MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Dec 20 2019, 8:20 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Sturgeon Curtis T. Hill, Jr. Clark County Public Defender’s Office Attorney General of Indiana Jeffersonville, Indiana Monika P. Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 20, 2019 of the Parent-Child Relationship Court of Appeals Case No. of J.T. (Child) and T.T. 19A-JT-1335 (Mother); Appeal from the Clark Circuit T.T. (Mother), Court The Honorable Vicki L. Appellant-Respondent, Carmichael v. Trial Court Cause No. 10C04-1901-JT-3 The Indiana Department of Child Services, Appellee-Petitioner
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 1 of 14 [1] T.T. (“Mother”) 1 appeals the involuntary termination of her parental rights to
J.T. (“Child”). Mother argues a number of the trial court’s findings are not
supported by the evidence. She also contends the trial court’s findings do not
support the trial court’s conclusions that there was a reasonable probability the
conditions under which Child was removed from her care would not be
remedied and that the continuation of the Mother-Child relationship posed a
risk to Child’s safety. We affirm.
Facts and Procedural History [2] Child was born to Mother on April 29, 2010. On August 1, 2016, the
Department of Child Services (“DCS”) filed a petition alleging Child was a
Child in Need of Services (“CHINS”) because Mother was “getting high in the
garage and [Child] was unsupervised and running around.” (App. Vol. II at
108.) On August 23, 2016, DCS removed Child from Mother’s care under an
Emergency Order because Mother “fear[ed] that she would be homeless” and
had placed Child with Child’s paternal grandmother. (Id. at 104.) On October
20, 2016, Mother admitted Child was a CHINS, and the court adjudicated
Child a CHINS.
[3] On November 3 and December 1, 2016, the trial court entered dispositional
orders requiring Mother to complete certain services. The trial court ordered
1 Jo.T. (“Father”) is Child’s father. Father was incarcerated for the entirety of these proceedings. His parental rights were also terminated, but he does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 2 of 14 Mother to, among other things, refrain from using drugs, complete random
drug screens, maintain suitable housing and employment, complete substance
abuse and individual therapy assessments and follow all recommendations, and
visit with Child. Mother was initially compliant with services, and on July 6,
2017, the trial court approved a temporary home visit. Child was returned to
Mother’s care and lived with her for a year while both were receiving services
under the CHINS order, but Child was again removed from her care on July
12, 2018, because she tested positive for illegal substances on multiple occasions
during the temporary home visit.
[4] Thereafter, Mother’s participation in treatment programs declined, she
continued to test positive for illegal substances, and she experienced periods of
homelessness. On January 17, 2019, DCS filed a petition to involuntarily
terminate Mother’s parental rights to Child. The trial court held evidentiary
hearings on the matter on April 2, and April 9, 2019. On May 5, 2019, the trial
court entered its order involuntarily terminating Mother’s parental rights to
Child.
Discussion and Decision [5] We review termination of parental rights with great deference. In re K.S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
the credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. Instead, we consider only the evidence and reasonable
inferences most favorable to the judgment. Id. In deference to the juvenile
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 3 of 14 court’s unique position to assess the evidence, we will set aside a judgment
terminating a parent-child relationship only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S.
1161 (2002).
[6] “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 juvenile court
must subordinate the interests of the parents to those of the child, 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 child should not be terminated
solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[7] To terminate a parent-child relationship in Indiana, DCS must allege and
prove:
(A) that one (1) of the following is true: (i) The child has been removed from the parent for at least six (6) months under a dispositional decree. (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made. (iii) The child has been removed from the parent and has been under the supervision of a county office of family and children or probation department for at least fifteen (15) months of the most recent twenty- Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 4 of 14 two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child; (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). DCS 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.
“[I]f the State fails to prove any one of these statutory elements, then it is not
entitled to a judgment terminating parental rights.” Id. at 1261. Because
parents have a constitutionally protected right to establish a home and raise
their children, the State “must strictly comply with the statute terminating
parental rights.” Platz v. Elkhart Cty. Dep’t of Pub. Welfare, 631 N.E.2d 16, 18
(Ind. Ct. App. 1994).
[8] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and whether the findings support the judgment.
Id. “Findings are clearly erroneous only when the record contains no facts to
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 5 of 14 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. Mother contends the
evidence does not support a number of the trial court’s findings and that the
trial court’s findings do not support its conclusions that the circumstances under
which Child was removed from her care would be remedied and that the
continuation of the Mother-Child relationship poses a risk to Child.
Conditions Would Not Be Remedied [9] The juvenile 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 Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
Mother challenges a number of findings related to this conclusion, which we
discuss infra. She also contends her successful completion of the Centerstone
program, her stable housing and employment at certain times during the
proceedings, and her continued participation in therapy indicate she was
“making progress toward stability,” and thus the trial court’s conclusion that
the circumstances under which Child was removed from her care would not be
remedied was not supported by the trial court’s findings. (Br. of Appellant at
15.)
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 6 of 14 Finding 1
[10] Finding 1 of the trial court’s order states: “[Child] is nine (9) years of age, born
April 29, 2010.” (App. Vol. III at 137.) Mother argues the finding is not
supported by the evidence because, at the time of the termination hearing on
April 9, 2019, Child was eight years old, as his birthday did not occur until after
the hearing. However, as the State points out, the trial court’s order was
entered on May 5, 2019, after Child’s ninth birthday. This is not an error – the
trial court correctly listed Child’s birthday and his age was correctly stated in
the order.
Finding 16
[11] Mother also challenges Finding 16 of the trial court’s order, which states,
“[Mother’s] lack of stable housing caused her to move into a home where she
was battered. [Child] witnessed his [M]other being beaten.” (App. Vol. III at
138.) Mother argues that, “[w]hile there is testimony regarding various places
[Mother] has lived, there is nothing establishing a causal link that she was
battered as a result.” (Br. of Appellant at 10.) Additionally, she contends that,
while DCS presented evidence that Child had been exposed to domestic
violence, “it does not say that he saw his mother beaten.” (Id. at 11.)
[12] We agree with Mother. DCS presented testimony from Child’s therapist, who
also met with Mother, that “[Child] has had some exposure to domestic
violence[,]” (Tr. Vol. II at 18), but the therapist did not indicate the victim of
that domestic violence was Mother. The Director of Family Drug Treatment
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 7 of 14 Court testified that Mother was in a number of “domestically violent
relationships . . . [and] all those situations were chaotic . . . [including] an
incident where she was involved in a domestic situation where boyfriend’s
friend had abused her[,]” (id. at 49), but the Director did not testify that Child
was present during any of those incidents when Mother experienced abuse.
[13] However, any error in this finding is harmless because, as we will note infra,
DCS presented sufficient evidence to prove other findings that support the trial
court’s decision to terminate Mother’s parental rights. See Matter of A.C.B., 598
N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming termination of parental rights
despite erroneous findings because other findings supported termination).
Finding 24
[14] Finding 24 of the trial court’s order states: “[Mother] persisted in illegal drug
use throughout the life of the CHINS case. Despite the offer of intensive
services such as Family Treatment Drug Court, Intensive Outpatient treatment,
and individual counseling, [Mother] continued to test positive for THC,
amphetamines, methamphetamine, and occasionally cocaine.” (App. Vol. III
at 139.) Mother argues the term “persisted” is “misleading” because not every
drug test she took was positive and because there were extended periods of time
in which she tested negative for drugs, including a portion of time during which
Child lived with her during the CHINS proceedings. She also contends the trial
court should not have relied on her marijuana use to determine whether to
terminate her parental rights to Child because marijuana is legal is some states,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 8 of 14 possession carries a low criminal penalty in Indiana, and DCS did not prove
Mother’s marijuana use affected Child’s well-being.
[15] Mother’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265
(appellate court cannot reweigh evidence or judge credibility of witnesses). Of
Mother’s eighty-six drug tests, only fourteen were negative for all drugs. A
majority of the positive tests were positive for marijuana, and some were also
positive for amphetamine, methamphetamine, and cocaine. Mother
consistently maintained throughout the proceedings that she did not have a
drug problem because she believed marijuana should be legal. She told her
family case manager that she did not intend to stop smoking marijuana, even
though the family case manager told Mother that Child would not be placed
with her until she stopped doing so. Based thereon, we cannot say DCS did not
present evidence to support the trial court’s finding.
Finding 25
[16] Finding 25 of the trial court’s order states, in relevant part:
25. [Mother] resisted, and even rejected, services that would assist her in dealing with her substance abuse.
a. [Mother] refused to follow the treatment recommendations from the first substance abuse assessment.
b. She refused to participate in inpatient drug treatment.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 9 of 14 c. She would not participate in the treatment programs available at the Healing Place.
*****
e. She was discharged from Intensive Outpatient due to her continued drug use.
f. She was terminated from Family Treatment Drug Court due to noncompliance.
(App. Vol. III at 139-40.) Mother argues the finding “ignores the broader
reality that, as this Court knows, recovery is a trial and error process with many
setbacks along the way, requiring patience and repeated effort before recovery is
reached.” (Br. of Appellant at 12.) Regarding the trial court’s specific sub-
findings, Mother argues: she completed an inpatient drug treatment program at
Centerstone; she was not specifically required to go to the Healing Place and in
fact attended there for one day; while she was discharged from Intensive
Outpatient, she followed up with her therapist for additional treatment; and
while she was terminated from Family Treatment Drug Court, she then entered
and completed a thirty-day program at Centerstone.
[17] Mother’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265
(appellate court cannot reweigh the evidence or judge the credibility of
witnesses). While Mother did complete a thirty-day inpatient drug treatment at
Centerstone, she did so after the other treatment failures as described in the
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 10 of 14 finding and after DCS filed a petition for the termination of her parental rights
to Child. Further, while Mother completed the treatment at Centerstone, she
tested positive for marijuana twice after her treatment was over. Based thereon,
we cannot say DCS did not present sufficient evidence to support the finding.
Finding 26
[18] Finding 26 of the trial court’s order states: “[Mother] did not take advantage of
the domestic violence services that were offered. Out of the 26-week program
available through Associates in Counseling and Psychotherapy (“ACP”),
[Mother] attended seven (7) meetings – the intake interview and six group
sessions.” (App. Vol. III at 140.) Mother argues that while she did not
complete the ACP program, she went for seven weeks, and “it does not follow
that she did not learn anything from it.” (Br. of Appellant at 14.) She also
notes the testimony of the Director of the Family Drug Treatment, who told the
court that Mother contacted her for help getting out of an abusive situation, and
that Mother “did the right thing.” (Tr. Vol. II at 49.)
[19] Mother’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265
(appellate court cannot reweigh the evidence or judge the credibility of
witnesses). DCS presented evidence that Mother did not complete the domestic
violence treatment program, as was required. We cannot say that DCS did not
present sufficient evidence to support this finding.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 11 of 14 Other Findings
[20] Further, as DCS points out, even if any of these findings were not supported by
the evidence, those erroneous findings would be harmless because the
unchallenged findings support the trial court’s decision to terminate Mother’s
parental rights. See Matter of A.C.B., 598 N.E.2d at 573 (affirming termination of
parental rights despite erroneous findings because other findings supported
termination). Such findings include:
19. [Child] has remained outside the parent’s home due to . . . [Mother’]s drug use, her failure to secure stable housing, and her failure to maintain consistent employment.
27. [Mother] did not cooperate with homebased service providers who tried to assist her with housing and employment. [Mother] missed appointments. She resisted offers for help – indicating she was able to find housing and employment on her own. Some referrals were closed due to [Mother’s] lack of participation.
28. [Mother] did not fully cooperate with her DCS Family Case Manager – often being noncompliant and argumentative.
29. [Child] has been traumatized. This trauma has resulted in [sic] the domestic violence he has witnessed, along with [Mother’s] chaotic lifestyle. One witness described [Mother’s] lifestyle as a “roller coaster.”
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 12 of 14 31. [Child’s] therapist did not recommend reunification because [Mother] has not sought treatment for her own trauma.
40. As of the termination hearing, [Mother] did not have stable housing, she did not have employment, [and] she continued the use of illegal drugs.
(App. Vol. III at 139-41.) As Mother does not challenge these findings, we
accept them as true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992)
(“Because Madlem does not challenge the findings of the trial court, they must
be accepted as correct.”).
[21] The trial court’s findings, with the exception of Finding 16, support the trial
court’s conclusion that the conditions under which Child was removed from
Mother’s care would not be remedied. Thus, the conclusion was not
erroneous. See In re G.M., 71 N.E.3d 898, 908 (Ind. Ct. App. 2017) (affirming
the trial court’s conclusion that the conditions under which child was removed
from mother’s care would not be remedied based on mother’s continued drug
use and noncompliance with services).
Continuation of Mother-Child Relationship Poses Risk to Child’s Well-being [22] Mother also argues the trial court’s findings do not support its conclusion that
the continuation of the Mother-Child relationship poses a risk to Child’s well-
being. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 13 of 14 disjunctive, we need decide only if the evidence and findings support the trial
court’s conclusion as to one of these two requirements. See In re L.S., 717
N.E.2d at 209 (because statute written in disjunctive, court needs find only one
requirement to terminate parental rights). Because the trial court’s findings
supported its conclusion that the conditions under which Child was removed
from Mother’s care would be not be remedied, we need not consider Mother’s
argument regarding whether the continuation of the Mother-Child relationship
poses a risk to Child’s well-being.
Conclusion [23] DCS presented sufficient evidence to support the findings challenged by
Mother. Also, the trial court’s findings support its conclusion that the
conditions under which Child was removed from Mother’s care would not be
remedied. Accordingly, we affirm the trial court’s order involuntarily
terminating Mother’s parental rights to Child.
[24] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-1335 | December 20, 2019 Page 14 of 14