MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jun 11 2018, 6:00 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennie Scott Curtis T. Hill, Jr. Muncie, Indiana Attorney General of 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 11, 2018 of the Parent-Child Relationship Court of Appeals Case No. of J.S., Mother, and P.S. and 18A-JT-74 A.S., Children, Appeal from the J.S., Delaware Circuit Court The Honorable Appellant-Respondent, Kimberly S. Dowling, Judge v. The Honorable Amanda L. Yonally, Magistrate
Indiana Department of Child Trial Court Cause Nos. 18C02-1608-JT-28 Services, 18C02-1608-JT-29 Appellee-Petitioner.
Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 1 of 23 [1] J.S. (“Mother”) appeals the juvenile court’s order terminating her parental
rights to her minor children, P.S. and A.S. (“Children”). Mother raises three
issues on appeal, which we consolidate and restate as:
I. Whether Mother did not receive proper notice of the fact- finding hearing, as she claims, and that as a result, her due process rights were violated; and
II. Whether the juvenile court’s judgment terminating her parental rights to Children was clearly erroneous.
[2] We affirm.
Facts and Procedural History1 [3] Mother and Jo.S. (“Father”)2 (together, “Parents”) are the parents of P.S., born
on August 25, 2011, and A.S., born on December 9, 2013. On March 12, 2015,
the Indiana Department of Child Services (“DCS”) received a report alleging
that P.S., who was three years old at the time, had been brought to Riley
Children’s Hospital in Indianapolis, Indiana with “six to eight lateral bruises
across her back.” Tr. Vol. 2 at 75-76. Parents indicated that P.S.’s behavior was
1 We note that Mother’s statement of facts does not follow Indiana Appellate Rule 46(A)(6), which states, “This statement shall describe the facts relevant to the issues presented for review but need not repeat what is in the statement of the case.” In Mother’s brief, the statement of facts repeats verbatim what appears in the statement of the case and does not present any substantive facts relevant to the issues on appeal. See Appellant’s Br. at 6-9. We remind Mother’s attorney to follow the Appellate Rules. 2 Father’s parental rights were also terminated in the same proceedings as Mother’s. However, Father does not participate in this appeal. Accordingly, we will limit our recitation of the facts and our analysis primarily to that which is pertinent to Mother.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 2 of 23 out of control so Father “lost control and beat her with a belt.” Id. at 76.
Mother admitted that, while she did not did directly witness Father hit P.S., she
heard it from the other room. Id. at 77. DCS family case manager (“FCM”)
Mark Johnson (“FCM Johnson”) went to Parents’ home that night to assess its
condition and found that the home was “marginal in terms of cleanliness.” Id.
at 79. The home had a lot of safety hazards for young children, including huge
stacks of dirty clothing, food scattered throughout, and open alcohol bottles,
cigarette butts, and ashtrays on the floor. Id. Parents requested help in dealing
with P.S., so DCS initiated an informal adjustment (“IA”). A safety plan was
created, and Parents agreed not to use any physical discipline with Children.
[4] During the IA, FCM Johnson visited the home several more times between
March and May 2015. On March 15, the condition of the home was
improving. However, on March 17, Mother called FCM Johnson “frantically”
after Children had escaped from the house and almost made it to the main road
before she caught them; FCM Johnson went to the home to discuss ways to
secure it and noticed that the conditions of the home had declined a bit. Id. at
80. On March 19, Mother indicated she was sleeping a lot throughout the day
and Father was also taking naps, so that is when P.S. was getting out of the
house; Mother also indicated that P.S. got Mother’s medication out from a
locked box and flushed it down the toilet. Id. at 81. On March 26, when FCM
Johnson arrived, A.S. was in a child corral, and Parents were throwing
Cheerios on the floor for A.S. to eat, so FCM Johnson discussed hygiene with
Mother; A.S. also had a small bruise on her forehead that FCM Johnson
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 3 of 23 determined was “somewhat typical” for a child her age. Id. at 81-82. On April
7, during a visit by FCM Mary Greene (“FCM Greene”), who had taken over
the case, Father was sleeping upstairs and would not go downstairs to meet
FCM Greene, so arrangements were made for DCS to return to the home, but
no one was home when DCS returned. Id. at 82. On April 9, Parents were not
cooperative and started to express a reluctance to participate in the IA. Id. at
82-83. On May 13, FCM Johnson went to the home and found Mother asleep
on the couch, Father asleep upstairs, and a family friend watching Children and
picking up the apartment. Id. at 83.
[5] During the IA, DCS had services in place to assist the family. P.S. was referred
to home-based casework at Meridian Services, and A.S. was referred to First
Steps. Id. at 106. Around the beginning of May 2015, the family began missing
more appointments, and the provider from Meridian Services was concerned
about Mother’s aggression towards her. Id. at 107. At times, when FCM
Greene would go to the home, Parents would not be there for their scheduled
appointments, and at other times, Mother would not allow FCM Greene to see
the Children and would block the doorway. Id. Occasionally, Mother would
not answer the door, instead, texting FCM Greene from the other side of the
door. Id. In May 2015, DCS filed its petition alleging Children were children
in need of services (“CHINS”), but Children still remained in Parents’ care.
[6] On July 10, 2015, FCM Greene and FCM Johnson went to the home after
receiving new allegations concerning Parents. At that time, Mother admitted
that she and Father had used methamphetamine a few nights before, but she
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 4 of 23 refused to take a drug screen. Id. at 84. On July 20, FCM Johnson and FCM
Greene returned to the home and the conditions of the home were poor,
including: disassembled electronic equipment throughout the apartment; food
on the floor; cigarette butts on the floor; full ashtrays; and liquor bottles on the
floor within access of Children. Id. at 84-85. Children appeared very dirty, and
A.S. had an injury on her head. Id. at 85-86. Mother told the FCMs that P.S.
had pushed A.S. off of a chair, and A.S. had fallen and hit her head on the door
knob in the bathroom, so Mother was planning to take A.S. to the doctor. Id. at
85-86. Father admitted that he and Mother had used methamphetamine within
the prior few days, but both refused to submit to drug screens. Id. at 86. At that
time, Children were removed from Parents’ care and placed in foster care. Id.
at 87.
[7] On August 14, 2015, fact-finding hearing was held, and on September 28, the
juvenile court entered its order adjudicating Children as CHINS and finding:
Parents used methamphetamine; Parents used marijuana almost daily,
including at times when they are responsible for the care of Children; Mother
did odd jobs in exchange for marijuana; neither Parent was employed; the
home conditions were regularly unsafe and unsanitary for Children in that there
were large piles of laundry, general clutter, old food on the counters, liquor
bottles and medication accessible to Children, overflowing ashtrays and
cigarette butts on the floors. DCS Ex. 4. Parents were referred to services at
Centerstone, including home-based therapy, home-based casework, and
random drug screens. Tr. Vol. 2 at 109-11.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 5 of 23 [8] On September 21, 2015, the juvenile court held a dispositional hearing and, on
October 20, entered its dispositional decree ordering Mother to participate in
services, including in pertinent part: a substance abuse assessment and all
recommended treatment; random drug screens; a psychological evaluation and
all recommended services; home-based counseling; supervised visitation; and
meeting with psychiatric/medical personnel as necessary. DCS Ex. 5. Mother
was referred to a clinical assessment due to concerns that she may have some
mental health issues, home-based therapy to address her substance abuse issues,
and home-based case management to help with organization, parenting skills,
and keeping the home more organized and clean. Tr. Vol. 2 at 112-113.
[9] Between August and December 2015, Mother participated in services.
However, Mother would sometimes refuse to submit drug screens and would
only submit “about half the time.” Id. at 111, 113. Many of the drug screens
she did submit to were positive for THC, including screens on the following
dates in 2015: July 17; July 27; September 18; October 26; November 5; and
December 17. DCS Ex. 13. Since Mother was not consistently submitting to
screens, FCM Greene did not believe that she was getting an accurate picture of
Mother’s drug use. Tr. Vol. 2 at 113.
[10] In September 2015, Mother was referred to Bethany Henderson (“Henderson”),
a mental health therapist at Centerstone. During her intake assessment with
Henderson, Mother reported a lot of emotional distress and that she was
“occasionally seeing things, hearing things, auditory and visual hallucinations.”
Id. at 140. Mother also reported that she had used a variety of substances in the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 6 of 23 past, and that most recently she was mainly using marijuana and would
occasionally use cocaine or methamphetamine. Id. at 143. Henderson
recommended that Mother participate in individual therapy, family therapy,
home-based case management, and life skills training. Id. at 140.
[11] Mother’s treatment goals included closing out the CHINS case, eliminating
substance use, improving relationships and positive supports, and complying
with court-ordered services. Id. at 140-41. Although Henderson hoped to meet
with Mother on a weekly basis, between September and December 2015,
Mother attended only six individual therapy sessions and three family therapy
sessions. Id. at 141. Mother failed to show up or cancelled several sessions,
and she was difficult to contact in order to schedule appointments. Id. at 142.
During one of her family therapy sessions, Mother retrieved what appeared to
be a glass pipe out of her truck and asked Henderson if she could smoke
marijuana. Id. at 146. During these therapy sessions, the only progress Mother
made was “using coping skills to reduce emotional distress,” but made no
progress in terms of her sobriety. Id. at 142-43. Mother was also referred to
Meridian Services for supervised visitation with Children, but she was not able
to get along with the service provider, so the referral switched to the Children’s
Bureau after about six weeks. Id. at 117. Mother attended every visit and let
the provider know ahead of time if she was unable to attend. Id.
[12] On December 22, 2015, the juvenile court issued an order suspending
supervised visitation and prohibiting contact between Parents and Children
because Parents were making direct and indirect threats against the life and
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 7 of 23 physical well-being of the FCM and her children and because the Centerstone
service provider indicated an unwillingness to continue services in the current
environment. DCS Ex. 7. The juvenile court also ordered that all services be
suspended except for the referral for a psychological evaluation. Id.
[13] On dates in February and March 2016, Mother completed a psychological
evaluation with Dr. Crystal Hicks (“Dr. Hicks”) at Anchor Behavioral
Counseling. Mother was diagnosed with bi-polar disorder, accompanied by
“psychotic features”; borderline personality disorder; cannabis use disorder; and
stimulant use disorder. Tr. Vol. 2 at 66. During the assessment, Mother
presented with a strong belief in corporal punishment. Id. Based on Mother’s
“emotional presentation [and] her strong propensity for substance abuse and the
way she presented,” Dr. Hicks felt like Mother “was not really in the mental
and emotional . . . place to be able to parent her children.” Id. at 66-67. Dr.
Hicks recommended that Mother participate in counseling, parenting training,
and substance abuse treatment, and that she be reassessed consistently to ensure
she was complying and making progress, in order to be allowed to have
visitation with Children. Id. at 67.
[14] In May 2016, DCS asked the juvenile court to reinstate services and visitation,
and to be allowed to refer Mother to the services that were referenced in Dr.
Hicks’s report. Id. at 115. The juvenile court ordered that services could be
reinstated but declined to reinstate visitation. Id. at 118. Mother was then
referred to office-based therapy, office-based case management, and random
drug screens. Id. at 116, 120. Mother participated in services for approximately
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 8 of 23 two weeks, and then she began failing to show for therapy and drug screens. Id.
at 120, 125. Mother attended one therapy session with Henderson, and then
cancelled the next appointment. Id. at 141, 144. Henderson tried to contact
Mother on five separate occasions to schedule appointments, but she never
heard from Mother. Id. at 144. On June 21, 2016, Mother tested positive for
amphetamine, methamphetamine, and ephedrine. DCS Ex. 13.
[15] FCM Greene continued to reach out to Mother in an attempt to get her re-
engaged in services. Tr. Vol. 2 at 125. FCM Greene also sent letters to Mother
when she was incarcerated in the Madison County Jail in July and August
2016. Id. at 126. Mother told FCM Greene that she had begun services at
Meridian Services in the beginning of 2017, but FCM Greene was unable to
verify this. Id. at 120-21. In January 2017, Mother was referred to Redwood
for drug screens. Id. at 121. When Redwood contacted Mother regarding the
drug screens, Mother texted Redwood back and told them that if they ever
come back again, she was going to ask for a no contact order. Id.
[16] On August 18, 2016, DCS filed its petitions to terminate Mother’s parental
rights to Children. On August 23, 2017, DCS sent notice of the termination
hearing, which was set for November 9, 2017. On September 5, 2017, Mother
pleaded guilty to Level 6 felony possession of chemical reagents/precursors
with intent to manufacture and was sentenced to 365 days with 132 days
executed and 233 days suspended to probation. DCS Ex. 11. The termination
hearing was held on November 9, and Mother failed to appear. At the time of
the termination hearing, Children had been living in a pre-adoptive foster home
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 9 of 23 since May 2016. Tr. Vol. 2 at 123-24. Children had not seen Parents since
December 2015. Id. at 118. At the conclusion of the hearing, the juvenile court
issued its order terminating Mother’s parental rights to Children. Mother now
appeals.
Discussion and Decision
I. Notice [17] Mother argues that DCS did not comply with the notice provision required
when terminating parental rights, and she was denied her right to due process.
Pursuant to Indiana Code section 31-35-2-6.5, DCS is required to send notice of
the termination hearing to the parents at least ten days before the date of the
hearing. Ind. Code § 31-35-2-6.5(b), (c). Indiana Code section 31-35-2-6.5 does
not require compliance with Indiana Trial Rule 4, which governs service of
process and incorporates a jurisdictional component. In re H.K., 971 N.E.2d
100, 103 (Ind. Ct. App. 2012). Instead, in order to comply with the statute,
“one need only meet the requirements of Indiana Trial Rule 5, which governs
service of subsequent papers and pleadings in action.” In re C.C., 788 N.E.2d
847, 851 (Ind. Ct. App. 2003), trans. denied. Indiana Trial Rule 5 states,
“[s]ervice upon the attorney or party shall be made by delivering or mailing a
copy of the papers to the last known address.” Ind. Trial Rule 5(B); In re B.J.,
879 N.E.2d 7, 15 (Ind. Ct. App. 2008), trans. denied.
[18] Mother contends that DCS failed to properly send her the required notice of the
termination hearing. Mother was incarcerated in the Madison County jail at
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 10 of 23 the time notice of the hearing was sent, and she asserts that DCS should have
sent her notice to the jail and not her residence because she had notified DCS
that she was in jail. Mother, therefore, claims that she did not receive notice of
the termination hearing and was not given an opportunity to be heard at the
hearing, which violated her right to due process.
[19] On August 23, 2017, more than ten days before the termination hearing was
scheduled to occur, DCS sent Mother notice of the hearing to her last known
address. Appellant’s App. Vol. 2 at 74-75.3 The notice informed Mother that the
hearing on the petition to terminate her parental rights to Children would be
held on November 9, 2017 at 9:00 a.m. in Delaware Circuit Court 2. Id. The
notice was mailed to Mother at 5109 North Broadway Avenue, Muncie,
Indiana 47303, which was the address that Mother had provided at a January
23, 2017 status hearing as being her current residence. Tr. Vol. 2 at 21, 39-40.
[20] Mother argues that she was incarcerated at the Madison County Jail on August
23, 2017, and therefore, the notice sent to her last known address in Muncie
was not proper. She contends that she had notified DCS of the fact that she
was incarcerated, and the notice should have been sent to her in jail. However,
there is no evidence in the record that DCS had knowledge that Mother was
incarcerated. The evidence in the record shows that FCM Greene knew
Mother was incarcerated in July and August 2016 and that Mother’s counsel
3 We note that Volume 2 and Volume 3 of the Appellant’s Appendix are substantially similar, so all of the Appendix citations will be to Volume 2.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 11 of 23 knew Mother was incarcerated until September 12, 2017. Id. at 56, 126. At the
termination hearing, FCM Greene stated that she had received a letter from
Mother that she had responded to in August, but had otherwise not had contact
with Mother since a hearing held in July 2017.4 Id. at 56. The evidence,
therefore, showed that Mother failed to maintain contact with and keep FCM
Greene and DCS updated of her address, and DCS complied with Indiana
Code section 31-35-2-6.5 by sending notice of the hearing to her last known
address.
[21] Further, Mother’s due process rights were not violated due to the fact that she
was not present at the termination hearing. Due process has never been
defined, but the phrase embodies a requirement of fundamental fairness. In re
D.P., 27 N.E.3d 1162, 1166 (Ind. Ct. App. 2015) (citing In re C.G., 954 N.E.2d
910, 917 (Ind. 2011)) (quotations omitted). The United States Supreme Court
has stated, “‘[T]he fundamental requirement of due process is the opportunity
to be heard at a meaningful time and in a meaningful manner.’” Id. (quoting
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The process due in a
termination of parental rights proceeding turns on the balancing of three factors:
(1) the private interests affected by the proceeding; (2) the risk of error created
by the State’s chosen procedure; and (3) the countervailing governmental
4 The evidence also showed that Mother’s attorney also was not aware of her whereabouts at the time of the hearing. When the attorney was asked at the termination hearing if she had been in contact with Mother, she responded that she had called several phone numbers for Mother that had been given to her by DCS and left messages. Tr. Vol. 2 at 56. The attorney also stated that she had checked the Madison County Jail and discovered that Mother had been released on September 12, 2017. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 12 of 23 interest supporting use of the challenged procedure. Id. Both the State and
Parents have substantial interests affected by the proceeding, so we focus on the
risk of error created by DCS’s actions and the juvenile court’s actions.
[22] The risk of error created by Mother’s absence from the termination hearing was
minimal. Mother was represented by appointed counsel who was present at the
hearing, and during the hearing, counsel was able to cross-examine the
witnesses presented by DCS and had the opportunity to present evidence. A
parent does not have an absolute constitutional right to be present at a
termination hearing. In re K.W., 12 N.E.3d 241, 248-49 (Ind. 2014). Mother’s
due process rights were not violated.
II. Sufficient Evidence [23] As our Supreme Court has observed, “Decisions to terminate parental rights are
among the most difficult our trial courts are called upon to make. They are also
among the most fact-sensitive—so we review them with great deference to the
trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 640 (Ind. 2014).
While the Fourteenth Amendment to the United States Constitution protects
the traditional right of a parent to establish a home and raise his child, and thus
parental rights are of a constitutional dimension, the law allows for the
termination of those rights when a parent is unable or unwilling to meet his
responsibility as a parent. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.
2001), trans. denied. That is, parental rights are not absolute and must be
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 13 of 23 subordinated to the child’s interests in determining the appropriate disposition
of a petition to terminate the parent-child relationship. In re J.C., 994 N.E.2d
278, 283 (Ind. Ct. App. 2013). The purpose of terminating parental rights is not
to punish the parent but to protect the child. In re T.F., 743 N.E.2d at 773.
Termination of parental rights is proper where the child’s emotional and
physical development is threatened. Id. The juvenile court need not wait until
the child is irreversibly harmed such that his physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id.
[24] When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). 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. Id. at 148-49. 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. In re S.P.H., 806 N.E.2d
874, 879 (Ind. Ct. App. 2004).
[25] Where, as here, the juvenile court entered specific findings and conclusions, we
apply a two-tiered standard of review. In re B.J., 879 N.E.2d at 14. First, we
determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. A finding is clearly
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 14 of 23 erroneous only when the record contains no facts or inferences drawn therefrom
that support it. Id. 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.
[26] 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;
(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 H.L., 915 N.E.2d at 149. Moreover, if the court finds that the allegations in a
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 15 of 23 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).
[27] Mother argues that the juvenile court erred in finding that DCS met its burden
of proof to support termination of her parental rights. Specifically, Mother
contends that DCS failed to prove that there was a reasonable probability that
the conditions that resulted in Children’s removal or the reasons for placement
outside of the home would not be remedied because she asserts that the
conditions that resulted in Children’s removal had been remedied. Mother also
claims that DCS failed to prove that the parent-child relationship posed a threat
to the well-being of Children because DCS had recommended in May 2016 that
all services for Mother, including visitation, be reinstated. Mother further
alleges that DCS failed to prove that termination was in the best interest of
Children because she was participating in services and trying to complete the
services so that Children could be returned to her. Finally, Mother argues that
DCS failed to prove that there was a satisfactory plan for the care and treatment
of Children because DCS merely stated that adoption was the permanency plan
for Children and no further details about Children or their school history were
presented.
Remediation of Conditions
[28] In determining whether there is a reasonable probability that the conditions that
led to a child’s removal and continued placement outside the home would not
be remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child
Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 16 of 23 conditions led to the child’s placement and retention in foster care, and, second,
we determine whether there is a reasonable probability that those conditions
will not be remedied. Id. In the second step, the trial court must judge a
parent’s fitness at the time of the termination proceeding, taking into
consideration evidence of changed conditions and 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.’” E.M., 4
N.E.3d at 643 (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule,
“trial courts have properly considered evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment.” A.F. v. Marion Cnty. Office of
Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. In
addition, DCS need not provide evidence ruling out all possibilities of change;
rather, it need establish only that there is a reasonable probability the parent’s
behavior will not change. In re Involuntary Termination of Parent-Child
Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “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.”
E.M., 4 N.E.3d at 643. When determining whether the conditions for the
removal would be remedied, the trial court may consider the parent’s response
to the offers of help. A.F., 762 N.E.2d at 1252.
[29] Here, DCS first became involved with Parents when P.S. had been brought to
the hospital with injuries caused by physical abuse by Father, and an IA was
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 17 of 23 initiated to assist Parents. During the IA, the conditions in the home were
often poor in that there were open alcohol bottles where Children could get to
them, there were cigarette butts and ashtrays scattered on the floor, and large
piles of dirty clothes and food around the house. During this time, Parents
were frequently asleep during the day when DCS would visit, and Children
were able to escape from the home. Children were eventually removed from
the home in July 2015 after Parents admitted they had used methamphetamine
and refused to submit to a drug screen. On the same date, A.S. had an injury to
her head, and the home conditions were poor due to disassembled electronic
equipment, cigarette butts, ashtrays, food, and full liquor bottles being scattered
around.
[30] Between August and December 2015, Mother participated in services, but
would sometimes refuse to submit to drug screens, only submitting “about half
the time.” Tr. Vol. 2 at 111, 113. Many of the drug screens she did submit to
DCS were positive for THC. After submitting to a psychological assessment,
Mother attended only six individual therapy sessions and three family therapy
sessions. She failed to show up or cancelled several sessions, was difficult to
contact, and at one session, she retrieved what appeared to be a glass pipe out
of her truck and asked if she could smoke marijuana. Although Mother made
some progress “using coping skills to reduce emotional distress,” she made no
progress in terms of her sobriety. Id. at 142-43. In December 2015, the juvenile
court suspended services and supervised visitation and prohibited contact
between Parents and Children because Parents were making threats against the
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 18 of 23 FCM and because the service provider indicated an unwillingness to continue
services in the current environment. In May 2016, services were reinstated but
not visitation. Mother participated in services for approximately two weeks,
and then she began failing to show for therapy and drug screens. Mother
attended only one therapy session, and on June 21, 2016, Mother tested
positive for amphetamine, methamphetamine, and ephedrine.
[31] DCS is not required to rule out all possibilities of change, it need only establish
that there is a reasonable probability the parent’s behavior will not change. In re
Kay L., 867 N.E.2d at 242. “A pattern of unwillingness to deal with parenting
problems and to cooperate with those providing social services, in conjunction
with unchanged conditions, support a finding that there exists no reasonable
probability that the conditions will change.” Lang v. Starke Cnty. Office of Family
& Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Also, as we
have recognized, “Even assuming that [the parent] will eventually develop into
a suitable parent, we must ask how much longer [the child] should have to wait
to enjoy the permanency that is essential to her development and overall well-
being.” Castro v. State Office of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct.
App. 2006), trans. denied. At the time of the termination hearing, DCS had been
working with Mother for two and a half years, and Mother had hardly
complied with any of the services provided by DCS. She had not remedied her
substance abuse issues and had only minimally participated in therapy and
other services. Based on the evidence presented, we cannot say that the
juvenile court clearly erred in concluding that there is a reasonable probability
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 19 of 23 that the conditions that resulted in Children’s placement outside the home
would not be remedied.5
Best Interests
[32] In determining what is in the best interests of the child, a 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 258, 267 (Ind. Ct. App. 2004), trans.
denied), 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). A parent’s historical inability to provide a suitable,
stable home environment along with the parent’s current inability to do so
supports a finding that termination is in the best interest of the child. In re A.P.
981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service providers, in
addition to evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.
Ct. App. 2014), trans. denied.
5 We need not address Mother’s challenge to the juvenile court’s conclusion that there was a reasonable probability that the continuation of the parent-child relationship posed a threat to Children’s well-being because 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. v. Ind. Dep’t Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 20 of 23 [33] Mother argues that DCS did not prove that termination was in the best interests
of Children because she was participating in services. However, the evidence
presented established that although Mother had periods of time where she was
complying with the services provided by DCS, this compliance did not last long
and very little progress was made. Mother’s participation in services was
limited to August through December 2015 and two weeks in May 2016. She
often refused to submit to drug screens, and when she did they were often
positive, she failed to attend and cancelled numerous therapy appointments,
and stopped participating in services altogether in May 2016. During the case,
Mother continued to test positive for illegal substances, was incarcerated for
periods of time, and was unable to provide Children with a suitable home free
of drugs.
[34] A trial court need not wait until a child is irreversibly harmed such that his or
her physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. In re A.K., 924 N.E.2d at 224.
Additionally, a child’s need for permanency is an important consideration in
determining the best interests of a child. Id. (citing McBride v. Monroe Cnty. Office
of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)). At the time of
the termination hearing, Children had been removed from Mother’s care for
over two years, and Mother had failed to make the changes in her life necessary
to provide Children with a safe and healthy environment. Based upon the
totality of the evidence, we conclude that the evidence supported the juvenile
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 21 of 23 court’s determination that termination of Mother’s parental rights was in
Children’s best interests.
Satisfactory Plan
[35] Mother asserts that DCS did not prove that there was a satisfactory plan for the
care and treatment of Children because no detail was provided about Children
and their school history. We have held that for a plan to be “satisfactory,” for
purposes of the statute, it need not be detailed, so long as it offers a general
sense of the direction in which the child will be going after the parent-child
relationship is terminated. In re A.S., 17 N.E.3d at 1007. A DCS plan is
satisfactory if the plan is to attempt to find suitable parents to adopt the child or
children. Id. In other words, there need not be a guarantee that a suitable
adoption will take place, only that DCS will attempt to find a suitable adoptive
parent. Id.
[36] Here, FCM Greene testified that DCS’s plan for the care and treatment of
Children was adoption by the foster parents that Children had been placed with
since May 2016. Tr. Vol. 2 at 123-24. Adoption by the foster parents is a
satisfactory plan, and DCS did not have to provide a more detailed plan. The
juvenile court did not err in determining that DCS had a satisfactory plan for
Children’s care and treatment.
[37] Again, decisions to terminate parental rights “are among the most difficult our
trial courts are called upon to make” and are very fact sensitive. In re E.M., 4
N.E.3d at 640. We will reverse a termination of parental rights only upon a
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 22 of 23 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). Based on the record before us, we cannot say that the
juvenile court’s termination of Mother’s parental rights to Children was clearly
erroneous. We, therefore, affirm the juvenile court’s judgment.
[38] Affirmed.
[39] Baker, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-JT-74 | June 11, 2018 Page 23 of 23