In the Termination of the Parent-Child Relationship of: T.L. and D.A. (Minor Children), and A.L. (Mother) v. The Indiana Department of Child Services (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 3, 2019
• Docket: 19A-JT-175
• 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 Jul 03 2019, 6:39 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 Isabella H. Bravo Curtis T. Hill, Jr. Monroe County Public Defender Attorney General of Indiana Bloomington, Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Termination of the Parent- July 3, 2019 Child Relationship of: Court of Appeals Case No. 19A-JT-175 T.L. and D.A. (Minor Children), Appeal from the Monroe Circuit and Court A.L. (Mother), The Honorable Stephen R. Appellant-Respondent, Heimann, Senior Judge Trial Court Cause Nos. v. 53C06-1805-JT-366 53C06-1805-JT-367 The Indiana Department of Child Services, Appellee-Petitioner

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 1 of 12 [1] A.L. (Mother) appeals the trial court’s order terminating the parent-child

relationship between Mother and her two children, T.L. and D.A. (the

Children). Mother argues that the evidence is insufficient to support the

termination order. Finding the evidence sufficient, we affirm.

Facts [2] D.A. was born in October 2004 and T.L. was born in November 2005. 1 On

July 8, 2016, Mother took a drug screen that was positive for

methamphetamine, heroin, and morphine. As a result of that screen, the

Department of Child Services (DCS) filed a petition alleging that the Children

were children in need of services (CHINS). On July 19, 2016, Mother tested

positive for morphine; on July 23, 2016, she admitted that she uses heroin daily

and needed help to obtain treatment for her addiction; and on July 27, 2016,

she tested positive for methamphetamine, heroin, and morphine. On July 29,

2016, DCS removed the Children from Mother’s care and custody. In August

2016, Mother tested positive for methamphetamine and morphine.

[3] Mother failed to appear at the October 27, 2016, CHINS factfinding hearing. 2

Following that hearing, the trial court found that the children were CHINS.

Mother again failed to appear at her December 5, 2016, dispositional hearing.

1 The Children’s father voluntarily consented to the termination of his parental rights and is not a party to this appeal. 2 Mother did not appear at any hearings in the CHINS case until October 3, 2017. She blamed her failures to appear on the fact that she was homeless, unemployed, depressed, and intermittently incarcerated.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 2 of 12 Following that hearing, the trial court ordered her to participate in the following

services: complete a substance abuse assessment and comply with any

recommendations; random drug screens; home-based case management;3 visits

with the Children; and stay in regular contact with DCS.

[4] In January 2017, Mother sought inpatient treatment but was placed on a

waiting list. That same month, she was arrested for possession of cocaine. In

March 2017, she was arrested for a new charge of possession of cocaine. In

June 2017, there was a warrant for her arrest on a probation violation.

[5] Mother stopped providing random drug screens after the positive screen in

August 2016. The next screens occurred in July 2017, when she tested positive

four times for methamphetamine, heroin, and morphine.

[6] DCS located Mother in the Marion County Jail in August 2017. During her

intermittent periods of incarceration, Mother attended some classes in a handful

of programs. Her DCS case manager went to visit her at the jail upon learning

she was there; Mother reported that she needed substance abuse treatment and

that her mental health was “very poor.” Tr. Vol. II p. 90.

[7] By February 2017, Mother had not seen the Children since September 2016.

When she did attend visits, “there were concerns about [her] lack of

involvement[.]” Appealed Order p. 3. She visited with the children once in

3 Mother has participated sporadically with home-based case management but has failed to be consistent. She has never successfully completed that service.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 3 of 12 February and once in April 2017. The “limited contact has been very hurtful to

the children.” Id.

[8] As of October 2017, Mother was homeless and unemployed. She had not

visited with the children since April 2017. She participated in a substance abuse

assessment in October 2017 but failed to participate with the recommended

recovery coaching program.4 She advised DCS that she intended to enroll in an

inpatient program and that she did not need transportation assistance. Mother

never provided verification that she, in fact, completed an inpatient program,

and failed to sign a release of information so that DCS could obtain the

information for itself. Because Mother was homeless, she could not provide an

address for drug screens.5 Her case manager offered to drive to Indianapolis

from Bloomington to conduct the drug screens, but Mother declined.

[9] In December 2017, Mother reported to DCS that she had been arrested, that

she had relapsed, and that she had attempted suicide. In January 2018, Mother

claimed that she had found employment and housing and would begin

attending recovery services, drug testing, and visits with the Children.

[10] On January 3 and February 7, 2018, Mother tested positive for

methamphetamine. She attended a visit with the Children on February 7 and

4 Mother claimed that she instead chose to use a 1-800 phone number called the “WARM Line,” for addicts in recovery. The trial court noted that the WARM Line offers no accountability or reporting. 5 DCS was attempting to help Mother by providing a service that would come to her to conduct the drug screens rather than requiring her to find transportation to go to a drug screening center.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 4 of 12 one of the Children and their grandmother informed DCS that Mother was

impaired. At an April 10, 2018, hearing, DCS reported that Mother had been

incarcerated from February 15-22 on a warrant for a failure to appear for

hearings in a criminal case; another warrant was issued on March 14, and at the

time of the hearing, Mother’s whereabouts were unknown.

[11] At a July 17, 2018, hearing in the CHINS case, it was reported that Mother had

recently been released from incarceration after admitting to illegal possession of

a syringe. She was sentenced to 365 days of house arrest. Mother was arrested

again in August 2018 for removing and breaking her ankle monitor.

[12] Throughout the CHINS case, DCS case managers attempted to stay in contact

with Mother but struggled to do so. Intermittently incarcerated and homeless

with no active phone number and making few efforts to contact DCS when able

to do so (for instance, during periods of incarceration), Mother did not make a

sustained effort to stay in touch with DCS. Mother claimed that she asked

DCS for assistance in procuring a cell phone, but such assistance occurs

through home-based case management, which was a service with which she

failed to participate. When Mother did have a cell phone, she was still

inconsistent with communication with DCS, and when she did not, she was

able to stay in regular contact with family members but not with DCS. Tr. Vol.

II p. 98-99.

[13] On May 10, 2018, DCS filed a petition to terminate the parent-child

relationship between Mother and the Children. The termination factfinding

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 5 of 12 hearing took place on September 13, October 11, and November 29, 2018. At

the time of the hearing dates, Mother had not seen the Children since the

February 7, 2018, visit when she was under the influence.

[14] Among other things, Mother testified that she needed the Children to stay

sober: “. . . I needed my kids in order to stay sober. If I don’t have my kids,

then . . . I’m probably not going to stay sober.” Id. at 23. She also claimed that

at some point in the past, she had sustained a traumatic brain injury (TBI) after

being shot in the head, but offered no medical evidence regarding that condition

or proof beyond her own self-serving testimony that it had occurred.

[15] The Children’s court appointed special advocate (CASA) testified that T.L.

wanted no contact with Mother and that both Children were ready to be

adopted. D.A. has multiple diagnoses, including post-traumatic stress disorder

and depressive disorder, and has exhibited some cutting behavior; he has a

therapist and a life coach and his needs are being met. The Children are placed

in different homes but have continued to visit with each other twice a month

and are not concerned about being placed in different homes. The CASA and

DCS case manager testified that in their respective opinions, termination is in

the Children’s best interests.

[16] On December 20, 2018, the trial court entered its order granting the termination

petition. At the outset of its order, the trial court emphasized that “[o]ne of the

most important duties of a trial court is to determine the credibility of witnesses.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 6 of 12 The Court finds that Mother lacks credibility.” Appealed Order p. 1 (emphasis

omitted). Mother now appeals.

I. Standard of Review [17] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[18] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

(A) that one (1) of the following is true:

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 7 of 12 (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

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 8 of 12 (D) that there is a satisfactory plan for the care and treatment of the child.

DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

II. Sufficiency A. Reasons for Removal [19] Mother first argues that the trial court erred by finding that DCS proved by

clear and convincing evidence that there is a reasonable probability that the

conditions that resulted in the Children’s removal will not be remedied. The

reason the Children were originally removed from Mother’s care and custody

was substance abuse.

[20] While Mother has had occasional periods of sobriety throughout this case,

primarily during times in which she was incarcerated, she has never

demonstrated an ability to remain sober for a consistent and sustained period.

Moreover, she has never demonstrated a willingness to participate in any

services designed to help her attain and maintain sobriety.

[21] While Mother was required to participate with random drug screens in the

CHINS case, she had frequent, lengthy periods where she provided no screens

at all. And when she did provide screens, they were often positive for multiple

illegal substances. She was homeless for a period of time and therefore unable

to provide an address at which the screens would occur, but she refused the

DCS case manager’s offer to drive to Indianapolis to provide the screens. Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 9 of 12 [22] Mother never participated consistently with substance abuse treatment.

Approximately one year into the CHINS case, Mother finally completed a

substance abuse assessment, but she failed to follow through with the

recommended services. She indicated an intent to complete inpatient treatment

but DCS was unable to verify that she actually attended. She failed to sign a

release of information so that DCS could obtain that information.

[23] In addition to substance abuse, the Children continued to be removed from

Mother’s care and custody because of general concerns about the stability of her

life. And indeed, throughout the CHINS case, Mother was intermittently

incarcerated, homeless, and unemployed. In the months leading up to the

termination hearing, she was on house arrest after admitting to possessing an

illegal syringe; then, she was arrested after removing and breaking her ankle

monitor. She was still incarcerated during the termination hearing.

[24] Mother directs our attention to some of her testimony showing that she tried to

participate in various services and attempting to explain her instability, but as

noted above, the trial court did not find her to be a credible witness, and we

may not second-guess that determination. Moreover, these arguments merely

amount to a request that we reweigh the evidence, which we may not do.

There is sufficient evidence in the record supporting the trial court’s conclusion

that DCS proved by clear and convincing evidence that there is a reasonable

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 10 of 12 probability that the conditions that resulted in the Children’s removal will not

be remedied.6

[25] Mother argues that part of the reason for her lack of success was that DCS

failed to provide her with services that were “tailored to [her] functional

limitations.” Appellant’s Br. p. 23. Assuming for argument’s sake that DCS is

required to do so, we note that the only evidence in the record that Mother had

sustained a TBI in the past is her own self-serving testimony, which the trial

court explicitly found to be not credible. Furthermore, there is no evidence

regarding what it means to have a TBI; what Mother’s alleged “functional

limitations” are; or what kind of services she needed given those limitations.

Under these circumstances, we decline to find error on this basis.

B. Best Interests [26] Mother also argues that the trial court erred by finding that DCS proved by

clear and convincing evidence that termination is not in the Children’s best

interests. A parent’s “historical inability to provide a suitable environment

along with the parent’s current inability to do the same supports a finding that

termination of parental rights is in the best interests of the children.” Lang v.

6 Because we find that this element was proved by clear and convincing evidence, we need not consider Mother’s argument that the trial court erred by finding that continuation of the parent-child relationship posed a threat to the Children’s well-being. We note, however, that the same evidence supporting a conclusion that the reasons for removal are not likely to be remedied would likewise support a conclusion that continuation of the parent-child relationship posed a threat to the Children’s well-being.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 11 of 12 Starke Cty. Office of Family and Children, 861 N.E.2d 366, 373 (Ind. Ct. App.

2007).

[27] Throughout the CHINS proceedings, Mother has been unable to remain sober

or free from incarceration. She failed to participate consistently with a single

service offered by DCS. She failed to visit consistently with the Children when

not incarcerated. The lack of consistent contact was hurtful to the Children.

Also hurtful to the Children is Mother’s belief that she cannot maintain sobriety

if they are not in her care. Now, the Children are both teenagers and they wish

to be adopted, with T.L. insisting that she no longer wants any relationship or

contact with Mother. Their CASA and the DCS case manager testified that, in

their respective opinions, termination is in the Children’s best interests. Given

this evidence, we conclude that the trial court did not err by finding that DCS

proved by clear and convincing evidence that termination is in the Children’s

best interests.

[28] The judgment of the trial court is affirmed.

Najam, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-175 | July 3, 2019 Page 12 of 12