MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 07 2016, 10:37 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joshua D. Hershberger Gregory F. Zoeller Hershberger Law Office Attorney General of Indiana Madison, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- April 7, 2016 Child Relationship of: Court of Appeals Case No. 72A01-1510-JT-1610 P.S. (Minor Child) and Appeal from the Scott Circuit Court C.S. (Mother), The Honorable Roger L. Duvall, Appellant-Respondent, Judge
v. Trial Court Cause No. 72C01-1501-JT-4
The Indiana Department of Child Services, Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 1 of 8 Bailey, Judge.
Case Summary [1] C.S. (“Mother”) appeals the trial court’s order on the Department of Child
Services’ (“DCS”) petition, which order terminated her parental rights as to
P.S. (“Child”).1 We affirm.
Issues [2] Mother raises several issues for our review, which we restate as a single,
consolidated issue: whether the trial court’s order was supported by clear and
convincing evidence.
Facts and Procedural History [3] Child was born to Mother and Father on March 18, 2014. At birth, Child was
drug exposed. As a result, DCS detained Child on March 19, 2014. Mother
had been involved with DCS services as the result of a Child in Need of
Services (“CHINS”) action with respect to Mother’s other child, R.P., who was
at the time of Child’s birth still the subject of a CHINS proceeding.
[4] On May 20, 2014, Child was adjudicated a CHINS.
1 D.G. (“Father”) was a party below, and his parental rights were also terminated. He does not appeal.
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 2 of 8 [5] During the pendency of the CHINS proceeding, DCS offered Mother substance
abuse treatment, thrice-weekly supervised visitation with Child, and other
therapeutic services. On multiple occasions, treatment providers recommended
to Mother that she participate in inpatient substance abuse treatment for
opiates. Though Mother expressed recognition that she had a substance abuse
problem, she declined or avoided offers of inpatient treatment.
[6] Mother participated in supervised visits with Child during April and May 2014.
While Mother attended some substance abuse counseling, she was screened for
drug use on eight occasions; on six of these, Mother tested positive for use of a
number of different drugs, including oxycodone, oxymorphone, hydrocodone,
Xanax, marijuana, and heroin. After May 2014, however, Mother had no
contact of any type with any service providers, and ceased participating in
visitation with Child. Mother’s attendance at hearings was also sporadic.
[7] In October 2014, Mother was arrested and charged with Fraud and Theft. Also
in October 2014, Mother’s parental rights as to R.P. were terminated.
[8] On January 6, 2015, DCS filed a petition to terminate Mother’s parental rights.
[9] In April 2015, during the pendency of proceedings on the petition, Mother
began inpatient substance abuse treatment at The Healing Place, an inpatient
treatment center in Kentucky.
[10] A fact-finding hearing on the petition was conducted on May 28, 2015. Mother
was represented by counsel but failed personally to appear at the hearing. After
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 3 of 8 hearing testimony from service providers and Father, the trial court continued
the hearing to arrange for Mother’s transportation from The Healing Place to
provide testimony. The fact-finding hearing was continued to and concluded
on June 25, 2015.
[11] On September 3, 2015, the court entered its order terminating Mother’s parental
rights. This appeal ensued.
Discussion and Decision [12] Mother challenges the termination of her parental rights as to Child on a
number of bases. Our standard of review is highly deferential in such cases. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set aside
the trial court’s judgment terminating a parent-child relationship unless it is
clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997).
[13] Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet
their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not
to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied.
[14] Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege
and prove by clear and convincing evidence in order to terminate a parent-child
relationship:
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 4 of 8 (A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree. (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made. (iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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.
[15] If the court finds that the allegations in a petition described above are true, the
court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial
court must judge a parent’s fitness to care for his or her child at the time of the
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 5 of 8 termination hearing, taking into consideration evidence of changed conditions.
In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial
court must also “evaluate the parent’s habitual patterns of conduct to determine
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 07 2016, 10:37 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joshua D. Hershberger Gregory F. Zoeller Hershberger Law Office Attorney General of Indiana Madison, Indiana Robert J. Henke Abigail R. Recker Deputy Attorneys General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Termination of the Parent- April 7, 2016 Child Relationship of: Court of Appeals Case No. 72A01-1510-JT-1610 P.S. (Minor Child) and Appeal from the Scott Circuit Court C.S. (Mother), The Honorable Roger L. Duvall, Appellant-Respondent, Judge
v. Trial Court Cause No. 72C01-1501-JT-4
The Indiana Department of Child Services, Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 1 of 8 Bailey, Judge.
Case Summary [1] C.S. (“Mother”) appeals the trial court’s order on the Department of Child
Services’ (“DCS”) petition, which order terminated her parental rights as to
P.S. (“Child”).1 We affirm.
Issues [2] Mother raises several issues for our review, which we restate as a single,
consolidated issue: whether the trial court’s order was supported by clear and
convincing evidence.
Facts and Procedural History [3] Child was born to Mother and Father on March 18, 2014. At birth, Child was
drug exposed. As a result, DCS detained Child on March 19, 2014. Mother
had been involved with DCS services as the result of a Child in Need of
Services (“CHINS”) action with respect to Mother’s other child, R.P., who was
at the time of Child’s birth still the subject of a CHINS proceeding.
[4] On May 20, 2014, Child was adjudicated a CHINS.
1 D.G. (“Father”) was a party below, and his parental rights were also terminated. He does not appeal.
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 2 of 8 [5] During the pendency of the CHINS proceeding, DCS offered Mother substance
abuse treatment, thrice-weekly supervised visitation with Child, and other
therapeutic services. On multiple occasions, treatment providers recommended
to Mother that she participate in inpatient substance abuse treatment for
opiates. Though Mother expressed recognition that she had a substance abuse
problem, she declined or avoided offers of inpatient treatment.
[6] Mother participated in supervised visits with Child during April and May 2014.
While Mother attended some substance abuse counseling, she was screened for
drug use on eight occasions; on six of these, Mother tested positive for use of a
number of different drugs, including oxycodone, oxymorphone, hydrocodone,
Xanax, marijuana, and heroin. After May 2014, however, Mother had no
contact of any type with any service providers, and ceased participating in
visitation with Child. Mother’s attendance at hearings was also sporadic.
[7] In October 2014, Mother was arrested and charged with Fraud and Theft. Also
in October 2014, Mother’s parental rights as to R.P. were terminated.
[8] On January 6, 2015, DCS filed a petition to terminate Mother’s parental rights.
[9] In April 2015, during the pendency of proceedings on the petition, Mother
began inpatient substance abuse treatment at The Healing Place, an inpatient
treatment center in Kentucky.
[10] A fact-finding hearing on the petition was conducted on May 28, 2015. Mother
was represented by counsel but failed personally to appear at the hearing. After
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 3 of 8 hearing testimony from service providers and Father, the trial court continued
the hearing to arrange for Mother’s transportation from The Healing Place to
provide testimony. The fact-finding hearing was continued to and concluded
on June 25, 2015.
[11] On September 3, 2015, the court entered its order terminating Mother’s parental
rights. This appeal ensued.
Discussion and Decision [12] Mother challenges the termination of her parental rights as to Child on a
number of bases. Our standard of review is highly deferential in such cases. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set aside
the trial court’s judgment terminating a parent-child relationship unless it is
clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997).
[13] Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet
their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not
to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied.
[14] Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege
and prove by clear and convincing evidence in order to terminate a parent-child
relationship:
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 4 of 8 (A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree. (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family preservation or reunification are not required, including a description of the court’s finding, the date of the finding, and the manner in which the finding was made. (iii) The child has been removed from the parent and has been under the supervision of a local office or probation department for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a child in need of services or a delinquent child;
(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.
[15] If the court finds that the allegations in a petition described above are true, the
court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). A trial
court must judge a parent’s fitness to care for his or her child at the time of the
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 5 of 8 termination hearing, taking into consideration evidence of changed conditions.
In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. The trial
court must also “evaluate the parent’s habitual patterns of conduct to determine
the probability of future neglect or deprivation of the child.” Id.
[16] Here, Mother challenges the termination decree under Subsections 31-35-2-
4(b)(2)(B) and (C).
[17] Subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, so that the court need
only have found one of the requirements of the subsection to have been
established by clear and convincing evidence. In re L.S., 717 N.E.2d at 209.
Here, the trial court concluded that both Subsections 31-35-2-4(b)(2)(B)(i) and
(ii) were met.
[18] The evidence that favors the trial court’s decision discloses that Mother had a
long-standing substance abuse problem and that, as a result, Child was born
drug-exposed. Child remained in the hospital for an extended period of time
after birth, and then was placed in foster care. Mother ceased taking advantage
of supervised visits with child in May 2014, and as of the termination hearing
had not seen Child for more than twelve months. Mother’s substance abuse
problems were persistent and ongoing. While Mother voluntarily entered into
inpatient drug treatment, a fact noted by the trial court, the course of treatment
was likely to last at least six and possibly as many as thirteen months, and Child
could not reside with Mother until the end of that course of treatment. Further,
criminal charges were pending against Mother at the time of the fact-finding
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 6 of 8 hearing. In the absence of stable housing and in the face of ongoing criminal
proceedings, with only a small portion of substance abuse treatment completed,
and with Child having been removed from Mother’s care for all of her life, there
was clear and convincing evidence that continuing the parent-child relationship
posed a threat to Child’s well-being. And while Mother’s efforts at
rehabilitation are admirable, we cannot say the trial court’s decision was clearly
erroneous.
[19] With respect to Child’s best interests, we note the following evidence favoring
the trial court’s decision. Child had been removed from Mother’s care at birth,
and Mother had not seen Child for more than twelve months at the time of the
fact-finding hearing. Child was in Kentucky with a relative, was thriving, and
was in daily contact with R.P., who had also been removed from Mother’s care.
Child had bonded to her caregivers and to her older sister, and Child’s foster
family expressed interest in adopting her. Mother’s housing, substance use, and
criminal charges were all unresolved. Accordingly, we conclude that there was
clear and convincing evidence to support the trial court’s finding that
termination of Mother’s parental rights was in Child’s best interests.
Conclusion [20] There was clear and convincing evidence to support the trial court’s finding that
a continuation of the parent-child relationship posed a threat to Child’s
wellbeing, and that termination of the parent-child relationship was in Child’s
best interests.
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 7 of 8 [21] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 72A01-1510-JT-1610 | April 7, 2016 Page 8 of 8