MEMORANDUM DECISION FILED May 24 2016, 7:51 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be CLERK Indiana Supreme Court Court of Appeals regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher D. Kehler Gregory F. Zoeller Kehler Law Firm, PC Attorney General of Indiana Warsaw, Indiana Robert J. Henke Deputy Attorney General
David E. Corey Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- May 24, 2016 Child Relationship of J.B. Court of Appeals Case No. (Minor Child), 43A03-1509-JT-1520 A.C., Appeal from the Kosciusko Superior Court Appellant-Respondent, The Honorable David C. Cates, v. Judge Trial Court Cause No. Indiana Department of Child 43D01-1412-JT-413 Services, Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 1 of 15 Najam, Judge.
Statement of the Case [1] A.C. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor child, J.B. (“Child”). Mother raises two issues for our review,
namely:
1. Whether the trial court abused its discretion in denying Mother’s motion to continue the termination hearing.
2. Whether the trial court’s termination of Mother’s parental rights was clearly erroneous.
[2] We affirm.
Facts and Procedural History [3] Mother gave birth to Child on October 20, 2012.1 In November 2013, Indiana
Department of Child Services (“DCS”) investigated a report that Mother was
using methamphetamine. After Mother admitted that she was using
methamphetamine, DCS filed a petition for an informal adjustment, which the
trial court approved on December 18. Both Mother and Child tested positive
for methamphetamine on January 4, 2014, and, on January 13, DCS filed a
petition alleging Child was a child in need of services (“CHINS”) and obtained
1 Child’s father has not been identified but is alleged to be J.B., who does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 2 of 15 an emergency order from the trial court to remove Child from Mother’s care.
On January 23, the trial court determined that Child was a CHINS.
[4] On January 24, the State charged Mother with neglect of a dependent, as a
Class D felony; possession of methamphetamine, as a Class D felony; and
possession of paraphernalia, as a Class A misdemeanor. Mother was taken into
custody while those charges were pending. She pleaded guilty to the two D
felonies, and the State dismissed the misdemeanor charge. For each of the D
felonies, the trial court sentenced Mother to two years’ incarceration, with
credit for time served and the balance suspended to probation, and sentences to
be served concurrently.
[5] Following a dispositional hearing in February, the trial court ordered Mother
to: maintain appropriate housing; maintain a legal source of income; submit to
random drug screens; complete a substance abuse assessment and follow all
recommendations; complete a parenting risk assessment and follow all
recommendations; and visit Child.
[6] On December 16, 2014, DCS filed a petition for the involuntary termination of
Mother’s parental rights to Child. The trial court set the matter for an
evidentiary hearing and Mother subsequently requested and was granted two
continuances of that hearing. At the beginning of the June 15, 2015,
evidentiary hearing, counsel for Mother requested another continuance of the
hearing to give Mother more time to meet the DCS requirements of her. The
trial court denied that motion and, following the hearing, the trial court entered
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 3 of 15 the following relevant findings and conclusions in support of terminating
Mother’s parental rights:
9. The Child was removed from Mother’s home following both Mother’s failure to comply with an informal adjustment necessitated due to the Mother’s admission and positive test for methamphetamine, and both Child and Mother testing positive for methamphetamine and amphetamines. . . .
***
11. Mother failed and refused to complete a parenting risk assessment despite referral from DCS.
12. Mother completed a substance abuse assessment pursuant to DCS referral but failed and refused to comply with the rules of treatment and did not successfully complete a substance abuse program, being unsuccessfully discharged from her program.
13. Mother failed to consistently submit to random drug screens and did not remain drug-free, having tested positive [for drugs] on at least four (4) occasions subsequent to entry of the Court’s Dispositional Order herein.
14. Mother failed and refused to visit with the Child from and after October 2014.
15. Mother has failed and refused to obtain and maintain stable drug-free housing nor has Mother secured a legal source of income.
16. Mother was incarcerated subsequent to entry of Dispositional Order herein for Felony Neglect of a Dependent and Possession of Methamphetamine.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 4 of 15 17. Mother was released from incarceration in May of 2014 but returned to incarceration due to a probation violation cause[d] by a failed drug screen and her failure to complete substance abuse treatment.
18. While incarcerated Mother attended AA/NA meetings and attended Mothers Against Meth meetings[] but failed to comply with the recommendations of the assessments to which she was previously directed.
19. Due to Mother’s criminal offenses[,] she has been unable to develop and maintain a relationship with the Child, who has been removed from the care of Mother for more than one-half (1/2) of the Child’s life.
24. Neither Child’s Mother nor the Child’s Alleged Father have been compliant with the Court’s Dispositional Order.
25. Permanency is in the Child’s best interests and the Child needs permanency and stability for her well-being[,] which permanency and stability neither parent can provide.
26. DCS has a satisfactory plan for the care and treatment of the Child and . . . for permanency and stability of the Child, namely, adoption.
27. The Child has bonded with her current relative placement and removing the Child from that placement will be detrimental to the Child’s well-being and development.
28. Current placement is ready, willing and able to adopt the Child if parental rights are terminated, which adoption is a satisfactory plan for the care and treatment of the Child.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 5 of 15 29. Since initiation of DCS involvement with this family, . . . neither Mother nor Alleged Father have taken advantage of the services [offered by DCS].
31. While the Child has been in the care of the current relative placement, the Child has made progress with regards to issues with which the Child had previously suffered, including, but not limited to, anxiety, inappropriate sexual behaviors, and inappropriate reactions to emotions.
32. The Child is happy and content in her current placement and removal from that placement would be detrimental to the Child.
37. The Child has been removed from her parent for at least six (6) months under a Dispositional Decree, and has been removed from her parent under the supervision of DCS for at least fifteen (15) of the most recent twenty-two (22) months beginning with the date the Child was removed from the home as a result of being a Child in Need of Services.
38. There is a reasonable probability that conditions resulting in the Child’s removal for reasons of placement outside the home of the parents would not be remedied.
39. There is a reasonable probability that the continuation of the parent/child relationship poses a threat to the well-being of the Child.
40. Termination is in the best interests of the Child.
41. There is a satisfactory plan for the care and treatment of the Child, namely, adoption.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 6 of 15 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court that:
1. The parent/child relationship of the Child, . . . , and the Child’s Mother, . . . , be and is hereby terminated.
Appellant’s Amended Br. at 36-41. This appeal ensued.
Discussion and Decision Issue One: Motion to Continue
[7] First, Mother contends that the trial court erred in denying her motion to
continue the June 15, 2015, fact finding hearing. The decision to grant or deny
a motion for continuance is within the sound discretion of the trial court, and
we will reverse only for an abuse of that discretion. C.C. v. v. Ind. Dep’t of Child
Servs. (In re K.W.), 12 N.E.3d 241, 243-44 (Ind. 2014). An abuse of discretion
occurs where the trial court reaches a conclusion that is clearly against the logic
and effect of the facts or the reasonable and probable deductions that may be
drawn therefrom. K.E. v. Ind. Dep’t of Child Servs. (In re J.E.), 45 N.E.3d 1243,
1246 (Ind. Ct. App. 2015), trans. denied. A denial of a continuance is an abuse
of discretion if the moving party has demonstrated good cause for granting the
motion. Id.; see Ind. Trial Rule 53.5. However, no abuse of discretion will be
found where the moving party has not shown prejudice from the denial of the
continuance. In re J.E., 45 N.E.3d at 1246.
[8] Here, Mother has failed to show good cause for granting the continuance. Her
sole reason for requesting a continuance was that she wanted “additional time
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 7 of 15 to meet the requirements set forth in the CHINS case so that she can avoid a
termination.” Tr. at 6. However, Mother had already been given ample
opportunity to comply with those requirements. At the time of Mother’s
motion, the underlying CHINS case had been pending for approximately
seventeen months, during which time Mother repeatedly failed to take
advantage of services offered by DCS or comply with requirements imposed by
DCS and the trial court. Moreover, Mother had already requested and been
granted two prior continuances of the fact finding hearing. The trial court did
not abuse its discretion in denying Mother’s third request for a continuance of
that hearing.
Issue Two: Termination of Parental Rights
[9] Mother also maintains that the trial court’s order terminating her parental rights
was clearly erroneous. We begin our review of this issue 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
terminated solely because there is a better home available for the child, parental
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 8 of 15 rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[10] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove, among other things:
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for 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) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2). DCS need establish only one of the requirements
of subsection (b)(2)(B) before the trial court may terminate parental rights. Id.
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).
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 9 of 15 [11] 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
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.
[12] 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.
[13] Mother contends that the trial court erred in both its findings of fact and its
conclusions of law. As to the latter, she alleges that the trial court erred in
concluding that she will not remedy the conditions that resulted in Child’s
removal; that the continuation of the parent-child relationship poses a threat to
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 10 of 15 the well-being of Child; and that termination is in the best interest of Child.
Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive,
we only address whether the trial court erred in concluding that Mother will not
remedy the conditions that resulted in Child’s removal and that termination is
in Child’s best interest. We address each of Mother’s contentions after we
briefly address her challenge to specific findings of fact entered by the trial
court.
Trial Court’s Findings of Fact
[14] First, Mother contends that the evidence did not support the trial court’s
following findings of fact: Findings 14, 18, 25, and 27. Findings of Fact 25 and
27 are supported by the evidence,2 and Mother’s assertions to the contrary are
simply requests that we reweigh the evidence, which we will not do. And, even
assuming Findings of Fact 14 and 18 are clearly erroneous, the decision of the
trial court is supported by the remainder of the findings, as noted below, and
the portions challenged by Mother may be treated as surplusage. Lasater v.
Lasater, 809 N.E.2d 380, 397 (Ind. Ct. App. 2004). Moreover, Mother has
shown no prejudice from Findings 14 and 18 that would warrant reversal of the
court’s judgment on appeal. Id.
2 Mother asserts there is no evidence that Child lacked permanency, as noted in Finding 25; however, there is sufficient evidence that Mother’s consistent drug use resulted in Child being removed from her home and put into various foster placements over a significant period of time. There is also sufficient evidence that Child was happy and stable in her current relative placement such that removal from the placement would be harmful, as stated in Finding 27.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 11 of 15 Conditions that Resulted in Child’s Removal
[15] Mother maintains that the trial court erred in finding a reasonable probability
that the conditions that resulted in Child’s removal will not be remedied. In
making this determination, we engage in a two-step analysis. E.M. v. Ind. Dep’t
of Child Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). “First, we identify the
conditions that led to removal; and second, we determine whether there is a
reasonable probability that those conditions will not be remedied. Id.
(quotations and citations omitted). In the second step, the trial court must
judge a parent’s fitness to care for his or her children at the time of the
termination hearing, taking into consideration evidence of changed conditions.
Id. However, the court must also “evaluate the parent’s habitual patterns of
conduct to determine the probability of future neglect or deprivation of the
child.” Moore v. Jasper Cnty. Dep’t of Child Servs., 894 N.E.2d 218, 226 (Ind. Ct.
App. 2008) (quotations and citations omitted). Pursuant to this rule, courts
have properly considered evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. Id. Moreover, DCS is not required to rule
out all possibilities of change; rather, it need establish only that there is a
reasonable probability the parent’s behavior will not change. Id.
[16] Here, the evidence showed that, initially, an informal adjustment was necessary
due to Mother admitting to taking, and testing positive for, methamphetamine
and amphetamines. The evidence shows that Mother subsequently failed to
comply with the informal adjustment not only by testing positive for
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 12 of 15 methamphetamine herself but also by Child testing positive for that drug.
Mother’s failure to comply resulted in the Child’s removal from Mother’s
home, the filing of a CHINS action and criminal charges against her, and her
subsequent incarceration for felony neglect of Child and possession of
methamphetamine. Yet, upon Mother’s release from incarceration, she again
failed to remain drug-free. In violation of her probation, she once again tested
positive for drugs and failed to complete substance abuse treatment, resulting in
her return to jail.
[17] Mother’s history of drug abuse and consistent failure to remain drug-free, along
with other evidence of her consistent failure to comply with DCS requirements
both in the informal adjustment and the CHINS case, support the trial court’s
conclusion that the conditions that resulted in Child’s removal will not be
remedied. On appeal, Mother points to evidence tending to show that she has
taken steps in the right direction during her most recent incarceration.
However, the trial court was entitled to give more weight to evidence of how
Mother behaved when she was not incarcerated than to evidence of how she
behaved while she was restricted by the realities of incarceration. See, e.g., R.K.
v. Ind. Dep’t of Child Servs. (In re S.E.), 15 N.E.3d 37, 46 (Ind. Ct. App. 2014)
(quoting In re E.M., 4 N.E.3d at 643), trans. denied. Mother’s contentions on
appeal amount to a request that we reweigh the evidence, which we will not do.
The trial court did not err in concluding that the conditions at the time of
Child’s removal will not be remedied.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 13 of 15 Best Interests
[18] 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. Such evidence, “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.” L.S. v. Ind. Dep’t of Child Servs. (In re
A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.
[19] Again, Mother’s contentions on this issue amount to requests that we reweigh
the evidence, which we will not do. Both Lindsay Saylor, a DCS family case
manager, and Shannon Johnson, Child’s Court Appointed Special Advocate
(“CASA”), testified that termination of Mother’s parental rights is in Child’s
best interest. Given that testimony, in addition to evidence that Child needs
permanency and stability that Mother cannot provide and that the reasons for
Child’s removal from Mother will not be remedied, we hold that the totality of
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 14 of 15 the evidence supports the trial court’s conclusion that termination is in Child’s
best interest. The trial court did not err when it terminated Mother’s parental
rights to Child.
[20] Affirmed.
Riley, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 43A03-1509-JT-1520 | May 24, 2016 Page 15 of 15