In the Matter of the Termination of the Parent-Child Relationship of: S.M., Minor Child, L.M., Mother v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 26, 2019
• Docket: 19A-JT-1200
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 26 2019, 7:09 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 APPELLANTS ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. Law Office of Jeffery Haupt Attorney General of Indiana South Bend, Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination November 26, 2019 of the Parent-Child Relationship Court of Appeals Case No. of: S.M., Minor Child, 19A-JT-1200 L.M., Mother, Appeal from the St. Joseph Probate Court Appellant-Respondent, The Honorable Jason Cichowicz, v. Judge The Honorable Graham Polando, The Indiana Department of Magistrate Child Services, Trial Court Cause No. 71J01-1809-JT-132 Appellee-Petitioner.

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 1 of 12 [1] L.M. (“Mother”) appeals the involuntary termination of her parental rights

with respect to S.M. We affirm.

Facts and Procedural History

[2] S.M. was born on April 28, 2017, stayed in the hospital for approximately a

month, and was placed in kinship care with S.B. and J.B., who also allowed

Mother to stay in their home for a period of time. 1 On May 30, 2017, the

Department of Child Services (“DCS”) filed a petition alleging S.M. was a child

in need of services (“CHINS”) and incorporated a preliminary inquiry and

investigation report stating: S.M. was born premature at twenty-nine weeks,

tested positive for marijuana, and was removed on May 25, 2017; and Mother,

who was “positive for marijuana at birth,” claimed to have drank and smoked

marijuana while pregnant. Exhibits Volume at 7. In June 2017, Mother

admitted to the material allegations. On September 18, 2017, the court issued a

disposition order placing S.M. into relative placement and requiring Mother to

keep the family case manager informed of changes of address or phone number,

complete a parenting psychological assessment, continue with random drug

screens and home-based therapy, sign all necessary release forms, see to S.M.’s

medical and emotional needs, cooperate with service providers to secure a stable

home environment, and follow all household rules while in the kinship house.

1 An August 18, 2017 addendum to the predispositional report indicates that S.B. and J.B. asked Mother to leave their home on August 15, 2017.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 2 of 12 [3] On November 30, 2017, DCS filed a motion to modify dispositional decree

and, following a December 18, 2017 hearing, the court suspended Mother’s

parenting time. After a March 12, 2018 hearing at which Mother appeared, the

court found her to be noncompliant and took the proposed permanency plan

under advisement. On April 30, 2018, the court changed S.M.’s permanency

plan to adoption.

[4] On September 26, 2018, DCS filed a petition to terminate Mother’s parental

rights. On March 19, 2019, the court held a termination hearing, and Family

Case Manager Arielle Williams-Winston (“FCM Williams-Winston”) testified:

Mother did not relate any changes in address or phone number and there was a

period of no contact that lasted over a year; her psychosocial referral was

cancelled after a missed initial appointment; at least three psychosocial referrals

were never fulfilled; she completed drug screens in the beginning months of

July and August 2017, was noncompliant afterwards, and DCS cancelled the

referral. FCM Williams-Winston also stated that Mother never had a home of

her own; her referral for a home-based case worker was cancelled due to lack of

contact; and that she never engaged in the home-based therapy or visitations

and the referrals for them were cancelled. She indicated that Mother refused to

speak with her or the court appointed special advocate on numerous occasions,

that two certified letters were returned as Mother did not live at the residence,

and that she had three different phone numbers at one point for Mother. With

regard to addressing S.M.’s medical and emotional needs, FCM Williams-

Winston testified she understood the requirement to mean “basically providing

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 3 of 12 care for the child and obviously staying up to date on all his medical needs and

shot records just because of him also being born premature, there’s a lot of

follow-up appointments.” Transcript at 15. She indicated a home-based case

worker provided transportation services for Mother who did not attend or ask

to attend any doctor appointments and that she did not have means of

transportation to be able to provide for S.M.’s necessary appointments. She

testified Mother last saw S.M. on the day after he was placed in relative

placement and that, “just by observing the one . . . or two visitations that [she

had] seen . . . there wasn’t very much interaction, not normal mother and child

bonding.” Id. at 19. She testified that Mother was employed in late 2017 for

“maybe a month” and in early 2018 at a Jimmy John’s, and indicated that DCS

was still unsure of her employment status, source of income, and her housing

situation. Id. at 17. During redirect examination, she indicated that at some

point in the case there had been a putative father to S.M. in C., but the DNA

test results were negative.

[5] FCM Williams-Winston indicated that termination was in S.M.’s best interest

and, when asked to explain why maintaining the parent-child relationship

would threaten his well-being, answered that S.M. did not know Mother, had

unattended medical needs when relative placement occurred, and had “to be

monitored yearly for his issue that he has with his kidneys,” something that she

thought Mother would not be able to do. Id. at 20. When describing S.M.’s

adoptive home with his grandmother and great-grandmother, FCM Williams-

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 4 of 12 Winston stated that he had progressed since placement, was active, and had

bonded with great-grandmother.

[6] Court Appointed Special Advocate Sharon LaPara (“CASA LaPara”) testified

that she attempted to speak with Mother, who “kind of, never contacted me

when I would try to call her, you know, there was no way, she didn’t answer, or

her phone wasn’t working.” Id. at 32. When asked whether maintaining the

parent-child relationship would threaten S.M.’s well-being, she answered

“[a]bsolutely” and explained that she did not think Mother was capable of

caring for him based on observations of her parenting skills, interest in visits,

interest in communicating with DCS, and participation in court services. Id. at

33. When asked about DCS’s plan for adoption, she stated that she believed

“that would be the best thing that could ever happen to him.” Id. at 34.

[7] Mother indicated that, after moving out of S.B. and J.B.’s home, she stayed with

C. for approximately a year, with her Jimmy John’s boss for three months at

some point in 2018 until “it just didn’t work out there,” and with somebody

whom she had started dating. Id. at 40. She stated that she now resides with her

friend C.H. and has been since October 2018. She answered in the negative

when asked if she ever refused to talk to the case manager and stated that she

would call her case manager at least once a week, “[b]ut it was usually a few

times a week.” Id. at 42. She indicated that she did not have a car, that C.H. had

one but “he works long hours, . . . he works nightshift job, so you know, when

he’s awake, it’s you know,” that she was not working now, and that she was due

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 5 of 12 to have a baby on April 15th and was attending Bella Vita classes from a

pregnancy resource center in Knox. Id. at 44.

[8] On May 15, 2019, the court terminated Mother’s rights and found that S.M. has

never returned to Mother’s care, that he had been removed for over seventeen

months at the time of the hearing, and that she largely failed to comply with the

dispositional decree. It also found: Mother attempted to blame FCM Williams-

Winston for the lack of communication, that FCM Williams-Winston “went

above and beyond in attempting to maintain contact with Mother,” and that

Mother largely failed to submit to random drug screens and failed to engage in

provided assistance to secure a stable home environment until it “was eventually

canceled by the agency.” Appellant’s Appendix Volume II at 51. Before finding

that DCS had established that Mother will not remedy the conditions resulting in

removal, it stated that

[i]n short, Mother is in only a slightly better position now vis-a- vis the Child then she was at the time of his removal. She had been in her current home for approximately five months at the time of the evidentiary hearing, and, as the Department points out, is subject to the whim of yet another friend – whims that have proven disastrous for her housing situation on more than one occasion. She had not been employed for eight months.

Id. at 52. In its “Best Interests and Satisfactory Plan,” the court concluded that

Mother “is essentially a stranger” to S.M., “who, since this case began, has seen

his CASA far more” than Mother, and described two episodes that served as

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 6 of 12 poignant examples of Mother’s inability to prioritize the Child. In one, Mother declined to meet with the CASA so she could help the brother of the man she alleged to be the Child’s Father move. In another, when the previous [DCS FCM] actually attempted to pick Mother up to attend a visit, Mother declined to get into the car until she had finished her cigarette.

Id. at 53. It found S.M. was “doing well in his current home, essentially the

only home he has ever known, and certainly the most stable,” termination was

in his best interest, and that adoption was satisfactory. Id.

Discussion

[9] The issue is whether sufficient evidence supports the termination of 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

(D) that there is a satisfactory plan for the care and treatment of the child.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 7 of 12 Ind. Code § 31-35-2-4(b)(2). 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. Ind. Code § 31-35-2-8(a). A finding in a proceeding to

terminate parental rights must be based upon clear and convincing evidence.

Ind. Code § 31-37-14-2. 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. In re

E.M., 4 N.E.3d 636, 642 (Ind. 2014). 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.

Reviewing whether the evidence “clearly and convincingly” supports the

findings, or the findings “clearly and convincingly” support the judgment, is not

a license to reweigh the evidence. Id. 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. “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.

[10] 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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 8 of 12 the conditions resulting in the removal or reasons for placement of S.M. outside

the home will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).

[11] Mother disputes the court’s general assessment that she is only in a slightly better

position now then she was at the time of S.M.’s removal and argues that she has

“accepted help, and in fact went and found services on her own . . . to improve

her parenting skills.” Appellant’s Brief at 12. She concedes that she “did not

have a good showing in the early stages of the CHINS case” and did not

complete many of the requirements of the dispositional order regardless of her

transportation or communication issues, but asks this Court to examine her life

situation when the termination proceedings began and maintains that it is “in a

much [more] secure and stable place than it has been in a while.” Id. at 8. With

respect to the best interest of S.M., Mother contends that the court failed to

account for her youth and the communication and transportation difficulties she

“had during the time of the CHINS case” and argues that the passage of time

from her suspension of parenting time to the termination hearing is insufficient to

support the court’s conclusion that she is essentially a stranger to him. Id. at 13.

[12] In determining whether the conditions that resulted in a child’s removal will not

be remedied, we engage in a two-step analysis. See 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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 9 of 12 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. The statute does not simply focus on the initial basis for a child’s

removal for purposes of determining whether a parent’s rights should be

terminated, but also those bases resulting in the continued placement outside

the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may

consider evidence of a parent’s history of neglect, failure to provide support,

lack of adequate housing and employment, and the services offered by DCS and

the parent’s response to those services. Id. Where there are only temporary

improvements and the pattern of conduct shows no overall progress, the court

might reasonably find that under the circumstances the problematic situation

will not improve. Id.

[13] To the extent Mother does not challenge certain findings of fact, the

unchallenged facts stand as proven. See In re 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.

[14] The record reveals that S.M. was removed on May 25, 2017, and that Mother did

not continue with drug screens or home-based therapy, cooperate with service

providers to secure a stable home environment, or address S.M.’s medical and

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 10 of 12 emotional needs. FCM Williams-Winston testified that Mother refused to speak

with her or the special advocate on numerous occasions and they had no contact

for over a year, and that Mother did not attend or ask to attend any doctor

appointments despite the availability of transportation services. Mother testified

to four separate housing arrangements since S.M.’s removal and indicated she

was not currently employed and did not have reliable transportation. Based

upon the record, we conclude that clear and convincing evidence supports the

trial court’s determination that there is a reasonable probability that the

conditions leading to S.M.’s removal will not be remedied.

[15] 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). The court must subordinate the interests of the parent to those of

the children. Id. Children have a paramount need for permanency 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.

However, focusing on permanency, standing alone, would impermissibly invert

the best-interests inquiry. Id. at 648. Recommendations by both the case

manager and the child advocate to terminate parental rights, in addition to

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 11 of 12 evidence that the conditions resulting in removal will not be remedied, is

sufficient to show by clear and convincing evidence that termination is in the

child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-

1159 (Ind. Ct. App. 2013), trans. denied.

[16] Our review of the evidence reveals DCS has been involved with S.M. since the

CHINS case began shortly after his birth. Mother does not dispute that she has

not seen him since September 2017 or that he was never returned to her care.

She also does not dispute, as the court found, her inability to prioritize him.

FCM Williams-Winston testified that termination was in S.M.’s best interest,

S.M. did not know Mother, and that she would not be able to provide for his

medical needs. CASA LaPara testified that Mother was incapable of caring for

S.M. and that adoption was best for him.

[17] We find no error and affirm the termination of Mother’s parental rights.

[18] Affirmed.

Altice, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-1200 | November 26, 2019 Page 12 of 12