MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 23 2017, 9:06 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana James D. Boyer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- June 23, 2017 Child Relationship of: C.B. Court of Appeals Case No. (Minor Child), 35A02-1611-JT-2548 Appeal from the Huntington T.J. (Mother), Circuit Court Appellant-Respondent, The Honorable Thomas M. Hakes, Judge v. Trial Court Cause No. 35C01-1601-JT-8 Indiana Department of Child Services, Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 1 of 7 Statement of the Case [1] T.J. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor child C.B. (“Child”). Mother raises a single issue for our review,
namely, whether the State presented sufficient evidence to support the
termination of her parental rights. We affirm.
Facts and Procedural History [2] Mother gave birth to Child on March 22, 2013.1 On June 30, 2014, the Indiana
Department of Child Services (“DCS”) received a report that Mother and
Child’s home contained an active methamphetamine lab. In addition, the
home had no running water or electricity. DCS took custody of Child at that
time and placed Child in foster care. Mother was arrested.
[3] On July 1, the State charged Mother with dealing in methamphetamine, as a
Class A felony. On July 2, DCS filed a petition alleging that Child was a Child
in Need of Services (“CHINS”). On August 19, Mother pleaded guilty as
charged. And on October 7, Mother was ordered to complete residential drug
treatment as part of a deferred sentencing order.
[4] On February 13, 2015, the trial court held a factfinding hearing and adjudicated
Child to be a CHINS. On May 8, Mother was discharged from the residential
drug treatment program for “drinking and smoking spice.” Appellant’s App.
1 Child’s father has signed a consent for Child to be adopted, and he does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 2 of 7 Vol. 2 at 101. Accordingly, on May 19, the criminal court sentenced Mother to
twenty years, with eight years executed and twelve years suspended to
probation. On May 28, the CHINS court ordered that, upon her release from
incarceration, Mother was to: maintain contact with DCS; complete a
parenting assessment; participate in homebased parenting; participate in
individual therapy; participate in anger management; and participate in
substance abuse treatment.
[5] On January 20, 2016, DCS filed a petition to terminate Mother’s parental rights
to Child. Following a hearing on August 31, the trial court granted that
petition on October 12. In support of its order, the trial court entered findings
and conclusions. This appeal ensued.
Discussion and Decision [6] We begin our review of this appeal by acknowledging that “[t]he traditional
right of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),
trans. denied. However, a trial court must subordinate the interests of the
parents to those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750
N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child
relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s own child should not be
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 3 of 7 terminated solely because there is a better home available for the child, parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[7] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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.
***
(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’s “burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child
Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-
14-2).
[8] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 4 of 7 Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. Moreover, in deference to the trial
court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208
(Ind. Ct. App. 1999), trans. denied.
[9] Here, in terminating Mother’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.
2005). First, we determine whether the evidence supports the findings and,
second, we determine whether the findings support the judgment. Id.
“Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[10] Mother’s challenge on appeal is very narrow. Mother concedes that the
evidence is sufficient to support the trial court’s findings underlying its
conclusions that Mother will not remedy the conditions that resulted in Child’s
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 23 2017, 9:06 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana James D. Boyer Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- June 23, 2017 Child Relationship of: C.B. Court of Appeals Case No. (Minor Child), 35A02-1611-JT-2548 Appeal from the Huntington T.J. (Mother), Circuit Court Appellant-Respondent, The Honorable Thomas M. Hakes, Judge v. Trial Court Cause No. 35C01-1601-JT-8 Indiana Department of Child Services, Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 1 of 7 Statement of the Case [1] T.J. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor child C.B. (“Child”). Mother raises a single issue for our review,
namely, whether the State presented sufficient evidence to support the
termination of her parental rights. We affirm.
Facts and Procedural History [2] Mother gave birth to Child on March 22, 2013.1 On June 30, 2014, the Indiana
Department of Child Services (“DCS”) received a report that Mother and
Child’s home contained an active methamphetamine lab. In addition, the
home had no running water or electricity. DCS took custody of Child at that
time and placed Child in foster care. Mother was arrested.
[3] On July 1, the State charged Mother with dealing in methamphetamine, as a
Class A felony. On July 2, DCS filed a petition alleging that Child was a Child
in Need of Services (“CHINS”). On August 19, Mother pleaded guilty as
charged. And on October 7, Mother was ordered to complete residential drug
treatment as part of a deferred sentencing order.
[4] On February 13, 2015, the trial court held a factfinding hearing and adjudicated
Child to be a CHINS. On May 8, Mother was discharged from the residential
drug treatment program for “drinking and smoking spice.” Appellant’s App.
1 Child’s father has signed a consent for Child to be adopted, and he does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 2 of 7 Vol. 2 at 101. Accordingly, on May 19, the criminal court sentenced Mother to
twenty years, with eight years executed and twelve years suspended to
probation. On May 28, the CHINS court ordered that, upon her release from
incarceration, Mother was to: maintain contact with DCS; complete a
parenting assessment; participate in homebased parenting; participate in
individual therapy; participate in anger management; and participate in
substance abuse treatment.
[5] On January 20, 2016, DCS filed a petition to terminate Mother’s parental rights
to Child. Following a hearing on August 31, the trial court granted that
petition on October 12. In support of its order, the trial court entered findings
and conclusions. This appeal ensued.
Discussion and Decision [6] We begin our review of this appeal by acknowledging that “[t]he traditional
right of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996),
trans. denied. However, a trial court must subordinate the interests of the
parents to those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re K.S.), 750
N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child
relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s own child should not be
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 3 of 7 terminated solely because there is a better home available for the child, parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[7] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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.
***
(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’s “burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child
Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-
14-2).
[8] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 4 of 7 Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. Moreover, in deference to the trial
court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208
(Ind. Ct. App. 1999), trans. denied.
[9] Here, in terminating Mother’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.
2005). First, we determine whether the evidence supports the findings and,
second, we determine whether the findings support the judgment. Id.
“Findings are clearly erroneous only when the record contains no facts to
support them either directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). If the evidence and inferences support the trial court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[10] Mother’s challenge on appeal is very narrow. Mother concedes that the
evidence is sufficient to support the trial court’s findings underlying its
conclusions that Mother will not remedy the conditions that resulted in Child’s
removal, that the continuation of the parent-child relationship poses a threat to
the well-being of Child, and that there is a satisfactory plan for C.B.’s care and
treatment. Mother only challenges the sufficiency of the evidence to show that
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 5 of 7 termination is in the best interests of Child. Thus, we address only that
contention.
[11] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. A.S. v.
Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
“A parent’s historical inability to provide adequate housing, stability and
supervision coupled with a current inability to provide the same will support a
finding that termination of the parent-child relationship is in the child’s best
interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.
App. 2006), trans. denied. “Additionally, a child’s need for permanency is an
important consideration in determining the best interests of a child, and the
testimony of the service providers may support a finding that termination is in the child’s
best interests.” In re A.K., 924 N.E.2d at 224 (emphasis added).
[12] In support of her contention on this issue, Mother maintains that, while her
earliest possible release date is December 2020, she might be able to get an early
release in 2018. Mother also asserts that she “already has both stable housing
and employment lined up when she is released.” Appellant’s Br. at 8. Finally,
Mother maintains that Child has lived in the same foster home since her
removal, so “[r]emaining there a little longer while Mother completes her term
of incarceration would not negatively impact C.B.” Id. But Mother’s
contentions amount to a request that we reweigh the evidence, which we
cannot do.
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 6 of 7 [13] As the trial court found, both the family case manager and Guardian ad Litem
testified that adoption and termination of Mother’s parental rights is in Child’s
best interests. The totality of the evidence, including Mother’s historical
inability to provide a safe and stable home and her inability to overcome her
debilitating substance abuse, supports the trial court’s conclusion that
termination of Mother’s parental rights is in Child’s best interests. The trial
court did not err when it terminated Mother’s parental rights to Child.
[14] Affirmed.
Mathias, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 35A02-1611-JT-2548| June 23, 2017 Page 7 of 7