In re the Termination of the Parent-Child Relationship of J.R. (Minor Child) and A.P, (Mother), A.P. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Aug 29 2019, 7:17 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvonne M. Spillers Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the August 29, 2019
Parent-Child Relationship of Court of Appeals Case No.
J.R. (Minor Child) and 19A-JT-779
A.P. (Mother), Appeal from the
A.P. (Mother), Wells Circuit Court
The Honorable
Appellant-Respondent,
Kenton W. Kiracofe, Judge
v. Trial Court Cause No.
90C01-1807-JT-27
Indiana Department of Child
Services,
Appellee-Petitioner
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-779 | August 29, 2019 Page 1 of 12
Case Summary
[1] A.P. (“Mother”) appeals the termination of her parental rights to her daughter,
J.R. (“Child”). We affirm.
Facts and Procedural History
[2] Mother and J.M.R. (“Father”) are the biological parents of Child, born in
August 2006. Father consented to Child’s adoption and does not participate in
this appeal; therefore, we limit our narrative to the facts relevant to Mother.
[3] In June 2016, Mother was living with her boyfriend, B.J., in Madison County
when they got into a domestic dispute that ended with B.J. pointing a gun at
her head. Child was in the house at the time. Afterwards, Mother went to
court to get a protective order against B.J., and the Department of Child
Services (DCS) got involved due to the domestic-violence issues. Mother and
DCS agreed to an informal adjustment (IA) to try to resolve the domestic-
violence issues. However, Mother did not comply with the IA. That is,
Mother tested positive for marijuana and did not obtain stable housing. In
October, Mother told DCS that she was going to enlist in the National Guard
and transfer custody of Child to someone else. Apparently taking Mother at
her word, DCS closed the IA; however, there is no evidence that Mother ever
enlisted or transferred custody of Child. After the IA was closed, B.J. moved
back into the house with Mother and Child.
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[4] Less than a year later, in March 2017, DCS received multiple reports of abuse
or neglect of Child. On March 8, Family Case Manager (FCM) Kristen Beer
conducted an assessment and discovered that Mother had taken Child to
maternal grandmother’s (“Grandmother”) house in Wells County, Indiana.
FCM Beer went to Grandmother’s house and interviewed Child, who said that
she witnessed domestic violence between Mother and B.J. Child also told
FCM Beer that Mother told her “they do weed.” Tr. p. 29. At the time of
Child’s interview, Mother was in Madison County, and FCM Beer spoke to her
by phone. Mother explained that she “had been planning to come back to
Wells County that evening when she could get a ride.” Id. After speaking with
Mother, DCS removed Child from Mother’s care, placed Child with
Grandmother, and filed a petition alleging that Child was a Child in Need of
Services (CHINS).1 The trial court determined that Child was a CHINS after
Mother admitted the allegations in DCS’s petition. Following the hearing, the
trial court ordered that Mother participate in numerous services, including a
substance-abuse assessment, a psychological assessment, home-based case
management, and drug screens. The trial court also ordered Mother to contact
the FCM every week and notify the FCM of “any changes in address,
household composition, employment or telephone number within five (5) days
of said change.” Appellant’s App. Vol. II p. 26. Child remained placed with
Grandmother. Around that same time, in April 2017, Mother met and married
1
DCS also removed Child’s half-sibling, J.H, from Mother’s care. In June 2018, J.H. was placed with his
father, who has since been granted full physical and legal custody. See No. 48C01-1205-JP-186.
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R.M. Three days after they were married, Mother filed for divorce from R.M.
because of domestic violence. See Tr. p. 120.
[5] In May 2017, DCS removed Child from Grandmother’s care because adults
living in Grandmother’s house tested positive for marijuana. Child was then
placed in foster care. Meanwhile, Mother began dating R.S. and stopped
contacting DCS.
[6] In June, Child was placed in relative placement with paternal aunt (Aunt).
Child’s therapist, Kristen Keuhl, worked with Child during the transition and
found that Child was showing signs of significant anxiety—panic attacks, chest
pains, crying spells, sleep problems—the day before, the day of, or the day after
visitation with Mother. See id. at 91. Keuhl recommended that Child’s visits
with Mother be suspended until Child learned how to relax and cope with her
feelings of anxiety and distress.
[7] In mid-August 2017, Mother reconnected with DCS and began engaging in
some services. She completed a substance-abuse assessment, which
recommended that Mother undergo individual substance-abuse counseling,
group counseling, and submit to random drug screens. When Mother began
individual substance-abuse counseling, she agreed to abstain from alcohol,
among other things. Mother also completed some drug screens but failed to
complete others, and on August 15 tested positive for marijuana. By
September, Child had improved her ability to manage her anxiety and began
having supervised therapeutic visitation with Mother. Around this same time,
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Mother broke up with R.S. “due to his consistent substance use” and because
she wanted to “do what’s best for [Child].” Tr. p. 64. Two months later,
however, Mother reunited with R.S., and they married in December 2017.
[8] For a time, Mother remained somewhat engaged in drug screens and visits with
Child. Then, in March 2018, she had two positive drug screens; that is, on
March 1 and 15, she tested positive for alcohol despite having previously agreed
not to consume alcohol. In mid-March, Mother stopped DCS services
altogether. First, Mother missed a special full-day visit with Child and some of
her extended family. Mother did not call to explain her absence and then
missed her next three visits with Child. Mother also started missing
appointments at Park Center, where she was completing individual and group
substance-abuse counseling. From mid-March to August 2018, Mother’s
whereabouts were unknown, and DCS was unable to locate her. When Mother
first went missing, Child was “fearful of where Mother was at . . . but then
became complacent,” telling DCS workers that Mother “has a history and
routine of leaving and coming back.” Id. at 57. Later, DCS discovered that
Mother and R.S. had left Indiana and moved to Florida at the end of March.
In July, DCS filed a petition to terminate Mother’s parental rights to Child.
[9] On August 3, Mother returned to Indiana to address a bench warrant that was
issued after she failed to appear for Child’s April 16 permanency hearing. On
August 19, after Mother was baptized in the Pentecostal Church, she turned
herself in. Mother was released on her own recognizance, but a condition of
her release was to contact DCS and speak with the FCM. After reconnecting
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with FCM Lindsey Timmons, Mother began attending home-based case
management and submitted to drug screens.
[10] In December, the trial court held a fact-finding hearing on the termination
petition. FCM Beer testified that when Child was removed from Mother’s care,
she was concerned that there were several instances where Mother would leave
Child with Grandmother because the domestic violence with B.J. had been
“going on for over a year.” Id. at 44. FCM Timmons testified that when she
took over the CHINS case, Mother was complying with services until July
2017, when Mother’s phone changed and “her whereabouts were unknown.”
Id. at 48. FCM Timmons said that Mother reconnected with DCS in late
August or early September 2017, but then went missing again from March to
August 2018. See id. FCM Timmons stated that since March 2017, Mother has
had “nine separate households.” Id. at 49. FCM Timmons said that Mother
never told her when someone moved in or out of her house and did not tell her
when she was married or divorced. FCM Timmons stated that Mother’s failure
to disclose her marital history was a concern for DCS because “it continues to
show instability.” Id. Aside from FCM Timmons’s concern about Mother’s
instability, she testified that throughout the CHINS case Mother “has not called
or not showed-[up] for over a hundred and twenty drug screens.” Id. at 53.
FCM Timmons also confirmed that Mother’s most recent drug screen was
positive for methamphetamine and stated that Mother’s husband, R.S., had also
been ordered to take drug screens and “almost every drug screen – was positive
for an illegal substance.” Id. at 51. FCM Timmons stated that she believed that
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termination of Mother’s parental rights is in Child’s best interests because Child
“had to overcome severe anxiety, depression, night tremors . . . and has
maintained consistent . . . bonds with the family [Child is] with now.” Id. at 60.
Regarding DCS’s plan for Child, FCM Timmons said the plan is adoption and
that Aunt is willing to adopt Child.
[11] Child’s therapist, Kristen Keuhl, testified that when she first started working
with Child, she was having “panic attacks, crying spells” and at one point had
to be “taken to the emergency room for chest pains.” Id. at 84. Keuhl believed
that the instability in Child’s life had been significant and caused Child to have
difficulties maintaining relationships with caregivers, particularly female
caregivers. Keuhl said that by the end of her treatment with Child in May
2018, Child “no longer wanted to be reunified with [Mother].” Id. at 93.
Child’s Guardian ad Litem (GAL), Beth Webber, testified that Mother had
“moved around and demonstrated huge instability.” Id. at 97. The GAL stated
that Mother did not complete services, specifically individual and group
counseling, and did not obtain stable housing. Ultimately, the GAL said, “I
whole-heartedly believe that termination of parental rights and subsequent
adoption is in the best interests of [Child].” Id. at 100. Mother also testified
that in March 2017, it was her intention to have Child stay with Grandmother
for a few days so that she could “obtain our property” from the house she
shared with B.J. Id. at 114. Mother also explained that in March 2018 when
she went to Florida with R.S., it was for her to “take a breath and make sure
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[she] was okay to make sure [Child] [is] okay.” Id. at 121. In March 2019, the
trial court issued its order terminating Mother’s parental rights.
[12] Mother now appeals.
Discussion and Decision
[13] Mother contends that the evidence is insufficient to support the trial court’s
order terminating her parental rights to Child. When reviewing the termination
of parental rights, we do not reweigh the evidence or judge witness credibility.
In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the
evidence and reasonable inferences that are most favorable to the judgment of
the trial court. Id. When a trial court has entered findings of fact and
conclusions, we will not set aside the trial court’s findings or judgment unless
clearly erroneous. Id. To determine whether a judgment terminating parental
rights is clearly erroneous, we review whether the evidence supports the trial
court’s findings and whether the findings support the judgment. In re V.A., 51
N.E.3d 1140, 1143 (Ind. 2016).
[14] A petition to terminate parental rights must allege, among other things:
(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.
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(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. In re K.T.K., 989 N.E.2d at 1231. If the court
finds that the allegations in a petition are true, the court shall terminate the
parent-child relationship. Ind. Code § 31-35-2-8(a).
[15] Mother first argues that there is insufficient evidence to support the trial court’s
conclusion that the conditions resulting in Child’s removal will not be
remedied. In determining whether the conditions that resulted in a child’s
removal will not be remedied, the trial court engages in a two-step analysis.
First, the trial court must ascertain what conditions led to the child’s placement
and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial
court determines whether there is a reasonable probability that those conditions
will not be remedied. Id. “The trial court must consider a parent’s habitual
pattern of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” Id. The trial court has discretion to weigh a
parent’s prior history more heavily than efforts made only shortly before
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termination, and the court may find that a parent’s past behavior is the best
predictor of his future behavior. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct.
App. 2016).
[16] Here, Mother failed to demonstrate that she was any closer to providing Child a
safe, stable home than she was at the beginning of the CHINS case. The trial
court’s unchallenged findings on this issue support its conclusion that the
conditions resulting in Child’s removal will not be remedied. See, e.g., In re
E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-
compliance with services support trial court’s conclusion that conditions
resulting in children’s removal from father’s care would not be remedied). That
is, the trial court found that Mother had lived in nine different households
during the CHINS case and did not notify DCS of her household composition,
marriages, or divorces. See Appellant’s App. Vol. II p. 40 (Findings 18, 20).
The trial court also found that Mother failed to call in to see if she needed to
take a drug screen more than 120 times and did not complete substance-abuse
services.2 See id. at 40-41 (Findings 22, 23). Finally, the trial court found that
twice during the CHINS case, Mother’s whereabouts were unknown because
Mother moved without notifying DCS. See id. at 41 (Finding 24). To the
extent Mother recently began engaging in services after being baptized into the
2
In arguing that the conditions resulting in Child’s removal will not be remedied, the State directs us to
evidence that Mother tested positive for methamphetamine on October 31, 2018. Appellee’s Br. p. 18.
However, Mother testified that she has never used meth and that the positive test was erroneous, see Tr. p.
126, and the trial court did not make a finding that Mother used meth.
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Pentecostal Church, we are hopeful that she has begun to turn her life around;
however, the trial court was well within its discretion to disregard the efforts
Mother made only shortly before termination and to weigh more heavily her
history of conduct. See In re K.T.K., 989 N.E.2d at 1234. Accordingly, the trial
court did not err when it concluded that there is a reasonable probability that
the conditions resulting in Child’s removal and continued placement outside
the home will not be remedied.3
[17] Next, Mother challenges the trial court’s conclusion that termination is in
Child’s best interests. To determine what is in the child’s best interests, the trial
court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d 1150,
1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must
subordinate the interests of the parents to those of the child. Id. A trial court
need not wait until a child is irreversibly influenced by a deficient lifestyle such
that her physical, mental, and social growth is permanently impaired before
terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290
(Ind. Ct. App. 2002). When the evidence shows that the emotional and
physical development of a child in need of services is threatened, termination of
the parent-child relationship is appropriate. Id.
3
Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
resulted in Child’s removal will not be remedied, we do not address its alternate conclusion that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of
Child. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
(B) has been established by clear and convincing evidence), trans. denied.
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[18] Here, in addition to the domestic-violence and substance-abuse issues that
necessitated DCS involvement and Mother’s lack of progress since then, both
FCM Timmons and the GAL testified that terminating Mother’s parental rights
would serve the best interests of Child. See Tr. pp. 60, 100. Furthermore,
Child’s therapist testified, and the trial court found, that Child exhibits
behaviors consistent with having suffered past trauma. That is, Child suffered
from “panic attacks, crying spells” and at one point had to be “taken to the
emergency room for chest pains.” Id. at 84. Finally, the trial court concluded
that “Mother has had nearly twenty-one (21) months to accomplish the steps
necessary to have [Child] returned to her care,” and “[Child] cannot wait
indefinitely for [Mother] to work toward preservation and reunification.”
Appellant’s App. Vol. II p. 43; see In re K.T.K., 989 N.E.2d at 1230 (finding that
“children have an interest in terminating parental rights that prevent adoption
and inhibit establishing secure, stable, long-term, continuous relationships”); see
also In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are
too substantial to force them to wait while determining if their parents will be
able to parent them). For all of these reasons, we find that the trial court did
not err when it determined that termination is in Child’s best interests.
[19] Affirmed.
Riley, J., and Bradford, J., concur.
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