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

• Court: Indiana Court of Appeals
• Decided: December 13, 2019
• Docket: 19A-JT-1677
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Dec 13 2019, 8:45 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT B.M. ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Abigail R. Recker Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination December 13, 2019 of the Parent–Child Relationship Court of Appeals Case No. of B.M. (Minor Child) 19A-JT-1677 and Appeal from the Vermillion Circuit Court A.M. (Mother), The Honorable Jill Wesch, Judge Appellant-Respondent, Trial Court Cause No. v. 83C01-1810-JT-4

The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 1 of 11 Bradford, Judge.

Case Summary [1] A.M. (“Mother”) is the biological parent of B.M. (“Child”), (born October 8,

2006). In May of 2016, Child was adjudicated to be a child in need of services

(“CHINS”) due to Mother’s drug and alcohol abuse. In October of 2018, the

Department of Child Services (“DCS”) petitioned for the termination of

Mother’s parental rights. On June 21, 2019, the juvenile court ordered that

Mother’s parental rights to Child be terminated. Mother contends that the

juvenile court’s termination of her parental rights was clearly erroneous. We

affirm.1

Facts and Procedural History [2] On March 28, 2016, DCS learned of allegations of domestic violence, drinking,

and methamphetamine use by Mother and her boyfriend T.C. On March 30,

2016, Family Case Manager (“FCM”) Robin Gossett Fisher went to Mother’s

home to discuss the allegations. Mother denied any drug use but admitted to

1 The juvenile court also terminated Father’s parental rights, but he does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 2 of 11 drinking a twelve pack of beer on the weekends when Child was not home.

FCM Fisher administered a drug screen, and Mother tested positive for

methamphetamine and amphetamine. FCM Fisher later administered a second

drug screen on Mother, and she tested positive for methamphetamine,

amphetamine, Klonopin2, and Morphine. On May 12, 2016, DCS petitioned

for Child to be adjudicated a CHINS. On May 24, 2016, Child was adjudicated

to be a CHINS. On July 20, 2016, the juvenile court held a dispositional

hearing on the CHINS petition and ordered Mother to, inter alia, maintain

contact and keep all appointments with DCS, enroll in all programs

recommended by the FCM, maintain suitable and safe housing, secure a legal

and stable source of income, abstain from consuming any illegal controlled

substances or alcohol, obey the law, complete a substance abuse assessment and

follow all recommendations, complete intensive family-preservation program,

engage in home-based counseling, and submit to random drug and alcohol

screens.

[3] Mother was compliant with services until December 27, 2016, when she was

arrested for domestic battery after beating T.C. with a broom while the two

were drinking, which resulted in Child’s removal from the home. Mother was

released from jail at the end of January and began living at CODA, which is a

facility for domestic violence victims. In February of 2017, while Mother was

still living at CODA, Child was placed with Mother on a trial home visit. In

2 Mother had a valid prescription for Klonopin.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 3 of 11 March of 2017, Mother was taken into custody after failing to appear for a court

hearing. Prior to turning herself in, however, Mother overdosed on Klonopin

and had to be taken to the hospital. Mother remained incarcerated for several

weeks and the trial home visit was terminated. On June 19, 2017, Mother pled

guilty to Level 6 felony domestic battery. Upon her release, Mother was

compliant with services and unsupervised visitation was implemented.

[4] In August of 2017, Mother became noncompliant with services, canceling

appointments with home-based therapy and home-based casework such that

both were closed out, and her compliance with drug screening was “[o]ff and

on.” Tr. Vol. II p. 74. On November 1, 2017, Child was again removed from

Mother’s care after Mother left Child at T.C.’s home for a couple of days while

she went out drinking. Although T.C. was living in the home at the time, T.C.

worked from 4:00 a.m. until 3:00 p.m., which left Child unsupervised for

extended periods of time. After Child’s removal, Mother failed to comply with

services for the remainder of 2017.

[5] On January 6, 2018, Mother voluntarily admitted herself into Club Soda, which

is a rehabilitation center for drug and alcohol addiction. Mother, however, was

discharged from Club Soda after an altercation with another resident. The other

resident began yelling at Child because the resident did not want to play a game

with Child, which resulted in Mother calling the resident a “f*****g f****t” and

a “[n]****r.” Tr. Vol. II p. 84. In February of 2018, DCS referred Mother to the

Hamilton Center for a drug and alcohol assessment, which was administered by

Dominique Jackson. Jackson recommended Mother participate in Matrix

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 4 of 11 Group and motivational interviewing, neither of which Mother successfully

completed. In August of 2018, visitation was ceased at the recommendation of

Child’s therapist. The Child’s therapist advocated for visitation to stop because

“Mother is a negative, traumatic influence on Child.” Appellant’s App. Vol. II

p. 99. During supervised visitation, Mother was telling Child to “act out in the

foster home, to try to hurt them, to make it difficult so that way she would get

them home faster.” Tr. Vol. II p. 78. Thereafter, Mother completely stopped

engaging in services.

[6] On October 15, 2018, DCS petitioned for the termination of Mother’s parental

rights. The juvenile court held evidentiary hearings on February 7 and 8, 2019.

At a hearing, FCM Fisher testified that it was in Child’s best interests that

Mother’s parental rights be terminated and Child be adopted. FCM Fisher also

testified that Mother had taken 201 drugs screens over the duration of this

matter and failed to appear for forty. Mother had tested positive twenty-one

times for various substances including alcohol, methamphetamine,

amphetamine, THC, and morphine, with the most recent being on November

13, 2018. Moreover, FCM Fisher noted that in October of 2018, Mother had

left FCM Fisher a voicemail regarding birthday presents for Child, and when

FCM Fisher had returned Mother’s call, Mother had stated that “she hopes

[FCM Fisher] and [FCM Fisher’s husband] die a slow, miserable death and

called [FCM Fisher] a fat, f*****g c**t.” Tr. Vol. II p. 80. Guardian Ad Litem

(“GAL”) Angela Bullock also informed the juvenile court that she believed it

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 5 of 11 was in Child’s best interests that Mother’s parental rights be terminated. On

June 21, 2019, the juvenile court terminated Mother’s parental rights.

Discussion and Decision [7] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The

parent–child relationship is “one of the most valued relationships in our

culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.

2003) (internal citations omitted). Parental rights, however, are not absolute

and must be subordinated to the child’s interests when determining the proper

disposition of a petition to terminate the parent–child relationship. Bester, 839

N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their

parental responsibilities their rights may be terminated. Id.

[8] In reviewing the termination of parental rights on appeal, we neither reweigh

the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

We consider only the evidence and reasonable inferences therefrom which are

most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

court has entered findings of facts and conclusions of law, our standard of

review is two-tiered. Id. First, we determine whether the evidence supports the

factual findings and second, whether the factual findings support the judgment.

Id. The juvenile court’s findings and judgment will only be set aside if found to

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 6 of 11 be clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

2005). “A judgment is clearly erroneous if the findings do not support the

juvenile court’s conclusions or the conclusions do not support the judgment.”

Id.

[9] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

support a termination of parental rights. Of relevance to this case, DCS was

required to establish by clear and convincing evidence

(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.

[and]

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

Ind. Code § 31-35-2-4(b)(2).3 In challenging the sufficiency of the evidence to

sustain the termination of her parental rights, Mother contends that the juvenile

3 It is not disputed that the Child had been removed from Mother for at least six months under a dispositional decree and that there was a satisfactory plan for the care and treatment of the Child, both required findings pursuant to Indiana Code section 31-35-2-4(b)(2).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 7 of 11 court erred by concluding that (1) the conditions that resulted in the removal of

Child from Mother’s care would not be remedied, (2) the continuation of the

parent–child relationship between Child and Mother posed a threat to Child’s

well-being, or (3) termination of Mother’s parental rights was in Child’s best

interests.4

I. Indiana Code Section 31-35-2-4(b)(2)(B) [10] Mother contends that there is insufficient evidence to establish a reasonable

probability that the conditions that resulted in Child’s removal would not be

remedied or that the continued parent–child relationship posed a threat to

Child. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the

disjunctive, DCS was only required to establish one of the circumstances. We

choose to first address Mother’s contention that the trial court erred by

concluding that the conditions which resulted in Child’s removal would not be

remedied.

In determining whether the conditions that resulted in the child[ren]’s removal…will not be remedied, we engage in a two- step analysis[.] First, we identify the conditions that led to removal; and second, we determine whether there is a reasonable probability that those conditions will not be remedied. In the

4 Mother challenges the juvenile court’s finding that “An additional report, filed March 29, 2016, alleged that the Child was a victim of neglect due to domestic violence in the family’s home.” Appellant’s App. Vol. II p. 86. While DCS was unable to find an additional report filed on said date, FCM Fisher did testify that the initial report that she received on March 28, 2019, alleged “domestic violence, drinking, and methamphetamine use.” Tr. Vol. II p. 60. Nonetheless, because there is sufficient evidence outside of this erroneous finding to support the juvenile court’s conclusion, it is harmless and in no way prejudiced Mother.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 8 of 11 second step, the trial court must judge a parent’s fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions—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. 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. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.

In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and

footnote omitted, first and third set of brackets in original, second set added).

[11] The conditions that led to Child’s removal were alcohol and drug abuse. We

conclude that DCS has produced ample evidence to establish a reasonable

probability that these conditions will not be remedied. Throughout this entire

matter, Mother has failed to maintain sobriety. Mother failed to appear for forty

drugs screens and tested positive on twenty-one. She tested positive for alcohol,

methamphetamine, amphetamine, THC, and morphine, with the most recent

being a November 13, 2018, drug screen which returned positive results for

methamphetamine, amphetamine, and THC. Moreover, Mother’s substance

abuse led to her conviction for Level 6 felony domestic battery, after she beat

her then-boyfriend T.C. with a broom while the two had been drinking.

Mother’s substance abuse also caused Child to be left unsupervised at T.C.’s

home for a couple of days while she went out drinking with friends. Mother has

consistently chosen alcohol and drugs over the welfare of Child. The juvenile

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 9 of 11 court did not clearly err in concluding that the conditions that led to Child’s

removal would not be remedied.

II. Indiana Code Section 31-35-2-4(b)(2)(C) [12] Mother contends that there is insufficient evidence to support the juvenile

court’s conclusion that termination of her parental rights was in the Child’s best

interests. We are mindful that, in determining what is in the best interests of a

child, the juvenile court must look beyond factors identified by DCS and

consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.

App. 2009). The juvenile court need not wait until a child is irreversibly harmed

before terminating the parent–child relationship because it must subordinate the

interests of the parents to those of the children. McBride v. Monroe Cty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have

previously held that recommendations from the FCM and court-appointed

special advocate to terminate parental rights, in addition to evidence that

conditions resulting in removal will not be remedied, is sufficient evidence to

show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at

236.

[13] FCM Fisher testified that it was in Child’s best interests that Mother’s rights be

terminated and that Child be adopted. GAL Bullock also believed that

termination of Mother’s parental rights was in Child’s best interests. While

coupling that testimony with our previous conclusion that there was sufficient

evidence to show that the conditions of removal would not be remedied is

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 10 of 11 sufficient to support the juvenile court’s termination of Mother’s parental rights,

it is not as though this testimony is unsupported by other evidence in the record.

[14] In addition to Mother’s substance abuse issues, Mother’s influence on Child

seems to be detrimental to his well-being. While in the presence of Child at

Club Soda, Mother used racial and homophobic slurs as she yelled at another

resident. Mother also told Child to act out in his foster home and hurt his foster

parent. Moreover, Mother failed to successfully complete services

recommended by DCS and had her visitation with Child terminated after

Child’s therapist said it was detrimental to his well-being. Considering the

totality of the evidence, Mother has failed to establish that the juvenile court’s

determination that termination was in the Child’s best interest was clearly

erroneous.

[15] The judgment of the juvenile court is affirmed.

Robb, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1677| December 13, 2019 Page 11 of 11