In the Matter of the Termination of the Parental Rights of: M-1.C., M-n.C. & M.E.C. (Minor Children) and N.E. (Mother) and M.C. (Father) v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 11, 2018
• Docket: 53A05-1706-JT-1264
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jan 11 2018, 8:19 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT N.E. ATTORNEYS FOR APPELLEE Kara A. Hancuff Curtis T. Hill, Jr. Monroe County Public Defender Attorney General Bloomington, Indiana Robert J. Henke ATTORNEY FOR APPELLANT M.C. Deputy Attorney General Indianapolis, Indiana Karen E. Wrenbeck Monroe County Public Defender Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination January 11, 2018 of the Parental Rights of: Court of Appeals Case No. 53A05-1706-JT-1264 M-l.C., M-n.C. & M.E.C. (Minor Children) Appeal from the Monroe Circuit and Court VII N.E. (Mother) and M.C. (Father) The Honorable Stephen Galvin, Judge Appellants-Respondents, Trial Court Cause Nos. v. 53C07-1608-JT-519 53C07-1608-JT-520 Indiana Department of Child 53C07-1608-JT-521 Services, Appellee-Petitioner

Vaidik, Chief Judge. Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 1 of 11 Case Summary [1] M.C. (“Father”) and N.E. (“Mother”) appeal the termination of their parental

rights to their three children. Finding no error, we affirm.

Facts and Procedural History [2] The undisputed facts are set forth in the trial court’s order.1 Mother and Father

are the parents to three children: twins born in June 2013 and another child

born in November 2014 (collectively “the children”). On March 7, 2015,

marijuana smoke was detected coming from Mother’s apartment in

Bloomington. Officers searched the apartment and found marijuana, crack

cocaine, and eighty-eight Lortab pills in the bedroom where Mother and the

children slept. The children could access the marijuana. Upon further search

of the apartment, officers found two loaded guns and stolen lottery tickets.

Mother was arrested and claimed that the lottery tickets belonged to Father.

When questioned by officers, Father admitted that he had been at Mother’s

home the day before she was arrested. Father also submitted to a drug screen,

which was positive for marijuana.

[3] The children were removed from their parents’ care at the time of Mother’s

arrest. Two of the children were suffering from coughs, and one child was

1 Because neither Mother nor Father challenge the trial court’s findings of fact, we accept them as true. See Maldem v. Arko, 592 N.E.2d 686 (Ind. 1992) (“Because Maldem does not challenge the findings of the trial court, they must be accepted as true.”).

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 2 of 11 recovering from pneumonia. Department of Child Services (DCS) filed

children in need of services (CHINS) petitions, and the children were

adjudicated CHINS on May 7 and later placed in a foster-care home, where

they have remained for over two years. In June 2015, a dispositional hearing

was held for both Mother and Father. Both parents were ordered to: maintain

weekly contact with the DCS family case manager; participate in home-based

counseling; complete a substance-abuse assessment and complete all treatment

recommendations; submit to random drug and alcohol screens; and attend all

scheduled visits with the children.

[4] Amanda Kelly, a home-based family case worker with Ireland Home Based

Services, began working with Mother and Father in November 2015. She

supervised visits between the parents and the children and offered parenting

instruction to Mother and Father. There were many issues with the visits:

Mother had difficulty supervising the children by herself; Mother did not follow

through on disciplining the children; Kelly had to intervene to ensure the

children’s safety; Father was routinely late to visits; and the parents failed to

bring adequate supplies, such as diapers and wipes.

[5] Debra Hoesman, a mental-health practitioner, began counseling with Mother in

February 2016. Hoesman completed a substance-abuse assessment on Mother

in May 2016 and diagnosed Mother with cannabis dependence and major

depressive disorder. Hoesman recommended that Mother have weekly therapy

sessions. Mother attended only ten sessions, with her last appointment in June

2016. During this time, Mother was also inconsistent in submitting to drug

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 3 of 11 screens, but when she did submit, she repeatedly failed. Mother frequently

tested positive for marijuana and twice tested positive for heroin. Around the

time Mother stopped seeing Hoesman, the DCS case manager noticed an

increase in Mother’s marijuana use. Mother told the case manager that she

used marijuana as a coping mechanism for stress.

[6] Meanwhile, Father continued his involvement with illegal drugs and was

arrested in June 2016 at Mother’s apartment. Officers found cocaine, forty

grams of heroin, and a stolen handgun. Father was convicted in April 2017 of

one count of dealing in a narcotic drug and sentenced to eighteen years in the

Indiana Department of Correction (IDOC), with six years suspended. He will

be incarcerated for approximately eight more years.2 Before his arrest, Father

did not engage with DCS or its service providers, telling them that he was not

interested in services, that he “was a good father,” that he had other things to

do, and that he “was living the life and that was the way he had to make a

living.” Appellants’ App. Vol II p. 273; Tr. Vol. II p. 15. Father also told the

case manager that he did not have a substance-abuse problem, but he never

submitted to a drug screen after the CHINS adjudications.

2 The trial court’s findings state the Father will be released in five years. However, IDOC’s offender search lists Father’s projected release date as January 2026. https://www.in.gov/apps/indcorrection/ofs/ofs (last visited 01/04/2018). 3 Mother and Father appealed separately but filed only one appendix. In his brief, Father stated that he would not “be filing an Appendix, as it would be identical to Mother’s and thus unduly duplicative.” Father’s Appellant’s Br. p. 4 (citing Ind. Appellate Rule 50(E)). Accordingly, we attribute the single appendix to both parties.

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 4 of 11 [7] Shortly after Father’s arrest, Mother moved to Michigan but did not tell the

DCS case manager that she was moving. Mother claimed that she moved

because she was going to be evicted and needed the support of family. But

Mother had two sisters, two aunts, and two uncles living in Bloomington when

she moved. After moving, Mother did not request that DCS arrange for her

services to be transferred to Michigan. Mother also failed to maintain weekly

contact with the case manager.

[8] Mother last visited the children on June 15, 2016. She never traveled from

Michigan to Indiana to see the children. Mother was supposed to see the

children in November 2016 but did not make the trip. The children were

“extremely disappointed.” Id. at 30. Mother later requested to have video

contact with the children, but her request was denied because it had been

approximately seven months since she had seen the children.

[9] In August 2016, DCS filed its termination petitions. A hearing on the petitions

was held in February 2017. During the hearing, the DCS case manager and

Court Appointed Special Advocate (CASA) for the children testified that

termination of Mother’s and Father’s parental rights was in the children’s best

interests. See Tr. Vol. II pp. 63-64, 81. The trial court concluded: that the

children had been removed from their parents for at least six months under a

dispositional decree; that there is a reasonable probability that the conditions

that resulted in the removal of the children or the reasons for their continued

placement outside of the home would not be remedied; that the continuation of

the parent-child relationship posed a threat to the children’s well-being; that

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 5 of 11 termination was in the children’s best interests; and that a satisfactory plan for

the care and treatment of the children was in place—adoption. The trial court

terminated Mother’s and Father’s parental rights.

[10] Mother and Father appeal.

Discussion and Decision [11] Mother and Father filed separate briefs, and where possible, we address their

arguments as one. Both parents argue that the trial court erred when it

terminated their parental rights. When reviewing the termination of parental

rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K.,

989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and

reasonable inferences that are most favorable to the judgment of the trial court.

Id. When a trial court has entered findings of fact and conclusions, we will not

set aside the trial court’s findings or judgment unless clearly erroneous. Id. To

determine whether a judgment terminating parental rights is clearly erroneous,

we review whether the evidence supports the trial court’s findings and whether

the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind.

2016).

[12] A petition to terminate parental rights must allege, 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

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 6 of 11 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.

Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court

finds that the allegations in a petition are true, the court shall terminate the

parent-child relationship. Ind. Code § 31-35-2-8(a).

[13] Mother and Father both contend that the evidence is insufficient to support the

trial court’s conclusion that there is a reasonable probability that the conditions

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

would not be remedied. When a parent challenges this conclusion, we engage

in a two-step analysis. “First, we must ascertain what conditions led to their

placement and retention in foster care. Second, we determine whether there is

a reasonable probability that those conditions will not be remedied.” K.T.K.,

989 N.E.2d at 1231. “The trial court must consider a parent’s habitual pattern

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 7 of 11 of conduct to determine whether there is a substantial probability of future

neglect or deprivation.” Id.

[14] The children were removed from the home due to Mother’s and Father’s drug

use and the parents’ inability to provide an adequate home or proper care for

their children. These conditions did not change over the course of the CHINS

proceedings for either parent. Regarding Mother, she repeatedly failed her drug

screens, testing positive for marijuana and heroin. Mother contends that she

was drug free after moving to Michigan. She stated that she was working at

Walmart, which requires all potential employees to submit to drug tests. But

the trial court rejected this argument because Mother worked for Walmart

when she lived in Bloomington and repeatedly tested positive for marijuana.

Appellant’s App. Vol. II p. 29. Mother’s argument is a request for us to

reweigh the evidence, which we will not do. K.T.K., 989 N.E.2d at 1229.

Mother also struggled to care for the children during her supervised visits. She

failed to follow through on discipline, and on at least one occasion Kelly had to

intervene to keep the children safe. Furthermore, Mother also stopped visiting

the children after moving to Michigan and has not seen them since June 2016.4

4 Mother also argues that DCS ignored her requests to have services transferred to Michigan, and thus, the trial court erred when it terminated her parental rights. But the trial court’s findings of fact explicitly state that Mother “did not request that DCS arrange for her to participate in services in Michigan. DCS could have arranged for drug screens and other services in Michigan.” Appellant’s App. Vol. II p. 28. Mother’s argument is nothing more than a request for us to reweigh the evidence, which we will not do. K.T.K., 989 N.E.2d at 1229.

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 8 of 11 [15] As for Father, he contends that the State relied solely on his incarceration to

support its petition for termination. Father compares his situation to that of the

father in K.E. v. Indiana Department of Child Services, 39 N.E.3d 641 (Ind. 2015).

In K.E., the father was incarcerated before his child was born and did

“everything he had been asked while incarcerated, actively participated in

substance abuse programs, established regular visitation with K.E., and spoke

to K.E. every night on the phone.” Id. at 645. Our Supreme Court overturned

the termination of father’s parental rights. Here, Father’s situation is readily

distinguishable from K.E. After the CHINS adjudications, Father refused to

engage with DCS or any of its service providers. He told them that he was not

interested in services, that he “was a good father,” that he had other things to

do, and that he “was living the life and that was the way he had to make a

living.” Appellants’ App. Vol II p. 27; Tr. Vol. II p. 15. Father was eventually

incarcerated for selling drugs. Father has not participated in any services since

his incarceration. There is sufficient evidence to show that neither Mother nor

Father prioritized the needs of the children above their own. The trial court did

not err when it concluded that there is a reasonable probability that the

conditions that resulted in the children’s removal or the reasons for their

placement outside the home will not be remedied. 5

5 Father also argues that there is insufficient evidence to support the trial court’s conclusion that there is a reasonable probability that continuation of the parent-child relationship poses a threat to the children’s well- being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing evidence of only one of the circumstances listed in subsection (B). See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Because we conclude that there is sufficient evidence to support the trial court’s conclusion

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 9 of 11 [16] Additionally, Mother and Father both challenge the court’s conclusion that

termination was in the children’s best interests. To determine what is in the

children’s best interests, the trial court must look to the totality of the evidence.

In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing

so, the trial court must subordinate the interests of the parent to those of the

children. Id. The court need not wait until the children are irreversibly harmed

before terminating the parent-child relationship. Id. We have previously held

that recommendations by both the DCS case manager and CASA to terminate

parental rights, in addition to evidence that the conditions resulting in removal

will not be remedied, is clear and convincing evidence that termination is in the

best interests of the children. Id. at 1158-59. Here, both the DCS case manager

and the CASA testified that termination was in the children’s best interests. See

Tr. Vol. II pp. 63-64, 81. And, as already discussed, there is sufficient evidence

to support the conclusion that the conditions resulting in removal or placement

outside of the home will not be remedied. Furthermore, the children have spent

most of their lives in foster care because the parents are incapable of providing a

safe, stable home free of illegal drug use. The children, however, were excelling

in their foster home, which was pre-adoptive. The court found that the children

were “smart, happy, [and] well-adjusted” and that adoption was a satisfactory

that there is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for placement outside the home will not be remedied, we do not address this argument.

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 10 of 11 plan for them. Appellant’s App. Vol. II p. 31. Accordingly, the trial court did

not err when it concluded that termination was in the children’s best interests.

[17] Affirmed.

May, J., and Altice, J. concur.

Court of Appeals of Indiana | Memorandum Decision 53A05-1706-JT-1264 | January 11, 2018 Page 11 of 11