probability that the parent’s behavior will not change.
In re B.J., 879 N.E.2d 7, 18-19 (Ind. Ct. App. 2008), trans. denied.
[28] Mother argues that there is no evidence indicating that her addiction impaired
her ability to care for Child, but even so, she engaged in programs while
incarcerated, and at the time of the termination hearing, she had remedied her
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 16 of 23 addiction. Appellant’s Br. at 19-20. We recognize that a court must consider the
conditions at the time of the fact-finding hearing; however, a parent’s habitual
patterns of conduct must also be evaluated to determine the probability of
future negative behaviors. K.T.K., 989 N.E.2d at 1234.
[29] Mother admitted that she had used alcohol and drugs since the age of fourteen,
and Mother had a history of using illegal substances, engaging in treatment, and
then relapsing. Tr. at 20, 35; DCS Ex. 3. Mother had an older child, M., who
was eighteen years old at the time of the TPR hearing. Tr. at 50. M. was raised
by Mother’s aunt and uncle. Id. Mother testified at the fact-finding hearing
that, when M. was born, Mother was drinking and was not mature enough to
take care of M. Id. Mother explained that she was still part of M.’s life, but M.,
by living with aunt and uncle, did not have to see “the drinking and stuff I was
involved in at the time and the things that I’ve done.” Id.
[30] About sixteen years after M. was left in the care of her aunt and uncle, Mother
still had a problem with substance abuse. Mother lived in Connersville, but
“admitted buying seven grams of heroin daily from Dayton, Ohio, and Mother
would then use five of those grams herself and sell the other two grams in her
community.” Appellant’s App. at 11; Tr. at 52. In January 2015, Child had been
out of Mother’s care for more than a month, Mother knew that a CHINS
petition had been filed, and yet she continued to use drugs and was caught
dealing heroin. Mother used “Subutex and Klonopin, but sold most of the pills
to pay for heroin.” DCS Ex. 1. Mother had first given Child cigarettes as a
reward at age four, and at age ten, Child was so addicted that Grandmother
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 17 of 23 allowed Child to “have a couple of puffs from a cigarette to combat the Child’s
nicotine withdrawal symptoms.” Id. at 2. Mother’s habitual pattern of conduct
suggests that there is a reasonable probability that she will not remain clean
once released.
[31] Additionally, Mother will be unable to remedy conditions with Child until
Mother is released from incarceration, likely in June 2021 when Child will be a
month shy of her seventeenth birthday. “[T]his court has 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) (quoting Matter of A.C.B., 598 N.E.2d 570, 572 (Ind. Ct. App.
1992)), trans. denied. It was not clearly erroneous for the juvenile court to decide
that the conditions resulting in Child’s removal would not be remedied.8
2. Best Interests
[32] Mother next argues that DCS failed to prove by clear and convincing evidence
that termination of Mother’s parental rights is in Child’s best interests. A
determination of the best interests of a child should be based on the totality of
8 Indiana Code section 31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental rights, the trial court need only find that one of the three requirements of that subsection has been established by clear and convincing evidence. A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. Because we have determined that sufficient evidence supports the conclusion that the conditions that resulted in the removal of Child will not be remedied, we need not address Mother’s argument as to whether sufficient evidence supports the conclusion that the continuation of the parent-child relationship poses a threat to the well-being of Child.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 18 of 23 the circumstances.” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct. App. 2012). In
making a determination of best interests, the juvenile court must subordinate
the interests of the parent to that of the child. In re A.K., 924 N.E.2d 212, 224
(Ind. Ct. App. 2010), trans. dismissed. “The trial court need not wait until the
child is irreversibly harmed such that 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 termination is in the child’s
best interests. Id. (citing McBride v. Monroe Cty. Office of Family & Children, 798
N.E.2d 185, 203 (Ind. Ct. App. 2003)); see also In re G.Y., 904 N.E.2d 1257,
1265 (Ind. 2009) (“Permanency is a central consideration in determining the
best interests of a child.”).
[33] In challenging the court’s “best interest” conclusion, Mother argues that it will
be difficult to find an adoptive home for Child, and that Child has family
members willing to provide guardianship. Appellant’s Br. at 23-25. However, as
we note below, DCS met its burden of proving that adoption is a satisfactory
plan for Child. During the fact-finding hearing, FCM Lankford testified that
while it might be difficult to find Child a permanent home, Child is adoptable.
Tr. at 23. Additionally, there is no evidence, other than Mother’s own
testimony, indicating that there are suitable relatives willing to provide
guardianship over Child. Instead, the evidence shows that: (1) Child was
previously placed with Grandmother, who could neither stop Child from
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 19 of 23 smoking nor care for Child long term, tr. at 17; (2) DCS tried to place Child
with Kentucky relatives, but the interstate compact for placement was denied,
DCS Ex. 7; and (3) most identified relatives live out of state and do not have a
relationship with Child, tr. at 23.
[34] Mother also argues that permanency does not justify termination. Appellant’s
Br. at 28. While permanency alone may be insufficient, there was evidence that
Child’s placement outside Mother’s care was best for Child. FCM Lankford
testified that Child had made a lot of progress within the six months prior to the
TPR hearing, compared with the progress made during the initial year and a
half. Tr. at 22. She also testified that DCS was recommending termination,
even without a known adoptive family, because Child “is an adoptable child.”
Id. at 23. “[Child] is making progress through services although it might not be
as quickly as we all would like . . . based on some of her mental health needs.”
Id. at 23-24. FCM Lankford asserted, “[We] still do have a long road ahead of
us in terms of finding that . . . appropriate placement that is going to be stable
for [Child] . . . but I don’t think it’s out of the question to move in that direction
to find permanency for [Child] as [Mother’s] going to be incarcerated for a
longer period of time.” Id. at 24. In fact, if Mother is released as late as June
2021, Child will be almost seventeen years old. Id. FCM Lankford also
believed that termination and permanency in a new home was in Child’s best
interest to end her exposure to an environment of drug use. Id.
[35] CASA Richardson testified that termination of Mother’s parental rights is in
Child’s best interests because Child “is a very special child” and she “needs a
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 20 of 23 permanent home so she can grow and so she can get the services that she needs.
She’s only 12 and she just has a long hard road ahead of her and she needs
stability in her life.” Id. at 37. CASA Richardson was also concerned about
Mother’s ability to provide Child with a safe and stable environment. Id. “We
have previously held that the recommendation 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 remedied, is sufficient to show by
clear and convincing evidence that termination is in the child’s best interests.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App.
2013), trans. denied. The totality of the evidence supports the trial court’s
determination that termination of Mother’s parental rights is in the Child’s best
interest.
3. Satisfactory Plan
[36] Mother argues that the juvenile court erroneously concluded that adoption is a
satisfactory plan for the care and treatment of Child. Appellant’s Br. at 29.
While acknowledging that adoption is generally considered a satisfactory plan,
Mother contends that it was not satisfactory under the unique circumstances of
this case. Id. (citing H.G. v. Ind. Dep’t of Child Services, 959 N.E.2d 272, 294 (Ind.
Ct. App. 2011), trans. denied). Specifically, she argues that DCS failed to meet
its burden of proving that the conditions resulting in Child’s placement outside
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 21 of 23 the home will not be remedied.9 We disagree with Mother’s assertion because,
as discussed above, DCS met its burden of proving that conditions resulting in
Child’s placement outside the home will not be remedied. Mother’s argument
is merely a request that we reweigh the evidence, which we will not do. In re
J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).
[37] Mother also contends that DCS’s determination that adoption is a satisfactory
plan is premature because DCS cannot suggest a satisfactory plan with any
accuracy or confidence until it determines whether family members could serve
as appropriate guardians. Appellant’s Br. at 29. Mother contends that, if other
family members could serve as appropriate guardians for Child, termination of
Mother’s parental rights would be unnecessary and adoption would not be a
satisfactory plan. Id. Here, DCS’s plan for Child was adoption, which our
court has found to be a satisfactory plan. See In re B.M., 913 N.E.2d 1283,
1287 (Ind. Ct. App. 2009) (noting that adoption is a satisfactory plan). The
DCS 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. Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d 366, 374
(Ind. Ct. App. 2007), trans. denied. While DCS had not yet found suitable
adoptive parents for Child, FCM Lankford testified that Child is adoptable and
that DCS continues to search for a permanent home for Child. Tr. at 23. The
9 Mother claims that DCS failed to meet its burden regarding both that (1) conditions resulting in removal will not be remedied; and (2) continuation of parent-child relationship poses a threat to Child’s wellbeing. Because only one of these conditions need be proven, we have cited only to the former.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 22 of 23 evidence supported the juvenile court’s finding that DCS had a satisfactory plan
for the care and treatment of Child.
[38] 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. 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
Mother’s parental rights to Child was clearly erroneous.
Affirmed.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 21A04-1701-JT-104 |May 30, 2017 Page 23 of 23