Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 04 2014, 9:35 am 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 APPELLANTS: ATTORNEYS FOR APPELLEE:
MARK SMALL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
ROBERT J. HENKE CHRISTINE REDELMAN Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA In the Matter of the Termination of the Parent-Child ) Relationship of I.T., S.T., and W.T., minor children, ) and C.T., Mother, and W.T., Father, ) ) C.T. and W.T., ) ) Appellants-Respondents, ) ) vs. ) No. 54A01-1402-JT-84 ) INDIANA DEPARTMENT OF CHILD SERVICES, ) ) Appellee-Petitioner. )
APPEAL FROM THE MONTGOMERY CIRCUIT COURT The Honorable Harry A. Siamas, Judge Cause No. 54C01-1308-JT-179, -180, -181
September 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge C.T. (“Mother”) and W.T. (“Father”) (together, “Parents”) appeal the juvenile
court’s order terminating their parental rights to I.T., S.T., and W.T., arguing that the
evidence presented was insufficient to support the termination of their parental rights.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother and Father have three children together, I.T., S.T., and W.T. (“the
Children”). On April 27, 2012, the Montgomery County Department of Child Services
(“DCS”) received an “immediate response” call regarding two young boys who were found
unattended near the entrance of an apartment complex. Tr. at 97. The boys were later
identified as I.T. and S.T. The neighbors informed DCS that the Children were out all the
time. DCS determined which apartment the Children lived in, and when they went to the
apartment, they encountered Father, who had been asleep. Father was wearing an ankle
bracelet and could not leave the apartment. DCS determined that the Children had been
outside unattended for at least an hour. Mother was at work at that time, but Father was
able to reach her, and she came home.
DCS administered a drug screen to Father, which came back positive for
amphetamine, hydrocodone, and oxycodone. Although Mother did not seem to be culpable
for the Children getting out of the apartment, she did acknowledge to DCS that she had
previously had substance abuse issues, so DCS administered a drug screen to her that came
back positive for amphetamine. Three weeks later, Father’s community corrections was
revoked, and he was sent back to jail.
DCS Family Case Manager (“FCM”) Kristine Roys was assigned to the case in June
2012. At that time, Father was in jail, and Roys only met with him once, which occurred 2 in the jail. Mother agreed to an informal adjustment, which included substance abuse
treatment, mental health treatment, and undergoing services to address parenting skills,
housekeeping, budgeting, supervision of the children, and legally taking medication. FCM
Roys visited Mother at the apartment randomly due to her concerns about Mother’s
supervision of the children, cleanliness of the home, and Mother’s sobriety. FCM Roys
made a home visit on June 27, 2012, and when she arrived, Mother’s older daughter, who
is not subject to this case, was watching the Children while Mother was at a neighbor’s
house. The home was very dirty with food ground into the floor and trash “pretty much
everywhere.” Tr. at 91. The apartment was very small, and there was a lot of clutter, which
made it very difficult to move around. Mother returned to the apartment and began to yell
at the Children to clean up the apartment, while she sat on the sofa. Mother admitted to
FCM Roys that Mother used Adderall and agreed to a drug screen. The results of this drug
screen came back positive for amphetamine, hydromorphone, and morphine, with the
levels of hydromorphone and morphine being greater than the lethal level for such drugs.1
After the test results came back, DCS decided to remove the Children because the home
was not safe.2 The Children were placed with Maternal Grandmother and her husband,
where they have remained for the duration of the proceedings. Mother was eventually
evicted from the apartment because she could not afford the rent.
On July 6, 2012, DCS filed a child in need of services (“CHINS”) petition regarding
the Children. On August 23, 2012, the juvenile court adjudicated the Children to be CHINS
1 A toxicologist explained that such levels can be tolerated by individuals who have built up a tolerance to a drug from taking the drug on a regular basis. Tr. at 32. 2 Mother’s daughter, who was not Father’s child, was also removed from the home. However, that child was not subject to these termination proceedings and is, therefore, not part of this appeal. 3 after Parents both admitted that the Children were CHINS. The juvenile court entered a
dispositional decree, which ordered Father to contact DCS and request services if he is
released from jail. It ordered Mother to, among other things: (1) participate in an intensive
outpatient substance abuse treatment program; (2) participate in medication management
and counseling; (3) participate in home-based casework services to address stability,
finances, organization, and parenting; (4) continue visitation with the Children; (5) provide
random drug screens; and (6) maintain suitable housing.
After Mother was evicted from the apartment, she moved into a one-bedroom
apartment with Paternal Grandmother, whose landlord did not allow children to live there.
DCS would not allow Mother to have visitation with the Children there because of drug
use by Paternal Grandmother. In April 2013, after Father was released from jail, Parents
moved into an apartment in the same complex as Paternal Grandmother. Father was hired
by Kentucky Fried Chicken through his parole, but he never started work there. During
the duration of this case, Mother did not have consistent employment; she cleaned houses
for a short time and had just began employment cleaning a bank at the time of the
termination hearing. Parent’s electricity was shut off on April 9, 2013, and they were
evicted in May 2013. Parents again moved in with Paternal Grandmother. In August 2013,
Father was arrested for violating his parole and was incarcerated up until a week before the
termination hearing. At the time of the termination hearing, Mother was living in a crisis
shelter, and Father was again living with Paternal Grandmother after being released from
incarceration a week prior.
During the pendency of this case, Mother tested positive for various drugs beginning
with the drug screen given to her on April 27, 2012 and again with the screen given to her 4 on June 27, 2012. Mother stayed sober for two months after being referred for treatment,
but again tested positive for excessive amounts of oxycodone in September 2012. She
participated in 24 of 27 classes of an advanced outpatient program by the end of October.
However, Mother tested positive for hydrocodone and oxycodone on October 3, November
27, and December 12, 2012 and again on February 12, 2013. On April 11, 2013, Mother
tested positive for amphetamine, methamphetamine, and oxycodone and never returned to
the drug treatment program. She then tested positive for hydrocodone on April 17, 2013
and for oxycodone on May 16, 2013.
Father was release from incarceration on February 12, 2013 and tested positive for
oxycodone that same day. He was referred for a substance abuse assessment by DCS, but
he failed to complete the intake process. Father tested positive for hydrocodone on
February 28, 2013 and for Xanax and oxycodone on March 19, 2013. On several
occasions, Father would refuse to submit to drug screens. Father tested positive for drugs
during a parole drug screen on April 10, 2013 and for hydrocodone during DCS drug screen
on April 17, 2013. After he again tested positive for drugs on June 10, 2013, Father’s
parole officer referred him for a substance abuse evaluation. On June 4, 2013, the juvenile
court ordered that, if Parents had another positive drug screen, DCS would be relieved from
providing services to Parents. Parents drove to an inpatient facility, but became “fed up”
with the facility’s administrative requirements, and left. Tr. at 81.
On June 12, 2013, Parents both tested positive for oxycodone, and Mother tested
also tested positive for THC; DCS stopped providing services to Parents. Mother admitted
that she used heroin in July 2013. Id. at 71. Father participated in an inpatient program
for almost two weeks before he walked out, which resulted in Father being arrested in 5 August 2013 for violating his parole. He was incarcerated until one week prior to the
termination hearing.
During the CHINS and termination proceedings, Mother was convicted on
December 2013 of Class A misdemeanor theft, Class B misdemeanor failure to stop, and
Class A misdemeanor criminal trespass and received an aggregate sentence of 844 days of
probation. Mother testified that she had not used drugs since the middle of October 2013,
and at the time of the termination hearing, she was participating in drug treatment as order
by probation. However, on November 2, 2013, while in jail, Mother told a DCS case
manager that Mother had snorted an entire bottle of random pills. Id. at 174-75.
As to participation in services, Father was supposed to meet with his father
engagement case manager every other week after his release from jail in February 2013,
but they only met twice. Father cancelled all of the other meetings. Father did not
accomplish his goals, and he was unsuccessfully discharged from the program on June 23,
2013. Father never completed an intake for home-based case management and home-based
visitation. Mother was referred for home-based case management, and she attended most
of her sessions until she was discontinued from services in June 2013. Mother was never
able to obtain her own housing. She attended eight individual therapy sessions, but her last
session was on January 17, 2013; she was supposed to attend at least twice a month.
Mother had been diagnosed with bi-polar disorder and ADHD, but she did not consistently
take her medications during the CHINS case. She completed a psychological evaluation
and attended medication management, but did not have the money to obtain medication
and never completed the application to receive free medication.
6 As for visitation with the Children, Mother’s attendance was consistent “for the
most part” until the end of the CHINS case when she “missed a few.” Tr. at 136. There
were some issues with visits with both Parents with Parents’ behavior being “suspicious”
during some visits. Id. at 141. A few times, Mother appeared to be under the influence of
something during visits. At one visit, Paternal Grandmother was present and appeared to
be under the influence of something, and she was not allowed to return to visits in that
condition. During one visit, Mother was involved in a physical altercation with her older
daughter in front of the Children, and the police were called. During a visit in April 2013,
Mother failed to change S.T.’s diaper for an hour and a half despite being prompted by the
service provider several times. On April 23, 2013, DCS arrived with the Children for a
visit at Father’s home, and he said “his back was out and he could not interact with the
[C]hildren like he would want to.” Id. However, during the visit, Father disappeared into
the bathroom for about ten minutes, and when he returned, his demeanor had completely
changed, and he was able to interact with the Children on the floor. Father also seemed to
be under the influence of something during other visits with the Children.
On August 13, 2013, DCS filed its petition to terminate the Parents’ parental rights
to the Children. On January 21, 2014, the juvenile court held an evidentiary hearing, which
Father failed to attend even though he had been released from incarceration and notified of
the hearing date. At the time of the hearing, the Children had been placed with Maternal
Grandmother for around eighteen months. During that time, W.T had come out of his shell,
and his grades had improved to the point that he was now on the honor roll. I.T.’s speech
had improved, and he had reduced his behavior of hitting. S.T. was unable to talk when he
was removed from Parents’ care and could only communicate by screaming. At the time 7 of the hearing, his communication had improved. The plan for the Children was adoption
by Maternal Grandmother, and she was willing to adopt the Children. The DCS case
manager testified that termination was in the Children’s best interests because of the
Children’s need for permanency. Tr. at 175. The court appointed special advocate
(“CASA”) also recommended that termination was in the best interests of the Children
because the Children needed to be in a stable and permanent home where they could receive
the nurturing and structure they required. Id. at 184-85. On February 2, 2014, the juvenile
court issued its order terminating the Parents’ rights to the Children. Parents now appeal.
Additional facts will be added as necessary.
DISCUSSION AND DECISION
We begin our review by acknowledging that this court has long had a highly
deferential standard of review in cases concerning the termination of parental rights. In re
B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a termination
of parental rights case, 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 that are most favorable to the
judgment. Id. Moreover, in deference to the trial court’s unique position to assess the
evidence, we will set aside the court’s judgment terminating a parent-child relationship
only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.
Here, in terminating Mother’s parental rights to the Children, 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. Bester
v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we 8 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). If the evidence and inferences support the trial court’s
decision, we must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind.
Ct. App. 2013), trans. denied.
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 C.G., 954
N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are not absolute and must
be subordinated to the child’s interests when determining the proper disposition of a
petition to terminate parental rights. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).
In addition, 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.
Before an involuntary termination of parental rights may occur, the State 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.
(iii) The child has, on two (2) separate occasions, been adjudicated a child in need of services;
9 (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). The State’s burden of proof for establishing these allegations
in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d
1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the court finds
that the allegations in a petition described in section 4 of this chapter are true, the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).
Parents argue that the juvenile court erred in terminating their parental rights
because DCS failed to prove the required elements for termination by sufficient evidence.
They specifically contend that DCS did not establish by clear and convincing evidence that
continuation of the parent-child relationship poses a threat to the Children and that
termination is in the best interest of the Children.
At the outset, we observe that Indiana Code section 31-35-2-4(b)(2)(B) is written
such that, to properly effectuate the termination of parental rights, the juvenile court need
only find that one of the three requirements of subsection (b)(2)(B) has been established
by clear and convincing evidence. A.D.S., 987 N.E.2d at 1156. In the present case, the
juvenile court found that DCS “has proven by clear and convincing evidence that there is
a reasonable probability that the conditions that resulted in the [Children’s] removal or the
reasons for placement outside the home of the parents will not be remedied.” Appellant’s
App. at 11. The juvenile court made no finding regarding whether there was a probability
that the continuation of the parent-child relationship poses a threat to the well-being of the
child, which is the condition that Parents challenge as not being supported by sufficient
evidence. In order to terminate parental rights, the juvenile court was only required to find 10 that one of the conditions under (b)(2)(B) was supported by clear and convincing evidence,
which it did. As Parents have not challenged the evidence supporting the condition found
by the juvenile court to support termination, and the juvenile court was only required to
find one of the three conditions, we need not address Parents’ argument on whether DCS
proved by clear and convincing evidence that the continuation of the parent-child
relationship poses a threat to the children.
Parents next argue that insufficient evidence was presented to prove that termination
is in the best interest of the Children. In determining what is in the best interests of the
child, the trial court is required to look at the totality of the evidence. In re A.K., 924
N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d at 267), trans.
dismissed. In doing so, the trial court must subordinate the interests of the parents to those
of the child involved. Id. Termination of a parent-child relationship is proper where the
child’s emotional and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d
927, 930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the child
is irreversibly harmed such that his or 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 Cnty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).
Parents argue that DCS should not have terminated their parental rights merely
because of their poverty. However, as the evidence showed, the basis for the juvenile
court’s termination of Parents’ rights was not poverty. The record showed that, at the time 11 of the termination hearing, the Children had been removed from the Parents and were in
the custody of Maternal Grandmother for over eighteen months. During that time, the
evidence showed that Parents continued to abuse drugs, failed or refused to engage in
services through DCS, did not have suitable housing for the Children, and were both
incarcerated at different times. Parents had ongoing substance abuse problems, had
multiple positive drug screens, and were not able to maintain sobriety. Mother was evicted
from her apartment shortly after the Children were removed and was unable to secure
suitable housing for the duration of the case; she was also incarcerated for a period of time
as well. Father was incarcerated at the time the Children were removed and remained in
jail for a significant portion of the time the CHINS case was pending. Both Parents failed
to participate in services provided by DCS and were dismissed from services by DCS for
their repeated positive drug screens.
During the time that the Children were in the care of Maternal Grandmother, W.T
had come out of his shell and improved his grades, I.T.’s speech and behavior had
improved, and S.T.’s communication had improved. At the time of the termination
hearing, the plan for the Children was adoption by Maternal Grandmother. The DCS case
manager testified that termination was in the Children’s best interests because of the
Children’s need for permanency. Tr. at 175. The CASA also recommended that
termination was in the best interests of the Children because they needed to be in a stable
and permanent home where they could receive the nurturing and structure they require. Id.
at 184-85. Based on the above, we conclude that sufficient evidence was presented to
prove that termination was in the best interest of the Children.
12 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) (quoting In re Egly, 592
N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the
juvenile court’s termination of Parents’ parental rights to the Children was clearly
erroneous. We, therefore, affirm the juvenile court’s judgment.
Affirmed.
BAKER, J., and ROBB, J., concur.