In the Matter of the Termination of the Parent-Child Relationship of R.M. (Minor Child) J.G. v. Indiana Department of Child Services (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 27 2017, 8:41 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
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 27, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of R.M. (Minor Child); 79A02-1707-JT-1545
J.G., Appeal from the Tippecanoe
Superior Court
Appellant-Respondent,
The Honorable Faith A. Graham,
v. Judge
Trial Court Cause No.
Indiana Department of Child 79D03-1612-JT-115
Services,
Appellee-Petitioner.
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 1 of 16
Statement of the Case
[1] J.G. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor child R.M. (“Child”). Mother presents a single issue for our review,
namely, whether the State presented sufficient evidence to support the
termination of her parental rights. We affirm.
Facts and Procedural History
[2] In June 2012, Mother began dating M.M. (“Father”), and their son, Child, was
born in February 2013. On September 1, 2015, someone contacted the Indiana
Department of Child Services (“DCS”) to report that Father and Mother were
intoxicated and did not know Child’s whereabouts. Later that evening,
someone contacted DCS to report that Father and Mother had ingested
synthetic marijuana, or “spice,” and had both been hospitalized. Thereafter,
law enforcement filed criminal charges against Father and Mother “related to
spice use.” Appellant’s App. Vol. 2 at 26. On September 3, DCS filed a
petition alleging that Child was a child in need of services (“CHINS”). After
Mother and Father failed to fully comply with services, on December 16, 2016,
DCS filed a petition to terminate their parental rights over Child.
[3] Following a hearing, the trial court granted the petition on June 27, 2017. In
support of its order, the trial court entered the following findings and
conclusions:
FINDINGS OF FACT
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 2 of 16
1. [J.G.] (DOB 6/4/1993) is the Mother and [M.M.] (DOB
2/20/1994) is the Father of [Child] (DOB 2/26/2013).
2. Tippecanoe County Department of Child Services (“DCS”)
received a report on September 1, 2015[,] that the parents were
intoxicated and did not know the location of their two (2) year
old child. DCS received a second report on the same night that
the parents were under the influence of spice and taken to the
hospital.
3. Investigation revealed that on September 1, 2015, parents were
under the influence and police were called. Mother admitted to
officers that a substance located in their vehicle was spice. Both
parents were transported to the hospital for treatment. After the
parents were discharged from the hospital, parents tried to get the
child from Paternal Great Aunt who had been caring for the
child. Paternal Great Aunt tried to return the child to the parents
but found parents under the influence and unable to care for the
child. Law enforcement and emergency medical services were
dispatched to the home due to the condition of parents. Father
was found passed out from spice use and Mother was located
smoking spice. Both parents were again transported to the
hospital for treatment and both parents admitted spice use. After
release from the second hospitalization, both parents were later
arrested in Clinton County on charges related to spice use.
4. During the investigation, DCS learned the family had a history
of moving from relative to relative. The family had been living
with Maternal Grandmother before moving in with Paternal
Great Grandmother about one (1) week prior. Paternal Great
Grandmother was about to evict the parents for drug use.
5. The child was removed from parents’ care and placed with
relatives on September 1, 2015. DCS filed a Child in Need of
Services (“CHINS”) petition in Cause Nos. [sic] 79D03-1509-JC-
184. A CASA was appointed to represent the best interests of the
child. Detention and Initial Hearings were held on September 3,
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 3 of 16
2015[,] at which time both parents were incarcerated. Continued
Detention and Initial Hearings were held on September 4, 2015.
6. At the Fact[-]Finding Hearing, Mother and Father admitted
struggling with spice use, housing instability, and
unemployment. Both parents agreed they were unable to care for
the child at that time.
7. Pursuant to the dispositional orders issued on October 9, 2015,
Mother was offered the following services: home[-]based case
management, substance abuse assessment and services,
individual therapy, drug screens, and parenting time. Father was
offered the following services: home[-]based case management,
substance abuse assessment and services, individual therapy,
drug screens, and parenting time. Evaluations revealed no
barriers to each parent’s ability to participate in services and
achieve reunification.
8. Case conferences, family team meetings, and review hearings
were held periodically. DCS prepared written reports and
recommendations prior to each hearing.
9. A permanency hearing commenced on October 18, 2016[,]
and concluded on January 10, 2017[,] at which time the
permanent plan was determined to be initiation of proceedings
for termination of parental rights and adoption. DCS filed a
Verified Petition to Terminate Parental Rights[.] The
evidentiary hearing on said petition was held on March 14, 2017.
10. The child has remained out of the home for over six (6)
months from the dispositional order. In fact, the child has been
out of the home for more than fifteen (15) of the most recent
twenty-two (22) months.
11. Parents have a history of instability in housing and
employment. Parents participated only sporadically in case
management services to address these issues. During the CHINS
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 4 of 16
case, parents were discharged from at least two (2) case
management service providers.
12. At the onset of the CHINS case, parents were homeless and
moving from relative to relative. In March of 2016, parents
obtained an apartment but did not have stable and sufficient
income to support such housing for more than a few months.
Parents separated for about two (2) months during which
time Mother lived with Maternal Grandmother and Father lived
with paternal relatives. Both parents currently reside with
Paternal Grandparents and Paternal Great Grandmother in a
home not suitable for the child[]. Paternal Grandmother has a
history of abusing prescription medication and was incarcerated
in 2015 (during the CHINS case) for charges related to her
addiction. Paternal Grandfather also has a history of abusing
pills and alcohol.
13. Mother obtained several jobs during the CHINS case but has
been unable to maintain any job for more than a few months at a
time. Mother was scheduled to start a new job on the day of the
termination hearing. Father also had multiple short-term jobs
with his longest period of employment being approximately six
(6) months. Father was unemployed at the time of the
termination hearing.
14. Parents have a history of substance use and related criminal
activity. Prior to the CHINS case, Father had convictions for
Possession of Marijuana (2013) and Illegal Consumption of
Alcohol (2014) after having been committed to the Department
of Correction as a juvenile. Both parents were arrested and
convicted of Possession of Synthetic Marijuana at the beginning
of the CHINS case. Mother served thirty (30) days on Home
Detention and Father served thirty (30) days in the Clinton
County Jail.
15. During the CHINS case, Mother was arrested again in
September of 2016 and spent approximately a week in jail.
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 5 of 16
Father was arrested again several times during the CHINS case.
On November 10, 2015, Father was arrested for Operating While
Intoxicated and Possession of Marijuana and later convicted. On
January 4, 2016, Father was arrested for Leaving the Scene of an
Accident and later convicted. Father admitted he had been
drinking during this incident and that his vehicle caught fire after
the crash. Days before the termination hearing, Father was
arrested again for Possession of Synthetic Drug and Driving
While Suspended at which time Father was on probation.
16. Both parents completed a substance abuse assessment.
Mother passed all drug screens collected and Father passed all
but two (2) drug screens collected. However, during periods of
the case, both parents failed to consistently call the drug screen
number to determine collection dates and failed to take all drug
screens requested.
17. Mother completed recommended Intensive Outpatient
Program (IOP) treatment in February of 2016. Mother attended
individual therapy through August of 2016 then failed to attend
three (3) scheduled sessions in September of 2016 resulting in
discharge from treatment. Mother relapsed on synthetic
marijuana in July of 2016 and again in September of 2016.
Mother started inpatient treatment at Tara Treatment Center on
October 26, 2016[,] but only completed approximately ten (10)
days of the twenty-one (21) day program before leaving against
staff advice on November 5, 2016. After failing to complete
inpatient treatment, Mother attended another intake appointment
on December 7, 2016[,] but failed to follow through with a
recommendation to repeat IOP treatment.
18. Father completed a substance abuse assessment and it was
recommended that he complete IOP for synthetic marijuana
abuse. Prior to the CHINS case, Father had been using synthetic
marijuana four (4) or five (5) times daily for two (2) years with
occasional periods of sobriety for up to two (2) months. Father
had also been drinking about two (2) days per week. Father
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 6 of 16
completed recommended IOP treatment and six (6) weeks of
aftercare. Father participated in approximately twelve (12)
individual therapy sessions and then stopped attending in June of
2016. Father tested positive for alcohol in May of 2016 and
again in July of 2016. Father never returned to recommended
individual counseling and was discharged from services.
19. Both parents participated in individual therapy fairly
consistently and both indicate that therapy was beneficial.
However, despite therapy and other services, the parents have
failed to demonstrate an ability to support themselves and the
child with stable income and housing. The parents have
continued historical patterns of substance use and criminal
activity.
20. Parents each completed a Parenting/Family Functioning
Assessment[.] The therapist was concerned regarding a lack of
comfort for the child when he was injured, lack of physical
affection, and lack of knowledge about the child’s medical needs.
The therapist recommended therapy, home[-]based case
management, a bonding assessment, parenting classes, and drug
screens for both parents. The therapist also recommended the
parents attend the child’s medical appointments. Although
parents attended most of the medical appointments as ordered
and were appropriate with the child, they were argumentative
with the relative placement. Neither parent ever completed the
Bonding Assessment as recommended.
21. At the beginning of the CHINS case, parents attended
scheduled visits that went well. By approximately April of 2016,
parenting time progressed to semi-supervised and then overnight
visits in the home. Parents were nearing a trial home visit when
DCS learned of a domestic violence incident and another
incident of Father punching a hole in the wall of the child’s room
while intoxicated. Father admitted another four (4) or five (5)
incidents of drinking to intoxication. Visits regressed to fully
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 7 of 16
supervised in May of 2016 with the parents attending separately
for a period of time.
22. Since May of 2016, visits have remained fully supervised.
Although parents were prepared and appropriate during visits
attended, their attendance was inconsistent resulting in discharge
from at least three (3) service providers. Mother failed to attend
any visits for approximately a month in June or July of 2016 at
which time the child’s therapist recommended implementation of
therapeutic visits due to the child’s stress response regarding
inconsistent visits. Further, visit facilitators observed a lack of
bonding between the parents and the child. Visits continued at a
therapeutically supervised level.
23. The parents have dated since June of 2012. Mother was
married to another individual at that time[,] but later divorced.
The parents married on December 22, 2016.
24. Father’s pattern of substance abuse and related criminal
activity did not improve after the birth of the child but, rather,
deteriorated. At the evidentiary hearing, Father acknowledged
he continues to struggle with the use of synthetic marijuana and
alcohol relapsing as recently as March of 2017. Both parents
acknowledged Father cannot care for the child at this time.
Although Mother vocalized she would separate from Father if
required to reunify with her child, Mother’s actions have
demonstrated her intent to remain with Father despite his
continued substance abuse and criminal activity.
25. The child has been placed in a concurrent relative home since
his initial removal in September of 2015. The child is bonded to
the relatives and is doing well in their care. The child has
participated in therapy throughout the CHINS case to address
trauma symptoms. The child is readily adoptable.
CONCLUSIONS OF LAW
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 8 of 16
1. There is no reasonable probability the conditions that resulted
in removal of the child or the reasons for continued placement
outside the home will be remedied. The parents have yet to
demonstrate the ability or willingness to make lasting changes
from past behaviors. Both parents failed to complete substance
abuse treatment and relapsed several times during the case.
Father relapsed and was arrested approximately two (2) weeks
prior to the termination hearing. Despite Father’s continued
substance abuse issues, Mother remains dedicated to the
relationship with Father instead of reunification with the child.
There is no reasonable probability that either parent will refrain
from criminal behavior to provide adequately for the child’s well-
being.
2. Continuation of the parent-child relationships pose[s] a threat
to the well-being of the child. The child needs stability in life.
The child needs parents with whom the child can form a
permanent and lasting bond and who will provide for the child’s
emotional, psychological, and physical well-being. The child’s
well-being would be threatened by keeping the child in parent-
child relationships with either parent whose own choices and
actions have made them unable to meet the basic needs of the
child in a stable and permanent home.
3. DCS has a satisfactory plan of adoption for the care and
treatment of the child following termination of parental rights.
The child can be adopted and there is reason to believe an
appropriate permanent home has or can be found for the child
with relatives.
4. For the foregoing reasons, it is in the best interests of [Child]
that the parental rights of [Mother] and [Father] be terminated.
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 9 of 16
Id. at 26-29. This appeal ensued.1
Discussion and Decision
[4] We begin our review of this appeal by acknowledging that “[t]he traditional
right of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is
proper where a child’s emotional and physical development is threatened. Id.Although the right to raise one’s own child should not be terminated solely
because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
[5] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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
1
Father does not participate in this appeal.
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 10 of 16
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.
Ind. Code § 31-35-2-4(b)(2). DCS’s “burden of proof in termination of parental
rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child
Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-
14-2).
[6] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
Fam. & Child. (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.
denied. Instead, we consider only the evidence and reasonable inferences that
are most favorable to the judgment. Id. Moreover, in deference to the trial
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.
Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 11 of 16
[7] Here, in terminating Mother’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005).
First, we determine whether the evidence supports the findings and, second, we
determine whether the findings support the judgment. Id. “Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If
the evidence and inferences support the trial court’s decision, we must affirm.
In re L.S., 717 N.E.2d at 208.
[8] On appeal, Mother contends that the trial court erred when it concluded that:
the conditions that resulted in Child’s removal and the reasons for his
placement outside of Mother’s home will not be remedied; there is a reasonable
probability that the continuation of the parent-child relationship poses a threat
to the well-being of Child; and termination is in Child’s best interest. Because
the statute is written in the disjunctive, we need not address the court’s
conclusion that continuation of the parent-child relationship poses a threat to
Child’s well-being. I.C. § 31-35-2-4(b)(2).
Conditions that Resulted in Child’s Removal will not be Remedied
[9] In determining whether the evidence supports the trial court’s finding that
Mother is unlikely to remedy the reasons for Child’s removal, we engage in a
two-step analysis. E.M. v. Ind. Dep’t of Child Servs. (In re E.M.), 4 N.E.3d 636,
643 (Ind. 2014). “First, we identify the conditions that led to removal; and
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 12 of 16
second, we determine whether there is a reasonable probability that those
conditions will not be remedied.” Id. (quotations and citations omitted). In the
second step, the trial court must judge a parent’s fitness to care for his children
at the time of the termination hearing, taking into consideration evidence of
changed conditions. Id. However, the court must also “evaluate the parent’s
habitual patterns of conduct to determine the probability of future neglect or
deprivation of the child.” Moore v. Jasper Cty. Dep’t of Child Servs., 894 N.E.2d
218, 226 (Ind. Ct. App. 2008) (quotations and citations omitted). Pursuant to
this rule, courts have properly considered evidence of a parent’s prior criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and lack of adequate housing and employment. Id. Moreover, DCS is not
required to rule out all possibilities of change; rather, it need establish only that
there is a reasonable probability the parent’s behavior will not change. Id.[10] Mother does not challenge the trial court’s findings on this issue, and we cannot
say that the trial court clearly erred when it concluded from those findings that
the conditions that resulted in Child’s removal will not be remedied. Child was
removed from Mother’s care due to Mother’s substance abuse. During the
CHINS proceedings, while Mother completed a substance abuse assessment
and submitted to drug screens, Mother: did not submit to all requested drug
screens; admitted to having used spice in July and September 2016; spent one
week in jail in September 2016 for spice use; missed three therapy appointments
and was discharged from therapy for noncompliance in September 2016; left an
inpatient treatment center against staff advice after only ten days of a twenty-
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 13 of 16
one day program; and failed to repeat an outpatient treatment program, which
had been recommended. In addition, while Mother enjoyed semi-supervised
visits with Child for a period of time, Mother’s visits with Child were fully
supervised beginning in May 2016. During the summer of 2016, Mother ceased
visits with Child for a period of approximately one month, which led to her
discharge from “at least three (3) service providers.” Appellant’s App. Vol. 2 at
29.
[11] Mother’s arguments on appeal simply seek to have this court disregard the
evidence most favorable to the trial court’s judgment and instead reweigh the
evidence in her favor, which we cannot do. The evidence supports the trial
court’s finding that Mother has “yet to demonstrate the ability or willingness to
make lasting changes from past behaviors.” Id. We cannot say that the trial
court clearly erred when it concluded that the conditions that resulted in Child’s
removal will not be remedied.
Best Interests
[12] 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. A.S. v.
Ind. Dep’t. of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).
“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 termination of the parent-child relationship is in the child’s best
interests.” Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct.
App. 2006), trans. denied. “Additionally, a child’s need for permanency is an
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 14 of 16
important consideration in determining the best interests of a child.” In re A.K.,
924 N.E.2d at 224.
[13] Again, Mother does not challenge the trial court’s findings in support of this
conclusion. Still, Mother contends that termination is not in Child’s best
interests because “Mother improved her parenting skills, completed her drug
treatment, passed her drug screens, was actively involved in the CHINS case,
and had a bond with the Child.” Appellant’s Br. at 17. Mother also asserts that
she was “clean and sober at the time of the evidentiary hearing on March 14,
2017[,]” and she had a “stable and safe home that was suitable for the Child.”
Id. Mother also asserts that, in light of Father’s relapse in March 2017, she
would leave Father, to whom she is married, if that were required to maintain
her parental rights over Child. Mother’s contentions on this issue amount to
nothing more than a request that we reweigh the evidence, which, again, we
cannot do.
[14] DCS presented evidence that, while Mother showed progress early in the
CHINS proceedings, she missed several visits with Child during the summer of
2016, relapsed and used spice in July and September 2016, was arrested and
spent one week in jail in September 2016, was discharged from three service
providers, and left an inpatient treatment program against staff advice more
than one week early. Child needs consistent and reliable care, and he needs
permanency. As Samantha Goltz, the DCS family case worker, testified, it is in
Child’s “best interest to be in a stable home free from drug and alcohol abuse
and to be adopted and have permanency.” Tr. at 127. The totality of the
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 15 of 16
evidence, including Mother’s historical inability to provide a safe and stable
home and her failure to comply with services, supports the trial court’s
conclusion that termination of Mother’s parental rights is in Child’s best
interest.
[15] Affirmed.
Mathias, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A02-1707-JT-1545 | November 27, 2017 Page 16 of 16