Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before Nov 05 2012, 8:44 am any court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the court of appeals and tax court
case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
AMY KAROZOS PATRICK M. RHODES Greenwood, Indiana Indiana Dept of Child Services Indianapolis, Indiana
ROBERT J. HENKE DCS Central Administration Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF ) THE PARENT-CHILD RELATIONSHIP OF: ) R.P., Minor Child, ) ) B.H., Mother, ) ) Appellant-Respondent, ) ) vs. ) No. 49A02-1202-JT-84 ) INDIANA DEPARTMENT OF CHILD ) SEVICES, ) ) and ) ) CHILD ADVOCATES INC., ) ) Appellees-Petitioners. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Danielle Gaughan, Magistrate Cause No. 49D09-1107-JT-26268 November 5, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
B.H. (“Mother”) appeals the involuntary termination of her parental rights to her
child, R.P. Concluding that there is sufficient evidence to support the juvenile court’s
judgment, we affirm.
Facts and Procedural History
Mother is the biological mother of R.P., born in April 2010.1 The evidence most
favorable to the juvenile court’s judgment reveals that R.P. was born testing positive for
methadone. At the time, R.P.’s older siblings, W.H. and Br.H., had each been
adjudicated a child in need of services (“CHINS”) and had been removed from Mother’s
care for nearly one year due to Mother’s struggle with substance abuse and inability to
properly care for the children.2 Several days after R.P. was born, the local Marion
County office of the Indiana Department of Child Services (“MCDCS”) filed a petition
alleging R.P. was also a CHINS while the child remained in neonatal intensive care at the
hospital.3
1 At the time of R.P.’s birth, Mother and R.P.’s biological father, R.P., Sr. (“Father”) had been living together and involved in a relationship for several years. Father’s parental rights were also involuntarily terminated by the juvenile court’s January 2012 judgment. Father does not participate in this appeal. We therefore limit our recitation of the facts to those facts pertinent solely to Mother’s appeal. 2 Mother’s parental rights to W.H. and Br.H. were later terminated during the pendency of the underlying case pertaining to R.P. after Mother failed to successfully complete reunification services and signed voluntary consents for adoption in July 2011. 3 R.P. remained in neonatal intensive care for approximately three months before being discharged from the hospital and placed with the current foster family. 2 During a hearing in August 2010, Mother admitted that R.P. was a CHINS and the
child was so adjudicated. A dispositional decree was subsequently issued in October
2010 formally removing R.P. from Mother’s custody and making the child a ward of
MCDCS. In addition, the juvenile court’s dispositional order directed Mother to
successfully complete a variety of tasks and services similar to the reunification services
previously ordered in R.P.’s siblings’ cases and likewise designed to address Mother’s
parenting deficiencies and substance abuse issues. Specifically, Mother was ordered to,
among other things: (1) participate in a drug and alcohol assessment and follow any
resulting recommendations; (2) submit to random drug screens; (3) secure and maintain a
stable source of income and suitable housing; (4) complete a parenting assessment and
follow all resulting recommendations; and (5) successfully complete home-based
counseling.
Mother’s participation in court-ordered reunification services was sporadic from
the beginning and ultimately unsuccessful. Mother continued to abuse the prescription
drug Vicodin. Mother also tested positive for marijuana, amphetamines, and cocaine
during the initial months of the CHINS case. Although Mother began participating in a
methadone treatment program for her Vicodin addiction in March 2010, she failed to
successfully complete the program. Moreover, Mother was still receiving methadone
treatment at the time of the termination hearing over a year-and-a-half later, even though
the program was designed to be completed in nine to ten months. Mother also continued
to be involved in an on-again off-again romantic relationship with Father, despite the fact
Father had disengaged from reunification services and continued to test positive for
3 illegal substances. Father also tested positive for methadone even though he did not have
a valid prescription for this drug.
MCDCS eventually filed a petition seeking the involuntary termination of
Mother’s parental rights to R.P. in August 2011. A two-day evidentiary hearing on the
termination petition was later held in October of 2011. During the termination hearing,
MCDCS presented substantial evidence establishing Mother had failed to overcome her
addiction to methadone. In addition, it was the general consensus of case workers and
service providers that Mother remained incapable of providing R.P. with a safe and stable
home environment. The evidence further revealed that Mother’s visitation time with R.P.
was never increased to unsupervised visits, and in-home visits had been discontinued due
to the service providers’ concerns regarding Mother’s drug use and lack of insight as to
how her drug use negatively impacted R.P. Service providers also remained concerned
as to Mother’s continuing relationship with Father due to Father’s disengagement from
reunification services, substantial history of criminal activities, and unresolved substance
abuse issues. As for the child, MCDCS presented evidence showing R.P. was happy and
thriving in a pre-adoptive foster home with the only family the child had ever known.
At the conclusion of the termination hearing, the juvenile court took the matter
under advisement. In January 2012, the court entered its judgment terminating Mother’s
parental rights to R.P. Mother now appeals.
Discussion and Decision
When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family
4 & Children, 839 N.E.2d 143, 147 (Ind. 2005). Instead, we consider only the evidence
and reasonable inferences that are most favorable to the judgment. Id. When, as here,
the juvenile court makes specific findings of fact and conclusions thereon, we apply a
two-tiered standard of review. First, we determine whether the evidence supports the
findings, and second, we determine whether the findings support the judgment. Id. In
deference to the juvenile 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.
In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; see also Bester, 839
N.E.2d at 147. Thus, if the evidence and inferences support the trial court’s decision, we
must affirm. Id.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of a
constitutional dimension, the law provides for the termination of these rights when
parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892
N.E.2d 144, 149 (Ind. Ct. App. 2008). Moreover, a juvenile court need not wait until a
child is irreversibly harmed before terminating the parent-child relationship. McBride v.
Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
Before parental rights may be involuntarily terminated in Indiana, the State is
required to allege and prove, among other things:
(B) that one (1) of the following is true:
5 (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 . . . .
Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,
904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). “[I]f
the court finds that the allegations in a petition described in section 4 of this chapter are
true, the court shall terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a)
(emphasis added). Mother challenges the sufficiency of the evidence supporting the
juvenile court’s findings as to subsection (b)(2)(B) and (C) of the termination statute
cited above. We shall address each argument in turn.
I. Conditions Remedied/Threat to Well-Being
Indiana Code § 31-35-2-4(b)(2)(B) requires the State to establish, by clear and
convincing evidence, only one of the three requirements of subsection (b)(2)(B).
Because we find it to be dispositive, we limit our review to Mother’s allegations of error
pertaining to subsection (b)(2)(B)(i) of Indiana’s termination statute, namely, whether
MCDCS presented clear and convincing evidence establishing that there is a reasonable
probability the conditions leading to the removal and continued placement of R.P. outside
Mother’s care will not be remedied.
6 Mother argues that the juvenile court erred in finding she could “not provide
[R.P.] with a safe and stable environment” in light of her own testimony that she was
living in an “appropriate home,” had the “support of relatives nearby,” and “had a full[-
]time job at the time of termination.” Appellant’s Brief at 17. Mother goes on to assert
that there was “no requirement” in the case plan or Parental Participation order that she
“cut off contact” with Father. Id. at 20. Mother therefore insists the juvenile court
erroneously relied on the evidence of her recent interactions with Father in terminating
her parental rights. Mother therefore contends she is entitled to reversal.
In terminating Mother’s parental rights to R.P., the juvenile court made several
detailed findings regarding Mother’s history of deficient parenting, ongoing addiction
issues, income instability, and failure to complete and/or benefit from a majority of the
court-ordered reunification services. Specifically, the juvenile court acknowledged that
Mother failed to “successfully complete[] drug treatment or home[-]based services”
offered both in the underlying case and during the previous CHINS cases involving
R.P.’s older siblings. Appellant’s Appendix at 18. The juvenile court also noted that
Mother, “by her own admission,” remains “in methadone treatment with Indianapolis
Treatment Center because of an opiate addiction” and at the time of the termination
hearing had “not yet been weaned off of [methadone] even though [Mother] has been in
treatment for 19 months.” Id. As for Mother’s employment instability, the juvenile court
acknowledged that Mother had done some housecleaning and was currently employed at
the time of the termination hearing at McDonald’s, but the court went on to clarify that
Mother had “only had that job or any employment for approximately a month.” Id.
7 Several inconsistencies in Mother’s testimony regarding the status of her
relationship with Father were also observed by the juvenile court in its findings. For
example, after taking note of Father’s continued drug use and refusal to remain engaged
in reunification services, the court found that Mother’s “on-again off-again relationship”
with Father had been a “concern to MCDCS.” Id. at 17. The court went on to find that
although Mother reportedly “broke up” with Father in February 2011, Father continued to
financially support Mother. Id. Additionally, the juvenile court noted that Father moved
back in with Mother in April 2011 “with plans to get married.” Id. Although Mother
reported that she and Father had again broken-off the relationship, the juvenile court
noted in its findings that Mother admitted she had talked with Father several weeks
before the termination hearing and that Father’s name remained on the lease to her
apartment. Id. Based on these and other findings, the juvenile court concluded:
There is [a] reasonable probability that the conditions that resulted in the removal of [R.P.] or the reasons for [the child’s] continued placement outside the home of [Mother], will not be remedied. [Mother] had undergone services in the past CHINS case[s,] as well as the pending CHINS case involving [R.P.,] and has not successfully completed drug treatment or home[-]based services. Service providers were never able to recommend unsupervised visits, let alone returning [R.P.] to [Mother’s] care. Given that [Mother] has had a pattern of inconsistency with services, an on-again off-again relationship with [Father,] who is not participating in services, and a history with MCDCS, it is unlikely that the conditions that resulted in the removal of [R.P.] will be remedied.
Id. at 17-18. A thorough review of the record reveals that clear and convincing evidence
supports the juvenile court’s findings and conclusions detailed above.
During the termination hearing, home-based counselor Lisa Lance informed the
juvenile court that she had worked with Mother from December 2010 through June 2011.
8 Lance further reported that, at the time she last worked with Mother, “there was a lot of
instability in [Mother’s] and [Father’s] relationship as far as them being together” and
although both parents had indicated that they had discontinued their relationship in
February 2011, Father “continued to . . . pay the rent, utilities[,] [and to] support
[Mother].” Transcript at 32. Lance further confirmed that the couple began living
together again “under the same roof” in April 2011, and to the best of her knowledge
Mother and Father “were still together in June of this year [2011].” Id. When asked
whether she was ever able to recommend increased visitation time between Mother and
R.P., Lance answered in the negative and further explained:
I didn’t see progress. . . . [Mother], um, didn’t have financial stability, . . . other than cleaning houses, that would meet her needs as far as paying bills . . . . [A]lso, I just didn’t observe that [Mother] had insight into her drug use. . . . She had made statements to me, um that her drug use has never impacted her children and just showed really no insight into her drug use and how that negatively impacted her ability to parent.
Id. at 35. Mother’s current home-based therapist, Erin Cullen, likewise testified that she
was unable to recommend unsupervised visits for Mother and R.P. “at this moment.” Id.
at 58. Cullen further testified that Mother had confided to her that she still “loves” Father
and is “still having a hard time reconciling that relationship.” Id.
MCDCS case manager Kimberly Barlowe-Gay also testified during the
termination hearing. Barlowe-Gay confirmed that Mother failed to successfully complete
a majority of the court-ordered dispositional goals including substance abuse treatment,
sobriety, home-based counseling, and employment stability despite a wealth of services
available to her for approximately eighteen months in R.P.’s case. Barlowe-Gay went on
9 to testify that Mother had failed to demonstrate she was capable of “caring for [R.P.’s]
basic needs and necessities” and of providing the child with a stable home. Id. at 94.
Guardian ad Litem (“GAL”) Andrea Manning-Dudley also recommended
termination of Mother’s parental rights. In so doing, Manning-Dudley informed the
juvenile court that she had served as the GAL for R.P.’s older siblings and had
recommended termination of Mother’s parental rights in the prior CHINS cases because
Mother “just had not been consistent with anything . . . to reunify with [her] children and
any of their services.” Id. at 110. Regarding R.P.’s case, Manning-Dudley likewise
testified that although Mother had made some improvements in the final month or two
immediately preceding the termination hearing, Mother nevertheless had failed to
successfully complete the majority of the court’s dispositional goals despite having
approximately eighteen months to do so. Manning-Dudley further elaborated that
throughout all three CHINS cases “[t]hings have been very inconsistent and . . . the
home-based pieces were not ever completed successfully . . . .” Id. at 115. Finally,
clinical supervisor and addictions counselor Carolyn Henry of the Indianapolis Treatment
Center testified that although Mother recently had begun a medically supervised
withdrawal from her methadone treatment, “it could take another six to twelve months”
to complete the process, depending on Mother’s “physiology” and “stress factors.” Id. at
135.
As noted above, a trial court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s
habitual patterns of conduct to determine the probability of future neglect or deprivation
10 of the child. In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004), trans. denied.
“[S]imply going through the motions of receiving services alone is not sufficient” to
show that conditions have been remedied if the services “do not result in the needed
change, or only result in temporary change.” In re J.S., 906 N.E.2d 226, 234 (Ind. Ct.
App. 2009). Moreover, where a parent’s “pattern of conduct shows no overall progress,
the court might reasonably find that under the circumstances, the problematic situation
will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App. 2005).
After reviewing the record in its entirety, we conclude that clear and convincing
evidence supports the juvenile court’s specific findings set forth above. These findings,
in turn, provide ample evidence to support the court’s ultimate decision to terminate
Mother’s parental rights to R.P. Mother’s arguments to the contrary, emphasizing her
self-serving testimony and suggesting that the juvenile court improperly relied upon
evidence concerning her ongoing relationship with Father, rather than the evidence cited
by the juvenile court in its termination order, amount to an impermissible invitation to
reweigh the evidence. See In re D.D., 804 N.E.2d at 265. Even assuming, without
deciding, that the juvenile court improperly relied on testimony concerning the current
status of Mother’s and Father’s relationship in terminating Mother’s parental rights
because Mother was never “given notice” that continuation of that relationship might
result in termination of her parental rights as Mother suggests, see Appellant’s Brief at
20, Mother still does not prevail because the judgment remains sufficiently supported by
numerous other findings which substantiate its determination that there is a reasonable
probability the reasons for removal and continued placement of R.P. outside Mother’s
11 care will not be remedied. See, e.g., A.J. v. Marion Cnty Office of Family & Children,
881 N.E.2d 706, 715 (Ind. Ct. App. 2008) (stating that to the extent a judgment is based
on erroneous findings, those findings are superfluous and are not fatal to the judgment if
the remaining valid findings and conclusions support the judgment), trans. denied.
Accordingly, we find no error.
II. Best Interests
We next consider Mother’s assertion that MCDCS failed to prove termination of
her parental rights is in R.P.’s best interests. In determining what is in the best interests
of a child, the juvenile court is required to look beyond the factors identified by the
Indiana Department of Child Services and look to the totality of the evidence. McBride
v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).
In so doing, the court must subordinate the interests of the parent to those of the child.
Id. The court need not wait until a child is irreversibly harmed before terminating the
parent-child relationship. Id. Moreover, we have previously held that the
recommendations by both the case manager and child advocate to terminate parental
rights, 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. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).
In addition to the findings previously cited, the juvenile court made several
additional pertinent findings relating to R.P.’s best interests. Specifically, the juvenile
court noted that R.P. “needs permanency” and has lived in a pre-adoptive foster home
“his entire life” apart from the first several months the child “spent in the hospital
12 because of methadone withdrawal.” Appellant’s Appendix at 19. The court further
found that the “pre-adoptive home is safe and stable and all of [R.P.’s] needs are being
met.” Id. Based on these and other findings, the juvenile court concluded that
termination of Mother’s parental rights is in R.P.’s best interests. These findings and
conclusion, too, are supported by the evidence.
During the termination hearing, GAL Manning-Dudley described R.P.’s
interactions with the foster parents as “great” and “loving” with a “natural attachment”
and “bond.” Transcript at 120. When asked to explain why she believed termination of
Mother’s parental rights to be in R.P.’s best interests, the GAL replied:
We have, um, the history with the other two children, we have eighteen months of history with just [R.P.] and trying to get to where we need to be to have reunification, and . . . I have not been able to see anything that would lead me to believe that [Mother] can keep [R.P.] safe and . . . in a drug[-]free environment . . . and being able to parent him. . . . Like I said earlier[,] we’re still in supervised visitation.
Id. at 121. Similarly, in recommending termination of Mother’s parental rights, case
manager Barlowe-Gay reiterated that Mother has not shown she is capable of providing a
stable home for R.P. or that she can provide for R.P.’s “basic needs and necessities.” Id.
at 94. Barlowe-Gay further testified that R.P. was currently placed in a “safe and stable”
pre-adoptive foster home where the child was progressing “very well” and living in “the
only home that [the child] has known.” Id. at 95.
Based on the totality of the evidence, including Mother’s unresolved struggle with
substance abuse, financial instability, and failure to successfully complete and/or benefit
from a wealth of reunification services available to her throughout the underlying
proceedings, coupled with the testimony from case manager Barlowe-Gay and GAL
13 Manning-Dudley recommending termination of the parent-child relationship, we
conclude that there is sufficient evidence to support the juvenile court’s determination
that termination of Mother’s parental rights is in R.P.’s best interests. See, e.g., In re A.I.,
825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of court-appointed advocate and
family case manager, coupled with evidence that conditions resulting in continued
placement outside home will not be remedied, is sufficient to prove by clear and
convincing evidence termination is in child’s best interests), trans. denied.
This court will 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.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly
v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.