In re the Matter of the Involuntary Termination of the Parent-Child Relationship of: K.M., H.M., K.M. and H.J. v. The Indiana Department of Child Services and Child Advocates, Inc. (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 29 2017, 9:21 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Steven J. Halbert Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Matter of the Involuntary December 29, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 49A05-1707-JT-1498
K.M., H.M., K.M. (Minor Children), Appeal from the Marion Superior
Court
and
The Honorable Marilyn Moores,
H.J. (Mother), Judge
Appellant-Respondent, The Honorable Scott Stowers,
Magistrate
v.
Trial Court Cause Nos.
The Indiana Department of Child 49D09-1609-JT-1034
Services, 49D09-1609-JT-1035
49D09-1609-JT-1036
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellee (Guardian ad Litem).
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Robb, Judge.
Case Summary and Issue
[1] H.J. (“Mother”) appeals the juvenile court’s termination of her parental rights
to her three children. Mother presents two issues for our review which we
consolidate and restate as whether the juvenile court’s termination order is
clearly erroneous. Concluding the termination order is not clearly erroneous,
we affirm.
Facts and Procedural History
[2] Mother and Ka.M. (“Father”)1 (collectively, “Parents”) have three children,
five-year-old K.M., three-year-old H.M., and two-year-old Kh.M. (“Children”).
On August 17, 2015—before Kh.M. was born—the Indiana Department of
Child Services (“DCS”) filed a petition alleging K.M. and H.M. were children
in need of services (“CHINS”) due to Parents’ history of drug use and the
family’s lack of stable housing. DCS removed K.M. and H.M. from their
Parents’ care and placed them with relatives. On September 4, 2015, Parents
admitted that because of their substance abuse issues, K.M. and H.M. were
1
The juvenile court also terminated Father’s parental rights. Father, however, does not participate in this
appeal.
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CHINS and the court ordered continued placement in relative care. With the
goal of reunification, the juvenile court ordered Parents to engage in a
substance abuse assessment, home-based therapy, and random drug screens.
The juvenile court authorized Parents to reside in the relative caregiver’s home
after the completion of four consecutive, clean, non-diluted drug screens.
[3] On December 4, 2015, the juvenile court conducted a periodic review hearing.
There, DCS reported that Parents were participating in home-based therapy and
their drug screens were negative. However, on December 10, DCS filed a
petition alleging newborn Kh.M. was a CHINS after Kh.M. tested positive for
codeine, heroin, and marijuana at birth. Following a fact-finding hearing on
February 19, 2016, where Parents admitted Kh.M. was a CHINS, the juvenile
court entered a parental participation order that required Parents engage in
home-based therapy, random drug screens, and substance abuse treatment.
Kh.M. was adjudicated a CHINS and placed in relative care.
[4] The juvenile court conducted another periodic review hearing on March 4,
2016. There, DCS expressed concern that Parents resided at the home of the
relative caregiver and stated that Mother had not been calling in order to submit
to drug screens. The juvenile court ordered Parents to remove their belongings
from relative caregiver’s home.
[5] By June 2016, K.M. and H.M. were in foster care while Kh.M. remained in
relative care. At a hearing on June 10, DCS reported that Mother had tested
positive on June 1 for opiates and methamphetamines and the court found
Mother had actively prevented DCS from obtaining information about her
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chosen services. The court ordered Mother to comply with services arranged by
DCS rather than continue being able to arrange her own services. Parents
failed to attend a permanency hearing on August 12. There, DCS reported
Parents had not engaged in substance abuse treatment and requested the
permanency plan for H.M. and K.M. change to adoption. The juvenile court
reset the hearing for August 26, and ordered Parents to appear.
[6] Parents again failed to appear on August 26. The Guardian Ad Litem agreed
with DCS’ request to change the permanency plan to adoption. The juvenile
court found that Parents had “struggled with heroin addiction since these
matter[s] were filed.” Exhibits, Volume III at 12. The court also found that
because Parents had not engaged in services to address these issues it was in the
Children’s best interests for the plan to change from reunification to adoption.
The juvenile court granted DCS’ motion to suspend visitation shortly thereafter.
[7] On September 6, 2016, DCS filed petitions to terminate Parents’ parental rights
to all three Children. On January 23, 2017, Mother was arrested and charged
with possession of a syringe, a Level 6 felony. On May 6, 2017, Mother was
arrested again and charged with possession of a narcotic drug, possession of
methamphetamine, and possession of a syringe, all Level 6 felonies. Following
an evidentiary hearing spanning the course of three days, the juvenile court
terminated Parents’ parental rights on June 8, 2017. Mother now appeals.
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Discussion and Decision
I. Standard of Review
[8] The right of parents to establish a home and raise their children is protected by
the Fourteenth Amendment to the United States Constitution. In re D.D., 804
N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. However, the law provides
for the termination of these constitutionally protected 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).
[9] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d at 265.
We only consider evidence, and reasonable inferences therefrom, most
favorable to the judgment. Id. Furthermore, in deference to the trial court’s
unique position to assess the evidence, we will set aside its judgment
terminating a parent-child relationship only when it is clearly erroneous. In re
L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534
U.S. 1161 (2002).
[10] Where, as here, the trial court enters findings of fact and conclusions thereon,
we apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family &
Children, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine whether
the evidence supports the findings, then we determine whether the findings
support the judgment. Id. Findings will be set aside only if they are clearly
erroneous and findings are clearly erroneous only “when the record contains no
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facts to support them either directly or by inference.” Yanoff v. Muncy, 688
N.E.2d 1259, 1262 (Ind. 1997).
II. Remedy of Conditions
[11] Our supreme court has described the involuntary termination of parental rights
as “an extreme measure that is designed to be used as a last resort when all
other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.
2011). In order for the State to terminate parental rights, Indiana Code section
31-35-2-4(b)(2) provides the State must prove, in relevant part:
(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.
***
(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.
The foregoing elements must be proved by clear and convincing evidence. Ind.
Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
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[12] On appeal, Mother argues that DCS failed to prove by clear and convincing
evidence that the conditions that resulted in the Children’s removal will not be
remedied. When considering whether the conditions that resulted in a child’s
removal will be remedied, we engage in a two-step analysis: “First, we must
ascertain what conditions led to [child’s] placement and retention in foster care.
Second, we determine whether there is a reasonable probability that those
conditions will not be remedied.” In re K.T.K., 989 N.E.2d 1225, 1231 (Ind.
2013) (quotation omitted).
[13] The juvenile court found:
38. There is a reasonable probability that the conditions that
resulted in the [C]hildren’s removal and continued placement
outside of the home will not be remedied by their parents.
[Parents] have had well over a year and a half to put forth an
effort and address issues but have been unable to do so. Sobriety,
housing, and stability remain major concerns. Both [Parents]
have struggled with heroin addition [sic] since these matters were
filed. Both parents have been arrested recently multiple times for
drug charges. Neither parent have [sic] engaged in services to
address these issues. Due to their continued usage, neither
parent is in a position to parent at this time.
Appealed Order at 3. Mother alleges that this case stems only from Parents’
substance abuse issues, highlighting the juvenile court’s findings regarding the
underlying CHINS cases:
6. On September 4, 2015, [K.M. and H.M.] were adjudicated to
be CHINS as to both [M]other and [F]ather when both parents
admitted to an amended CHINS Petition. Specifically, Mother
admitted that “[T]he children are in need of services because
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[Mother] has substance abuse issues and the children and family
would benefit from services offered through the Department of
Child Services. The Intervention of the Court is necessary to
ensure the child[ren]’s safety”. . . .
***
8. On or about December 10, 2015, a CHINS Petition was filed
on Kh.M. . . . after she was born positive for codeine, heroin, and
marijuana; and that [Mother] used heroin regularly during her
pregnancy.
Appealed Order at 1-2.
[14] Mother first argues that because the reason for Children’s removal was based
“solely on substance abuse allegations, no other issues should have been
considered by the juvenile court in making its finding on this statutory
requirement.” Brief of Appellant at 10. Relying on language from our supreme
court’s decision in In re I.A. that “the factors identified by the trial court as
conditions that will not be remedied are relevant only if those conditions were
factors in DCS’ decision to place [the child] in foster care in the first place[,]”
934 N.E.2d 1127, 1134 (Ind. 2016), Mother contends the juvenile court’s
finding number 38 is clearly erroneous for “mention[ing] other issues besides
substance abuse.” Br. of Appellant at 11.
[15] The juvenile court discusses Mother’s sobriety, multiple arrests “for drug
charges,” housing, stability, and failure to engage in services for addiction
treatment. Appealed Order at 3, ¶ 38. These issues—save housing—relate
directly to the substance abuse issues alleged in the amended CHINS petition to
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which Mother admitted and which the juvenile court found to be true. DCS
alleged in its original CHINS petition that Mother “ha[d] failed to provide the
children a safe and secure home free from substance abuse[,]” and that the
“family is without stable housing[,]” Exhibits, Vol. III at 71, but Mother never
admitted to these allegations. When considering the “factors in DCS’ decision”
to remove a child from a parent’s care, our review of case law leads us to
believe that only findings by the court regarding removal should be considered
in subsequent termination proceedings. See In re V.A., 51 N.E.3d at 1148
(noting where “the trial did not find that Father’s ‘little recognition if any of
[Mother’s] mental illness’ was a factor in DCS’ decision to remove [child] from
the home[,] we do not believe it to be an appropriate basis to support the
conclusion DCS has met its heightened burden to show by clear and convincing
evidence that termination is appropriate”). Given the weight of the court’s
proper considerations, however, such a determination is ultimately
unnecessary. Even assuming the consideration of Mother’s housing issues was
error, we conclude that it did not render the court’s finding number 38 clearly
erroneous.
[16] Turning to Mother’s substantive argument, Mother contends that DCS did not
present clear and convincing evidence that the substance abuse issues which led
to the Children’s removal were still present at the time of the termination
hearing. Specifically, Mother challenges the juvenile court’s finding that,
Both Mother and Father consistently tested positive for drugs
during the pendency of the CHINS case.
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Appealed Order at 2, ¶ 23. Mother alleges the juvenile court’s finding is not
supported by the record. Our review of the record reveals only one positive
drug screen by Mother reported on June 1, 2016.2 We must disregard any
special finding that is not proper or competent to be considered. In re B.J., 879
N.E.2d 7, 19 (Ind. Ct. App. 2008), trans. denied. But, given the remaining
evidence and the court’s accurate findings, we find such error harmless. See id.
at 20 (affirming termination of parental rights despite erroneous finding based
on testimony stricken from the record because the error did not “constitute the
sole support for any conclusion of law necessary to sustain the judgment”);
Matter of A.C.B., 598 N.E.2d 570, 573 (Ind. Ct. App. 1992) (affirming
termination of parental rights despite erroneous findings because error was “not
of such magnitude that it calls into question the court’s conclusion”).
[17] Mother next argues there is not clear and convincing evidence that she refused
to participate in drug treatment.3 Mother initially completed a substance abuse
assessment which led to a recommendation for substance abuse treatment.
However, Mother chose a treatment provider that was not referred by DCS and
because she only completed a partial release, DCS’ ability to obtain information
regarding her treatment was limited. In fact, following the June 10, 2016,
periodic review hearing, the juvenile court found Mother had “actively
2
The record also includes evidence of Mother’s failure to call in order to submit to drug screens and tests
unable to be completed “due to not producing enough urine.” Exhibits, Vol. III at 34-35.
3
The juvenile court’s conclusion regarding a reasonable probability that the conditions that resulted in the
Children’s removal will not be remedied included, “Neither parent have [sic] engaged in services to address
these issues.” Appealed Order at 3, ¶ 38.
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prevented the DCS from obtaining information” regarding her chosen services.
Exhibits, Vol. III at 25. There was also evidence that Mother failed to call in
order to submit to drug screens and on other occasions was unable to produce a
sufficient urine sample. So, while Mother contends she “was participating in
drug treatment but in June 2016 the juvenile court ordered her to stop this
treatment, forbid her from starting any new treatment and ordered her to wait
for a referral from the DCS[,]” she neglects to mention her own actions
prompting the juvenile court’s order. Br. of Appellant at 12,
[18] After the June order, Mother contends she was “re-refer[red] to the Salvation
Army” by Dapriel Benford, a Family Case Manager with DCS, and that the
program first requires a detox program, “so the referral for detox came first and
then a referral for substance abuse treatment was made in October 2016.” Br.
of Appellant at 12. In support of her argument that there was no evidence she
was refusing to participate in drug treatment, Mother cites the following
finding:
24. In July 2016, the DCS FCM made new referrals for the
parents. Mother was referred for outpatient substance abuse
treatment and [F]ather was referred to a detox program.
Id. (citing Appealed Order at 3, ¶ 24). The juvenile court’s finding discusses
Father’s referral to a detox program, not Mother’s. Mother also cites to a
section of Benford’s testimony which only discusses DCS recommending
Father to the Salvation Army. Id. (citing Transcript, Volume II at 173-75).
Contrary to Mother’s contention, Benford testified that she provided Mother
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with possible agencies for substance abuse treatment but Mother did not select
an agency. Tr., Vol. II at 130-31 (“For [Father], it was detox . . . for [Mother],
it was outpatient.”); and 148 (“[Mother] did not select any of the services that I
offered for her.”). Therefore, we view Mother’s argument as nothing more than
a request that we reweigh the evidence and we conclude the record adequately
supports the court’s finding. See, e.g., In re D.D., 804 N.E.2d 258, 265 (Ind. Ct.
App. 2004), trans. denied.
[19] Mother also argues there was not clear and convincing evidence she was still
using illegal drugs at the time of the termination hearing. Mother
acknowledges that she admitted to drug use in the Summer of 2015, prior to the
filing of the first CHINS petition regarding K.M. and H.M., but Mother
maintains that even though Kh.M. was born in December 2015 testing positive
for codeine, heroin, and marijuana, there was no evidence concerning when
Mother would have had to ingest the drugs in order to cause a positive result—
pointing to her negative drug tests reported on December 4. Mother also
contests the juvenile court’s reliance on her two arrests in January and May
2017, alleging other than the arrests and charges themselves, no evidence was
presented regarding her drug use.
[20] When evaluating a parent’s fitness at the time of the termination proceedings, a
juvenile court must take into consideration evidence of changed conditions and
balance any recent improvements against habitual patterns of conduct to
determine whether there is a substantial probability of future neglect or
deprivation. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). This habitual conduct
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may include a parent’s prior criminal 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 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.
Here, we find the record adequately supports the juvenile court’s conclusion
that the conditions which led to the Children’s removal—namely Mother’s
substance abuse—will not be remedied.4 There is little evidence of changed
conditions or recent improvements and Mother’s habitual patterns of conduct
far outweigh any such evidence. See In re A.H., 832 N.E.2d 563, 570 (Ind. Ct.
App. 2005) (noting 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”). Mother’s history of substance abuse
combined with her inability to refrain from criminal activity, effectively
participate in services, or take positive steps to improve her circumstances all
demonstrate this fact. See, e.g., In re L.S., 717 N.E.2d at 210 (noting a parent’s
unwillingness to remedy problems and to cooperate with social services, along
4
Mother also argues the juvenile court erred in finding her continued custody poses a threat to the Children’s
well-being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only one
element be proven to terminate Mother’s parental rights. See In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App.
2009); In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied, cert. denied, 543 U.S. 1161 (2002).
Having concluded the evidence is sufficient to show a reasonable probability the conditions resulting in the
Children’s removal will not be remedied, we need not address Mother’s argument.
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with unchanged conditions, supports a finding there is a reasonable probability
conditions will not change). Accordingly, we conclude the juvenile court’s
termination order was not clearly erroneous.
Conclusion
[21] Concluding the juvenile court’s decision to terminate Mother’s parental rights
was not clearly erroneous, we affirm.
[22] Affirmed.
Crone, J., and Bradford, J., concur.
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