In the Matter of the Termination of the Parent-Child Relationship of D.G., J.G., and H.G. (Minor Children) and Je.G. (Mother) Je.G. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 29, 2016
• Docket: 29A02-1512-JT-2202
• Status: Published

Opinion

FILED MEMORANDUM DECISION Jun 29 2016, 9:20 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cathy M. Brownson Gregory F. Zoeller Coots, Henke, & Wheeler, P.C. Attorney General of Indiana Carmel, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 29, 2016 of the Parent-Child Relationship Court of Appeals Case No. of D.G., J.G., and H.G. (Minor 29A02-1512-JT-2202 Children) and Je.G. (Mother); Appeal from the Hamilton Circuit Court Je.G. (Mother), The Honorable Paul Felix, Judge Appellant-Respondent, The Honorable Todd Ruetz, Magistrate v. Trial Court Cause No. 29C01-1504-JT-605 The Indiana Department of 29C01-1504-JT-603 Child Services, 29C01-1504-JT-606

Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 1 of 12 May, Judge.

[1] Je.G. (“Mother”) 1 appeals the involuntary termination of her parental rights to

H.G., D.G., and J.G. (collectively, “Children”). She argues the Department of

Child Services (“DCS”) did not present sufficient evidence the conditions under

which Children were removed from her care would not be remedied and

termination of her parental rights was in the best interests of Children. We

affirm.

Facts and Procedural History [2] Mother gave birth to H.G. on July 13, 2011, and to twins D.G. and J.G. on

October 30, 2013. At birth, D.G. and J.G. tested positive for Hydrocodone, 2

THC, and methamphetamine. Based thereon, Mother agreed to an Informal

Adjustment (“IA”) with DCS, which offered her services including homebased

case management, homebased therapy, drug and alcohol assessment and

treatment, and random drug screens. Mother was not required to complete

drug and alcohol treatment unless she tested positive for illegal substances.

Mother tested positive for illegal substances multiple times during the IA but

did not complete drug and alcohol treatment. She was incarcerated for

unrelated charges on February 24, 2014.

1 Children’s respective fathers consented to adoption and do not participate in this appeal. 2 Mother had a valid prescription for Hydrocodone.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 2 of 12 [3] On March 27, 2014, Mother tested positive for cocaine. On April 4, 2014, DCS

alleged Children were Child(ren) in Need of Services (“CHINS”) and on April

7, the trial court authorized DCS to remove Children from Mother’s care

because Mother violated the terms of the IA. On September 3, 2014, the trial

court adjudicated Children as CHINS based on Mother’s drug use and lack of

participation in services offered as part of the IA.

[4] On December 1, 2014, the trial court ordered Mother to complete a substance

abuse assessment and follow all recommendations, complete a psychological

assessment and follow all recommendations, complete a parenting assessment

and follow all recommendations, visit regularly with Children, and submit to

random drug and alcohol screenings. Mother was not compliant and on May

4, 2015, the trial court changed Children’s permanency plan from reunification

to adoption.

[5] On June 4, 2015, DCS filed petitions to terminate Mother’s parental rights to

Children. On October 15, 2015, the trial court held a fact-finding hearing on

the termination petitions. On November 17, 2015, the trial court issued orders

terminating Mother’s parental rights to Children.

Discussion and Decision [6] We review termination of parental rights with great deference. In re K.S., D.S.,

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

evidence or judge credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 3 of 12 Ct. App. 2004), trans. denied. Instead, we consider only the evidence and

reasonable inferences most favorable to the judgment. Id. In deference to the

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

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

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

534 U.S. 1161 (2002).

[7] When, as here, a judgment contains findings of fact and conclusions thereon,

we apply a two-tiered review. Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 147 (Ind. 2005). We determine first whether the evidence supports

the findings and second 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). If the evidence and inferences support the juvenile court’s

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

[8] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

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

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

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

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

may be terminated when a parent is unable or unwilling to meet her parental

responsibilities. Id. at 836. Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 4 of 12 [9] To terminate a parent-child relationship, the State must allege and prove:

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

(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home of the parents will not be remedied.

(ii) There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well- being of the child.

(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of the child.

[10] Ind. Code § 31-35-2-4(b)(2). The State must provide clear and convincing proof

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

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

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

[11] Mother challenges the court’s conclusions that the conditions under which

Children were removed would not be remedied, the continuation of the parent-

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 5 of 12 child relationship posed a risk to Children, and termination was in the best

interests of Children. 3

Reasonable Probability Conditions Would Not Be Remedied

[12] The trial court must judge a parent’s fitness to care for her children at the time

of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.

2010). Evidence of a parent’s pattern of unwillingness or lack of commitment

to address parenting issues and to cooperate with services “demonstrates the

requisite reasonable probability” that the conditions will not change. Lang v.

Starke County OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007).

[13] Children were removed from Mother’s home because Mother repeatedly tested

positive for drugs. The trial court found: 4

4. On or about October 30, 2015, [D.G. and J.G. were] born with a controlled substance in [their bodies]. As a result, Mother entered into a program of Informal Adjustment [IA] with the DCS on November 26, 2013.

3 The trial court found the conditions under which Children were removed would not be remedied and the continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both. The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. Ind. Code § 31-35-2-4. Because the evidence supports the conclusion there was a reasonable probability that the conditions leading to Children’s removal would not be remedied, we need not address whether the continuation of the parent-child relationship posed a threat to Children’s well-being. 4 The trial court entered a separate order for each child; however, the findings were virtually identical and thus we quote only the order concerning D.G.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 6 of 12 5. A requirement of the IA was to discontinue use of illegal substances;

6. Mother was offered home based casework, counseling, a substance abuse assessment, and random drug screens throughout the IA;

7. Mother continued to test positive for illegal substances throughout the IA;

*****

9. Mother tested positive for cocaine after a drug screen on March 27, 2014;

18. During the CHINS proceeding,

a. Mother was ordered to participate in a substance abuse assessment and a psychological evaluation;

b. Mother completed a substance abuse assessment on March 9, 2015. The assessment recommended that Mother participate in Intensive Outpatient Treatment (IOP);

c. Mother never followed through with the continued substance abuse treatment recommended in the assessment. Mother was to begin IOP on March 10, 2015 and failed to begin.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 7 of 12 21. Mother has failed to complete a drug treatment program;

22. In the last right [sic] (8) months, Mother has been charged five (5) times with new criminal charges relating to substance abuse[.]

(App. at 16, 17, 20, 23.)

[14] In addition, failure to visit one’s children “demonstrates a lack of commitment

to complete the actions necessary to preserve the parent-child relationship.” In

re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App. 2002). The trial court found

Mother was ordered to participate in supervised visitation with Children, but:

h. Mother often appeared late for visits and was inappropriate when the visits were held at the placement’s 5 home. Mother argued with the placement in front of the Child[ren] during visitation;

i. Mother came to visits under the influence of alcohol or drugs;

j. Visitation was suspended by order of the Court effective October 31, 2014 and a hearing was set;

k. The Court ordered Mother on January 26, 2015 to participate in a substance abuse assessment and a psychological evaluation and comply with all recommendations of that assessment, comply with all drug screen requests, demonstrate a minimum period of sixty (60) days of strict compliance with the Court’s

5 “The placement” appears to be a reference to the Children’s respective paternal grandparents, with whom the Children were placed after they were removed from Mother’s care.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 8 of 12 terms, both as to attending screens and having those screens return with negative results prior to visitation being reinitiated with the Child[ren].

(App. at 21) (footnote added). Mother’s last visit with Children was October

24, 2014.

[15] Mother argues DCS did not present sufficient evidence the conditions under

which Children were removed would not be remedied because “Mother had

been clean and sober for two months at the time of the termination hearing in

October 2015.” (Br. of Appellant at 15.) However, Mother was incarcerated

for the time prior to the October 2015 hearing; thus it would seem her access to

illegal substances was momentarily curtailed. Her temporary sobriety does not

require us to overlook her conduct throughout the proceedings. See In re

K.T.K., 989 N.E.2d 1225, 1234 (Ind. 2013) (trial court is within its discretion to

“disregard the efforts Mother made only shortly before termination and to

weigh more heavily Mother’s history of conduct prior to those efforts”); and see

Prince v. Allen County DCS, 861 N.E.2d 1223, 1230-31 (Ind. Ct. App. 2007)

(termination of parental rights appropriate when mother “has not demonstrated

she will remain sober without the constant threat of imprisonment”). Mother’s

argument is an invitation for us to reweigh the evidence, which we cannot do.

See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or

judge the credibility of witnesses).

Children’s Best Interests

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 9 of 12 [16] In determining what is in the children’s best interests, the juvenile court is

required to look beyond the factors identified by DCS and consider the totality

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

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

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

parental rights is in the best interests of the child. In re A.L.H., 774 N.E.2d 896,

990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager and

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

that conditions resulting in removal will not be remedied, are sufficient to show

by clear and convincing evidence that termination is in the children’s best

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

[17] In addition to the trial court’s findings regarding Mother’s substance abuse and

lack of visitation with Children, DCS presented testimony from the Guardian

ad litem, who had concerns about Mother’s mental health based on Mother’s

“erratic behavior” during conversations with her. (App. at 23.) At the time of

the termination hearing, Mother was incarcerated and was not employed.

Finally, the trial court found the Children were doing well in their current

placement with their paternal grandparents, with whom they had lived since

September 29, 2014.

[18] Mother argues termination was not in the best interests of the Children because

she was working towards reunification with Children by participating in

services while she was incarcerated. Mother testified she had been accepted

into Drug Court, which would allow her to participate in substance abuse

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 10 of 12 services in an effort to avoid further jail time. Finally, Mother contends

Children were young and thus additional time in relative care would not

adversely affect them.

[19] In support of her argument, Mother cites In Re G.Y., 904 N.E.2d 1257, 1265

(Ind. 2009), reh’g denied, where termination was not in the best interests of G.Y.

because his mother, who was incarcerated for a crime committed prior to

G.Y.’s conception, had completed services and maintained contact with G.Y.

while she was incarcerated. In addition, her release from incarceration was

imminent.

[20] Such is not the case here. Mother was arrested multiple times during the

CHINS and TPR proceedings, had consistently tested positive for illegal

substances, had not completed services, and had not visited with Children for

approximately a year before her parental rights were terminated. Mother’s

arguments are invitations for us to reweigh the evidence, which we cannot do.

See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or

Conclusion [21] DCS provided sufficient evidence the circumstances under which Children were

removed from Mother’s home would not be remedied and termination was in

Children’s best interests. Accordingly, we affirm the termination of Mother’s

parental rights to Children.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 11 of 12 [22] Affirmed.

Baker, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016 Page 12 of 12