MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Nov 15 2017, 8:46 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Danielle L. Gregory Toby J. Gill Indianapolis, Indiana Katherine A. Cornelius Robert J. Henke Deputy Attorneys General
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- November 15, 2017 Child Relationship of: Court of Appeals Case No. 49A02-1706-JT-1256 G.C. (Minor Child) Appeal from the Marion Superior And Court R.C. (Mother), The Honorable Marilyn Moores, Appellant-Respondent, Judge The Honorable Scott Stowers, v. Magistrate Trial Court Cause No. The Indiana Department of 49D09-1606-JT-716 Child Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 1 of 17 Riley, Judge.
STATEMENT OF THE CASE [1] Appellant-Respondent, R.C. (Mother), appeals the trial court’s Order
terminating her parental rights to her minor child, G.C. (Child).
[2] We affirm.
ISSUE [3] Mother raises one issue on appeal, which we restate as follows: Whether the
Indiana Department of Child Services (DCS) presented clear and convincing
evidence to support the termination of Mother’s parental rights.
FACTS AND PROCEDURAL HISTORY [4] Mother is the biological parent of the Child, born on February 4, 2014. 1
Mother has three additional children who are not involved in these
proceedings, although Mother no longer has custody of any of her children. In
fact, Mother no longer has parental rights to her two oldest sons, primarily due
to a long-time struggle with substance abuse. 2 On May 31, 2015, DCS filed a
petition alleging the nearly sixteen-month-old Child to be a Child in Need of
Services (CHINS). The CHINS petition articulated that Mother had been
1 The Child’s biological father is unknown. 2 With Mother’s consent, her oldest son, born July 4, 2007, was adopted in 2009; in 2011, her parental rights to her second son, born August 20, 2008, were terminated; and Mother’s youngest son, born September 20, 2016, is the subject of an ongoing case with DCS. The Child is Mother’s third son.
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 2 of 17 arrested on prostitution charges, leaving the Child without a caregiver.
Additionally, DCS alleged that Mother lacked stable housing. Furthermore,
DCS noted concerns regarding Mother’s history of substance abuse and a
history of prostitution, 3 as well as DCS’s prior involvement with her two oldest
children. The Child was placed in foster care.
[5] On June 1, 2015, the trial court held a combined initial and detention hearing,
at which Mother failed to appear. The trial court granted wardship of the Child
to DCS and determined that Mother was prohibited from exercising parenting
time until she appeared in court. Thus, on June 15, 2015, the trial court held a
continued initial/detention hearing. Mother appeared, and the trial court
ordered that she receive supervised parenting time, with the opportunity for
unsupervised parenting time upon the recommendation of DCS and other
service providers.
[6] On August 24, 2015, the trial court held a fact-finding hearing; Mother did not
appear but was represented by counsel. On Mother’s behalf, her attorney
entered an admission, and the trial court accordingly adjudicated the Child a
CHINS. The same day, the trial court issued a Dispositional Order requiring
Mother to participate in services as a condition for reunification with the Child.
Specifically, the trial court ordered Mother to engage in a home-based therapy
3 In addition to her May 28, 2015 charge for prostitution, to which Mother pled guilty as a Level 6 felony and was sentenced to 365 days of home detention and 180 days of probation, she was convicted on October 24, 2013, for prostitution in two other cases. It also appears that Mother was convicted of a substance abuse offense in 2011 and gave birth to the Child while serving that sentence.
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 3 of 17 program and to follow all recommendations; to engage in a home-based case
management program and follow all recommendations; to complete a
substance abuse assessment and follow all treatment recommendations; and to
submit to random drug and alcohol screens.
[7] Thereafter, Mother made minimal effort to participate with the required
services. DCS referred her for a substance abuse assessment and treatment on
three separate occasions. While she completed an assessment at some point,
she never followed through with the recommended treatment. In fact, it was
not until the end of December 2016—less than two months prior to a scheduled
hearing on the termination of Mother’s parental rights—that Mother requested
a referral and began seeing a therapist to address her substance abuse and other
issues. Even after completing her intake appointment in January of 2017,
Mother missed several sessions with the therapist, and the evidence
demonstrates that Mother continues to deny having any addiction to controlled
substances. In fact, Mother was deceptive to the therapist regarding her drug
use. As nearly thirty positive drug screens—collected between August 20, 2015,
and February 6, 2017—establish, Mother regularly abuses benzodiazepines (i.e.,
Xanax), opiates (i.e., codeine, hydromorphone, and morphine), cocaine,
marijuana, and others. A toxicologist testified that the levels of morphine and
other opiate metabolites in Mother’s system indicate that her preferred drug is
heroin. Mother never provided DCS with a valid prescription to justify the
presence of some of those substances in her system. Mother insisted that she
does not “use drugs on a daily basis and I don’t see how lack of services and
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 4 of 17 stuff like that, I’m being punished for it, because they haven’t given me the
things that I need to even complete this.” (Tr. Vol. II, p. 28).
[8] It does appear that Mother, to some extent, engaged in home-based case
management. Mother has stable housing, but she is entirely supported by
family members as she has not had regular employment since she worked at
McDonald’s at age fifteen. Mother claimed that, as a result of a childhood car
accident, she experiences seizures if she doesn’t take medicine, eat right, and
get enough sleep. At the encouragement of her family, Mother stated that she
applied for social security disability benefits 4 even though she readily conceded
that her seizures are under control and do not affect her ability to work. Rather,
she explained that she is unemployed because “I don’t have to [work]. I have
to deal with this 24/7 and fake [c]ourt dates and missed [c]ourt dates and all
kinds of stuff.” (Tr. Vol. II, p. 35).
[9] Without a job placing any constraints on her schedule, Mother was offered two-
hour visits with the Child three times per week. Yet, according to the records
maintained by the Child’s foster parents, Mother attended about forty of
approximately 128 possible visits with the Child between March of 2016 and
January of 2017. Mother insisted that she saw the Child “every chance [she]
could,” and blamed the foster parents and her service provider for the missed
visits. (Tr. Vol. II, p. 17). However, the visits occurred while the Child was at
4 It does not appear that any decision on Mother’s application had been rendered at the time of the termination hearing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 5 of 17 daycare, and there is no evidence that the foster family interfered with visits.
No evidence was presented to indicate how the visits went or whether Mother
appropriately parented the Child during those times.
[10] On June 16, 2016, DCS filed a petition to terminate Mother’s parental rights to
the Child. After the filing, Mother’s participation continued to be minimal,
especially her visits with the Child. Around December of 2016, the foster
parents noticed that the Child’s mood would change following a visit with
Mother. Normally a very easy-going Child, he was suddenly “grouchy and
temperamental,” and despite having long been potty-trained, the Child began
having accidents following visits. (Tr. Vol. II, p. 112). The foster parents
reported their concerns to DCS. As a result, on January 19, 2017, the trial
court ordered that Mother’s visits be suspended. Following the suspension of
Mother’s visits, the Child resumed his happy mood and has not had any further
issues with potty-training accidents.
[11] On February 7 and March 28, 2017, the trial court conducted a hearing on
DCS’s termination petition. Along with evidence of Mother’s ongoing drug use
and refusal to complete the necessary services for reunification, evidence was
presented that the Child has thrived in his foster care placement, and his foster
parents intend to adopt him. DCS and the Child’s guardian ad litem (GAL)
testified that termination would be in the Child’s best interests because he is
bonded to the foster parents and is in a safe and stable home. On the other
hand, Mother argued that her parental rights should not be terminated because
DCS and her service providers had not properly assisted her; she had not
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 6 of 17 received “a fair shot” with the drug screens because she has “[n]ever in [her]
life” used cocaine or heroin; her arrest which initiated DCS’s involvement was
merely “a tactic” utilized by the FBI because she “know[s] for a hundred
percent fact that [she] wasn’t” engaging in prostitution; and she never abused or
neglected the Child. (Tr. Vol. III, pp. 44, 46, 51). On May 16, 2017, the trial
court issued its Order terminating Mother’s parental rights to the Child. The
trial court specifically concluded that “[t]here is a reasonable probability that
the conditions that resulted in the Child’s removal and continued placement
outside of the home will not be remedied by . . . [M]other”; that [c]ontinuation
of the parent-child relationship poses a threat to the [C]hild’s well-being”; and
that “[t]ermination of the parent[-]child relationship is in the best interests of the
[C]hild.” (Appellant’s App. Vol. II, p. 15).
[12] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[13] Mother appeals the trial court’s termination of her 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)).
Thus, the Fourteenth Amendment to the United States Constitution protects
“the traditional right of parents to establish a home and raise their children.”
Id. Yet, it is also well established that “parental rights are not absolute and
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 7 of 17 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 proper if “parents are unable or unwilling to meet their
parental responsibilities.” In re G.Y., 904 N.E.2d at 1259-60. We acknowledge
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 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).
[14] 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. 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.”
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 8 of 17 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
[15] 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 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.
[16] On appeal, Mother does not challenge the trial court’s conclusions that the
Child has been removed from her care for the requisite time or that DCS has
established a satisfactory plan for the Child’s care and treatment going forward.
She contends 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
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 9 of 17 threat to the Child’s well-being 5 and that termination is in the Child’s best
interests. We address each argument in turn.
A. Remediation of Conditions
[17] Mother claims that the evidence does not support the trial court’s conclusion
that there is a reasonable probability that she will not remedy the conditions
resulting in the Child’s removal and continued placement outside the home. In
determining 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 the home and subsequently 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
5 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 49A02-1706-JT-1256 | November 15, 2017 Page 10 of 17 ‘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. “A pattern of unwillingness to deal with parenting problems and to
cooperate with those providing social services, in conjunction with unchanged
conditions, support a finding that there exists no reasonable probability that the
conditions will change.” Lang v. Starke Cnty. Office of Family & Children, 861
N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. 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.
[18] In this case, the Child was taken into DCS custody and placed in foster care
because Mother was arrested for prostitution, leaving the Child without a
suitable caregiver. Furthermore, DCS raised concerns regarding Mother’s
history of substance abuse and prostitution, as well as her lack of stable
housing. According to Mother, the evidence does not establish a reasonable
probability that these issues will not be remedied because
[b]y the time of the termination trial, Mother’s criminal matters were resolved with a guilty plea. She’d maintained stable housing for seven (7) to eight (8) months and she was [sic] pending a claim for social security benefits. Admittedly, [M]other continued to test positive for substances she was not prescribed up to the day prior to the start of her termination trial; however, she had completed a substance abuse assessment, and she was participating with home based case management and home based therapy at the time of the termination trial. Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 11 of 17 (Appellant’s Br. p. 18) (internal citations omitted). We find no merit in
Mother’s argument.
[19] The trial court found, in part, that Mother “has had a year and a half to put
forth an effort to address issues but has not shown much of an interest in doing
so. Stability and sobriety remain major issues. She continues to test positive
for marijuana and heroin and even tested positive for marijuana, morphine, and
opiates the day before this termination trial began.” (Appellant’s App. Vol. II,
p. 15). Despite Mother’s attempt to convince this court to reweigh evidence
concerning her partial and last-minute compliance, we find that the trial court’s
determination is clearly supported by the record.
[20] While Mother pled guilty to the prostitution offense that resulted in the Child’s
removal, the fact remains that Mother has a history of prostitution and, instead
of accepting responsibility and attempting to make changes in her life to avoid
returning to the same lifestyle, she denied any wrongdoing and claimed that her
third prostitution conviction was a conspiracy orchestrated by the FBI. 6
Similarly, from the time of the Child’s removal until the termination hearing,
Mother denied having any substance abuse issues even though she had nearly
thirty positive drug screens for a variety of illicit substances. Mother refused
DCS’s repeated attempts to help her overcome her addiction until shortly before
6 It should be noted that Mother was convicted of prostitution because she, in exchange for money, did “knowingly fondle the genitals of another person,” who turned out to be a detective with the Indianapolis Metropolitan Police Department; there is no indication of FBI involvement. (GAL’s Exh. II).
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 12 of 17 the termination hearing, and it was well within the trial court’s prerogative to
disregard those efforts. See K.T.K., 989 N.E.2d at 1234 (noting that the trial
court may “disregard the efforts [parent] made only shortly before termination
and to weigh more heavily [parent’s] history of conduct prior to those efforts”).
Mother suggested that some of her positive results were due to prescribed
medications for her medical conditions, but she never presented valid
prescriptions to support such a claim. Mother further speculated that the results
of the drug screens were faulty or that her body had somehow metabolized
prescription drugs into cocaine, and she denied ever having used cocaine or
heroin. Her dubious claims are made even more suspect by the fact that the
CHINS records from her two oldest children are replete with evidence of
Mother’s long-standing abuse of heroin. We recognize that Mother’s drug
addiction undoubtedly affects her ability to parent the Child. Addiction
affects the body. It affects how you think. It affects how you live. It affects your entire life. So, if you have a parent who is in active addiction, the[ir] complete functioning as an individual is affected by their drug of choice, because they are dedicated to only one thing, which is maintaining that level of drug in their body.
(Tr. Vol. II, p. 47).
[21] Despite stable housing as of the termination hearing, Mother relies entirely on
her family for support. She sees no need to seek employment, and she filed for
social security disability benefits despite a clear admission that her seizures do
not interfere with her ability to work. It is up to Mother to be able to support
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 13 of 17 and care for the Child’s needs, and there is nothing in the record to indicate
whether the generosity of her family will continue indefinitely. Finally, but
significantly, Mother’s inconsistent visitation with the Child is simply
inexcusable. Instead of prioritizing the Child and considering the ramifications
of her actions on his emotions, Mother inexplicably failed to appear for nearly
ninety opportunities for visitation between March of 2016 and January of 2017.
See Lang, 861 N.E.2d at 372 (“[T]he failure to exercise the right to visit one’s
children demonstrates a ‘lack of commitment to complete the actions necessary
to preserve [the] parent-child relationship.’” (second alteration in original)).
Accordingly, we find that DCS presented clear and convincing evidence to
support the trial court’s determination that there is a reasonable probability that
the conditions resulting in the Child’s removal and continued placement
outside of Mother’s care will not be remedied. 7
B. Best Interests of the Child
[22] Mother also claims that the evidence does not support the trial court’s
determination that termination is in the Child’s best interests. 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.
Thus, while “[c]lear and convincing evidence need not reveal that the continued
7 Having found that there is sufficient evidence of a reasonable probability that conditions will not be remedied, 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 49A02-1706-JT-1256 | November 15, 2017 Page 14 of 17 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). When considering whether
termination would be 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. “The trial court 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.” 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.” Id. (alterations in original) (quoting In re G.Y., 904 N.E.2d at 1265).
[23] While Mother “concedes the [C]hild needs permanency in a stable
environment[,]” she insists that “she has demonstrated a willingness to provide
the same.” (Appellant’s Br. p. 20). She cites her seven-to-eight months of
consistent housing and her pursuit of financial assistance through social security
benefits as examples of stability. She further notes that when the Child “was
removed and placed in foster care, he was a really good baby, he was
developmentally on target, and he didn’t have any issues.” (Appellant’s Br. p.
20). Again, we are unpersuaded by Mother’s argument.
[24] At the time of the termination hearing, the Child had been removed from
Mother’s care for nearly two years. During that time, Mother consistently
abused drugs, refused DCS’s attempts to get her into treatment, and even
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 15 of 17 violated her probation in the prostitution case. Mother was afforded numerous
opportunities to maintain a relationship with the Child, but she instead missed
a majority of her visits—to the point that it caused the Child to experience
emotional issues. Both DCS and the Child’s GAL recommended that
termination of Mother’s parental rights was necessary for the Child’s best
interests. DCS and the GAL agreed that the Child needs a safe and stable
home and that Mother “has had plenty of time” to make the necessary changes
to be a fit parent, which she failed to do. (Tr. Vol. III, p. 40). It is well
established 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. Furthermore, the evidence demonstrates that the
Child
has a bond [with the foster parents] and the bond is very appropriate . . . . They are able to meet all his needs. The home is stable and suitable. They’re consistent with him. He is in pre- school and soon to start a sport. They’re just consistent and he’s bonded with them. He loves them and they’re his family.
(Tr. Vol. III, p. 38). Accordingly, we find ample evidence to support the trial
court’s determination that termination is in the Child’s best interests.
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 16 of 17 CONCLUSION [25] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the termination of Mother’s parental rights.
[26] Affirmed.
[27] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Memorandum Decision 49A02-1706-JT-1256 | November 15, 2017 Page 17 of 17