In the Termination of the Parent-Child Relationship of S.M. (minor child) H.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 21, 2019
• Docket: 19A-JT-924
• 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 Nov 21 2019, 9:32 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cristin L. Just Curtis T. Hill, Jr. Crown Point, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- November 21, 2019 Child Relationship of S.M. Court of Appeals Case No. (minor child); 19A-JT-924 Appeal from the Jasper Circuit H.M. (Mother), Court The Honorable John D. Potter, Appellant-Respondent, Judge v. Trial Court Cause No. 37C01-1810-JT-237 The Indiana Department of Child Services, Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 1 of 10 Statement of the Case [1] H.M. (“Mother”) appeals the termination of the parent-child relationship with

her daughter, S.M., (“S.M.”), 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 S.M.’s removal will

not be remedied; (2) termination of the parent-child relationship is in S.M.’s

best interests; and (3) adoption is a satisfactory plan for S.M.’s care and

treatment. Concluding that there is sufficient evidence to support the trial

court’s decision to terminate 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.

Facts [3] The evidence and reasonable inferences that support the judgment reveal that

S.M. was born in August 2016. She was removed from Mother’s home in July

2017 and placed in foster care after Father and another man became involved in

a physical altercation at Mother’s home. At that time, the house was dirty and

1 S.M.’s father (“Father”) voluntarily relinquished his parental rights in 2018, and he is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 2 of 10 had a foul smell, and there was debris and a beer bottle in S.M.’s bedroom.

According to DCS, ‘[t]he home was not up to [a] minimum standard of

living[.]” (Tr. Vol. 2 at 14).

[4] The trial court adjudicated S.M. to be a Child in Need of Services (“CHINS”)

in October 2017. Following the adjudication, the trial court ordered Mother to:

(1) maintain safe and stable housing; (2) abstain from drug use; (3) complete a

parenting assessment and successfully complete all recommendations; (4)

complete a substance abuse assessment and successfully complete all treatment

recommendations; (5) submit to random drug screens; (6) complete a domestic

violence assessment and successfully complete all recommendations; (7) attend

visitation with S.M.; and (8) actively participate in a home-based counseling

program.

[5] After Mother failed to comply with the CHINS dispositional order, DCS filed a

petition to termination her parental rights in October 2018. Testimony at the

March 2019 termination hearing revealed that DCS had been involved with

Mother and a son since 2015 for the same reasons that it had become involved

with Mother and S.M. In September 2017, during the course of the proceedings

with S.M., Mother’s son was placed in a guardianship with his maternal aunt.

[6] The testimony further revealed that although Mother had completed parenting,

substance abuse, and domestic violence assessments, she had failed to

successfully complete the assessors’ recommendations. In addition, the

testimony revealed that Mother had continued to use marijuana. She had also

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 3 of 10 either refused to take drug tests or had tested positive. Further, during the

course of the proceedings, Mother had attended only slightly more than half of

her scheduled supervised visits with S.M. In addition, Mother, who often had

to be redirected during visits because she was looking at her cellphone, had

never progressed beyond supervised visitation.

[7] Mother had also failed to obtain stable and suitable housing. At the time of the

termination hearing, she had told DCS Family Case Manager Holly Ammann

(“FCM Ammann”) that she was living with her boyfriend at his grandparents’

house. However, during a visit to the home, FCM Ammann had smelled

marijuana and had been unable to speak to the homeowners to confirm that

Mother lived there and that S.M. was welcome to live there as well. During

that visit, Mother had also refused to give FCM Ammann the name of another

adult who was present in the home. During the course of the proceedings,

Mother had lived at ten different addresses, including the county jail for two

days on a battery charge. Mother had often lived with friends who refused to

allow DCS to enter their houses. She had also suffered from bouts of

homelessness.

[8] FCM Ammann testified as follows regarding Mother’s lack of progress during

the CHINS proceedings:

[T]here have been several services put into place for [Mother.] [S]he has failed to make any progress in any of those . . . services up to this point[.] Not only have we been providing services in this case for the last 18½ months, but we have to remember there was an open CHINS case from 2015 to 2017 where we were

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 4 of 10 consistently providing the exact same services and that there was . . . no progress in those case plan goals either.

(Tr. 85-86). FCM Ammann explained as follows regarding her

recommendation to terminate Mother’s parental rights: “[T]he services and

goals put in place . . . to alleviate the reasons for involvement, [Mother’s] not

made enough progress in those goals to say that those reasons for involvement

have been alleviated at this time, continual instability.” (Tr. 89). FCM

Ammann also testified that it was in S.M.’s best interests to terminate Mother’s

parental rights and for S.M.’s paternal grandparents to adopt her because S.M.

needed permanency and stability.

[9] CASA Marian Paskash (“CASA Paskash”) agreed with FCM Ammann that

“none of the issues that initially started in this case ha[d] been resolved.” (Tr.

130). CASA Paskash also testified that termination of Mother’s parental rights

and grandparent adoption was in S.M.’s best interests. According to CASA

Paskash, paternal grandparents were able to provide S.M. with a “loving, caring

and stable home.” (Tr. 133).

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

Mother’s parental relationship with S.M. Mother now appeals.

Decision [11] 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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 5 of 10 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

parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.

App. 1999), trans. denied.

[12] When reviewing the termination of parental rights, we will not weigh the

evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.

Rather, we consider only the evidence and reasonable inferences that support

the judgment. Id. Where a trial court has entered findings of fact and

conclusions thereon, we will not set aside the trial court’s findings or judgment

unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining

whether the court’s decision to terminate the parent-child relationship is clearly

erroneous, we review the trial court’s judgment to determine whether the

evidence clearly and convincingly supports the findings and the findings clearly

and convincingly support the judgment. Id. at 1229-30.

[13] 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.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 6 of 10 (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.

[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 the

conditions that resulted in S.M.’s removal will not be remedied. 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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 7 of 10 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

his future behavior. E.M., 4 N.E.3d at 643.

[15] Here, our review of the evidence reveals that S.M. was adjudicated to be a

CHINS in October 2017 because of domestic violence in the home, Mother’s

drug use, and unstable and inappropriate housing. Nearly two years later,

Mother had not successfully completed any of the court-ordered services, was

still using drugs, and still had not obtained stable and appropriate housing.

Both FCM Ammann and CASA Paskash testified that reasons for S.M.’s

removal had not been remedied. This evidence supports the trial court’s

conclusion that there was a reasonable probability that the conditions that

resulted in S.M.’s placement outside the home would not be remedied. We find

no error.

[16] Mother also argues that there is insufficient evidence that the termination was

in S.M.’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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 8 of 10 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. “‘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

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superseded by rule on other grounds). Further, the testimony of the service

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

McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.

Ct. App. 2003).

[17] Here, our review of the evidence reveals that Mother has historically been

unable to provide housing, stability, and supervision for S.M. and was unable to

provide the same at the time of the termination hearing. In addition, both FCM

Ammann and CASA Paskash testified that termination was in S.M.’s best

interests. The testimony of these service providers, as well as the other evidence

previously discussed, supports the trial court’s conclusion that termination was

in S.M.’s best interests.

[18] Last, Mother argues that DCS does not have a satisfactory plan for S.M.’s care

and treatment. This Court has previously explained that the plan for the care

and treatment of the child need not be detailed, so long as it offers a general

sense of the direction in which the child will be going after the parent-child

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 9 of 10 relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct. App. 2008).

Here, the DCS caseworker testified that the plan for the care and treatment of

S.M. is adoption. This is a satisfactory plan. See In re A.N.J., 690 N.E.2d 716,

722 (Ind. Ct. App. 1997).

[19] 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.

[20] Affirmed.

Robb, J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-924 | November 21, 2019 Page 10 of 10