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

• Court: Indiana Court of Appeals
• Decided: October 10, 2018
• Docket: 18A-JT-1062
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 10 2018, 10:01 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel J. Vanderpool Curtis T. Hill, Jr. Warsaw, Indiana Attorney General of Indiana

Patricia C. McMath Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of The October 10, 2018 Termination of the Parent-Child Court of Appeals Case No. Relationship of: 18A-JT-1062 C.S. (Minor Child) Appeal from the Wabash Circuit Court and The Honorable Robert R. B.S. (Mother), McCallen, III, Judge Appellant-Respondent, Trial Court Cause No. 85C01-1710-JT-21 v.

Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 1 of 11 Altice, Judge.

Case Summary

[1] B.S. (Mother) appeals the involuntary termination of her parental rights to her

daughter, C.S. (Child).1 Mother’s sole argument on appeal is that the Indiana

Department of Child Services (DCS) failed to present sufficient evidence that

termination of her parental rights is in Child’s best interests.

[2] We affirm.

Facts & Procedural History

[3] Mother gave birth to Child on January 8, 2016. DCS intervened at the hospital

because Mother tested positive for amphetamine. When interviewed by a DCS

family case manager (FCM), Mother indicated that she had been incarcerated

in Fulton County Jail from September 19 through November 3, 2015. Mother

admitted that she had used heroin while pregnant prior to her incarceration and

that after her release, she used controlled substances that she obtained on the

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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 2 of 11 street. Child was removed from Mother’s care at the hospital and has remained

in relative placement since that time with Child’s great aunt (Aunt).

[4] On January 12, 2016, DCS filed a petition alleging Child to be a child in need

of services (CHINS). At the CHINS hearing, Mother admitted the allegations

and Child was so adjudicated on March 31, 2016. Following a dispositional

hearing on April 15, 2016, the trial court entered a dispositional order directing

Mother to, among other things, participate in supervised visits, maintain weekly

contact with the FCM, complete a substance abuse assessment and follow all

treatment recommendations, and submit to random drug and alcohol screens.

[5] Mother visited with Child once or twice a week and engaged in services

through DCS for about three months following Child’s birth. She participated

in Moral Reconation Therapy (MRT therapy) and substance abuse counseling

“on and off” through the Bowen Center. Transcript at 22. During supervised

visits, Mother was loving and appropriate with Child. Mother’s participation in

services, however, ended in April 2016 as a result of another incarceration.

Child was three months old at the time. Mother spent the rest of 2016 in and

out of jail. She did not maintain communication with the FCM, participate in

services, or visit Child. Mother acknowledged that during this time she was

using meth, heroin, pills, and “pretty much anything.” Id. at 37.

[6] In February 2017, Mother contacted FCM Alicia Lopez to start services again.

Mother participated in an intake evaluation at the Bowen Center and restarted

supervised visitation. The Bowen Center recommended forty sessions,

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 3 of 11 including group and individual therapy. Mother did not participate in any of

the recommended sessions. As a result, visitation was suspended in March.

[7] Shortly thereafter, Mother was arrested in Fulton County and remained in jail

until November 8, 2017, when she entered court-ordered treatment with the

Women’s Journey Substance Abuse Treatment Program at the YWCA in

South Bend. Mother participated in individual counseling, group counseling,

and Narcotic’s Anonymous meetings, as well as random drug screens. She,

however, did not complete the inpatient program or start the year-long aftercare

program.

[8] Mother left the YWCA on December 24, 2017, on a two-day pass for

Christmas. She had a supervised visit with Child on Christmas day. Mother

did not return to the YWCA as scheduled, despite the fact that she knew this

would result in the violation of her probation. Instead, Mother returned to

using drugs. She had no further visits with Child and did not participate in any

other services. Then, in early February 2018, Mother overdosed on heroin in

Wabash County and was arrested following her hospital stay. Mother was

charged, in Wabash County, with three Level 6 felonies and one Class A

misdemeanor, all drug-related charges. Additionally, a petition to revoke

probation was filed in Fulton County.

[9] In the meantime, on October 20, 2017, DCS filed the instant petition to

terminate Mother’s parental rights. On April 4, 2018, the trial court held a

factfinding hearing in the termination case. FCM Lopez, Mother, and Aunt

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 4 of 11 testified. Mother remained incarcerated at the time of the hearing, with both

criminal causes pending. Mother testified that she had been participating in

MRT and substance abuse services for about four to five weeks in jail. Aunt

indicated that she wishes to adopt Child, whom she has cared for since Child

was four days old. FCM Lopez recommended termination of the parent-child

relationship, as Child had been removed for over two years and Mother had not

remedied her substance abuse issues or been consistent with services.

[10] After the hearing, the trial court issued its order involuntarily terminating

Mother’s parental rights. The order contained the following relevant findings:

At no time has reunification, while the goal, been seriously considered.

[Mother] has been in and out of jail both prior to [Child’s] birth and after [Child’s] birth. Her incarceration has seriously hampered her ability to engage in any of the Court ordered services. However, even when she has not been incarcerated, she has made no substantive progress toward reunification.

She was court ordered into a treatment program at the YWCA in South Bend, Indiana, in November of 2017. She obtained a pass to go home for the Christmas holiday. During that holiday she had one visit with [Child] for a few hours. [Mother] violated the terms of her pass by failing to timely return to the program. She made virtually no effort to return to that program. She engaged in no services or further visits with [Child]. Instead, she returned to her old ways. In early February of this year, she overdosed on heroin and was taken to the hospital. Following her release from the hospital she was arrested on an outstanding warrant, which she knew about. She remains in jail to this day. She is unsure of when her current incarceration will end. Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 5 of 11 While incarcerated, [Mother] appears motivated to seek out and participate in programming. When not incarcerated, she is not. She cannot parent when she is incarcerated. Her history is a good predictor of her future. She cannot care for herself or [Child].

***

[Child] has never lived with [Mother].

The evidence is clear and convincing that continuation of the parent-child relationship is not in [Child’s] best interests....

At no time during the pendency of this action has reunification been considered because of [Mother’s] failure to make any recognizable or substantive progress. Reunification was the goal, and it was pursued, to no avail.

[Child] is in a placement that seeks to adopt her. She is doing well in that placement. DCS’s plan for [Child] is adoption.

Appellant’s Appendix at 9-10. Based on its findings, the trial court concluded that

Child had been removed from Mother’s care for a period of at least six months

under a dispositional decree, there is a reasonable probability that the

conditions that resulted in Child’s removal will not be remedied, termination is

in Child’s best interests, and DCS has a satisfactory plan for Child’s care and

treatment following termination. Mother now appeals, challenging only the

trial court’s determination regarding Child’s best interests.

Discussion & Decision

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 6 of 11 [11] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the 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 trial court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous.

In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[12] When the trial court enters specific findings of fact and conclusions thereon, we

apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family &

Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the

evidence supports the findings, and second, we determine whether the findings

support the judgment. Id. “Findings are clearly erroneous only when the

record contains no facts to support them either directly or by inference.” Quillen

v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous

only if the findings do not support the court’s conclusions or the conclusions do

not support the judgment thereon. Id.

[13] We recognize that 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.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights when parents are unable or unwilling to meet

their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 7 of 11 2008). In addition, a court must subordinate the interests of the parents to those

of the child when evaluating the circumstances surrounding the termination. In

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

[14] As set forth above, Mother challenges only the trial court’s determination

regarding Child’s best interests. Ind. Code § 31-35-2-4(b)(2)(C) requires DCS to

allege and prove by clear and convincing evidence that termination is in the best

interests of the child. In determining whether termination of parental rights is

in the best interests of a child, the trial court is required to look beyond the

factors identified by DCS and consider the totality of the evidence. In re J.C.,

994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must

subordinate the interests of the parent to those of the child, and the court need

not wait until a child is irreversibly harmed before terminating the parent-child

relationship. McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185,

199 (Ind. Ct. App. 2003). Our Supreme Court has explained that

“[p]ermanency is a central consideration in determining the best interests of a

child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “Moreover, we have

previously held that the recommendations of the case manager and court-

appointed 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.”

In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 8 of 11 [15] Mother takes issue with the trial court’s findings that she does not appear

motivated to seek out and participate in treatment when she is not incarcerated.

To dispute this finding, Mother directs us to evidence that she complied with

services for the first three months of Child’s life (January 2016 to early April

2016) and then engaged in supervised visitation and an intake evaluation in

February 2017. The termination hearing, however, took place in April 2018,

when Child was over two years old and two months after Mother had

overdosed on heroin. Although Mother was incarcerated much of Child’s life,

she was out of jail off and on from August 2016 through the spring of 2017.

During this time, she cooperated with the DCS for only about a month.

Further, after she violated probation by failing to return to the YWCA, Mother

was not incarcerated from Christmas 2017 through early February 2018.

Instead of engaging in services and visiting Child, Mother returned to her life of

drugs and eventually overdosed. In light of the totality of the evidence, the trial

court’s finding regarding Mother’s lack of motivation to seek treatment for her

drug addiction is not clearly erroneous.

[16] Nonetheless, Mother attempts to liken this case to G.Y., 904 N.E.2d 1257, in

which our Supreme Court determined that the evidence did not clearly and

convincingly establish that termination was in the child’s best interests. The

mother in that case had cared for her child for the first twenty months of the

child’s life. There were no allegations that the mother had engaged in any

criminal behavior after the child’s birth, and the mother had been a fit parent

during the time she cared for her child. The mother became incarcerated when

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 9 of 11 the child was twenty months old for a crime she committed before the child’s

conception. While incarcerated, the mother “took positive steps and made a

good-faith effort to better herself as a person and as a parent.” Id. at 1262.

Specifically, she completed an eight-week drug rehabilitation program and a

fifteen-week parenting class. She also actively participated in an employment

readiness program and had nearly completed her associates degree, which

would move her projected release date up by about a year. In addition to

making “a good-faith effort to complete the required services available to her in

prison”, the mother had obtained suitable housing and gainful employment

upon her release from prison, which was imminent. Id. at 1263. Finally, the

Court observed that “since her incarceration Mother has maintained a

consistent, positive relationship with G.Y.” Id. at 1264. In sum, the mother

had demonstrated a “commitment to reunification with G.Y. from the very

point of her arrest.” Id. at 1265.

[17] Unlike the mother in G.Y., Mother has not demonstrated an ongoing

commitment to doing what is necessary to gain custody of Child. Out of the

twenty-seven months Child had been alive at the time of the termination

hearing, Mother had exercised supervised visits with her for only about four

months, just one of which was during the last two years. During the majority

of this time, Mother was either incarcerated or continued to use drugs,

including overdosing on heroin and being arrested two months before the

termination hearing. Mother never completed a drug treatment program,

despite ample opportunities. Further, it is unknown how long she will remain

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 10 of 11 incarcerated on her pending felony charges and probation violation. In sum,

Mother has made no real, sustained progress toward addressing her substance

abuse issues, staying out of jail, and working toward reunification.

[18] We do not doubt that Mother loves Child and wishes to parent her. Mother’s

pattern of behavior prior to and after Child’s birth, however, reveals that she is

not able to care for herself, let alone Child. Child has lived with Aunt since she

was four days old and has done well in that placement. Aunt wishes to adopt

Child. FCM Lopez opined that termination and adoption by Aunt were in

Child’s best interests. After more than two years and little to no progress by

Mother, Child deserves permanency now. The trial court’s conclusion that

termination is in Child’s best interests is supported by the findings and not

clearly erroneous.

[19] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1062 | October 10, 2018 Page 11 of 11