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

• Court: Indiana Court of Appeals
• Decided: June 7, 2018
• Docket: 18A-JT-405
• Status: Published

Opinion

MEMORANDUM DECISION FILED Jun 07 2018, 8:05 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court

court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Justin R. Wall Curtis T. Hill, Jr. Wall Legal Services Attorney General of Indiana Huntington, Indiana Andrea E. Rahman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination June 7, 2018 of the Parent-Child Relationship Court of Appeals Case No. of M.N. (Child) and S.N. 18A-JT-405 (Mother); Appeal from the Huntington Circuit Court The Honorable Thomas M. Hakes, S.N. (Mother), Judge Appellant-Defendant, Trial Court Cause No. 35C01-1705-JT-7 v.

The Indiana Department of Child Services, Appellee-Plaintiff

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 1 of 14 May, Judge.

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

M.N. (“Child”). Mother argues the Department of Child Services (“DCS”) did

not present sufficient evidence the conditions under which Child was removed

from Mother’s care would not be remedied; Mother posed a threat to Child’s

well-being; termination was in Child’s best interests; and there existed a

satisfactory plan for Child after termination. We affirm.

Facts and Procedural History 1

[2] Mother and J.N. (“Father”) 2 (collectively, “Parents”) are the biological parents

of Child, who was born on April 15, 2015. On May 6, 2015, DCS investigated

a report that Mother used heroin until the eighth month of her pregnancy, had

used heroin since Child’s birth, and had given Child heroin “in order to make

him go to sleep.” (App. Vol. II at 37.) Parents submitted to oral drug screens,

and on May 11, the drug screens came back positive for heroin use.

[3] On May 12, 2015, DCS filed a petition alleging Child was a Child in Need of

Services (“CHINS”); the trial court held a detention and initial hearing on the

1 Mother’s statement of the facts indicates only, “The salient facts of the present matter are found in STATEMENT OF CASE-II COURSE OF PROCEEDINGS.” (Br. of Appellant at 11) (emphasis and formatting in original). This statement does not comport with the Indiana Rule of Appellate Procedure. See Ind. App. R. 46(A)(6) (“Statement of Facts. 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.”) 2 Father’s parental rights were also terminated but he does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 2 of 14 CHINS petition; and Parents denied Child was a CHINS, despite the fact

Parents “admitted in the hearing that they would test positive for drugs if

screened at the detention hearing.” (Id.) DCS removed Child from Parents’

care on May 12 and placed him with a paternal step-cousin, L.S. Regarding

visitation, the court ordered:

Parent[s] shall not have any contact or visitation with the [C]hild until the levels of heroin in their systems test lower than they did at the time they were screened on May 7, 2015, at which point, the parents may immediately have supervised visitation with the [C]hild. If at any point, the parents’ heroin levels test higher tha[n] the immediately preceding drug screen results, supervised visitation with the [C]hild shall be immediately suspended without further court order.

(Id. at 38.)

[4] Mother passed a drug test so that she could visit with Child. In the time before

the next trial court hearing on May 28, Mother had four opportunities to visit

with Child. Mother attended the first visit with no incident, but she slept

through the next visit and was late to the two final visits. The trial court then

suspended Mother’s visitation because her drug screen violated the terms of its

May 12 order regarding visitation. At the May 28 hearing, Parents admitted

they did not have a permanent address. DCS scheduled Mother for substance

abuse assessments twice in June 2015, but she did not complete them.

[5] On June 8, 2015, DCS filed an amended petition alleging Child was a CHINS.

On June 16, the trial court held an initial hearing on the amended petition and

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 3 of 14 ordered visits between Parents and Child remain suspended due to Parents’

drug use. On July 29, 2015, police arrested Mother, and the State charged

Mother with Level 5 felony dealing in cocaine or a narcotic drug 3 and Level 5

felony neglect of a dependent resulting in bodily injury 4 for Mother’s actions

against Child, including giving Child heroin. At the same time, police also

arrested Father on other charges.

[6] On August 19, and September 30, 2015, the trial court continued its fact-finding

hearing on DCS’s CHINS petition to a later date due to Parents’ incarceration.

Mother pled guilty to the charges against her and was sentenced on October 13,

2015. As part of Mother’s sentence, the trial court entered a no-contact order

between Mother and Child based on the neglect conviction. The no-contact

order extends through Mother’s four years of probation following her release

from incarceration. Mother’s earliest release date is October 13, 2019.

[7] On December 23, 2015, DCS again amended the CHINS petition. On March

24, 2016, Parents admitted Child was a CHINS, and the trial court adjudicated

him as such. On April 21, 2016, the trial court entered dispositional and

parental participation orders, which ordered Mother to participate in certain

services. However, because of her incarceration, the trial court ordered Mother,

upon her release from incarceration, to contact DCS and “finalize the

3 Ind. Code § 35-48-4-1(a) (2014). 4 Ind. Code § 35-46-1-4(b)(1)(A) (2014).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 4 of 14 timeframe in which the herein-ordered services shall be completed.” (Id. at

117.)

[8] In May 2016, Child’s placement changed to a different paternal step-cousin,

S.O., and Child has remained in S.O.’s care for the pendency of the

proceedings. On November 4, 2016, the trial court held a status hearing and

noted Parents were not in compliance with the parental participation plan due

to their incarceration. On May 4, 2017, the trial court held a permanency

hearing and changed the plan for Child from reunification to adoption. On

May 31, 2017, DCS filed a petition to terminate Parents’ parental rights to

Child.

[9] On November 2, 2017, the trial court held a status hearing, and set a

permanency hearing for May 3, 2018. On December 5, 2017, the Guardian ad

Litem (“GAL”) filed her report recommending termination of parental rights.

On December 14, 2017, the trial court held an evidentiary hearing on DCS’s

petition for termination of parental rights and, on December 28, 2017, entered

its order terminating Parents’ rights to Child.

Discussion and Decision [10] 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

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 5 of 14 most favorable to the judgment. Id. In deference to the juvenile court’s unique

position to assess the evidence, we will set aside a judgment terminating a

parent’s rights only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208

(Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).

[11] “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.

[12] 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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 6 of 14 (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 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.

[13] 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

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-405 | June 7, 2018 Page 7 of 14 [14] Mother challenges the trial court’s conclusions that the conditions under which

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

parent-child relationship posed a threat to Child’s well-being. Mother also

argues termination is not in Child’s best interests and there was not a

satisfactory plan for Child after termination.

Child’s Well-Being

[15] Termination of parental rights is proper where the child’s emotional and

physical development is threatened. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.

App. 2001), trans. denied. The court need not wait until the child is harmed

irreversibly such that his physical, mental, and social development is

permanently impaired. Id. To support its finding that continuation of the

parent-child relationship posed a threat to the well-being of Child, the trial court

found Mother gave Child heroin during Child’s infancy to help Child sleep;

Mother had not seen Child since Child was three weeks old; and there is

currently a no-contact order between Mother and Child due to Mother’s

conviction of neglect of a dependent.

[16] In addition, regarding Child’s developmental challenges due to his exposure to

heroin before and after birth, the trial court found:

29 f. For the first two and a half to three months that [Child] lived with [L.S.], [Child] experienced withdrawal symptoms.

*****

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 8 of 14 29 r. [Child] requires a set schedule and consistent ritual in order to function properly and to be able to sleep at night.

30 e. [Child] is a special needs child and [GAL] is concerned about [Parents’] abilities to care for themselves let alone [Child].

30 f. [Child] has been in placement far too long and waiting an additional five to six months for Father to be released and possibly begin building a relationship with [Child], let alone waiting for Mother to be released, would be detrimental to [Child].

32 c. [Child] faces struggles that require constant vigilance including everything going in his mouth, his getting overstimulated easily, his need for ritual and routine, and his physical limitations[,] which include:

i. Eczema ii. Circulation problems with his lower legs iii. Diaper rash iv. Constant sniffles v. Burning diarrhea in that if he has diarrhea and the diaper is not changed immediately his skin will blister and bleed.

32 j. [S.O.] testified that she believed Mother and Father could learn to care for [Child], but it would be detrimental for [Child]

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 9 of 14 to wait that long for [Parents] to be released from prison and for [Child] to be removed from his home.

(App. Vol. II at 42-4.)

[17] Mother argues:

[G]iven the improvement she made while incarcerated; 6 that afforded enough time after release to implement services; that with her release from incarceration being less than two years away; that she wanted to and planned to implement DCS services upon her release; that she had an employment and housing plan, that . . . the continuation of her relationship with Child would not be harmful to Child’s well-being.

(Br. of Appellant at 23) (errors in original) (footnote added). We are

unpersuaded by Mother’s arguments, which 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 will not reweigh evidence or judge

the credibility of witnesses).

[18] Based on Mother’s treatment of Child prior to DCS’s involvement and the

challenges Child has faced and will continue to face because of Mother’s

actions, we conclude the trial court’s findings support its conclusion that

continuation of the parent-child relationship poses a threat to the well-being of

6 Mother presented evidence she completed substance abuse treatment and maintained her sobriety while incarcerated.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 10 of 14 Child. 7 See In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001) (affirming

termination of parental rights based on findings that support the trial court’s

conclusion that continuation of parent-child relationship posed a threat to well-

being of child), trans. denied.

Best Interests

[19] 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).

[20] Regarding Child’s best interests, the trial court found Child was bonded with

his current caregiver; Child viewed his relative placement as his family; Child

7 Indiana Code section 31-35-2-4(B)(2)(B) is written in the disjunctive, and 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). Because trial court’s findings supported its conclusion continuation posed a threat to the well-being of Child, we need not review whether the findings also supported its conclusion that the conditions under which Child was removed from Mother’s care would not be remedied.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 11 of 14 has been in placement since he was three weeks old; Child has multiple physical

and mental difficulties due to being given heroin by Mother when Child was an

infant; and “[w]hile Mother and Father may have the ability to learn how to

care for [Child], prolonging the wait for permanency and giving [Parents] a

second chance would not be in [Child’s] best interest and would hurt [Child].”

(App. Vol. II at 42.) Mother argues it is Child’s best interests that Mother “be

afforded the ability to implement services with DCS and given time to

demonstrate that he [sic] can be a parent to Child and that [sic] in a timely

manner, be reunified with Child.” (Br. of Appellant at 24.)

[21] We cannot agree. Mother has not seen Child since Child was three weeks old,

Mother cannot see Child due to a no-contact order stemming from her

conviction for neglect of Child, and Mother’s actions caused Child’s current

and future physical and mental challenges. 8 Mother’s argument is an invitation

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 will not reweigh

evidence or judge the credibility of witnesses). Therefore, we conclude the trial

court’s findings support its conclusion that termination is in Child’s best

8 Mother argues her case is factually similar to In re K.E., in which our Indiana Supreme Court reversed the termination of Father’s parental rights because, despite his incarceration, Father “made extensive efforts to better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a bond with both of his children.” In re K.E., 39 N.E.3d 641, 643-4 (Ind. 2015). The only similarities between In re K.E. and Mother’s case is that both appellants were incarcerated and completed substance abuse treatment. In this case, Mother had not established a bond with Child due in part to the no-contact order in place to protect Child from Mother’s neglectful actions. Further, Mother has presented no evidence she attempted to engage in classes to assist her with parenting skills while incarcerated. Finally, the Father in In re K.E. had not inflicted the level of harm Mother inflicted on Child in this case. In re K.E. is inapposite.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 12 of 14 interests. See McBride v. Monroe Cty. Office of Family & Children, 798 NE.2d 185,

203 (Ind. Ct. App. 2003) (holding findings regarding child’s need for

permanency and bond to foster family sufficient to support conclusion that

termination was in best interests of child).

Satisfactory Plan for Care and Treatment

[22] Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be

terminated unless DCS provides sufficient evidence of a satisfactory plan for the

care and treatment of the children following termination. We have held “[t]his

plan 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 D.D., 804 N.E.2d at 268.

[23] The trial court found S.O. was willing to adopt Child and, based thereon,

concluded there existed a satisfactory plan for Child’s care following

termination, “that being adoption.” (App. Vol. II at 45.) Mother acknowledges

there is no case law to support her argument that adoption is not a satisfactory

plan for Child’s care, but still insists she should be given an opportunity to

prove she can be a good parent after she is released from incarceration. We

cannot agree. Mother’s argument is an invitation 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 will not reweigh evidence or judge the credibility

of witnesses). Adoption was a satisfactory plan for Child’s care following the

termination of Mother’s parental rights. See In re S.L.H.S., 885 N.E.2d 603, 618

(Ind. Ct. App. 2008) (adoption is satisfactory post-termination plan). Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 13 of 14 Conclusion [24] The trial court’s findings supported its conclusions that the continuation of the

parent-child relationship posed a threat to Child; that termination was in

Child’s best interests; and that there existed a satisfactory plan for Child’s care

following the termination of Mother’s parental rights. Accordingly, we affirm.

[25] Affirmed.

Riley, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018 Page 14 of 14