In the Matter of the Termination of the Parent-Child Relationship of: P.W. (Minor Child) and M.W. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 25, 2015
• Docket: 37A03-1506-JT-677
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Nov 25 2015, 7:38 am

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 Richard F. Comingore Gregory F. Zoeller Rensselaer, Indiana Attorney General of Indiana

Robert J. Henke David E. Corey Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination November 25, 2015 of the Parent-Child Relationship Court of Appeals Case No. of: 37A03-1506-JT-677 P.W. (Minor Child) Appeal from the Jasper Circuit and Court M.W. (Mother) The Honorable John D. Potter, Appellant-Respondent, Judge Trial Court Cause No. v. 37C01-1409-JT-146

The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 1 of 9 Bailey, Judge.

Case Summary [1] M.W. (“Mother”) appeals the trial court’s order, which terminated her parental

rights as to P.W. (“Child”). Mother presents one issue for our review: whether

the Department of Child Services (“DCS”) presented clear and convincing

evidence to support the termination of Mother’s rights as to P.W.

[2] We affirm.

Facts and Procedural History [3] Child was born to Mother on March 25, 2011. Mother and Child’s birth father

agreed to Child’s adoption by another family. After this, in January 2013, the

adoptive family sought vacation of the adoption decree in the Jasper Circuit

Court; this petition was denied. On March 5, 2013, in a different court, Mother

filed a petition to adopt Child; on April 30, 2013, Mother’s petition was

granted.1

[4] On September 10, 2013, Mother was dropped off at work by her then-boyfriend,

Michael Delaney (“Delaney”). While Mother was at work, she received a

phone call from Delaney that Child had hit his head on the toilet. Child was

1 Child’s birth father did not join Mother in the adoption petition, and was not a party to this case.

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 2 of 9 transported to a hospital in Rensselaer, where physicians determined that Child

had suffered head trauma as a result of abuse. Child was transported to Riley

Children’s Hospital in Indianapolis, where surgeons removed approximately

half of the bone in Child’s skull to relieve the pressure on his brain. Child

remained hospitalized in Indianapolis for more than one month.

[5] On September 13, 2013, the trial court entered an order of detention as to Child

and held an initial hearing on the matter. On February 7, 2014, the trial court

adjudicated Child as a CHINS, ordered Child’s removal from the home, and

entered a no-contact order prohibiting Mother from having any contact with

Child.

[6] Subsequent to this, DCS provided Mother with services, including parenting

classes, substance abuse evaluations, random drug screening, psychological

evaluations, and substance abuse therapy. Psychological care was also

recommended. For some periods of the CHINS proceeding, Mother complied

with some of the requirements of the DCS service plan. However, Mother did

not complete substance abuse treatment, did not obtain psychological care,

failed to appear for several drug screens, and failed a drug screen. Mother also

moved frequently during the CHINS proceeding, did not maintain a stable

residence, did not maintain stable employment, did not save money to use for

renting a single-family residence, and did not take advantage of DCS offers of

assistance in finding suitable housing.

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 3 of 9 [7] During the CHINS proceeding, on November 14, 2013, Mother was charged in

Jasper County with two counts of Neglect of a Dependent Resulting in Serious

Bodily Injury, as Class B felonies, in relation to the injuries that Child suffered

on September 10, 2013. On July 30, 2014, Mother was charged with

Obstruction of Justice, as a Level 6 felony, in Newton County; Mother pled

guilty to this charge and was ordered to serve probation. On November 6,

2014, Mother was charged in Cass County with Illegal Consumption of an

Alcoholic Beverage, as a Class C misdemeanor. On December 30, 2014, again

in Cass County, Mother was arrested and charged with Operating a Vehicle

While Intoxicated and Endangering a Person, as a Class A misdemeanor;

Failure to Return to Scene after Accident, as a Class C misdemeanor; and False

Informing, as a Class B misdemeanor. Moreover, Mother was found to have

violated probation in the Newton County case, as a result of which Mother’s

probation was revoked and she was incarcerated on February 23, 2015.

[8] On September 30, 2014, DCS filed its petition to terminate Mother’s parental

rights. A hearing was conducted on the petition on May 21, 2015. On May 22,

2015, the trial court entered its order terminating Mother’s parental rights.

Mother was incarcerated during the hearing and when the trial court entered its

order, and criminal cases remained pending against Mother in Jasper and Cass

Counties.

[9] This appeal ensued.

Discussion and Decision Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 4 of 9 [10] Mother contends that the trial court erred when it terminated her parental

rights, arguing that there was insufficient evidence from which the court could

conclude that DCS had established the statutory requirements for termination

of parental rights by clear and convincing evidence.

[11] Our standard of review is highly deferential in cases concerning the termination

of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This

Court will not set aside the trial court’s judgment terminating a parent-child

relationship unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544

(Ind. Ct. App. 1997).

[12] Parental rights are of a constitutional dimension, but the law provides for the

termination of those rights when the parents are unable or unwilling to meet

their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not

to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,

208 (Ind. Ct. App. 1999), trans. denied.

[13] Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege

and prove by clear and convincing evidence in order to terminate a parent-child

relationship:

(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

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 5 of 9 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 local office or probation department for at least fifteen (15) months of the most recent twenty-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.

[14] If the court finds that the allegations in a petition described above are true, the

court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial

court must judge a parent’s fitness to care for his or her child at the time of the

termination hearing, taking into consideration evidence of changed conditions.

In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 6 of 9 court must also “evaluate the parent’s habitual patterns of conduct to determine

the probability of future neglect or deprivation of the child.” Id.

[15] Here, Mother challenges the trial court’s order with respect to Subsections 31-

35-2-4(b)(2)(B) and 31-35-2-4(b)(2)(D). Indiana Code section 31-35-2-4(b)(2)(B)

is written in the disjunctive, and therefore the court needed only to find that one

of the three requirements of subsection (b)(2)(B) had been established by clear

and convincing evidence. See L.S., 717 N.E.2d at 209. Mother contends that

there was insufficient evidence to establish any of the requirements.

[16] We disagree. The evidence that favors the trial court’s order indicates that

Mother only intermittently engaged with DCS-provided services, and that these

services did not result in beneficial changes in behavior such that Mother could

make appropriate choices for her and Child’s safety. After admitting to the use

of heroin, Xanax, and marijuana, and after having tested positive for use of

hydrocodone, Mother only availed herself of drug-treatment services in

September through December of 2014. Mother did not complete these drug-

treatment services, failed to be present on at least six occasions for random drug

testing, and tested positive for marijuana on one occasion.

[17] Not including the charges relating to Child’s injuries on September 10, 2013,

Mother was arrested three times during the CHINS proceeding. On each

occasion, the arrests stemmed from conduct involving the use of marijuana or

alcohol. As a result of one of these incidents, mother was in jail during July,

August, and September 2014. Two of the arrests occurred when Mother was

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 7 of 9 actively involved in drug treatment programs during November and December

2014, and Mother’s probation was revoked in another case, leading to her

incarceration during the final months of the CHINS action.

[18] Mother did not obtain stable housing. She instead refused DCS assistance in

obtaining housing and moved numerous times. Mother often lived in

Rensselaer, but also resided in Remington, Logansport, Hammond, Lucerne,

and Indianapolis at various times during the case. Mother’s unstable housing,

together with being incarcerated during portions of both 2014 and 2015,

precluded her from participating in DCS-ordered services. All of this supports

the trial court’s conclusion that there was a reasonable probability that

continuing the parent-child relationship posed a threat to Child’s well-being.

[19] Mother also contends that DCS failed to establish by clear and convincing

evidence that termination of her parental rights was in Child’s best interests.

Yet Mother’s unstable housing and employment situation, and her ongoing

legal, drug, and psychological problems—which include untreated depression

and potentially bipolar disorder—do not militate in favor of Child returning to

Mother’s care. Moreover, Child spent most of his life out of Mother’s care,

including the entirety of the CHINS proceeding. Testimony was heard that

Child has bonded with his foster parents and does not request contact with

Mother. In light of this evidence, we cannot conclude that the trial court erred

when it found that reunification with Mother was not in Child’s best interest.

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 8 of 9 [20] To the extent Mother contends that matters such as the trial court’s use of the

term “numerous” in its order or DCS was somehow at fault for her criminal

conduct after Child’s removal from her care, we note that these amount to

requests that we reweigh evidence, which we cannot do. Finding no error, we

affirm the order terminating Mother’s parental rights.

[21] Affirmed.

Baker, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 37A03-1506-JT-677 | November 25, 2015 Page 9 of 9