MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 29 2015, 7:47 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE James T. Knight Gregory F. Zoeller Andrew A. Achey Attorney General of Indiana Hillis, Hillis, Rozzi & Achey Robert J. Henke Logansport, Indiana Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 29, 2015 of the Parent-Child Relationship Court of Appeals Case No. of: 25A03-1503-JT-78 W.M. (Minor Child), Appeal from the Fulton Circuit Court and The Honorable A. Christopher T.O. (Mother) Lee, Judge Appellant-Respondent, Trial Court Cause No. 25C01-1406-JT-100 v.
Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 1 of 7 Bailey, Judge.
Case Summary [1] T.O. (“Mother”) appeals the termination of her parental rights to W.M.
(“Child”), upon the petition of the Fulton County Department of Child Services
(“the DCS”). She presents the sole issue of whether the trial court clearly erred
in terminating her parental rights because her release from incarceration was
imminent. We affirm.
Facts and Procedural History [2] Child was born in July of 2007 to Mother and B.M. (“Father”). On July 12,
2013, DCS caseworkers and law enforcement visited the residence of Mother,
Father, and Child. Police officers discovered an active methamphetamine lab
and twenty-five weapons. Mother refused a drug screen. She was arrested and
Child was taken into DCS custody. Father was already in the Fulton County
Jail.
[3] Subsequently, Mother and Father admitted that Child was a Child in Need of
Services. Both parents were ordered to participate in services. However,
Father remained incarcerated and did not participate. Mother participated in
some services, albeit sporadically. She was arrested on separate drug-related
charges in November of 2013. She tested positive for methamphetamine on
nine occasions and refused several other drug screens. She entered an in-patient
treatment program but, after four days, left against medical advice. She was Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 2 of 7 removed from an outpatient treatment program after she tested positive for
methamphetamine. On July 18, 2014, her supervised visits with Child were
terminated.
[4] On June 25, 2014, the DCS petitioned to terminate the parental rights of
Mother and Father. On October 1, 2014 and on November 25, 2014, fact-
finding hearings were conducted. Father, who remained incarcerated,
telephonically testified that he agreed to the DCS plan of adoption of Child by
his paternal grandmother. Mother, who was also then incarcerated, testified
that she wanted the opportunity to parent Child after her anticipated release
from incarceration in April of 2015.
[5] On February 5, 2015, the trial court entered its findings of fact, conclusions,
and order terminating the parental rights of Father and Mother. Mother now
appeals.1
Discussion and Decision Standard of Review [6] 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
1 Father is not an active party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 3 of 7 (Ind. Ct. App. 1997). We neither reweigh the evidence nor judge the credibility
of the witnesses and consider only the evidence that supports the judgment and
the reasonable inferences to be drawn therefrom. Id.
Requirements for Involuntary Termination of Parental Rights [7] 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.
[8] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the 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 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
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 4 of 7 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.
[9] 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 must also “evaluate the parent’s habitual patterns of conduct to determine
the probability of future neglect or deprivation of the child.” Id.
Analysis [10] The trial court found that Mother was charged with drug-related offenses in
July of 2013 and again in November of 2013; she had submitted nine drug
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 5 of 7 screens that tested positive for amphetamine or methamphetamine; on
numerous occasions, she failed to comply with drug testing protocol; she left
inpatient treatment against medical advice; she was discharged from outpatient
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Dec 29 2015, 7:47 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE James T. Knight Gregory F. Zoeller Andrew A. Achey Attorney General of Indiana Hillis, Hillis, Rozzi & Achey Robert J. Henke Logansport, Indiana Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 29, 2015 of the Parent-Child Relationship Court of Appeals Case No. of: 25A03-1503-JT-78 W.M. (Minor Child), Appeal from the Fulton Circuit Court and The Honorable A. Christopher T.O. (Mother) Lee, Judge Appellant-Respondent, Trial Court Cause No. 25C01-1406-JT-100 v.
Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 1 of 7 Bailey, Judge.
Case Summary [1] T.O. (“Mother”) appeals the termination of her parental rights to W.M.
(“Child”), upon the petition of the Fulton County Department of Child Services
(“the DCS”). She presents the sole issue of whether the trial court clearly erred
in terminating her parental rights because her release from incarceration was
imminent. We affirm.
Facts and Procedural History [2] Child was born in July of 2007 to Mother and B.M. (“Father”). On July 12,
2013, DCS caseworkers and law enforcement visited the residence of Mother,
Father, and Child. Police officers discovered an active methamphetamine lab
and twenty-five weapons. Mother refused a drug screen. She was arrested and
Child was taken into DCS custody. Father was already in the Fulton County
Jail.
[3] Subsequently, Mother and Father admitted that Child was a Child in Need of
Services. Both parents were ordered to participate in services. However,
Father remained incarcerated and did not participate. Mother participated in
some services, albeit sporadically. She was arrested on separate drug-related
charges in November of 2013. She tested positive for methamphetamine on
nine occasions and refused several other drug screens. She entered an in-patient
treatment program but, after four days, left against medical advice. She was Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 2 of 7 removed from an outpatient treatment program after she tested positive for
methamphetamine. On July 18, 2014, her supervised visits with Child were
terminated.
[4] On June 25, 2014, the DCS petitioned to terminate the parental rights of
Mother and Father. On October 1, 2014 and on November 25, 2014, fact-
finding hearings were conducted. Father, who remained incarcerated,
telephonically testified that he agreed to the DCS plan of adoption of Child by
his paternal grandmother. Mother, who was also then incarcerated, testified
that she wanted the opportunity to parent Child after her anticipated release
from incarceration in April of 2015.
[5] On February 5, 2015, the trial court entered its findings of fact, conclusions,
and order terminating the parental rights of Father and Mother. Mother now
appeals.1
Discussion and Decision Standard of Review [6] 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
1 Father is not an active party to this appeal.
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 3 of 7 (Ind. Ct. App. 1997). We neither reweigh the evidence nor judge the credibility
of the witnesses and consider only the evidence that supports the judgment and
the reasonable inferences to be drawn therefrom. Id.
Requirements for Involuntary Termination of Parental Rights [7] 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.
[8] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the 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 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
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 4 of 7 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.
[9] 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 must also “evaluate the parent’s habitual patterns of conduct to determine
the probability of future neglect or deprivation of the child.” Id.
Analysis [10] The trial court found that Mother was charged with drug-related offenses in
July of 2013 and again in November of 2013; she had submitted nine drug
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 5 of 7 screens that tested positive for amphetamine or methamphetamine; on
numerous occasions, she failed to comply with drug testing protocol; she left
inpatient treatment against medical advice; she was discharged from outpatient
treatment for failure to maintain sobriety; she failed to successfully complete
other programs or services; several parental visits were cancelled due to
Mother’s impairment; and Child was thriving in the pre-adoptive home of his
paternal grandmother.
[11] Mother does not allege that the trial court’s findings lack evidentiary support,
nor does she challenge the trial court’s legal conclusions. Rather, Mother
argues error in that “the trial court neglected to consider Mother’s release date
when it issued a decision terminating her parental rights.” (Appellant’s Br. at
3.) Mother directs our attention to the language of H.G. v. Ind. Dep’t of Child
Servs., 959 N.E.2d 272, 291 (Ind. Ct. App. 2011): “the court is not prohibited
from considering the possibility of a parent’s early release, nor should it
disregard a parent’s voluntary efforts while in prison.” Beyond this, Mother
does not develop an argument such that we could find error in the trial court’s
decision.
[12] Nevertheless, it is apparent that the trial court did not ignore the testimony that
Mother had been offered a plea agreement for six months executed time and
two and one-half years’ probation, which meant that she expected to be
released from incarceration in April of 2015. Indeed, the trial court made the
following factual finding:
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 6 of 7 As a result of the events leading to removal of the Child on July 12, 2013, Mother was charged in cause number 25C01-1307-FB- 463 with: Ct. 1 Dealing in Methamphetamine, Ct. II Possession of Methamphetamine; Ct. III Illegal Drug Lab, Ct. IV Neglect of a Dependent. Mother entered a plea of guilty to Possession of Methamphetamine in the cause and was awaiting sentencing at the point of the termination hearing. The plea agreement “capped” any executed time at six months and called for 25C01- 1307-FB-463 and 25C01-1311-FD-708 to run consecutively.
On November 20, 2013, Mother was arrested again and charged in cause number 25C01-1311-FD-708 with Ct. I Possession of Methamphetamine; Ct. II Possession of Marijuana with a Prior Conviction; and Ct. III Possession of a Controlled Substance. Mother entered a plea of guilty to Possession of Methamphetamine in the cause and was awaiting sentencing at the point of the termination hearing. The plea agreement “capped” any executed time at six months and called for 25C01- 1307-FB-463 and 25C01-1311-FD-708 to run consecutively.
(App. at 8-9.) It appears that Mother is actually asking that this court reweigh
the evidence and accord greater weight to the testimony of her wishes and
future aspirations to effectively parent. This we cannot do. In re A.A.C., 682
N.E.2d at 544.
Conclusion [13] Mother has not shown clear error in the termination decision.
[14] Affirmed.
Vaidik, C.J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 25A03-1503-JT-78 | December 29, 2015 Page 7 of 7