MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 10 2017, 8:59 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE Mark K. Leeman Curtis T. Hill, Jr. Logansport, Indiana Attorney General of Indiana Jacob A. Ahler Abigail R. Recker Rensselaer, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the August 10, 2017 Parent-Child Relationship of: Court of Appeals Case No. 09A04-1701-JT-70 A.M. (Minor Child), Appeal from the Cass Circuit And Court R.M. (Father) and A.T. The Honorable Leo T. Burns, Jr., (Mother), Judge Appellants-Respondents, Trial Court Cause No. 09C01-1604-JT-1 v.
Indiana Department of Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 1 of 24 Riley, Judge
STATEMENT OF THE CASE [1] Appellants-Respondents, A.T. (Mother) and R.M. (Father) (collectively,
Parents), appeal the trial court’s Order terminating their parental rights to their
minor child, A.M. (Child).
[2] We affirm.
ISSUE [3] Although Parents have filed separate appellate briefs, we consolidate the
various issues raised and restate the sole issue as: Whether the Indiana
Department of Child Services (DCS) presented clear and convincing evidence
to support the termination of Parents’ parental rights.
FACTS AND PROCEDURAL HISTORY [4] Mother and Father are the biological parents of the Child, born on June 14,
2011. Father established his paternity for the Child at birth by executing a
paternity affidavit. Although Parents are not married, they met in
approximately 2006 and lived together with the Child in Logansport, Cass
County, Indiana.
[5] In November of 2013, both Father and Mother were arrested on a plethora of
charges. Specifically, Father was charged with armed robbery, a Class B
felony; dealing in a Schedule I controlled substance (i.e., heroin), a Class B
felony; possession of a controlled substance (i.e., heroin), a Class D felony;
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 2 of 24 unlawful possession of a syringe, a Class D felony; pointing a firearm, a Class
D felony; neglect of a dependent (i.e., the Child), a Class D felony; possession
of marijuana, a Class A misdemeanor; possession of paraphernalia, a Class A
misdemeanor; and failure to stop after accident resulting in damage to an
unattended vehicle, a Class B misdemeanor. Mother was similarly charged
with dealing in a Schedule I controlled substance (i.e., heroin), a Class B felony;
possession of a controlled substance (i.e., heroin), a Class D felony; unlawful
possession of a syringe, a Class D felony; and neglect of a dependent (i.e., the
Child), a Class D felony. For a few days, the Child stayed with his maternal
grandmother until Mother was released on bond. Father, however, remained
incarcerated.
[6] While released on bond, on March 5, 2014, Mother injected herself with heroin
at a friend’s home; the two-year-old Child was in a nearby room at the time.
Mother subsequently lost consciousness, and the friend drove her and the Child
to the Logansport Police Department. From there, Mother was transported by
ambulance to the emergency room at Logansport Memorial Hospital. At some
point, Mother admitted to police officers that she had used heroin, and a drug
screen revealed opiates, methamphetamine, and amphetamine in her system.
Mother was admitted to the hospital, and the Cass County office of DCS was
notified that Mother had overdosed in the Child’s presence. Due to Father’s
incarceration and Mother’s inability to care for the Child, DCS obtained an
emergency detention order and immediately took the Child into custody. DCS
placed the Child in the care of his paternal aunt and uncle. On March 7, 2014,
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 3 of 24 DCS filed a petition alleging the Child to be a Child in Need of Services
(CHINS). On March 19, 2014, Parents admitted to the allegations in the
CHINS petition, and the trial court adjudicated the Child to be a CHINS.
[7] On April 9, 2014, the trial court held a dispositional hearing. On April 11,
2016, the trial court issued a dispositional order, directing Parents to participate
in services designed to reunify them with the Child. Specifically, the trial court
ordered Parents, in part, to: contact DCS on a weekly basis; maintain safe,
stable housing; secure and maintain a legal and stable source of income
sufficient to support household members, including the Child; participate in
home-based casework services “to assist in establishing and maintaining safe
housing, establish budgeting skills, implement consistent, age appropriate
parenting, seek resources and supporting their efforts to become sober”; attend
all visitation sessions and implement parenting techniques learned during
home-based services; enroll in all services recommended by DCS or other
service providers; complete a drug assessment and any recommended treatment
to achieve sobriety; submit to random drug screens upon request of DCS or any
other service provider; refrain from possessing or consuming any alcohol or
non-prescribed controlled substances; obey the law; and provide the Child
“with a safe, secure and nurturing environment that is free from abuse and
neglect and be an effective caregiver who possesses the necessary skills,
knowledge and abilities to provide the [Child] with this type of environment on
a long-term basis to provide the [Child] with permanency.” (Appellant-
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 4 of 24 Mother’s App. Vol. II, pp. 42, 45). Mother was further ordered to pay $51.00
per week in child support.
[8] With respect to Mother, early in the proceedings, she did not comply with her
case plan. Shortly after the Child’s removal, Mother was enrolled in home-
based case services and permitted to have supervised visits with the Child.
During visits, Mother had to be redirected to put her cell phone down and
interact with the Child, and the Child “was distant and he was very unsure as to
how to act around [Mother].” (Tr. Vol. II, p. 84). Within a matter of weeks,
Mother had repeatedly failed to appear for appointments and visitation with the
Child; thus, her services were terminated. Additionally, Mother had several
positive drug screens, but she refused to participate in substance abuse
treatment.
[9] On April 28, 2014, the State moved to revoke Mother’s bond because she was
charged with the additional crime of theft as a Class D felony. After spending
some time in the Cass County Jail, in July of 2014, Mother was released to
undergo inpatient substance abuse treatment at Tara Treatment Center in
Franklin, Indiana. The completion of the three-week treatment program was
made a condition of Mother’s release, and she successfully complied. On
September 16, 2014, Mother pled guilty to possession of a controlled substance,
a Class D felony, and neglect of a dependent, a Class D felony. Mother was
sentenced to four years, with three years executed through Community
Corrections and one year suspended to probation. It also appears that Mother
was convicted of her felony theft charge and was sentenced to probation.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 5 of 24 Mother was assigned to Community Corrections’ work release program. At
this point, Mother was fully participating in her DCS case plan. She obtained a
factory job at Indiana Packers in Delphi, Indiana; she maintained negative drug
screens; she consistently visited with the Child and tried to connect with him;
and she participated in therapy and completed addiction classes through
Community Corrections. Yet, despite a period of sobriety, on February 27,
2015, a drug screen revealed that Mother had taken a narcotic medication that
had not been prescribed. Accordingly, on March 10, 2015, a violation of work
release was filed, and Mother returned to jail. On May 5, 2015, the trial court
ordered Mother to execute her previously suspended sentence, once again,
through Community Corrections.
[10] Upon her return to Community Corrections, Mother continued her
employment with Indiana Packers. Notwithstanding her general compliance
with her Community Corrections program, Mother displayed a proclivity for
disregarding the administrative rules by, for example, failing to timely pay her
fees, not doing her assigned chores, and not submitting her time cards. With
respect to her DCS case plan, Mother passed all her drug screens and
participated in services. She consistently visited the Child three times per week
for three hours each visit, under supervision. Mother “always had money for
meals[,] [and] [s]he brought supplies to visits.” (Tr. Vol. II, p. 99). The
visitation supervisor observed that Mother and the Child shared what “seemed
like a big sister, little brother kind of relationship than more of a mom and son.”
(Tr. Vol. II, p. 100). There was a lack of “consistency with positive and
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 6 of 24 negative reinforcement,” and Mother struggled with knowing how to handle
the Child’s temper tantrums. (Tr. Vol. II, p. 100).
[11] A few months before Mother was set to complete her sentence, her supervision
level was downgraded from work release to home detention. As such, Mother
moved in to her parents’ home. However, shortly thereafter, on February 8,
2016, Mother submitted to a drug screen which yielded positive results for
amphetamine, for which Mother did not have a prescription. Accordingly,
Mother was sent back to jail for violating the terms of her work release. After
her violation, Mother’s Community Corrections supervisor also discovered that
at the end of October of 2015, Mother had reported that she was at work when,
in actuality, Mother had used personal time to visit her boyfriend without
authorization.
[12] Following her incarceration, Mother attempted to maintain weekly phone
contact with the Child, specifically during the times that the Child was visiting
his maternal grandmother. However, the Child’s paternal aunt (i.e., his foster
mother) was “not comfortable” with the phone calls due to her lack of
involvement in them. (Tr. Vol. II, p. 141). The Child’s paternal aunt also
requested that DCS refer the Child to see a therapist after the Child threw “a fit
about something that was really peculiar to [her]” and other concerns about his
anger. (Tr. Vol. II, p. 157). The Child’s therapist diagnosed him with “an
adjustment disorder” and with “symptoms of early attachment disruption based
on the history of child neglect.” (Tr. Vol. II, p. 68). Upon the therapist’s
recommendation, all contact between Mother and the Child was terminated.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 7 of 24 [13] Turning to Father, following the Child’s removal and CHINS adjudication, he
did not participate in his DCS case plan due to his incarceration. On June 16,
2014, Father pled guilty to possession of a controlled substance, a Class D
felony; pointing a firearm, a Class D felony; and neglect of a dependent, a Class
D felony. He was sentenced to six years, with two years executed in the
Indiana Department of Correction, two years executed through Cass County
Community Corrections, and two years suspended to supervised probation.
[14] In October of 2014, Father was released from prison and transferred to
Community Corrections to serve his sentence through the work release
program. Father obtained factory employment. Additionally, he also had
visitation with the Child, and “for a while [he] was calling [the Child] almost
every day.” (Tr. Vol. II, p. 164). Because Mother was concurrently serving her
Community Corrections sentence, she and Father sometimes had joint
visitation with the Child. During these times, the visitation supervisor
consistently “had to warn [Mother] and [Father] about touching [each other]
and not paying attention to [the Child,] and I had to tell them that they couldn’t
talk about their relationship during the visit and that they had to focus on
parenting [the Child].” (Tr. Vol. II, p. 85). Although their relationship status
was unclear to Community Corrections officials, Parents were observed
displaying affection and had to be warned of Community Corrections’ rules
against such conduct.
[15] Community Corrections intended to enroll Father in its addiction programs
after Mother had completed them (so that Parents would not interfere with each
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 8 of 24 other’s progress); however, on January 10, 2015, Father submitted to a random
drug screen and tested positive for opiates (morphine, heroin metabolite, and
codeine). As a result, on April 6, 2015, the trial court reinstated his previously-
suspended two-year sentence, to be executed in Community Corrections on top
of his existing Community Corrections sentence. On July 3, 2015, Father was
sent to Tara Treatment Center for substance abuse treatment; he successfully
completed the program on July 24, 2015.
[16] Based upon the recommendation of the providers at Tara Treatment Center,
Father requested to be transferred to The Progress House in Indianapolis,
which is “like a half-way house, independent living house.” (Tr. Vol. II, p.
121). On September 17, 2015, Father moved to The Progress House, and on
October 2, 2015, he was evicted because he failed to comply with The Progress
House’s rules—such as completing chores and other assignments. Accordingly,
Father returned to jail. On November 10, 2015, the trial court ordered Father
to be placed on home detention in the Agape House, a residential treatment
facility in Indianapolis, where he would be subject to electronic monitoring but
could continue to be employed. While in Indianapolis, Father briefly worked at
a clothing store; he participated in substance abuse treatment classes and home-
based services; and he visited with the Child. Father “did really well” in terms
of parenting the Child. (Tr. Vol. I, p. 181). However, DCS noted concerns that
it “never saw what it would be like for [Father] to discipline [the Child]. We
never got to that point to where he was with him long enough for [the Child] to
misbehave or have the need for the discipline. That was something that [DCS]
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 9 of 24 was always concerned about is how will he handle that situation if he’s put into
that situation.” (Tr. Vol. II, p. 181).
[17] On March 20, 2016, Father again violated the conditions of his Community
Corrections sentence when he was evicted from the Agape House for possession
of fake urine. Instead of reporting to Community Corrections, Father slept in
the parking lot at Agape House for more than a week, unbeknownst to the
treatment facility. On March 28, 2016, Community Corrections was notified of
Father’s eviction and subsequently made contact with Father. Father admitted
that he did not return to Community Corrections over fear of the consequences,
so he slept in his vehicle in the Agape House parking lot to trick his electronic
monitoring equipment. Father was ordered to appear, but he did not do so for
another three or four days. At that time, Father refused to submit to a drug
screen. Accordingly, Father returned to jail and was also subsequently charged
with a Level 6 felony for failing to return to lawful detention.
[18] On April 18, 2016, DCS filed a petition to terminate Parents’ parental rights to
the Child. On September 19 and October 5, 2016, the trial court conducted a
hearing on DCS’ petition to terminate Parents’ parental rights. At the time of
the termination hearings, Father was incarcerated, and Mother transitioned
from incarceration to work release and living in a residential facility. The Child
remained in his relative placement and was thriving; his paternal aunt and
uncle intend to adopt him. On December 13, 2016, the trial court issued its
Order, terminating Parents’ parental rights. The trial court concluded, in
pertinent part, that there is a reasonable probability that the conditions resulting
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 10 of 24 in the Child’s removal and continued placement out of Parents’ custody will
not be remedied; there is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the Child’s well-being; and
termination of Parents’ rights is in the Child’s best interests.
[19] Parents now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[20] Parents appeal the trial court’s termination of their parental rights. A parent
has an “interest in the care, custody, and control of his or her children [that] is
‘perhaps the oldest of the fundamental liberty interests.’” In re G.Y., 904 N.E.2d
1257, 1259 (Ind. 2009) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). The
Fourteenth Amendment to the United States Constitution thus safeguards “the
traditional right of parents to establish a home and raise their children.” Id.
Nevertheless, it is well established that “parental rights are not absolute and
must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate parental rights.” S.L. v. Ind. Dep’t of Child
Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013) (internal quotation marks
omitted) (quoting In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010)). Termination
of parental rights is appropriate where “parents are unable or unwilling to meet
their parental responsibilities.” In re G.Y., 904 N.E.2d at 1259-60. We
appreciate that the termination of a parent-child relationship is “an extreme
measure and should only be utilized as a last resort when all other reasonable
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 11 of 24 efforts to protect the integrity of the natural relationship between parent and
child have failed.” K.E. v. Ind. Dep’t of Child Servs., 39 N.E.3d 641, 646 (Ind.
2015) (internal quotation marks omitted).
[21] Upon review of a trial court’s termination of parental rights, our court does not
reweigh evidence or assess the credibility of witnesses. In re G.Y., 904 N.E.2d at
1260. Rather, we “consider only the evidence and reasonable inferences that
are most favorable to the judgment.” Id. Additionally, the trial court issued
specific findings of fact and conclusions thereon, which requires application of
the two-tiered standard of review set forth in Indiana Trial Rule 52(A): “[f]irst,
we determine whether the evidence supports the findings, and second we
determine whether the findings support the judgment.” Id. We “shall not set
aside the findings or judgment unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A). A trial court has clearly erred “if the
findings do not support the trial court’s conclusions or the conclusions do not
support the judgment.” In re G.Y., 904 N.E.2d at 1260 (quoting Bester v. Lake
Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005)).
II. Termination Statute
[22] To support the termination of a parent’s rights, DCS must prove, in relevant
part, that a child has been removed from the home for a certain period, and
(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
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 12 of 24 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 [CHINS]. (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 is required to establish each element by clear
and convincing evidence. In re G.Y., 904 N.E.2d at 1260.
[23] On appeal, Parents do not challenge the trial court’s conclusions that the Child
has been removed from their care for the requisite time or that DCS has
established a satisfactory plan for the Child’s care and treatment going forward.
Rather, they contend that there is insufficient evidence to support the trial
court’s conclusions that there is a reasonable probability either that the
conditions resulting in the Child’s removal and continued placement outside
the home will not be remedied or that the continuation of the parent-child
relationship poses a threat to the Child’s well-being 1 and that termination is in
the Child’s best interests. We address each argument in turn.
1 Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive; thus, DCS need only prove one of the three elements listed. See In re A.K., 924 N.E.2d 212, 220-21 (Ind. Ct. App. 2010), trans. dismissed. In this case, DCS did not allege that the Child has been twice adjudicated a CHINS. Therefore, the relevant inquiry is whether DCS established the existence of a reasonable probability either that the conditions resulting in the Child’s removal or continued placement outside the home will not be remedied or that the continuation of the parent-child relationship poses a threat to the Child’s well-being.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 13 of 24 A. Remediation of Conditions
[24] In considering whether there is a reasonable probability that conditions will not
be remedied, we must identify what conditions led to the Child’s “placement
and retention” outside of the home and then determine whether there is a
reasonable probability that those conditions will not be remedied. K.T.K. v. Ind.
Dep’t of Child Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). In making these
decisions, “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 against habitual
pattern[s] of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014)
(citation omitted) (internal quotation marks omitted) (quoting Bester, 839
N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual conduct may include
‘criminal history, drug and alcohol abuse, history of neglect, failure to provide
support, and lack of adequate housing and employment.’” K.E., 39 N.E.3d at
647. DCS “is not required to provide evidence ruling out all possibilities of
change; rather, it need only establish that there is a reasonable probability that
the parent’s behavior will not change.” A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1157 (Ind. Ct. App. 2013) (internal quotation marks omitted),
trans. denied.
[25] According to Mother, the evidence does not support a conclusion that there is a
reasonable probability that the conditions resulting in the Child’s removal and
continued placement out of the home will not be remedied. Without
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 14 of 24 specifically challenging any of the trial court’s findings, she argues that the
evidence instead establishes that she “made substantial strides in improving
herself while incarcerated.” (Appellant-Mother’s Br. p. 29). She notes that she
“became very consistent in exercising parenting time”; she “completed the
program[m]ing that was available to her regarding nutrition, budgeting, and
parenting. She also took several classes directed at preventing relapse and
successfully completed inpatient drug treatment at TARA.” (Appellant-
Mother’s Br. p. 29). Furthermore, her “release from incarceration was
imminent,” and she was presently employed through work release with plans
for employment and housing after her release. (Appellant-Mother’s Br. p. 29).
Mother further claims that she “had a good sense of what program[m]ing and
support network she needed from her family to prevent relapse once released
from incarceration.” (Appellant-Mother’s Br. p. 29). Mother also states that
she “only had two positive drug screens and a violation for not reporting a visit
with a boyfriend” in a two-year span. (Appellant-Mother’s Br. p. 29). Finally,
Mother points out that, despite the paternal aunt’s attempts to thwart her
relationship with the Child, Mother endeavored to maintain contact with him.
[26] Similarly, although he frames it as a challenge to whether the proper
evidentiary standard was applied, Father asserts that
[b]y the time this case reached the termination hearing, . . . Father made it clear to the [c]ourt that he had been compliant in the services he could do while incarcerated, that he had only one failed drug screen in over two years, that he was bonded with [the Child], and that he had employment opportunities awaiting him when he was released from jail. Simply, there was no Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 15 of 24 prejudice to the State or [the Child] by allowing Father to have the opportunity to continue his services so that reunification could be achieved.
(Appellant-Father’s Br. p. 13). 2 Father insists that the present case is analogous
to In re J.M., 908 N.E.2d 191, 194-96 (Ind. 2009), wherein our supreme court
determined that termination of a parent’s rights was inappropriate because the
parents, who were both incarcerated, expected to be released soon; parents had
engaged in the services required of them while incarcerated; the parents had an
established relationship with the child; and the mother had completed her
bachelor’s degree and the father had employment and housing lined up for the
family such that their “ability to establish a stable and appropriate life upon
release can be observed and determined within a relatively quick period of
time.”
[27] Parents’ arguments largely amount to a request to reweigh the evidence, which
we decline to do. See In re Termination of Parent-Child Relationship of D.D., 804
N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Furthermore, we find that
the evidence and the trial court’s unchallenged findings establish that this case
is distinct from In re J.M. in that Parents failed to implement lasting changes to
ensure the Child would not suffer future neglect. Here, the Child was removed
2 Father vaguely challenges the trial court’s conclusion regarding the remediation of the conditions resulting in removal, but he has not developed a separate argument regarding whether there was sufficient evidence of a reasonable probability that the continuation of the parent-child relationship poses a threat to the Child’s well-being. Thus, he has effectively conceded that Indiana Code section 31-35-2-4(b)(2)(B) was satisfied. We nevertheless elect to address his argument in conjunction with Mother’s.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 16 of 24 after Mother overdosed on heroin while Father was incarcerated, leaving the
Child without a caregiver. Father brazenly argues that “DCS became involved
in this case due to . . . Mother’s overdose on heroin, not due to . . . Father’s
incarceration.” (Appellant-Father’s Br. p. 17). Father completely ignores the
fact that if he had been available to properly care for the Child and fulfill his
parental responsibilities at the time of Mother’s overdose, DCS would not have
had to take the Child into emergency custody and place him with the paternal
aunt and uncle.
[28] Throughout the case, Parents cycled between incarceration and supervision by
Community Corrections. During their periods of work release and home
detention, Parents were afforded services by DCS and an opportunity to visit
with the Child. Parents were also permitted to participate in relevant programs
through the Department of Correction and/or Community Corrections. There
is no dispute that Parents participated in, and even completed, several substance
abuse treatments and classes and home-based services, and they generally did
well during their fully-supervised visits with the Child. Parents also testified
that they expected to complete their sentences soon after the termination
hearing, at which point, Father intended to work for his family’s business and
find housing, whereas Mother hoped to return to her factory job and live with
her parents.
[29] Notwithstanding the positive steps that Parents took, they failed to internalize
the lessons and the ramifications of ongoing substance abuse. Parents declined
to take responsibility for their conduct and blamed others for their own poor
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 17 of 24 choices. As the director of Community Corrections testified, Father and
Mother habitually refused to learn from their past behavior. They believe that
they need only “follow their own rules,” “and then when that type of behavior
exists that’s, that leads to the bigger stuff. That leads to the . . . drug use, to the
lying.” (Tr. Vol. II, p. 115-16). The trial court found that Parents “have
received numerous hours of substance abuse treatment and education”; yet,
they “have continued to use illegal substances and commit other illegal acts.”
(Appellant-Mother’s App. Vol. II, p. 115). Mother failed one drug screen while
under supervision through work release and another drug screen within a few
weeks of moving to her parents’ home to serve her sentence on home detention.
After the Child’s removal and while out on bond, Mother was charged with a
Class D felony theft, and she violated a host of Community Corrections rules.
While Father may have only technically failed one drug screen, he was evicted
from a halfway house for possessing fake urine, and he subsequently refused to
submit to a drug screen. Like Mother, Father also refused to consistently
comply with the rules of Community Corrections. Moreover, Father further
risked his parent-child relationship by committing the additional offense of
failing to return to lawful detention in the midst of the CHINS proceedings. See
Castro v. State Office of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App.
2006) (“[I]ndividuals who pursue criminal activity run the risk of being denied
the opportunity to develop positive and meaningful relationships with their
children.”), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 18 of 24 [30] Although both Parents claimed that they were sober as of the termination
hearing and indicated that they were ready to fulfill their parental duties, the
trial court clearly found a lack of credibility in their testimony. Specifically, the
trial court found that “Mother’s conscious choice to spend time with her
boyfriend during hours she was supposed to be at work and subsequently lying
to her corrections officer [did] not lend [the trial] court to determine that
Mother is willing to put her [Child’s] needs above her own wants or show an
ability to address and remedy some of the underlying behaviors of lying and
sneaking around that surround the use of illegal substances.” (Appellant-
Mother’s App. Vol. II, p. 115). Likewise, the trial court found that Father’s
excuses for failing to return to lawful detention and submit to a drug screen
after being evicted from the Agape House were “incredible and unconvincing.”
(Appellant-Mother’s App. Vol. II, p. 116).
[31] The trial court found that the Parents’ conduct throughout the case—relapses,
committing new crimes, and refusing to adhere to the conditions of Community
Corrections—negated their claims that they had made lasting changes in their
lives:
[Parents] are both unwilling to change their behaviors even on the most basic of levels despite the consequences. The consequence of being denied parenting time with one’s child should be enough to promote compliance with the basic rules of [C]ommunity [C]orrections but this did not deter either parent from violating the rules or disregard[ing] them altogether.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 19 of 24 (Appellant-Mother’s App. Vol. II, p. 116). See In re Termination of Parent-Child
Relationship of D.D., 804 N.E.2d at 267 (relying on the parent’s “habitual pattern
of conduct” as indicative of the parent’s inability to remedy conditions). It is
clear that the Child’s removal and continued placement out of the home was
the direct result of Parents’ poor decision-making and refusal to prioritize the
needs of the Child. Therefore, the trial court did not err as there is sufficient
evidence of a reasonable probability that the conditions resulting in the Child’s
removal and continued placement outside the home will not be remedied. 3
B. Best Interests
[32] When considering the best interests of a child, we recognize that the purpose of
terminating a parent-child relationship is to protect the child, not to punish the
parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans. denied.
“[C]lear and convincing evidence need not reveal that the continued custody of
the parent . . . is wholly inadequate for the child’s very survival[,] . . . it is
sufficient to show . . . that the child’s emotional and physical development are
threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at 1234-35
(quoting Bester, 839 N.E.2d at 148). To determine whether termination is in a
child’s best interests, the trial court must “look beyond the factors identified by
[DCS] and . . . look to the totality of the evidence.” A.D.S., 987 N.E.2d at
1158. “[C]hildren cannot wait indefinitely for their parents to work toward
3 Based on this determination, we need not address the alternative element of Indiana Code section 31-35-2- 4(b)(2)(B) regarding whether the continuation of the parent-child relationship poses a threat to the Child’s well-being. See In re A.K., 924 N.E.2d at 220-21.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 20 of 24 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 648 (quoting K.T.K., 989 N.E.2d at
1235). It is well established that “[p]ermanency is a central consideration in
determining the [child’s] best interests.” K.T.K., 989 N.E.2d at 1235
(alterations in original) (quoting In re G.Y., 904 N.E.2d at 1265).
[33] Our courts have long held that “the recommendation by both the [DCS] case
manager and child advocate to terminate parental rights, in addition to
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., 987 N.E.2d at 1158. Here, DCS recommended
that the trial court terminate Parents’ rights. DCS testified that Mother “needs
a very structured environment in order to succeed,” and she has not established
that she will be able to provide herself with such upon her release. (Tr. Vol. II,
p. 180). Father’s pattern of conduct indicates that he “would be someone who[]
[is] in and out of [the Child’s] life” “due to drug use or doing something that’s
not legal.” (Tr. Vol. II, p. 182). Following a hearing, Father had admitted to
DCS that, while he did not want his rights terminated, he doubted his ability to
care for the Child full time. The Child’s guardian ad litem also recommended
that termination would be in the Child’s best interests—primarily based on the
substantial length of time that the Child has been removed without a showing
of meaningful improvement by Parents. While the guardian ad litem expressed
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 21 of 24 “some reluctance” based on Parents’ limited contact with the Child and the fact
that the interactions they did have were positive, the guardian ad litem
acknowledged that Parents’ missed opportunities to demonstrate their parenting
abilities were “entirely[ by] their own doing by the decisions that they’ve
made.” (Tr. Vol. II, p. 195). The guardian ad litem also cited concerns that
Parents would, again, relapse.
[34] Nevertheless, Parents contend that the Child’s best interests do not support
termination of their parental rights. Mother asserts that, even though the Child
is bonded with his relative placement, “she has exercised consistent visitation
on over a hundred occasions during her incarceration. Mother showed an
eagerness to bond with [the Child] and the bond was observed repeatedly by
supervisors . . . .” (Appellant-Mother’s Br. p. 22). Mother also contends that
she “availed herself of several programs” while incarcerated, her release was
imminent, and she “had a plan for life after incarceration, available
employment, a support network to prevent relapse, and available housing with
her family.” (Appellant-Mother’s Br. pp. 23-24). Father raises similar
arguments as to why the Child’s best interests preclude termination. He
contends that he made a “good-faith measure” to engage in substance abuse
treatment and participated in other services and classes, and he visited with the
Child. (Appellant-Father’s Br. p. 14). Notwithstanding that his repeated bouts
of incarceration were solely his own fault and that Father faced pending charges
at the time of the termination hearing, Father complains that he “was never
given a substantial opportunity to show that he could provide for [the Child]
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 22 of 24 and be a parent after removal” due to his confinement. (Appellant-Father’s Br.
p. 14). Finally, Father cites his love for, and bond with, the Child.
[35] The love Parents have for the Child is not in dispute; yet, instead of doing
whatever was necessary to reunite with the Child, they chose to repeatedly
violate rules and forego their sobriety. The trial court ultimately found that the
Child “needs caregivers who can provide him with a nurturing environment
that is secure and free of abuse and neglect and meets the [C]hild’s needs.”
(Appellant-Mother’s App. Vol. II, p. 120). The trial court specified that Parents
“have demonstrated no ability to parent the [C]hild or to provide him with the
nurturing, stable, and appropriate care and environment that he requires on a
long term basis.” (Appellant-Mother’s App. Vol. II, p. 120). Evidence was
presented that the Child suffers from an “Adjustment Disorder stemming from
the trauma he has suffered in his short life.” (Appellant-Mother’s App. Vol. II,
p. 120). While Parents intermittently attempted to comply with their case
plans, their recurrent relapses and violations prevented them from establishing
that they could care for the Child on a permanent basis going forward. Taking
into account the recommendations of DCS and the guardian ad litem, along
with the evidence of the Child’s progress in his relative placement and Parents’
lack of meaningful remediation over a two-and-one-half-year period, we agree
with the trial court’s determination that there is clear and convincing evidence
that termination of Parents’ rights is in the Child’s best interests.
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 23 of 24 CONCLUSION [36] Based on the foregoing, we conclude that the trial court did not clearly err as
DCS presented sufficient evidence to support the termination of Parents’
parental rights.
[37] Affirmed.
[38] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 09A04-1701-JT-70 | August 10, 2017 Page 24 of 24