In the Matter of the Termination of the Parent-Child Relationship of M.B. (Child) and C.B. (Mother) C.B. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 5, 2018
• Docket: 18A-JT-1111
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Oct 05 2018, 9:16 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Catherine S. Christoff Curtis T. Hill, Jr. Christoff & Christoff Attorneys Attorney General of Indiana Fort Wayne, Indiana Frances Barrow Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination October 5, 2018 of the Parent-Child Relationship Court of Appeals Case No. of M.B. (Child) and C.B. 18A-JT-1111 (Mother); Appeal from the Allen Superior C.B. (Mother), Court The Honorable Charles F. Pratt, Appellant-Respondent, Judge v. Trial Court Cause No. 02D08-1706-JT-132 The Indiana Department of Child Services, Appellee-Petitioner

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 1 of 11 [1] C.B. (“Mother”) appeals the involuntary termination of her parental rights to

her child, M.B. (“Child”). Mother argues the trial court’s findings do not

support its conclusions that the conditions under which Child was removed

from Mother’s care would be remedied; that the continuation of the parent-

child relationship posed a threat to Child; and that termination was in Child’s

best interests. We affirm.

Facts and Procedural History [2] Child was born on October 21, 2013, to Mother and J.S. (“Father”). 1 On

August 5, 2015, the Department of Child Services (“DCS”) received a report

that Mother and two of her other children 2 were living at a motel 3 with “only

left over McDonald’s for food[,]” (Appellant’s App. Vol. II at 14); Mother

dropped off another two of her children at the park “without supervision while

[Mother] went to give plasma[,]” (id.); and Mother “was calling local homeless

shelters because she, [and two other children,] were needing shelter.” (Id.) DCS

investigated and found Mother tested positive for cocaine, Mother was engaged

in an ongoing relationship marred by domestic violence with Father, 4 and

1 Father’s parental rights to Child were not terminated, and he does not participate in this appeal. 2 Child has six siblings who were also removed from Mother’s home. They are not subject to this appeal. 3 Child lived with paternal grandmother, and DCS formally placed Child with her following his removal from Mother’s care. 4 Father is the father of Child only. Child’s siblings have different fathers who are not subject to this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 2 of 11 Mother was on probation after pleading guilty to Class C felony fraud on a

financial institution.

[3] The trial court issued a preliminary inquiry order on August 7, 2015,

authorizing DCS to file a petition alleging Child was a Child in Need of

Services (“CHINS”). The trial court held an initial hearing on the CHINS

petition the same day.

[4] On August 25, 2015, DCS filed an amended petition alleging Child was a

CHINS. The trial court held another initial hearing on November 9, 2015, and

adjudicated Child a CHINS based on Mother’s partial admission of the

allegations. The trial court held a dispositional hearing the same day, and

ordered Mother to, among other things, refrain from criminal activity; maintain

consistent employment and appropriate housing; submit to a diagnostic

assessment and follow all recommendations; obtain a drug and alcohol

assessment and follow all recommendations; enroll in and successfully

complete home-based services; obey the terms of her probation; refrain from the

use of illegal substances and submit to random drug screens; and visit with

Child. Child remained in paternal grandmother’s care until grandmother

moved to Illinois, at which time Child was placed in foster care.

[5] Soon after Child was removed from Mother’s care, Mother’s probation was

revoked and she was ordered to serve the remainder of her two-year sentence in

a work release program. Mother began work at the work release program on

November 4, 2015. Mother initially complied with services. However, by

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 3 of 11 January 2017, she had become noncompliant with some services and the

permanency plan for Child changed from reunification to adoption. Soon

thereafter, she began substance abuse treatment, which continued through June

2017. Mother also attended therapy from April 2016 until August 30, 2017.

Mother participated in supervised visitation with Child, which the Family Case

Manager testified Mother attended “[e]ighty-five percent (85%) of the time.”

(Tr. Vol. II at 151.) Mother remained drug-free throughout the proceedings.

[6] On June 28, 2017, DCS filed a petition to terminate Mother’s parental rights to

Child. Mother continued services and visited Child until she was released from

work release on September 5, 2017. At that time, she ceased participation in

services and told the Family Case Manager that she had moved to Detroit,

Michigan, and that she “had no intention of returning to Fort Wayne.” (Id. at

150.) The trial court held fact-finding hearings on the termination petition on

January 16, 23, 24, and 25, 2018. Mother did not attend any of the fact-finding

hearings. The trial court entered an order terminating Mother’s parental rights

to Child on April 24, 2018.

Discussion and Decision [7] 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

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’s unique

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 4 of 11 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).

[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 parental

responsibilities. Id. at 836.

[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;

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 5 of 11 (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 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.

[10] 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

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. 5

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

Child was removed were not likely to be remedied and that continuation of the

parent-child relationship posed a threat to Child’s well-being. As Indiana Code

5 Mother does not challenge the trial court’s findings, and thus 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.”).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 6 of 11 section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only decide if

the trial court’s conclusion supports one of these requirements. See In re L.S.,

717 N.E.2d at 209 (because statute written in disjunctive, court needs to find

only one requirement to terminate parental rights). Mother also argues

termination is not in Child’s best interests.

Reasonable Probability Conditions Would Not Be Remedied

[12] The trial court must judge a parent’s fitness to care for the child 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.

[13] When assessing a parent’s fitness to care for a child, the trial court should view

the parents as of the time of the termination hearing and take into account the

changes that have occurred during the proceedings. In re C.C., 788 N.E.2d 847,

854 (Ind. Ct. App. 2003), trans. denied. However, the trial court must also

“evaluat[e] the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of [a] child.” In re J.T., 742 N.E.2d

509, 512 (Ind. Ct. App. 2001), trans. denied.

[14] Regarding the reasonable probability that conditions would not be remedied,

the trial court found and concluded, regarding Mother:

[Findings of Fact]

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 7 of 11 *****

11. [Mother] was compliant with services while she remained in her work release program required as a result of a criminal conviction. However, after completing work release in September 2017, she discontinued her services.

12. From the testimony of [Mother’s] therapist, Virginia Adams of the Bowen Center, the Court finds that [Mother] had been making progress in her individual counseling. However, there remained issues to be addressed before reunification could be recommended. [Mother] discontinued her therapy in August 2017 before those goals could be achieved.

13. From the testimony of Dr. Mary Johnson of the Bowen Center, the Court finds that [Mother] stopped participating in services designed to address her addictions in June, 2017.

14. [Mother] has not visited [Child] since August, 2017.

*****

[Conclusions of Law]

3. [Mother] did not supervise and provide for [Child] at the onset of the underlying CHINS case. She left [Child] on at least one instance without supervision. Notwithstanding the provision of services, she has left the community and has not seen or provided for [Child] since August, 2017. She has not demonstrated an ability to benefit from services nor has the reason for the removal of [Child] from her care been corrected. The court therefore finds

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 8 of 11 and concludes that the Department has met its statutory burden with regard to [Mother].

(Appellant’s App. at 121, 123.) Mother argues the trial court did not properly

credit the testimony of Mother’s work release supervisor and Mother’s parental

rights should not have been terminated because Father’s rights were not

terminated despite Mother’s allegations that he did not complete certain

services. 6

[15] While Mother was initially compliant with services and continued compliance

while completing work release, she abruptly stopped participating in services

and visiting Child when her work release ended. She did not contact DCS on a

regular basis thereafter, and when she did speak to DCS, she indicated she had

moved out of state and had no intention of returning. 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 the credibility of witnesses). The trial court’s

findings support its conclusion that the conditions under which Child was

removed from Mother’s care would not be remedied. See In re J.C., 994 N.E.2d

278, 289 (Ind. Ct. App. 2013) (termination of parental rights supported by

6 Despite Mother’s argument to the contrary, the termination of her parental rights is separate from the trial court’s decision regarding Father’s parental rights. See In re J.W., 779 N.E.2d 954, 959 (Ind. Ct. App. 2002) (upholding the termination of mother’s rights when father’s rights had not been similarly terminated), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 9 of 11 Mother’s continued noncompliance with services and inability to benefit from

services provided), reh’g denied.

Child’s Best Interests

[16] In determining what is in Child’s best interests, a 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 Child’s best interests. In re

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

[17] The trial court’s findings regarding Mother’s compliance with services and

visitation are also applicable to the trial court’s conclusion regarding the best

interests of Child. See supra. Here, regarding Child’s best interests, the trial

court concluded, “given the abandonment of [Mother], the termination of her

parental rights serves [Child’s] best interests.” (Appellant’s App. at 123.)

Mother takes issue with the trial court’s characterization of her behavior as

abandonment; however, we see no other way to classify Mother’s relocation

out of state, cessation of services and visitation with Child, and expression that

she did not intend to return to Fort Wayne, where Child was in foster care. Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 10 of 11 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 the credibility of witnesses).

The trial court’s findings support its conclusion that termination of Mother’s

parental rights was in Child’s best interests. See Matter of G.M., 71 N.E.3d 898,

909 (Ind. Ct. App. 2017) (termination in Child’s best interests because Mother

had not progressed in services and continued to be unable to care for Child).

Conclusion [18] The trial court’s findings support its conclusion that the conditions under which

Child was removed from Mother’s care would not be remedied and termination

was in Child’s best interests. Accordingly, we affirm the termination of

Mother’s parental rights to Child.

[19] Affirmed.

Baker, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-1111 | October 5, 2018 Page 11 of 11