In the Matter of the Termination of the Parent-Child Relationship of S.P. and J.P. (Minor Children) and S.P (Father) and R.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 7, 2019
• Docket: 18A-JT-2034
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 07 2019, 9:12 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Melinda K. Jackman-Hanlin Curtis T. Hill, Jr. Greencastle, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination March 7, 2019 of the Parent-Child Relationship Court of Appeals Case No. of S.P. and J.P. (Minor Children) 18A-JT-2034 and Appeal from the Hendricks Superior Court S.P (Father) and R.S. (Mother), The Honorable Karen Love, Judge Appellants-Respondents, Trial Court Cause No. v. 32D03-1608-JT-6 & 32D03-1608- JT-7

The Indiana Department of Child Services, Appellee-Petitioner.

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 1 of 14 STATEMENT OF THE CASE [1] Appellants-Respondents, R.S. (Mother) and S.P. (Father) (collectively,

Parents), appeal the termination of their parental rights to their minor children,

S.P. and J.P. (collectively, Children).

[2] We affirm.

ISSUES [3] Parents present two issues on appeal, which we restate as:

(1) Whether the Indiana Department of Child Services (DCS) presented

clear and convincing evidence to support the trial court’s termination of

Parents’ rights; and

(2) Whether Parents’ due process rights were violated when the fact-finding

hearing was not completed within the statutorily-mandated timeframe.

FACTS AND PROCEDURAL HISTORY [4] Mother and Father are the natural parents of S.P., born January 3, 2014, and

J.P., born March 3, 2015. On April 6, 2015, DCS received a report that Mother

was addicted to pain medication and that J.P. was born with morphine in his

urine. Children were removed from Parents’ home on April 7, 2015, and were

never returned to their care. On April 14, 2015, DCS filed petitions alleging

that Children were children in need of services (CHINS) based on allegations

that J.P. had been born with a “very high” level of morphine in his urine,

Mother and Father had tested positive for Oxycodone without having a valid

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 2 of 14 prescription, and Mother and Father refused to meet with DCS. (Appellants’

App. Vol. II, pp. 59-64). On June 23, 2015, Mother admitted that she had

untreated substance abuse issues, she had tested positive for unprescribed

medications after J.P.’s birth, and that she last used unprescribed medication on

June 16, 2015. Father admitted that he had untreated substance abuse issues

and that he had used unprescribed medication on June 16, 2015. Parents also

admitted that their substance abuse would not be remedied without the

intervention of DCS. On July 15, 2015, as part of its dispositional order in the

CHINS proceedings, the trial court ordered Parents to participate in a substance

abuse assessment, follow treatment recommendations, remain drug and alcohol

free, and to participate in random drug screens.

[5] DCS referred Parents to Cummins Behavioral Health (Cummins) where they

underwent their first substance abuse assessment on July 15, 2015. Parents

were recommended individual therapy, once a week. From July 21, 2015, to

November 2015, Mother attended four individual therapy sessions. Mother

never acknowledged that she was addicted to prescription medication. Mother

reported during therapy that she used Oxycodone for pain management. After

her therapist recommended that Mother seek pain management through a

physician and provide documentation, Mother stopped attending therapy.

Mother tested positive for Oxycodone throughout her treatment at Cummins.

Mother also failed to provide several drug screens. On January 12, 2016,

Mother was discharged unsuccessfully from services at Cummins for non-

attendance.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 3 of 14 [6] Father attended eleven therapy sessions at Cummins over six months. Father

attended his last session on January 18, 2016, and never returned. Father was

discharged unsuccessfully from services through Cummins on March 9, 2016,

due to non-attendance. Father tested positive for Oxycodone throughout his

treatment at Cummins and also failed to provide several drug screens. Mother

and Father did not provide any drug screens from approximately January 26,

2016, to April 13, 2016.

[7] In April 2016, Mother requested a referral for substance abuse treatment, and

DCS referred Parents to Families First, where they had their second substance

abuse assessments. Mother began intensive out-patient (IOP) group therapy

there in June 2016. IOP consisted of three-hour group therapy sessions, three

times a week, for eight weeks. Mother attended six IOP sessions in June and

July of 2016. Mother tested positive for alcohol and Tramadol during her

treatment at Families First. Mother stopped attending IOP after July 12, 2016,

and was discharged unsuccessfully from treatment.

[8] Father started treatment at Families First on June 2, 2016, in an out-patient

program consisting of a two-hour session, once a week, for twelve weeks.

Father attended four out-patient sessions in June and July 2016 but tested

positive for Oxycodone, Tramadol, and alcohol during that time. Father

claimed that he had a prescription for Tramadol but never produced it to his

therapist. Father also claimed that he believed that he could consume alcohol

while in substance abuse therapy. As per Families First policy, because Father

had tested positive for illegal substances during out-patient treatment, he was

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 4 of 14 referred to IOP. After this referral was made, Father stopped attending

treatment at Families First and, like Mother, was discharged unsuccessfully on

July 21, 2016. DCS made a second set of referrals to Families First for Parents

in August of 2016, but they never engaged. Father failed to provide random

drug screens in August and September 2016.

[9] On August 31, 2016, DCS filed a petition to terminate Parents’ rights (TPR) to

Children. 1 On November 2, 2016, the trial court held a TPR fact-finding

hearing. Due to their behavior in court, Mother and Father were drug tested

directly after this hearing, and both tested positive for Oxycodone. Mother also

tested positive for cocaine and morphine.

[10] In January of 2017, DCS made another substance abuse referral for Parents,

this time to Life Recovery. Mother completed her assessment on January 5,

2017, and started group IOP therapy. Father was unable to complete his

assessment in January because he arrived for the assessment under the influence

of alcohol and opiates. Father completed his substance abuse assessment on

February 2, 2017, and began group IOP therapy.

[11] On February 21 and 22, 2017, the trial court held another TPR hearing. DCS

sought to have the results of Parents’ drug screens admitted into evidence over

objection from Mother’s counsel. While arguing the objection, it came to light

that DCS had only received copies of the drug screen results shortly before the

1 The CHINS and TPR cases proceeded in tandem.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 5 of 14 start of the hearing, and as a result, opposing counsel had just received them.

The trial court took a recess so that the parties could decide how to proceed.

After that recess, Mother’s counsel informed the trial court that the parties

wished to delay the completion of the hearing for ninety days so that the drug

screen results could be examined. Mother’s counsel informed the trial court

that

my client[] is waiving her right to have the hearing within 180 days, and, so, we’re willing to go on the record to say that we will not file a motion to dismiss based on the 180 days. I think the statute permits that and allows us to do that. The reason why we’re asking this is ‘cuz it will deal with any of the potential procedural issues that occurred . . . So, there would be no prejudice to my client if we do this. It’ll also be no prejudice to [DCS] and speaking for [the GAL], she does not object either.

(Transcript Vol. II, p. 211). Father’s counsel confirmed that Father also agreed

to a delay in the proceedings. The parties agreed to reconvene the hearing on

June 14, 2017. Father and Mother then affirmed on the record that they were

willing to waive the requirement that the TPR hearing be concluded within 180

days of being commenced and agreed that the hearing be reconvened on June

14, 2017.

[12] In the early spring of 2017, Mother completed twenty-eight of her thirty IOP

sessions at Life Recovery. However, Mother tested positive for Tramadol

throughout her treatment at Life Recovery, and she tested positive for

Oxycodone twice in April 2017. Mother stopped attending IOP on April 25,

2017, and was discharged unsuccessfully from services there. Father tested

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 6 of 14 positive for alcohol and Tramadol while attending treatment at Life Recovery.

On March 22, 2017, Father tested positive for Hydrocodone and Oxycodone.

As a result, he was referred to in-patient treatment at the end of March 2017.

Father did not engage in any in-patient treatment. During March, April and

May of 2017, Mother and Father tested positive on numerous occasions for

cocaine, morphine, and Oxycodone.

[13] On June 14, 2017, the trial court reconvened the TPR hearing. Mother was not

in substance abuse treatment. Father had requested a referral for in-patient

treatment in May but had not completed his assessment. Family Case Manager

Jessica Blevins testified that since Parents continued to test positive for illegal

substances over the two years the case had been pending, it was her opinion

that the issue would not be remedied.

[14] On July 31, 2018, 2 the trial court entered its Order terminating Parents’ rights to

Children. The trial court entered the following relevant findings:

170. Upon removal of [Children], DCS referred [Parents] to service providers for substance abuse treatment multiple times. [Parents] have inconsistently engaged in substance abuse treatment and have continued to test positive for illegal substances. [Parents] cannot manage to maintain negative drug

2 Fact-finding in this matter was concluded on June 16, 2017, and the parties submitted their proposed findings and conclusions on July 17, 2017. The trial court did not issue its order until over one year after the parties made their submissions.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 7 of 14 screens for a substantial period of time despite DCS involvement and constant drug screens.

171. [Parents] have repeatedly failed to address their substance use while in treatment. [Parents] have not made progress.

172. [Children] are still very young and rely on their caregivers to provide for their basic needs, including supervision.

173. Despite the potential termination of their parental rights looming for several months, [Parents] continued to test positive for illegal substances including cocaine.

(Appellants’ App. Vol. II, p. 52). The trial court entered the following relevant

conclusions:

12. The evidence is clear and convincing that the reasons for which [Children] were removed from [Parents] will not be remedied. While [Parents] have been able to test negative for periods of time during the case, they have failed to demonstrate their ability to maintain that sobriety long term.

13. [Children] were removed from [Parents’] care due to substance use. [Parents] continue to use illegal substances and have failed to participate in substance abuse treatment. It is reasonable to believe the reasons DCS became involved with the family (substance abuse) will continue to be a problem and interfere with [Parents’] ability to properly supervise [Children].

(Appellants’ App. Vol. II, p. 55).

[15] Parents now appeal. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 8 of 14 DISCUSSION AND DECISION I. Sufficiency of the Evidence Supporting Termination

A. Standard of Review

[16] Parents argue that the trial court’s Order terminating their rights to Children

was not supported by clear and convincing evidence. It is well-settled that

when reviewing the evidence supporting the termination of parental rights we

neither reweigh the evidence nor determine the credibility of witnesses. In re

E.M., 4 N.E.3d 636, 642 (Ind. 2014). In addition, we consider only the

evidence that supports the judgment and the reasonable inferences to be drawn

from that 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. We must give due

regard to the trial court’s opportunity to judge the credibility of witnesses

firsthand, and we do not set aside the trial court’s findings or judgment unless it

is clearly erroneous. Id.

B. Termination of Parents’ Rights

[17] “[O]ne of the most valued relationships in our culture” is that between a parent

and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.

Indeed, “[a] parent’s interest in the care, custody, and control of his or her

children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.

(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Accordingly, the

Fourteenth Amendment to the United States Constitution safeguards “the

traditional right of parents to establish a home and raise their children.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 9 of 14 Nevertheless, parental interests are not absolute; rather, termination of parental

rights is appropriate when parents are unable or unwilling to meet their parental

responsibilities. In re A.B., 887 N.E.2d 158, 164 (Ind. Ct. App. 2008).

[18] Termination of parental rights is an extreme sanction that is intended as a “last

resort” and is available only when all other reasonable efforts have failed. C.A.

v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such,

before a termination of parental rights is merited, the State is required to prove

a host of facts by clear and convincing evidence, the most relevant for our

purposes being that there is a reasonable probability that the conditions which

resulted in the children’s removal or continued placement outside the home will

not be remedied by the parents and that there is a reasonable probability that

the continuation of the parent-children relationship poses a threat to the well-

being of the children. 3 Ind. Code §§ 31-35-2-4(b)(2)(B)(i)-(ii); 31-37-14-2.

C. Failure to Remedy Conditions

[19] When reviewing a trial court’s determination that the conditions that resulted in

a child’s removal or placement outside the home will not be remedied, we

engage in a two-step analysis. E.M., 4 N.E.3d at 642-43. First, we must

identify the conditions that led to removal or placement; second, we determine

3 Although Parents state on page 19 of their Brief that they also contest the trial court’s finding that termination was in Children’s best interests and cite the portion of the termination statute pertaining to best interests, they do not develop that argument with any other legal authority or citations to relevant portions of the record. We find that they have waived any argument that termination was not in Children’s best interests. Ind. Appellate Rule 46(8)(a).

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 10 of 14 whether there is a reasonable probability that those conditions will not be

remedied. Id. at 643. When engaging in the second step of this analysis, a trial

court must judge a parent’s fitness as of the time of the TPR proceeding, taking

into account evidence of changed conditions, and balancing any recent

improvements against habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation. Id. This delicate

balance is entrusted to the trial court, and a trial court acts within its discretion

when it weighs 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 parents’ past

behavior is the best predictor of their future behavior.” Id.

[20] Here, Children were removed from Parents’ care due to Parents’ substance

abuse, and Parents admitted during the CHINS proceedings that they had

substance abuse issues that would not be remedied without the assistance of

DCS. Parents were referred for out-patient substance abuse treatment at

Cummins, Families First (twice), and Life Recovery. Parents were also referred

at different times for in-patient treatment. Parents attended some services and

showed at least an initial willingness to attend treatment each time they

restarted services with another substance abuse assessment. However, Parents

never completed treatment at any of their referrals. Although Parents were

apparently able to refrain from drug use for short periods, they tested positive

for illegal substances throughout the underlying CHINS case and even after the

initiation of the TPR proceedings. Father last tested positive for Oxycodone

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 11 of 14 March 22, 2016, and Mother last tested positive for Oxycodone April 28, 2016,

just months before fact-finding in the TPR proceedings was completed. We

conclude that Parents made very little progress in addressing their substance

abuse despite the array of services that were offered to them and that the trial

court reasonably concluded that this lack of progress meant that there was a

reasonable probability that Parents would not rectify their substance abuse. See

In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014) (affirming the trial court’s

conclusion that there was a reasonable probability that Parents’ substance abuse

would not be remedied in light of their failure to complete treatment), trans.

denied.

[21] Parents argue that termination cannot be based entirely on conditions that

existed in the past but no longer exist. While we agree with this general

principle, given that Parents continued to test positive for illegal substances

throughout their treatment and almost to the end of fact-finding in this matter,

we find very little evidence of changed conditions. Parents also direct our

attention to the fact that they did abstain from drug use for some periods

throughout the case, they attended 12-step meetings, and to what they

characterize as their success in treatment when they attended. However, as

noted by the trial court, any advances made by Parents were short-lived, and

Parents’ arguments are unavailing inasmuch as they require us to consider

evidence that does not support the trial court’s judgment, in contravention to

our standard of review. See E.M., 4 N.E.3d at 642. Finding support for the trial

court’s conclusion that there was a reasonable probability that the reason for

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 12 of 14 Children’s removal would not be remedied, we affirm the trial court’s

termination of Parents’ rights. 4

II. Timeliness of Completion of TPR Hearing

[22] Parents contend that their due process rights were violated when the TPR fact-

finding hearing was not completed within the mandated timeframe. 5 Pursuant

to Indiana Code section 31-35-2-6(a), a hearing on a TPR must be completed

within 180 days of its filing. A failure to complete the TPR hearing within the

time required subjects the TPR to dismissal without prejudice. I.C. § 31-35-2-

6(b).

[23] Here, DCS filed its TPR on August 31, 2016, and DCS does not dispute that,

pursuant to statute, the TPR hearing was to be completed by February 27, 2017.

However, DCS argues that Parents waived any challenge to the timeliness of

the completion of the TPR hearing, and we agree. At the February 22, 2017,

portion of the TPR hearing, Parents both explicitly waived their right to have

the hearing completed within the 180-day limit so that the parties could have

time to examine the drug screen results that had only recently become available

4 Having concluded that there was a reasonable probability that the conditions meriting removal or continued placement would not be remedied, we decline to address Parents’ argument regarding the trial court’s conclusion that their continued relationship with Children posed a threat. See In re A.P., 882 N.E.2d 799, 807 (Ind. Ct. App. 2008) (noting that the termination statute is written in the disjunctive and declining to address Father’s argument regarding his continued threat to the child where the evidence supported trial court’s conclusion that the conditions meriting removal had not been remedied). 5 Parents also briefly argue that the trial court’s delay in entering its Order violated their due process rights. Parents do not support this argument with legal authority, and so we find that they have waived this issue. App. R. 46(8)(a). Although we do not condone the delay by the trial court in entering its Order, our own research revealed no instances where such a delay was found to be a due process violation.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 13 of 14 to them. This acquiescence in the setting of a hearing date outside of the

statutory requirement resulted in their waiver of the issue. In re N.C., 83 N.E.3d

1265, 1267 (Ind. Ct. App. 2017). Parents do not address the effect of their

explicit waiver. Finding that Parents explicitly waived their right to have the

TPR fact-finding hearing completed within 180 days of its commencement, we

affirm the trial court’s TPR Order.

CONCLUSION [24] Based on the foregoing, we conclude that the trial court’s Order was supported

by clear and convincing evidence and that Parents waived their right to have the

TPR hearing concluded within the mandated timeframe.

[25] Affirmed.

[26] Kirsch, J. and Robb, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-JT-2034 | March 7, 2019 Page 14 of 14