In the Termination of the Parent-Child Relationship of: A.S.C. & A.J.C., C.C. v. Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 21, 2017
• Docket: 37A03-1607-JT-1715
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 21 2017, 10:01 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Russell Dean Bailey Curtis T. Hill, Jr. Demotte, Indiana Attorney General of Indiana

Robert J. Henke Marjorie Newell Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- March 21, 2017 Child Relationship of: Court of Appeals Case No. 37A03-1607-JT-1715 A.S.C. & A.J.C., Appeal from the Jasper Circuit Court C.C., The Honorable John D. Potter, Judge Appellant-Respondent, Trial Court Cause No. 37C01-1603-JT-44 v. 37C01-1603-JT-45

Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 1 of 12 Barnes, Judge.

Case Summary [1] C.C. (“Mother”) appeals the termination of her parental rights with regard to

A.S.C. and A.J.C. (“the Children”). We affirm.

Issue [2] Mother contends the evidence was not sufficient to support the termination of

her parental rights.

Facts [3] A.S.C. and A.J.C. are Mother’s children. A.S.C. was born on August 8, 2014,

and A.J.C. was born on January 4, 2013. On April 22, 2015, DCS filed a Child

in Need of Services (“CHINS”) petition alleging each child to be a CHINS.

The trial court held a fact-finding hearing on that petition in July 2015 and

adjudicated the Children to be CHINS. The trial court found:

While in the care, custody, and control of the parents due to the parents being homeless and the mother using herion [sic]: 1) That on or about April 17, 2015, Family Case Manager Knoth (“FCM Knoth”) went to the [sic] Lowell, Indiana where the parents and child were reported to be. FCM Knoth checked at area hotel parking lots, Brushwood Church, and Dollar General without being able to locate them. 2) That on or about April 20, 2015, FMC Knoth continued searching through relative contact and met with mother at the Jasper County Jail where she had been arrested on an unrelated matter. That mother admitted to have been staying [sic] at the Crisis Center, panhandling in Lowell, and being a heroin user. 3) That on or about April 22, 2015,

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 2 of 12 father and children were located in the Jasper County Courthouse employee parking lot and escorted back to the DCS office . . . . 5) That both mother and father have tested positive for heroin. 6) That the child[ren] need[] care, treatment, and rehabilitation that the parents are unwilling and/or unable to provide the child[re] without the coercive intervention of the court.

App. pp. 32 and 34.1

[4] DCS filed petitions to terminate Mother’s parental rights, and the trial court

held a fact-finding hearing on June 24, 2016. On June 30, 2016, the trial court

issued findings of fact and conclusions thereon in orders terminating Mother’s

parental rights.2 Mother now appeals.

Analysis [5] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing

Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-535, 45 S. Ct. 571, 573 (1925), and

Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 626-27 (1923)). “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, 120 S. Ct. 2054, 206 (2000)). “It is cardinal with us that the

1 The trial court issued identical findings in separate orders pertaining to A.S.C. and A.J.C. 2 The trial court issued separate, but identical, orders terminating Mother’s rights with regard to each child.

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 3 of 12 custody, care and nurture of the child reside first in the parents . . . .” Troxel,

530 U.S. at 65, 120 S. Ct. at 2060 (citing Prince v. Massachusetts, 321 U.S. 158,

166, 64 S. Ct. 438, 442 (1944)). Parental interests, however, are not absolute

and must be subordinated to the children’s interests in determining the proper

disposition of a petition to terminate parental rights. Bester, 839 N.E.2d at 147.

“[P]arental rights may be terminated when the parents are unable or unwilling

to meet their parental responsibilities.” Id. (quoting In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004)).

[6] Pursuant to Indiana Code Section 31-35-2-4(b)(2), when DCS seeks to

terminate the parent-child relationship of children who have been adjudicated

CHINS, it must allege, in part:

(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

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 4 of 12 (D) that there is a satisfactory plan for the care and treatment of the child.

DCS must prove its allegations by clear and convincing evidence. Egly v.

Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).

[7] Our supreme court recently cautioned:

[T]he “clear and convincing” evaluation is to be applied judiciously. “Reviewing whether the evidence ‘clearly and convincingly’ supports the findings, or the findings ‘clearly and convincingly’ support the judgment, is not a license to reweigh the evidence. Rather, it is akin to the ‘reasonable doubt’ standard’s function in criminal sufficiency of the evidence appeals—in which we do not reweigh the evidence or assess the credibility of the witnesses, and consider only whether there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt . . . . Our review must give due regard to the trial court’s opportunity to judge the credibility of the witnesses firsthand, and not set aside [its] findings or judgment unless clearly erroneous.”

In re N.G. 51 N.E.3d 1167, 1170 (Ind. 2016) (quoting In re E.M., 4 N.E.3d 636,

642 (Ind. 2014)) (alterations in N.G.) (emphasis in E.M.) (citations omitted)

(quotations omitted).

[8] When, as here, a trial court enters findings of fact and conclusions thereon, we

apply a two-tiered standard of review. In re D.K., 968 N.E.2d 792, 797 (Ind. Ct.

App. 2012). “First, we determine whether the evidence supports the findings,

and second we determine whether the findings support the judgment.” Id. An

appellant who does not cogently argue that the trial court’s findings were not

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 5 of 12 supported by sufficient evidence waives that argument on review, and we

review only whether the facts found by the trial court are insufficient, as a

matter of law, to support a judgment. See City of Whiting v. City of East Chicago,

266 Ind. 12, 19, 359 N.E.2d 536, 540 (1977). “[W]here a party challenges only

the judgment as contrary to law and does not challenge the special findings as

unsupported by the evidence, we do not look to the evidence but only to the

findings to determine whether they support the judgment.” Smith v. Miller

Builders, Inc., 741 N.E.2d 731, 734 (Ind. Ct. App. 2000) (alteration in original).

I. The Conditions Resulting in Removal Will Not Be Remedied

[9] Mother contends there is not clear and convincing evidence to support the trial

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

resulted in the children’s removal will not be remedied and/or that the reasons

for the children’s placement outside Mother’s home will not be remedied. 3

DCS removed the Children from Mother’s care and placed them outside her

home because the family was homeless and Mother was using heroin. DCS

identified several areas in which Mother needed to improve: she needed stable

housing, substance-abuse treatment, random drug screens, and supervised

visitation with the Children.

3 Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS needed to prove only one of the requirements of subsection (B). We conclude there is a reasonable probability that the conditions that resulted in the children’s removal and the reasons for placement outside Mother’s home will not be remedied.

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 6 of 12 [10] Consideration of whether the conditions will be remedied requires judging the

parent’s fitness at the time of the termination hearing, “taking into

consideration evidence of changed conditions.” K.E. v. Indiana Dep’t of Child

Servs., 39 N.E.3d 641, 647 (Ind. 2015).

Changed conditions are balanced against habitual patterns of conduct to determine whether there is a substantial probability of future neglect. Habitual conduct may include criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment, but the services offered to the parent and the parent’s response to those services can also be evidence demonstrating that conditions will be remedied.

Id. (internal quotations omitted) (citations omitted).

[11] Mother challenges two of the trial court’s findings of fact. Mother first

contends the trial court’s finding that she failed nineteen out of nineteen drug

screens was incorrect. Instead, she asserts that she took twenty-three tests, four

of which were negative, and that one of her positive tests “could be explained

because she had a valid prescription for pain medication.” Appellant’s Br. p.

16. In support of that contention, Mother directs us to the progress report DCS

family case manager Jody Knoth prepared for Mother’s October 5, 2015

periodic review hearing.

[12] We acknowledge that document stated Mother participated in a total of thirty-

five drug screens; four were negative; Mother failed to show up for an

additional twenty drug screens; Mother tested positive for heroin, THC,

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 7 of 12 methamphetamine, amphetamine or some combination of those drugs in ten

screens; and Mother tested positive, but had a valid prescription for oxycodone

in one screen. See App. Vol. 2, p. 105. Those numbers are different from the

ones cited by both the trial court’s findings and Mother’s Appellant’s Brief.

However, we note that DCS’s exhibits 78 and 79 are the results of Mother’s

drug screens prepared by Forensic Fluids Laboratories and Redwood

Toxicology Laboratory. Those exhibits contain a total of nineteen results, all of

which were positive. In light of these exhibits, we conclude the evidence

supports the trial court’s finding with regard to Mother’s drug screens.

[13] Mother next seems to challenge the trial court’s finding that she did not make

progress toward obtaining housing. She argues, “the record is devoid of any

showing that the homes that Mother and Father lived at with relatives was [sic]

an unsafe environment for the children or any reasons why it [sic] was

unsuitable.” Appellant’s Br. p. 17. Mother does, however, acknowledge

Knoth’s testimony that she visited Mother while the family was living in a tent

in Father’s mother’s garage and Knoth’s opinion that the tent was not suitable

housing.

[14] Christine Pirlot, a case worker with Family Focus, was assigned to help Mother

find stable housing and employment. Pirlot testified that, between November

2015 and March 2016, Mother did not have stable housing. She testified,

“They would stay, sometimes at the motel out by 65. Occasionally they would

stay with his mom, and sometimes there was a house on Melville that they

stayed at. And so, they were kind of moving between those three.” Tr. Vol. II,

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 8 of 12 p. 35. Knoth testified she was unware of any time during the pendency of this

case when Mother had suitable housing available and that, “every time” she

visited the grandmother’s house, she was informed Mother was living in a tent

in the garage. Id. at 78. Knoth testified she was “never notified they moved

inside.” Id. We conclude this evidence demonstrates Mother did not obtain

“single family housing,” which Knoth defined as “A house [or apartment] just

for [Father], [Mother] and their children.” Id. at 74. That evidence is sufficient

to support the trial court’s finding that Mother lacked stable, suitable housing.

[15] In addition to the findings with regard to Mother’s continued substance abuse

and homelessness, the trial court found that Mother was in and out of

incarceration while this case was pending and was incarcerated at the time of

the evidentiary hearing. The trial court found the only progress Mother made

toward addressing her problem with substance abuse was that she was able to

“vocalize” her substance abuse problem as the cause of her “issues.” App. Vol.

II, pp. 21 and 25. The trial court found Mother was not compliant or consistent

in her participation in services.

[16] Our review of the evidence reveals that, in August 2015, Mother was referred to

services at Dunebrook focused on educating her regarding “nurturing parenting

techniques to foster emotional, intellectual and physical development for [her]

children.” Tr. p. 5. Mother was supposed to meet with her Dunebrook

provider weekly, but between October 2015 and February 2016, she attended

only four sessions. Dunebrook terminated its service in March 2016. “Due to

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 9 of 12 noncompliance of meeting weekly, there was no progression in the nurturing

parenting curriculum that [Dunebrook] used.” Id. at 10.

[17] DCS also referred Mother to Family Focus for assistance finding stable

employment and housing, and Mother was scheduled to meet weekly with

Pirlot. Pirlot testified that “on average,” she saw Mother monthly. Id. at 33.

Pirlot’s monthly reports reveal she had difficulty contacting Mother. Pirlot also

testified that Mother’s only progress was that she was “able to verbalize that

[she] had an addiction issue.” Id. at 33. Mother did not obtain employment or

stable housing; Mother was transient. Although Mother never provided Pirlot

with any documentation regarding her medical problems, Pirlot acknowledged

Mother had numerous health issues that made it more difficult for her to find

employment. In lieu of employment, Pirlot encouraged Mother to apply for

Social Security Disability.

[18] Family Focus also provided addictions counseling for Mother. Social worker

Paul Hannon attempted to contact Mother every week from August 2015 to

January 2016. Hannon scheduled an initial meeting with Mother in late

September 2015, but Mother did not show up. Mother’s first, and, ultimately,

last appointment with Hannon was in December 2015. Mother had an

appointment scheduled for January 2016, but she cancelled it. Hannon testified

Mother was not willing to participate in addictions counseling and did not

make progress in the service because of her lack of participation.

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 10 of 12 [19] Finally, Knoth testified that, while this case was pending, Mother was charged

with criminal offenses on several occasions. In April 2015, she was charged

with driving with a suspended license; in August 2015, she was charged with

possessing a narcotic and with unlawfully possessing a syringe; and in June

2016, Mother was alleged to have violated the terms of her probation by testing

positive for heroin.

[20] We conclude this evidence establishes a clear pattern of Mother’s continued

struggle with substance abuse and homelessness. See K.E., 39 N.E.3d at 647.

This evidence of habitual conduct is sufficient to conclude there is a substantial

probability of future neglect. See id. The trial court’s conclusion that there was

a reasonable probability that the conditions resulting in removal will not be

remedied was not clearly erroneous.

II. Best Interests

[21] Mother contends, generally, that DCS did not demonstrate by clear and

convincing evidence that termination of the parent-child relationship is in the

Children’s best interests. In determining what is in the best interests of the

children, the trial court is required to look at the totality of the evidence. In re

D.D., 804 N.E.2d at 267. In doing so, the trial court must subordinate the

interests of the parents to those of the children involved. Id.

[22] The trial court found that the Children have bonded with their prospective

adoptive parents and that Mother is unable to provide them with permanency.

Our review of the evidence reveals that, although the Children appear to be well

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 11 of 12 adjusted and are in good physical and psychological shape, they need

permanence that Mother is clearly unable to provide. Further, it does not

appear Mother is any closer to being able to provide that permanence than she

was when this case began. The trial court’s conclusion that termination of

Mother’s parental rights is in the Children’s best interests is not clearly

erroneous. 4

Conclusion [23] The trial court’s termination of Mother’s parental rights with regard to the

Children is not clearly erroneous. We affirm.

[24] Affirmed.

Kirsch, J., and Robb, J., concur.

4 Mother does not challenge the trial court’s conclusion that DCS has a satisfactory plan for the Children’s care.

Court of Appeals of Indiana | Memorandum Decision 37A03-1607-JT-1715 | March 21, 2017 Page 12 of 12