MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 13 2018, 9:35 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Luisa M. White Curtis T. Hill, Jr. Lafayette, Indiana Attorney General of Indiana
Abigail R. Recker Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 13, 2018 of the Parent-Child Relationship Court of Appeals Case No. of P.P., K.P., and B.P., Minor 79A02-1711-JT-2834 Children, Appeal from the Tippecanoe J.J., Mother, Superior Court The Honorable Faith A. Graham, Appellant-Respondent, Judge v. Trial Court Cause Nos. 79D03-1704-JT-38 79D03-1704-JT-39 The Indiana Department of 79D03-1704-JT-40 Child Services, Appellee-Petitioner.
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 1 of 27 [1] J.J. (“Mother”) appeals the involuntary termination of her parental rights with
respect to P.P., K.P., and B.P. (the “Children”).1 Mother raises three issues
which we consolidate and restate as whether the trial court erred in terminating
her parental rights. We affirm.
Facts and Procedural History
[2] On November 18, 2015, the Indiana Department of Child Services (“DCS”)
filed a verified petition alleging K.P., born on June 14, 2012, P.P., born on
January 26, 2014, and B.P., born on March 5, 2015, were children in need of
services (“CHINS”), that Mother and the Children’s father (“Father”) have a
history of substance abuse and regularly use marijuana while caring for them,
and that DCS removed K.P. and P.P. from the care of Mother and Father in
May 2014 after K.P. tested positive for THC and Mother tested positive for
methamphetamine. On December 14, 2015, the trial court held a fact-finding
hearing on the petition, and on December 23, 2015, the court adjudicated the
Children to be CHINS.
[3] On February 3, 2016, the court entered its CHINS disposition order and a
parental participation decree. The disposition order allowed the Children to
remain in the care of Mother and Father. The parental participation decree
ordered Mother to participate in “intensive case management with HGCF and
follow recommendations,” “a substance abuse assessment and follow
1 The court also terminated the parental rights of the Children’s father as to the Children, and the Children’s father does not appeal the termination.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 2 of 27 recommendations,” and “in drug screens as requested by DCS, [the Court
Appointed Special Advocate (“CASA”)] and service providers,” and to “[n]ot
consume or possess alcohol” and “[n]ot consume or possess, nor allow anyone
else in your home to consume or possess, any legend drug or controlled
substance without a prescription.” DCS Exhibit 5 at 11-12.
[4] On March 1, 2016, the court entered an Order on Modification of Dispositional
Decree, which found that Mother and Father did not follow the court’s orders
and continued to consume and possess alcohol. The order required Mother and
Father to “remove all products containing alcohol from the home today’s date
[sic]” and stated that it “orders immediate removal of the children” should they
“fail to follow the Court’s Orders, continue to possess or consume products
containing alcohol, fail to allow providers, DCS and CASA access to the home
and to the children or allow the children to be in the care of unapproved
persons.” Id. at 16-17. On March 29, 2016, on motion of DCS the court issued
an order for rule to show cause which found Mother in contempt and ordered
her to serve a sentence, suspended upon compliance with court orders.2
2 Specifically, in its March 29, 2016 order for rule to show cause, the court found Mother to be in contempt for failure to allow CASA into her home on one date and consuming alcohol on four other dates. The court then ordered: “[Mother] to purge herself of said contempt by serving a sentence of incarceration; suspended upon her 100% compliance with this Court’s orders.” DCS Exhibit 5 at 18. We have observed that a jail sentence for civil contempt must be coercive or remedial rather than punitive in nature. Stanke v. Swickard, 43 N.E.3d 245, 249 (Ind. Ct. App. 2015) (citation omitted). While not challenged on appeal, we find this order both punitive and an innapropriate exercise of authority. The court had already imposed the sanction of “immediate removal of the children” in the event of failure to comply with its orders. DCS Exhibit 5 at 17.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 3 of 27 [5] On April 8, 2016, the Children were removed from the care of Mother. 3 In its
April 11, 2016 Order on Modification of Dispositional Decree, the court
accepted the recommendation of DCS to modify placement for B.P. and P.P. to
the care of the maternal great aunt and uncle and for K.P. to the care of the
paternal cousin, and found in part:
On February 29, 2016 and again on March 28, 2016, the Court ADMONISHED [Mother] and [Father] for NOT putting [the Children] as a priority in this proceeding, for NOT following the Court’s orders and for continuing to consume and possess alcohol. Since that time there [have] been continued missed drug screens and failure to complete the substance abuse assessment.
DCS received a report on 4/27/2016 [sic] alleging [the Children] had been provided/had access to alcohol, cigarettes, and [] inappropriate sexual contact between Mother’s oldest child [(“A.W.”)] . . . and a younger half-sibling. [K.P.] reported [P.P.] drank from a bottle that was sitting on the table in [Mother’s] room and was unable to stand up. [A.W.] age 7, Mother’s child from a previous relationship, was able to describe the bottle of Fireball [whiskey] and reported [K.P.] and [P.P.] both drank from the bottle and that [Mother] was aware that [A.W.] had tried a cigarette.
Id. at 22.
3 Entries for April 8, 2016, in the chronological case summaries for the CHINS cases indicate that the trial court set a Modification Hearing for April 11, 2016, and state that the court found “the least restrictive placement for [the Children] is placement in the care of their maternal great aunt and maternal great uncle pending the hearing,” and that the Children “should be removed from the home because continuation in the home would not be in the best interest of [the Children] and contrary to the welfare of [the Children].” DCS Exhibit 1 at 11; DCS Exhibit 2 at 10-11; DCS Exhibit 3 at 11.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 4 of 27 [6] On April 14, 2016, DCS filed a Progress Report which stated in part that it had
referred Mother on January 12, 2016, to a substance abuse assessment at
Wabash Valley Alliance in Tippecanoe County; that several weeks after the
January 12, 2016 referral, Mother said she preferred to complete the substance
abuse assessment at the Carroll County Wabash branch and family case
manager Tracy Williams (“FCM Williams”) referred her accordingly; that
Mother contacted FCM Williams in March of 2016 to ask if she could have the
assessment billed to DCS because she had a deductible with her Medicaid plan;
and that, after FCM Williams contacted both the business office at the Carroll
County Wabash branch and the DCS Medicaid unit and provided the
information to Mother, Mother refused to complete a substance abuse
assessment.4
[7] On April 4, 2017, DCS filed a verified petition for the involuntary termination
of the parent-child relationship of Mother and Father as to the Children. On
June 28, 2017, the court held a hearing on the petition at which Mother failed
to appear.5 Jenny Cahoon, a home-based service provider for Home-Based
Goal-Focused Services for Children & Families (“HGCF”) who served as a
4 The Progress Report also indicated that the allegations which were reported to the DCS hotline the morning of April 7, 2016, and which resulted in the removal of the Children included that P.P. “drank [F]ireball alcohol and was not able to get up after drinking it while in [Mother’s] care” and Father found P.P. in this condition, that A.W. “touched his half-sister innappropriately; he licked the half-sister’s vagina and told a relative to do it, too, about 5-6 months ago,” and that Mother texted A.W.’s father to see if A.W. was allowed to drink a beer, allowed A.W. to stay in the care of a known drug felon and in the care of “a 14-16 year old special needs child whom she had only know[n] for a week,” and had sex with Father in front of A.W., who slept in their room next to their bed. DCS Exhibit 6 at 20. 5 Mother was apprised of the termination hearing by the CASA.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 5 of 27 “support mechanism” for Mother and Father, testified during the hearing.
Transcript Volume 2 at 10. DCS Exhibit 9, which was admitted at the hearing,
contains the January 2016 Initial Treatment Plan signed by Cahoon that states
under the heading “DCS Service Goals”:
Help [Mother and Father] develop coping skills so that they do not use drugs.
Parents say they have not used marijuana since January 1st. FCM informed this worker that [Mother] had tested positive to alcohol. This worker told [Mother] about the positive alcohol screen and she said she does drink “Fireball[]” [whiskey] nightly. . . . This worker told [Mother] that FCM said there is a court order that says [she and Father] can’t consume alcohol. [Mother] sent this worker a text stating, “I’m not worried about the alcohol. I’m 25 and I’m not on probation. CPS’s problem is what’s illegal. And that’s week [sic]. So I’m not stopping drinking when I want to drink.” [Mother] wants to know who level [sic] for the marijuana screen because it should continue to go down.
DCS Exhibit 9 at 2-3. Cahoon testified she started having concerns with the
family shortly after she started working with them and she was conducting
“EtG’s,” or tests for alcohol use, and that both Mother and Father’s tests “were
coming back positive but [Mother’s] were coming back over 10,000 which
shows kind of a chronic pattern of drinking every night.” Transcript Volume 2
at 11. She indicated that, in response to Mother’s admission that she drank
every night, she “went over the Parental Participation Decree and that in
Tippecanoe County you cannot drink.” Id. at 12. She stated Mother was “just
oppositional and defiant” “[a]ll of the time” and would threaten to hurt people
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 6 of 27 on a regular basis. Id. When asked to further explain, she testified about an
incident where Mother said she better “get the police here because [Mother]
was going to kick [FCM Williams’s] a--” and that “even with two (2) police
officers there, [Mother] was still having a hard time containing herself.” Id. at
13.
[8] Cahoon indicated that Mother would not obtain a job or travel on the bus, that
she thought Mother never used her for transportation despite that being “part of
[her] services,” and that she did not believe that Mother and Father did all that
they could to help themselves to be successful in reunification with the
Children. Id. at 12, 14-15. When asked to explain her belief, she stated:
There are a multitude of reasons. We tried to process things throughout the case about drinking, about going for drug screens, I mean especially [Mother] was not going to do things if she didn’t want to do them. She wasn’t going to get up for appointments. She wasn’t going to go for drug screens. . . . It was just always a “No”. She was not going to do it. . . . She would half the time not answer the door. Or she would say they didn’t come. Just really hostile. We had several visitation facilitators in and out of there.
Id. at 15. Cahoon testified that Mother was “supposed to do Character
Restoration and comply with the drug screens and obtain employment,” and
that “none of those things were ever done well. I mean she started but then she
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 7 of 27 stopped.”6 Id. at 20-21. She testified that, from what she was able to observe,
Mother was not a good mother because “she would fail to protect her children.”
[9] Shane Serber, a home-based case manager and visit facilitator from Arising’s
Incorporated who supervised visits from the middle of October 2016 to
approximately the second week of December 2016, testified that the family was
discharged from services in accordance with the company’s late cancellations
and no-show policy because there were “several late cancellations and at least
three (3) no shows.” Id. at 26. He testified he had occasion to observe Mother
with the Children and that Mother “was much more disengaged during the
visit” and that “there were a couple of occasions where [Mother] spent the
majority of the visit upstairs in the bedroom not even coming down for 90% of
the visit.” Id. at 28.
[10] Taylor Fristoe, an HGCF employee who conducted drop-in visitations with the
family, testified that she thought Mother was the driving force in a lot of the
family’s issues. Id. at 53. When asked about the ultimate basis for the
discharge of Mother from services, she stated:
6 Cahoon further clarified by stating that she thought Mother only attended “a couple of Character Restorations,” and that, when Mother was ordered to return and she let Mother know that the “Character Restoration had started back up,” Mother “said that she wasn’t going to do it.” Transcript Volume 2 at 21. An ISS Monthy Report from July 2016 indicates that Mother stopped going to Character Restoration because “she missed the maximum amount allowed and has to start over. [Mother] does not feel that she needs this class.” DCS Exhibit 9 at 61.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 8 of 27 Both parents, but [Mother] especially, were very resistant to me coming in. They were very hostile when I was in there. [Mother] called me a b---- on several occasions, directly and indirectly. When [Father] was the only one (1) in the home, he worked very well with me. He was really compliant and cooperative and talkative. . . . If [Mother] was there, [Father] would not speak to me at all. He would not – he would go along with what [Mother] would say. He like spoke to me at the beginning of one (1) of the drop-ins, [Mother] said, “Why are you even talking to that b----?” And so, then he stopped talking to me for the rest of the time I was doing drop-ins. So just with [Mother’s] hostility, I just wasn’t comfortable doing the drop-ins any longer because it wasn’t effective.
Id. at 52. DCS Exhibit 8, which was admitted at the hearing, contains a
February 23, 2016 Alert Form for HGCF Services signed by Fristoe which
indicated that Fristoe traveled twice on February 17, 2016, to the house for
drop-in visitations and once for case management and reported that no one was
home. A February 23, 2016 Alert Form also states that Fristoe arrived on
February 22, 2016, at the house for a drop-in visitation, “observed the gray van
in the parking lot,” “could head [sic] the television on but not [sic] one
answered the door,” knocked three times and left, and a March 1, 2016 Alert
Form indicated Fristoe arrived at the house on that day for a random drop-in
visitation and knocked three times but no one answered the door. DCS Exhibit
8 at 2. A March 30, 2016 Record of Contacts Intervention Report indicates that
Fristoe arrived at the house for a random drop-in visitation, that the whole
family was present and Mother was on the phone, that Mother declared drop-in
visitations were not to be every day and she wished to know why FCM
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 9 of 27 Williams increased them and suggested “just to be a b----,” that Mother stated
“the b---- is here for the walk through” to the person on the phone, that Fristoe
asked permission to walk through the house and Mother agreed only because
“they will get in trouble if they don’t let me,” and that Mother refused to allow
Fristoe upstairs because one of the Children was sleeping. Id. at 4.
[11] DCS family case manager Ambyr Wade (“FCM Wade”) testified she had been
working with the family since July of 2016, that she recommended termination
of parental rights, and that it was in the Children’s best interest that the rights of
Mother and Father be terminated and that they be adopted by their current
placements. When asked about the basis of her opinion as to the best interests
of the Children, she responded:
The parents had services for quite some time, both in this CHINS case and the previous CHINS case. They have a significant history of substance use. They have a significant history of domestic violence. Specifically, in this case we have seen the behaviors of [Mother] threatening providers. [Father] and [Mother] had gotten in physical altercations. We heard testimony today about some of those specific incidents. It is just a continual repetitive [sic] and [the Children] are in the middle. It is not in their best interest. It does not provide safety. It doesn’t provide stability. It doesn’t provide permanency and [the Children] need that. They need consistent structure. They need a nurturing environment and the parents don’t supply that.
Transcript Volume 2 at 59-60. FCM Wade also indicated that the petition for
involuntary termination had to do with an incident involving law enforcement
being called because Mother was threatening to punch the previous case
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 10 of 27 manager in the cancer port in her chest. She answered affirmatively during
cross-examination when asked by Mother’s counsel “[w]hen [Mother] indicated
that she was going to do all of the services, you did make all of the referrals and
recommendations and gave her all the information.” Id. at 66. She described a
visit conducted at the Bauer House involving Mother that “took a quick turn”
when Mother “couldn’t recover from her aggressive, verbal behaviors,” and
testified that:
[Mother] was putting [the Children] in the car to be transported back to the great grandmother’s house. And the provider – they had just eaten during the visit and the provider did not allow juice bottles or milk bottles in the car during transport which was maybe a five (5) to seven (7) minute transport across town. And [Mother] was furious. She was aggravated, and she just went off. And she wasn’t going to do her visits anymore and she actually refused to go to anymore visits with this provider. It wasn’t harmful to the child, it wasn’t going to hurt the child and she just didn’t like that somebody told her she couldn’t do something. And it was all in front of [the Children].
Id. at 67-68. FCM Wade testified that Mother “participated in intakes which
are like clinical assessments on May 3, 2016 and again in September of 2016.”
Id. at 64. DCS Exhibit 27 includes a Wabash Valley Alliance report signed by
Monica Erk and dated May 3, 2016, and another signed by Deep Battu and
dated September 20, 2016.7 A letter from Battu dated December 1, 2016, states
7 The May 3, 2016 report indicates that Mother was not open to discussing herself during the intake and “seemed angry” that she had to go through it, that Mother “made it clear” that she did not want services of any kind because “she feels that DCS has her going through too many hoops as it is,” that Mother’s drug
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 11 of 27 that Mother did not attend any scheduled appointments during the reporting
period and that Wabash Valley Alliance would be “discharging and closing her
[sic] as she has not been seen since September 20, 2016.” DCS Exhibit 27 at 23.
When asked why she did not place a referral for another psychosocial
evaluation, she explained that Mother needed to participate in the clinical
evaluation again for the provider to complete the psychological evaluation and
the “testimony or in the report written on the psych evaluation is, ‘[Mother]
didn’t want to participate in that and through this entire case she has not
participated in services,” and indicated that Mother’s “compliance would not
be there” and that Mother “hasn’t participated in anything consistently since
that time.” Transcript Volume 2 at 65. She also testified that she did not
believe another psychological evaluation would have assisted Mother and
Father in the case.
[12] CASA Tammy Lindblom testified at the hearing that she had worked with the
Children since February 2016, she believed that parental rights should be
terminated and supported DCS’s plan for adoption, she had been on the case
since the beginning and had not observed any consistency from either parent,
levels have consistently decreased and, as a result, the therapist “recommended IOP but stated that she wouldn’t make it a requirement” because Mother’s marijuana levels “had gone down,” and that Mother stated she did not want to attend IOP. DCS Exhibit 27 at 3. Later, in the Recommendations section, the report states that Mother “made it very clear that she did not want to attend IOP.” Id. at 13. The September 20, 2016 report indicates that Mother reported no mental health symptoms and “continues to meet criteria for cannabis abuse and results from her substance evaluation, combined with psychological testing and personal history will be considered,” and that “[d]rug screens from April to current will be requested from DCS.” Id. at 27. Under the clinical findings section, the report states that Mother would benefit from attending individual therapy to address some possible depressive symptoms and being a victim of domestic violence and that she “appears to be resistance [sic] to all types of intervention and treatment.” Id.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 12 of 27 that she was able to begin a relationship with Mother “until [she] disagreed
with or made suggestions to [Father] or [Mother] [and] then there was conflict,”
and that Mother “pretty much from that point refused to talk to [her] after [the
Children] were removed.” Id. at 74. She also stated:
When visitations were provided I know the testimony today was from one (1) service provider, but there was four (4) service providers previously that also discharged them from visitation for repeated cancellations, no shows or aggression by [Mother] or within that visit – still you know again even the visitation part, the parents being able to visit, [Father] and [Mother] visiting the children did not even provide any consistency for the children.
Id. She answered affirmatively when asked if she thought it would be
detrimental to the well-being of the Children if the visits were to resume and
stated, when asked about the impact on the well-being of the Children if the
court did not terminate the parental rights and instead allowed the continued
relationship, that:
I think it would be very confusing at this point to [the Children]. I believe that [K.P.] – even [K.P.’s] therapist agrees that if there were any visitation it would be critical that there would be someone there to support her in that process. I visited the home where the girls are now placed and what I see even in [B.P.] who is the two (2) year old, I see a very strong difference in [the Children]. They seem – you can tell that they appear very stable. They are well cared for and I believe that it would be harmful for them not to have that stability that they are receiving right now.
Id. at 75. She stated during cross-examination that “my interactions with
[Mother] and [the Children], she was just kind of there” and that “I really did
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 13 of 27 not observe her hug or hold all three (3) of [the Children].” Id. at 79. CASA
Lindblom also indicated that “there were a lot of service providers that have
discharged services and yes, DCS workers” and that there have been three DCS
family case managers over the course of the case. Id. at 83. She agreed that the
services provided to Mother and Father were appropriate and stated “no” when
asked if she would say that they took advantage of those services and if there
were any other services she thought would be beneficial. Id. at 87. She testified
that it was her belief that Mother and Father were unfit as parents. Id. When
asked what she would have liked to have seen from Mother and Father, she
responded:
I would have like to have seen some consistency, some consistency in attending services. There just always seems to be excuses about why they could not do things. The biggest thing is I felt like they never – there was never an instance of where they put the children first. It was all about what they could and couldn’t do or couldn’t get to. . . . When they were able to have time with their children, the majority I would say eighty percent (80%) of the time with the service providers that were willing to make exceptions, they did not attend, or they did not show.
Id. at 88-89.
[13] Among others, DCS Exhibits 7, 11, 12, and 14 were admitted at the hearing.
DCS Exhibit 7 included a full psychological evaluation with Dr. Jeff
Vanderwater-Piercy conducted in 2014. The Monthly Progress Reports and
Case Notes from Counseling Partners LLC spanning from April 20, 2016, until
August 2, 2016, when the supervisor became “unable to continue providing
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 14 of 27 services,” contain observations of Mother including her becoming upset at a
child family team meeting, yelling at the team, standing and hitting Father in
the back and then driving away, notwithstanding her absence of a valid driver’s
license; her yelling at A.W. and stating “[y]ou’re not involved in a CPS case so
I will bust your a--”; and her grabbing K.P., spanking her bottom, placing her in
the corner, and stating “report that to CPS,” in response to K.P. telling Mother
“you should have asked her to ‘please put it down’ instead of ‘put that f------
phone down’” and hitting Mother’s cast on her foot. DCS Exhibit 14 at 23, 29.
The Visitation Reports and Monthly Progress Reports from Bauer Family
Resources, spanning from August to September 2016, indicate that Mother and
Father were discharged from services due to a lack of engagement, “no showed
or cancelled three visits in September on 9/1, 9/6, and 9/8,” and “were asked
to confirm their visitations before they occurred and two visits were not
confirmed and cancelled.” DCS Exhibit 11 at 5.
[14] On October 31, 2017, the court granted the petition to terminate Mother’s
parental rights. The order contained detailed findings which addressed
Mother’s drug use, criminal history, participation in services, and hostile
behaviors. Specifically, the order found:
4. Neglect (Environmental/Life Health Endangerment) was substantiated against Mother and Father in May 2014 after [K.P.] tested positive for marijuana. Mother tested positive for methamphetamine. The parents admitted domestic violence and Mother was observed with bruising on her arms. A CHINS case was opened in White County that closed in July 2015 with reunification of the family.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 15 of 27 5. A report of neglect by Mother and Father related to a domestic violence incident in front of [the Children] was unsubstantiated in July 2014.
6. DCS received another report of neglect by Mother and Father on October 1, 2015. During the investigation, both parents tested positive for marijuana. Both parents admitted smoking marijuana regularly but denied an addiction. Both parents admitted using marijuana when [the Children] are in the home and when the parents are responsible for supervising [the Children]. The conditions of the home were described as cluttered with floors covered in dirt and other items.
*****
9. . . . Both parents exhibited threatening behaviors and profanity toward DCS in the presence of [the Children] and made comments about leaving so providers and DCS could not locate [the Children].
13. Mother denies an ongoing history of substance abuse issues despite extensive collateral evidence otherwise. Even Father acknowledges Mother’s use of synthetic cannabinoids and misuse of prescription medication. Mother has demonstrated a chronic pattern of alcohol use even during the CHINS case.
14. During the CHINS proceedings, Mother tested positive for marijuana (01/07/2016), marijuana/alcohol (01/21/2016), marijuana/alcohol (01/28/2016), marijuana/alcohol (02/04/2016), marijuana/alcohol (02/12/2016), marijuana/alcohol (02/12/2016), marijuana/alcohol (02/22/2016), marijuana/alcohol (03/01/2016), marijuana (03/03/2016), marijuana/benzodiazepines–alprazolam (04/06/2016), benzodiazepines–alprazolam (04/19/2016), benzodiazepines–alprazolam (04/20/2016), benzodiazepines– alprazolam (06/13/2016), and benzodiazepines–alprazolam
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 16 of 27 (06/22/2016). Mother failed to submit to multiple drug screens as requested.
15. Mother’s criminal history includes both substance use and domestic violence. Mother was convicted of Receiving Stolen Auto Parts (Class D Felony) and Resisting Law Enforcement (Class D Felony) in July 2010. Mother was convicted of Criminal Mischief (Class A Misdemeanor) in June 2011. Mother was convicted of Conversion (Class A Misdemeanor) in January 2012. Mother was convicted of Domestic Battery (Class A Misdemeanor) in November 2014. Mother was convicted of Battery (Class A Misdemeanor) in November 2014. Mother was charged with Possession of Synthetic Drug or Lookalike Substance (Class A Misdemeanor) in April 2017. Mother was charged With Possession of Synthetic Drug or Lookalike Substance (Class A Misdemeanor) and Visiting a Common Nuisance (Class B Misdemeanor) on May 3, 2017. Mother was charged With Possession of Synthetic Drug or Lookalike Substance (Class A Misdemeanor) and Possession of Paraphernalia (Class C Misdemeanor) on May 25, 2017. All charges pending in 2017 remained pending at the time of the termination hearing.
16. Mother completed a psychological evaluation revealing below average to well below average intellectual functioning. However, test results indicated no cognitive deficits that would limit Mother’s ability to benefit from services. Mother failed to complete other evaluations as recommended.
17. Mother failed to consistently participate in any service. Mother was disengaged from [the Children] and hostile toward service providers during scheduled parenting time. . . . Mother has had no contact with [the Children] since December 2016.
18. Mother and Father when [sic] Mother was twelve (12) years of age. Mother and Father married in June 2014. The parents demonstrated a pattern of domestic violence, separation, and reconciliation. During the CHINS case, the parents separated
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 17 of 27 and reconciled several times. Although Father reports a plan to file for divorce, [he] travelled to provide Mother with cigarettes and soda just two (2) days prior to the termination proceeding. Father has always been submissive to Mother’s hostile behaviors and has failed to demonstrate an ability to protect the children from Mother.
19. At the onset of the CHINS case, Father resided with Mother in Lafayette despite a no trespass warning at Mother’s Section 8 apartment. Mother has been evicted from her apartment and is reportedly homeless. . . . Paternal Grandfather has a history of child molest[ation] and Mother has expressed a willingness to allow him access to [the Children].
24. . . . Since removal from the care of the parents, [the Children] have thrived in stable environments demonstrating improved behaviors and contentment. [The Children] are bonded with their respective relative placements and have no special needs. [The Children] are adoptable even if the current relative placements are unable to adopt for any reason.
25. Although Mother and Father may love [the Children], neither has demonstrated the ability and/or willingness to meet [the Children’s] needs for safety, stability, and permanency. The long-standing history of domestic violence, substance use, and criminal activity displayed by the parents continues today. All imaginable services have been offered and nothing is singularly different in today’s circumstances since the time of removal. To continue the parent-child relationships would be detrimental to [the Children]. [The Children] need permanency now.
Appellant’s Appendix Volume 2 at 20-23. The order found it was in the best
interests of the Children that the parental rights of Mother and Father be
terminated and concluded that continuation of the parent-child relationships
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 18 of 27 poses a threat to the well-being of the Children, that the Children need stability
in life and parents with whom they can form a permanent and lasting bond to
provide for their emotional, psychological, and physical well-being, and that a
reasonable probability existed that the conditions that resulted in removal of the
Children from the care of Mother and Father or the reasons for continued
placement outside the home would not be remedied since “[n]either parent has
demonstrated the ability or willingness to make lasting changes from past
behaviors” and “there is no reasonable probability that either parent will be able
to maintain stability to care and provide adequately for the children.” Id. at 23.
Discussion
[15] The issue is whether the trial court erred in terminating Mother’s parental
rights. In order to terminate a parent-child relationship, DCS 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
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 19 of 27 (D) that there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2).8 If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. See Ind. Code § 31-35-2-8(a).
[16] The State’s burden of proof for establishing the allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-
1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2), reh’g denied. This is “a
‘heightened burden of proof’ reflecting termination’s ‘serious social
consequences.’” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (quoting In re G.Y.,
904 N.E.2d at 1260-1261, 1260 n.1). “But weighing the evidence under that
heightened standard is the trial court’s prerogative—in contrast to our well-
settled, highly deferential standard of review.” Id. We do not reweigh the
evidence or determine the credibility of witnesses, but consider only the
evidence that supports the judgment and the reasonable inferences to be drawn
from the evidence. Id. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then whether the
findings clearly and convincingly support the judgment. Id.
[17] Reviewing whether the evidence clearly and convincingly supports the findings,
or the findings clearly and convincingly support the judgment, is not a license to
8 Subsequently amended by Pub. L. No. 42-2017, § 2 (eff. July 1, 2017).
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 20 of 27 reweigh the evidence. Id. “[W]e do not independently determine whether that
heightened standard is met, as we would under the ‘constitutional harmless
error standard,’ which requires the reviewing court itself to ‘be sufficiently
confident to declare the error harmless beyond a reasonable doubt.’” Id.
(quoting Harden v. State, 576 N.E.2d 590, 593 (Ind. 1991) (citing Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824 (1967))). “Our review must ‘give “due
regard” to the trial court’s opportunity to judge the credibility of the witnesses
firsthand,’ and ‘not set aside [its] findings or judgment unless clearly
erroneous.’” Id. (quoting K.T.K. v. Ind. Dep’t of Child Servs., Dearborn Cty. Office,
989 N.E.2d 1225, 1229 (Ind. 2013) (citing Ind. Trial Rule 52(A))). “Because a
case that seems close on a ‘dry record’ may have been much more clear-cut in
person, we must be careful not to substitute our judgment for the trial court
when reviewing the sufficiency of the evidence.” Id. at 640.
A. Remedy of Conditions
[18] We note that the involuntary termination statute is written in the disjunctive
and requires proof of only one of the circumstances listed in Ind. Code § 31-35-
2-4(b)(2)(B). Because we find it to be dispositive under the facts of this case, we
limit our review to whether DCS established that there was a reasonable
probability that the conditions resulting in the removal or reasons for placement
of the Children outside the home will not be remedied. See Ind. Code § 31-35-2-
4(b)(2)(B)(i).
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 21 of 27 [19] In determining whether the conditions that resulted in the Children’s removal
will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d at
642-643. First, we identify the conditions that led to removal, and second, we
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. at 643. In the second step, the trial court must judge a
parent’s fitness as of the time of the termination proceeding, taking into
consideration evidence of changed conditions, balancing a parent’s recent
improvements against habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation. Id. 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. Id.
Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that a parent’s past behavior is the best predictor of
future behavior. Id. A trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his or her physical, mental, and
social growth are permanently impaired before terminating the parent-child
relationship. In re Z.C., 13 N.E.3d 464, 469 (Ind. Ct. App. 2014), trans. denied.
[20] Mother argues that DCS did not prove by clear and convincing evidence there
is a reasonable probability that the circumstances that resulted in the Children’s
removal would not be remedied and that the trial court’s findings of fact do not
support its conclusions. She contends that “many of the courts [sic] findings are
erroneous” and contests two specific findings: first, that she failed to
consistently participate in any service and second, that she failed to complete
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 22 of 27 evaluations as recommended. Appellant’s Brief at 12. She also asserts that all
reasonable efforts were not made before resorting to the involuntary
termination of her parental rights and that important referrals for serious issues,
such as mental health concerns, were ignored. She further contends “[i]t is
important to note here that Mental Illness was a concern in this case” and that
the trial court “holds it against Mother for not participating in services when
Mother cannot participate in services that referrals have not been made and for
which there was a clear concern of Mental Illness,” and in support points to
FCM Wade’s testimony as to why Mother was not referred for a psychosocial
evaluation. Id. at 12-13.
[21] In response, DCS argues that Mother failed to consistently submit to random
drug screens and failed to attend visits with the Children, “stopped participating
in Character Restoration after six sessions and refused to participate any
further,” refused to participate in individual therapy, and failed to participate in
homebased services at Promising Futures, Inc. Appellee’s Brief at 23 (citing
DCS Exhibits 6, 9, 11, 12, 13, 17, 19, and 27). DCS contends that it referred
Mother to individual therapy, which could have addressed issues of mental
illness, but she refused to participate in the therapy like she had with many of
the other services which were offered. In support of the trial court’s finding that
Mother completed a psychological evaluation and failed to complete other
evaluations as recommended, DCS asserts that the psychological evaluation
Mother completed in 2014 was still relevant and that it took Mother months to
complete the substance abuse assessment at Wabash Valley Alliance, which she
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 23 of 27 did on May 3, 2016. DCS additionally points to several findings of fact in the
trial court’s order to support the conclusion that a reasonable probability existed
that Mother would not remedy the conditions which resulted in the removal of
the Children, draws attention to Mother’s lack of visitation with the Children
since December of 2016, and contends that Mother failed to truly benefit from
the little services that she had participated in.
[22] To the extent Mother does not challenge the court’s findings, any unchallenged
facts stand as proven. See In re Involuntary Termination of Parent-Child
Relationship of B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (failure to
challenge findings by the trial court resulted in waiver of the argument that the
findings were clearly erroneous), trans. denied; McMaster v. McMaster, 681
N.E.2d 744, 747 (Ind. Ct. App. 1997) (when the father failed to challenge
specific findings, this Court accepted them as true).
[23] The record reveals that the February 3, 2016 parental participation decree
ordered Mother to not consume or possess alcohol, any legend drug, or
controlled substance without a prescription and to participate in intensive case
management and in a substance abuse assessment. Mother was found in
contempt for failure to comply with the parental participation order for having
consumed alcohol as evidenced by positive drug screens collected on January
20, 2016, January 28, 2016, February 4, 2016, and February 12, 2016; tested
positive for substances, including marijuana and alcohol, in January, February,
March, April, and June of 2016; and was charged with various drug offenses in
2017. We also observe that, to the extent that Mother did engage in any
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 24 of 27 services, she was hostile and aggressive with service providers and that several
service providers discharged her. Regarding a psychological evaluation, FCM
Wade testified Mother needed to participate in a clinical evaluation, the
“testimony or in the report written on the psych evaluation is, ‘[Mother] didn’t
want to participate in that,’” and that Mother’s “compliance would not be
there.” Transcript Volume 2 at 65. Considering the record, together with
Mother’s unresolved substance abuse issues and the unchallenged findings of
the trial court, we conclude that clear and convincing evidence supports the
court’s determination that there is a reasonable probability that the conditions
leading to the Children’s removal will not be remedied. See In re A.S., 17
N.E.3d 994, 1005 (Ind. Ct. App. 2014) (holding that there was a reasonable
probability that the conditions that led to the children’s removal, including
substance abuse, would not be remedied and noting that “while [the mother]
remedied two of the conditions that led to the children’s removal, there was no
evidence that she would remedy her substance abuse”).
B. Best Interests
[24] We next consider Mother’s assertion that DCS failed to demonstrate that
termination of her parental rights was in the Children’s best interests. In
determining what is in the best interests of a child, the trial court is required to
look beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 25 of 27 which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification and courts need not wait until the child is irreversibly harmed such
that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. Recommendations of the case manager and court-appointed
advocate, 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.
[25] FCM Wade testified that it was in the Children’s best interest that Mother’s
rights be terminated and that they be adopted by their current placements.
CASA Lindblom testified as to her belief that parental rights should be
terminated and as to her support of DCS’s plan for adoption. Based on this
testimony, as well as the totality of the evidence contained in the record and as
set forth in the court’s termination order, we conclude that the court’s
determination that termination is in the best interests of the Children is
supported by clear and convincing evidence. See In re A.I., 825 N.E.2d 798, 811
(Ind. Ct. App. 2005) (concluding that testimony of child advocate and family
case manager, coupled with evidence that conditions resulting in continued
placement outside home will not be remedied, is sufficient to prove by clear and
convincing evidence termination is in child’s best interests), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 26 of 27 Conclusion
[26] We conclude that the trial court did not err in terminating the parental rights of
Mother.
[27] Affirmed.
Bailey, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1711-JT-2834 | June 13, 2018 Page 27 of 27