In the Termination of the Parent-Child Relationship of: M.D., M.D., and M.E., (minor children) S.E. (mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 25, 2017
• Docket: 79A04-1701-JT-109
• 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 May 25 2017, 9:39 am court except for the purpose of CLERK establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Harold E. Amstutz Curtis T. Hill, Jr., Lafayette, Indiana Attorney General of Indiana James D. Boyer Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- May 25, 2017 Child Relationship of: Court of Appeals Case No. M.D., M.D., and M.E., (minor 79A04-1701-JT-109 children); Appeal from the Tippecanoe S.E. (mother) Superior Court The Honorable Faith A. Graham, Appellant-Respondent, Judge v. Trial Court Cause Nos. 79D03-1603-JT-30 The Indiana Department of 79D03-1603-JT-31 79D03-1603-JT-32 Child Services, Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 1 of 10 Statement of the Case [1] S.E. (“Mother”) appeals the termination of the parental relationship with her

children, Mar.D. (“Mar.D”), Mas.D.(“Mas.D.”), and Me.D. (“Me.D.”),

(collectively “the children”), claiming that: the Department of Child Services

(“DCS”) failed to prove by clear and convincing evidence that (1) there is a

reasonable probability that the conditions that resulted in the children’s removal

or the reasons for placement outside Mother’s home will not be remedied; (2) a

continuation of the parent-child relationship poses a threat to the children’s

well-being; and (3) termination of the parent-child relationship is in the

children’s best interests. Concluding that there is sufficient evidence to support

the termination of the parent-child relationship, we affirm the trial court’s

judgment.1

[2] We affirm.

Issue Whether there is sufficient evidence to support the termination of the parent-child relationship.

1 Mar.D. and Mas.D. have the same father. His parental rights were terminated in the same order that terminated Mother’s parental rights. However, he is not a party to this appeal. Me.D.’s father voluntarily relinquished his parental rights before the termination hearing.

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 2 of 10 Facts [3] Mother is the parent of son, Mar.D, who was born in December 2009; son,

Mas.D, who was born in January 2012; and daughter, Me.D., who was born

prematurely in January 2015. Me.D.’s meconium also tested “extremely high”

for THC, which is found in marijuana. (DCS Ex. 4 at 8). While Me.D. was in

the Neo-Natal Intensive Care Unit, DCS received a report alleging the neglect

of Mar.D and Mas.D. relating to their living conditions. At that time, Mother

and the two boys were living with the boys’ paternal grandmother, paternal

uncle, paternal uncle’s girlfriend, and their three children. DCS received a

second report at the end of the month alleging the same conditions.

[4] At the time of DCS’s initial visit to the house, the odor was “overwhelming.”

(DCS Exhibit 4 at 8). Cockroaches ran around the living room, which was

filled with bags of dirty clothes and trash. There were also cockroaches in the

kitchen cabinets and refrigerator. The family acknowledged both a cockroach

and bedbug infestation, and there were only two beds for the nine residents.

The boys were removed from Mother’s home and placed in foster care.

[5] In April 2015, all three children were adjudicated to be children in need of

services (“CHINS”). Mother was court-ordered to: (1) obtain and maintain

safe housing suitable for the children; (2) obtain and maintain a legal and stable

source of income; (3) abstain from the use or possession of illegal drugs; and (4)

submit to random urine drug screens. Mother was also ordered to participate

in: (1) therapy; (2) home-based case management services; (3) an intensive

outpatient program; and (4) supervised parenting time. Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 3 of 10 [6] In March 2016, DCS filed a petition to terminate Mother’s parental rights. At

the May 2016 termination hearing, all participants in the case learned that

Mother was in the hospital because she had just given birth to a fourth child.

The trial court rescheduled the hearing for August 2016 so that Mother could

attend. At that hearing, the evidence revealed that Mother was sleeping in a

homeless shelter and had never obtained suitable housing for the children. She

had also failed to maintain stable employment and had missed seventy of

seventy-five to seventy-eight scheduled drug screens. The few drug screens that

she had submitted had been positive for marijuana. Mother had been

unsuccessfully discharged from therapy and had never attended the intensive

outpatient program. She had also been discharged from the home-based case

management services program because she had showed no initiative and had

failed to make any progress. The evidence further revealed that Mother had

been unable to manage her children by herself during supervised visitation.

[7] Mother testified that in September 2015, she had been shot in the back at her

sister’s home. She also testified that she had been a daily marijuana user until

May 2016. Mother specifically explained that smoking marijuana was a “stress

reliever from everything that was going on.” (Tr. 53).

[8] Family Case Manager Carol Mullen (“Case Manager Mullen”) testified that

Mar.D., who had been diagnosed with autism, had demonstrated significant

social impairment when he had been removed from Mother’s home. Although

Mar.D. was five years old at the time of removal, he did not eat solid food and

was still wearing diapers. Both boys had tooth decay, and neither had had

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 4 of 10 routine medical care. The two boys did not interact with each other and had

significant sleep issues. At the time of the termination hearing, Mar.D. was

eating solid food, had demonstrated verbal skills, and was attending

developmental preschool. Case Manager Mullen testified that termination was

in the children’s best interests “[b]ecause the parents [were] not able to take of

the children and provide them with developmental needs or even provide them

with basic safety in [Mother’s] case.” (Tr. 127). CASA Valerie Adkins

(“CASA Adkins”) testified that the children had been removed from Mother’s

home because of Mother’s drug use and the condition of the home. Like Case

Manager Mullen, CASA Adkins testified that termination was in the children’s

best interests.

[9] Following the hearing, the trial court issued a detailed order terminating

Mother’s parental rights. Mother now appeals.

Decision [10] Mother argues that there is insufficient evidence to support the termination of

her parental rights. The Fourteenth Amendment to the United States

Constitution protects the traditional right of parents to establish a home and

raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,

the law provides for termination of that right when parents are unwilling or

unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147

(Ind. 2005). The purpose of terminating parental rights is not to punish the

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 5 of 10 parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

[11] A petition to terminate parental rights must allege:

(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

(D) that there is a satisfactory plan for the care and treatment of the child.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.

[12] When the trial court’s judgment contains specific findings of fact and

conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

N.E.3d 625, 628 (Ind. 2016).924 ne2d2 First, we determine whether the

evidence supports the findings, and second, we determine whether the findings

support the judgment. Id. We will set aside a trial court’s judgment

terminating a parent-child relationship only if it is clearly erroneous. Id.

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 6 of 10 Findings are clearly erroneous only when the record contains no facts or

inferences to be drawn therefrom that support them. In re A.G., 6 N.E.3d 952,

957 (Ind. Ct. App. 2014). A judgment is clearly erroneous if the findings do not

support the trial court’s conclusions or the conclusions do not support the

judgment. Id.

[13] As a preliminary matter, we note that Mother challenges none of the trial

court’s findings. As a result, she has waived any argument relating to whether

these unchallenged findings are clearly erroneous. See McMaster v. McMaster,

681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial

court findings were accepted as true). We now turn to the issue in this case.

[14] Here, Mother argues that there is insufficient evidence to support the

termination of her parental rights. Specifically, she first contends that the

evidence is insufficient to show that there is a reasonable probability that: (1)

the conditions that resulted in the children’s removal or the reasons for

placement outside the parent’s home will not be remedied; and (2) a

continuation of the parent-child relationships poses a threat to the children’s

well-being.

[15] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the

disjunctive. Therefore, DCS is required to establish by clear and convincing

evidence only one of the three requirements of subsection (B). In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there

is a reasonable probability that the conditions that resulted in the children’s

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 7 of 10 removal or the reasons for her placement outside Mother’s home will not be

remedied.

[16] In determining whether the conditions that resulted in a child’s removal or

placement outside the home will not be remedied, we engage in a two-step

analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the

conditions that led to removal or placement outside the home and then

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. The second step requires trial courts to judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing any recent improvements against

habitual patterns of conduct to determine whether there is a substantial

probability of future neglect or deprivation. Id. Habitual conduct may include

parents’ prior criminal history, drug and alcohol abuse, history of neglect,

failure to provide support, and a lack of adequate housing and employment.

A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013),

trans. denied. The trial court may also consider services offered to the parent by

DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. Id. Requiring trial courts to give due regard to

changed conditions does not preclude them from finding that a parent’s past

behavior is the best predictor of her future behavior. E.M., 4 N.E.3d at 643.

[17] Here, our review of the evidence reveals that the children were removed from

Mother because she was unable to provide them with safe and secure housing.

She also regularly abused marijuana. At the time of the hearing, Mother was

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 8 of 10 sleeping in a homeless shelter, had been unsuccessfully discharged from

therapy, and had never attended an intensive outpatient program. She had also

been discharged from the home-based case management services program

because she had showed no initiative and had failed to make any progress.

This evidence supports the trial court’s conclusion that DCS proved by clear

and convincing evidence that there is a reasonable probability that the

conditions that resulted in the children’s removal or the reasons for placement

outside Mother’s home will not be remedied.

[18] Next, Mother argues that there is insufficient evidence that the termination was

in the children’s best interests. 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. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

to those of the child involved. Id. Termination of the parent-child relationship

is proper where the child’s emotional and physical development is threatened.

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. The trial

court need not wait until the child is irreversibly harmed such that his physical,

mental, and social development is permanently impaired before terminating the

parent-child relationship. In addition, a child’s need for permanency is a

central consideration in determining the child’s best interests. In re G.Y., 904

N.E.2d 1257, 1265 (Ind. 2009). Further, the testimony of the service providers

may support a finding that termination is in the child’s best interests. McBride v.

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 9 of 10 Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003).

[19] Here, our review of the evidence reveals that Mother has not been able to

maintain stable housing or employment since the children’s removal in

February 2015. In addition, both the family case manager and the CASA

testified that termination is in the children’s best interests. This evidence

supports the trial court’s conclusion that termination is in the children’s best

interests.

[20] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). We find no such error here and therefore affirm the trial

court.

[21] Affirmed.

May, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A04-1701-JT-109 | May 25, 2017 Page 10 of 10