In the Matter of the Termination of the Parent-Child Relationship of D.B., L.B., H.B. & S.B. (Minor Children) and D.J.B. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 19, 2019
• Docket: 19A-JT-542
• 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 Sep 19 2019, 5:43 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Walter, Attorney General of Indiana P.C. Nappanee, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination September 19, 2019 of the Parent-Child Relationship Court of Appeals Case No. of D.B., L.B., H.B. & S.B. 19A-JT-542 (Minor Children) Appeal from the Starke Circuit Court and The Honorable Kimberly Hall, Judge D.J.B. (Father) and M.M.B. (Mother), Trial Court Cause Nos. Appellants-Respondents, 75C01-1808-JT-13 75C01-1808-JT-14 v. 75C01-1808-JT-15 75C01-1808-JT-16 Indiana Department of Child Services,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 1 of 13 Appellee-Petitioner.

Bradford, Judge.

Case Summary [1] D.J.B. (“Father”) and M.M.B. (“Mother”) (collectively, “Parents”) are the

parents of D.B., L.B., H.B., and S.B. (collectively, “the Children”). The

Department of Child Services (“DCS”) became involved with the family after

receiving reports of poor home conditions and the Children having poor

hygiene. DCS initially left the Children in Parents’ care while DCS worked

with Parents to improve the condition of the family’s home. The Children were

determined to be children in need of services (“CHINS”) and Parents were

ordered to complete certain services. While the CHINS proceedings were

pending, the Children were removed from Parents’ care and placed in foster

care after the conditions in the family’s home continued to deteriorate and DCS

became aware of substance abuse by Parents. Parents failed to successfully

complete the ordered services leading DCS to file petitions to terminate their

parental rights to the Children. Following an evidentiary hearing, the juvenile

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 2 of 13 court granted DCS’s petitions to terminate Parents’ parental rights to the

Children. On appeal, Parents contend that DCS failed to present sufficient

evidence to support the termination of their parental rights. We affirm.

Facts and Procedural History [2] D.B. was born on February 2, 2004; L.B. was born on August 10, 2005; H.B.

was born on February 9, 2008; and S.B. was born on July 2, 2009. DCS filed

petitions alleging the Children to be CHINS in May of 2016, after observing

“the Children to have poor hygiene” and poor home conditions. Ex. Vol. III,

p. 7. As for the home conditions, on May 5, 2016, “DCS observed the family

home to be extremely cluttered and messy with piles of clothing throughout the

home. The home had a strong smell of animals.” Ex. Vol. III, p. 7. Mother

admitted that the home was dirty and that she and Father needed “assistance to

improve the conditions of the home.” Ex. Vol. II, p. 7. On June 14, 2016,

Parents admitted that the Children were CHINS. Following a dispositional

hearing, the juvenile court ordered Parents to: (1) maintain safe, sanitary,

suitable, and DCS approved housing; (2) obtain and/or maintain a legal source

of income sufficient to support all family members; (3) complete a parenting

assessment and follow all recommendations; (4) complete a substance use

assessment and follow all recommendations; (5) submit to random drug

screens; (6) complete a clinical assessment and follow all recommendations;

and (7) cooperate with DCS, the court-appointed special advocate (“CASA”),

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 3 of 13 and all service providers. The juvenile court further ordered that the Children

were to remain placed in the family home with Parents.

[3] The Children were removed from Parents’ home on July 29, 2016, after the

conditions of the home deteriorated and DCS became aware of substance abuse

by Parents. Following a February 28, 2017 periodic case review hearing, the

juvenile court found that Parents “have partially complied” with the Children’s

case plans. Ex. Vol. III, p. 19. Specifically, the juvenile court found that while

Parents had visited the Children and cooperated with DCS,

The mother is making progress in her substance abuse treatment but the progress is slow due to missed appointments, missed group sessions, a positive screen for methadone, and using prescription medication over the therapeutic level. The father is not consistent with substance abuse treatment and has failed approximately 7 drug screens for either marijuana, Xanax, cocaine or morphine. The mother and father have not participated in home based case work. The mother and father were arrested during this reporting period for an incident involving domestic violence between mother and father. A No Contact Order was entered as a result of the incident.

Ex. Vol. III, p. 19. The juvenile court determined that Parents “have not

enhanced their ability to fulfill their parental obligations.” Ex. Vol. III, p. 19.

On June 27, 2017, the juvenile court found that (1) Parents were inconsistent in

their participation in individual therapy and substance abuse treatment and (2)

both had failed to maintain their sobriety and had tested positive for

methamphetamine. Parents continued to struggle with substance abuse and

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 4 of 13 their participation in services remained inconsistent throughout the CHINS

proceedings.

[4] On August 23, 2018, DCS filed petitions seeking the termination of Parents’

parental rights to the Children. The juvenile court conducted an evidentiary

hearing on DCS’s petitions on January 7 and 9, 2019. During the evidentiary

hearing, DCS presented evidence indicating that Parents had been unable to

secure stable, acceptable housing and had continued to test positive for drugs.

DCS also presented evidence indicating that the Children required stability and

were doing well in their current placement. On February 8, 2019, the juvenile

court issued orders terminating Parents’ parental rights to the Children.

Discussion and Decision [5] 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). Although

parental rights are of a constitutional dimension, the law allows for the

termination of those rights when parents are unable or unwilling to meet their

parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),

trans. denied. Parental rights, therefore, are not absolute and must be

subordinated to the best interests of the children. Id. Termination of parental

rights is proper where the children’s emotional and physical development is

threatened. Id. The juvenile court need not wait until the children are

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 5 of 13 irreversibly harmed such that their physical, mental, and social development is

permanently impaired before terminating the parent–child relationship. Id.

[6] Parents contend that the evidence is insufficient to sustain the termination of

their parental rights to the Children. In reviewing termination proceedings on

appeal, this court will not reweigh the evidence or assess the credibility of the

witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d

874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the

juvenile court’s decision and reasonable inferences drawn therefrom. Id.

Where, as here, the juvenile court includes findings of fact and conclusions

thereon in its order terminating parental rights, our standard of review is two-

tiered. Id. First, we must determine whether the evidence supports the

findings, and, second, whether the findings support the legal conclusions. Id.

[7] In deference to the juvenile court’s unique position to assess the evidence, we

set aside the juvenile court’s findings and judgment terminating a parent–child

relationship only if they are clearly erroneous. Id. A finding of fact is clearly

erroneous when there are no facts or inferences drawn therefrom to support it.

Id. A judgment is clearly erroneous only if the legal conclusions made by the

juvenile court are not supported by its findings of fact, or the conclusions do not

support the judgment. Id.

[8] Parents claim that DCS failed to present sufficient evidence to prove by clear

and convincing evidence:

(B) that one (1) of the following is true:

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 6 of 13 (i) There is a reasonable probability that the conditions that resulted in the child[ren]’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[ren]. (iii) The child[ren have], on two (2) separate occasions, been adjudicated a child in need of services; (C) that termination is in the best interests of the child[ren.]

Ind. Code § 31-35-2-4(b)(2).

I. Indiana Code Section 31-35-2-4(b)(2)(B) [9] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written

in the disjunctive, the juvenile court need only find that one of the conditions

listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.

2003), trans. denied. Therefore, where the juvenile court determines that one of

the above-mentioned factors has been proven and there is sufficient evidence in

the record supporting the juvenile court’s determination, it is not necessary for

DCS to prove, or for the juvenile court to find, either of the other factors listed

in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.

[10] DCS does not allege that the Children have been adjudicated CHINS on two

separate occasions. As such, DCS had to prove either that (1) the conditions

resulting in removal from or continued placement outside Parents’ home will

not be remedied or (2) the continuation of the parent-child relationship poses a

threat to the Children. Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 7 of 13 [11] The Children were removed from Parents’ home for two reasons: home

conditions and substance abuse by Mother and Father. In concluding that the

conditions leading to the Children’s removal from Parents’ home were not

remedied, the juvenile court found that while Mother and Father presented

evidence that they believed demonstrated that they had addressed both issues,

the court did not believe that Parents had successfully addressed their substance

abuse issues or that Parents would maintain their allegedly improved home

conditions.

[12] At the time of removal, the conditions of Parents’ home were atrocious and

barely livable. Since removal, Mother has resided in eight different residences

and Father has resided in at least four different residences. Parents have been

evicted from at least two of these residences for failure to pay rent. At the time

of the evidentiary hearing, Parents presented pictures to show that their current

home conditions were appropriate. However, neither DCS Family Case

Manager (“FCM”) Kara Crippen nor the Children’s CASA have been able to

verify the conditions of the home. The juvenile court noted that while the

pictures presented by Mother appear to show appropriate living conditions, the

court was not convinced, given Parents’ history of instability, that Parents

would be able to maintain the conditions of the home.

[13] The evidence also establishes that Parents have a long history of substance

abuse. At the time of removal, Mother was abusing her prescription medication

and Father was taking certain unprescribed medications and cocaine. Mother

and Father completed random drug screens from May of 2016 through July of

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 8 of 13 2018. During this period, Father tested positive, without having valid

prescriptions, eight times for amphetamine, eight times for methadone, four

times for morphine, and three times for benzodiazepine. Father also tested

positive four times for THC, four times for oxycodone, twice for

methamphetamine, and once for fentanyl. Each of Father’s positive tests for

oxycodone revealed fatal levels of the drug in Father’s system, leading the

toxicology lab to request a welfare check. Mother tested positive, without

having valid prescriptions, two times for hydrocodone, two times for

benzodiazepine, two times for suboxone, and one time for methadone. Mother

also tested positive five times for oxycodone and once for methamphetamine.

In addition, Mother failed to consistently take her prescription medication and

Parents each refused at least one drug screen despite claiming to be sober.

[14] Parents’ substance abuse assessments revealed a high probability that each was

suffering from a substance abuse disorder. The assessments indicated that

educational courses would not adequately address Parents’ issues and that

Parents would require addictions therapy and exposure to appropriate

community support groups. Mother’s assessment also noted that Mother

suffered from considerable emotional pain and found that Mother would need a

more comprehensive mental status evaluation. While Mother made some

progress in treatment, Father did not. During group sessions, Father was

combative, blamed DCS for everything, and did not take accountability for his

actions. Father also provided various excuses for his failure to consistently

attend treatment.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 9 of 13 [15] The juvenile court found that Parents suffer from both a physical and

psychological addition. Mother also suffers from mental illness, including

bipolar disorder, depression, and anxiety. She also suffers from social anxiety,

low self-esteem, and struggles without Father. Father, however, did not come

across as supportive of Mother. Rather, he would belittle and attempt to

control her. Mother does not have additional family support and, at the time of

the evidentiary hearing, was not attending therapy, NA/AA meetings, or

support groups. She was not seeing a doctor or taking any medication for her

mental health. Father was also not attending therapy, NA/AA meetings, or

support groups.

[16] The juvenile court found that Parents were not addressing their addiction or

mental health needs and that Parents are co-dependent and unable to succeed

without professional help. The juvenile court agreed with the service providers

that Parents were provided numerous services and multiple attempts at

reunification and there was nothing more that could have been provided.

[17] Parents do not challenge any of the juvenile court’s findings, all of which are

supported by the record. Instead, they argue that the juvenile court should not

have considered their substance abuse issues as that was not a reason for the

Children’s removal from their home. Contrary to Parents’ argument, however,

the record clearly indicates that the Children were removed from Parents’ home

due to concerns about both the conditions of the home and substance abuse by

Parents. Further, while Parents argue that they have made progress, they have

yet to progress to the point where service providers were confident that they

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 10 of 13 could adequately care for the Children. Given the significant evidence

outlining Parents’ continued struggles with maintaining adequate housing and

substance abuse issues, we conclude that the evidence is sufficient to prove that

they are unlikely to remedy the conditions that led to the Children’s removal

from their home. Parents’ claim to the contrary amounts to an invitation for

this court to reweigh the evidence, which we will not do. See In re S.P.H., 806

N.E.2d at 879.

II. Indiana Code Section 31-35-2-4(B)(2)(C) [18] We are mindful that in considering whether termination of parental rights is in

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

factors identified by DCS and look to the totality of the evidence. McBride v.

Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003). In doing so, the juvenile court must subordinate the interests of the

parents to those of the children involved. Id. “A parent’s historical inability to

provide a suitable environment along with the parent’s current inability to do

the same supports a finding that termination of parental rights is in the best

interests of the children.” Lang v. Starke Cty. Office of Family & Children, 861

N.E.2d 366, 373 (Ind. Ct. App. 2007). Furthermore, this court has previously

determined that the testimony of the case worker, guardian ad litem (“GAL”),

or a CASA regarding a child’s need for permanency supports a finding that

termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666

N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 11 of 13 [19] With respect to the best interests of the Children, the juvenile court found as

follows:

The Court finds that DCS has shown by clear and convincing evidence that termination of parental rights is in the best interest of [the Children]. Mother and Father love their children; however, this matter is about the best interest of the Child[ren], not the parents. The Child[ren] have been out of the home for nearly 30 months, which is an extremely long time in the perspective of the Child[ren]. When the children were removed, they were disrespectful, had boundary problems, and were rude and violent to each other during visits.… The children were argumentative and would not follow directions in the foster home when they had visitation with Mother and Father. Visitation was not consistent due to Mother and Father’s inability to maintain sobriety. The back and forth with visitation was hard on the children.…

The children have lived a life in limbo. The children need stability and structure. They do not need any more uncertainty. Mother and Father are unable to provide a home environment that the Child[ren] require[] to thrive. [A service provided testified that she] believes the children started thriving in the last 6 months, which correlates with no visitations with Mother and Father. The children love Mother and Father, but they cannot wait indefinitely for their parents to work toward reunification. DCS, CASA and this Court believe that termination of parental rights is in the best interest of [the Children].

Appellants’ App. Vol. II pp. 96–97.1

1 We quote the findings issued in the juvenile court’s order relating to D.B. The trial court’s findings relating to the likelihood that the conditions would not be remedied are essentially the same for each of the Children.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 12 of 13 [20] The juvenile court’s findings are supported by the record. FCM Crippen

testified that she believed that termination of Parents’ parental rights was in the

best interests of the Children. In addition, Reverend Anthony Spanley, the

Children’s CASA, also testified that he believed that termination of Parents’

parental rights was in the best interests of the Children, adding that he had

“seen no stability in the parents … as far as being able to stay off drugs and

maintain housing.” Tr. p. 222. The testimony of FCM Crippen and Rev.

Spanley is sufficient to sustain the juvenile court’s findings regarding the best

interests of the Children.

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

Vaidik, C.J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 13 of 13