In the Matter of the Termination of Parental Rights of: F.J., C.O., J.O., & M.O., (Children), and, M.O., (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 25 2018, 9:11 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deidre L. Monroe Curtis T. Hill, Jr.
Gary, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 25, 2018
of Parental Rights of: Court of Appeals Case No.
17A-JT-3036
F.J., C.O., J.O., & M.O., Appeal from the Lake Superior
(Children), Court
The Honorable Thomas P.
and, Stefaniak, Jr., Judge
Trial Court Cause No.
M.O., (Mother), 45D06-1512-JT-273
45D06-1512-JT-275
Appellant-Respondent, 45D06-1512-JT-276
45D06-1703-JT-70
v.
Indiana Department of Child
Services,
Court of Appeals of Indiana | Memorandum Decision 17A-JT-3036 | May 25, 2018 Page 1 of 18
Appellee-Petitioner.
Barnes, Judge.
Case Summary
[1] Me.O. (“Mother”) appeals the trial court’s termination of her parental rights to
her children, F.J., C.O., J.O., and M.O. (“Children”). We affirm.
Issue
[2] Mother raises one issue, which we restate as whether the evidence is sufficient
to support the termination of her parental rights.
Facts
[3] Mother has five children: J.J., who was born in January 2000;1 F.J., who was
born in August 2003; J.O., who was born in July 2008; C.O., who was born in
March 2011; and M.O., who was born during these proceedings in December
1
J.J. is not involved in these termination proceedings because she was placed in another planned permanent
living arrangement.
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2014. L.C. is the father of J.J. and F.J., and B.O. (“Father”) is the father of
J.O., C.O., and M.O.2
[4] On June 27, 2013, Mother and the Children were moving from North Carolina
to Illinois when Mother was stopped in Indiana for speeding in a work zone
and weaving in and out of traffic. The officer discovered that Mother was
impaired, she failed field sobriety tests, and blood testing revealed the presence
of clonazepam, Tramadol, and marijuana in her system. Mother admitted to
officers that she had taken clonazepam and Tramadol that morning, that she
had taken Dexilant and Lamotrigine the night before, and that she had smoked
marijuana or K2/spice the night before. Although Mother had been prescribed
the Clonazepam, Tramadol, Dexilant and Lamotrigine, the side effects of the
medications include dizziness and drowsiness. Mother was arrested and
charged with four counts of operating a vehicle while intoxicated endangering a
person with a passenger less than eighteen years of age, one count of operating
a vehicle while intoxicated endangering a person, work zone speeding with
workers present, and failure to signal for turn or lane change. She ultimately
pled guilty and received probation, but she violated her probation and had to
serve three months in jail.
[5] Because Mother was arrested and there was no one else to care for the
Children, the Boone County Office of the Department of Child Services
2
L.C.’s parental rights were also terminated, but he does not appeal. Father died during these proceedings.
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(“DCS”) took the Children into custody. DCS discovered that Mother had a
prior history with the Division of Social Services in North Carolina for
marijuana use and the conditions of her home. The North Carolina Division of
Social Services requested that DCS continue to care for the Children until a
“UCCJA Conference could be held.” Ex. Vol. I p. 23. DCS filed a petition
alleging that the Children were children in need of services (“CHINS”). After a
hearing, the trial court entered findings of fact and conclusions thereon
determining that the Children were CHINS. The trial court ordered Mother in
part to refrain from using illegal drugs, take prescription medications only as
prescribed, engage in home-based counseling, maintain suitable housing and
employment, complete a substance abuse assessment and follow all
recommendations, submit to random drug screens, attend visitations with the
Children, and refrain from committing any acts of domestic violence. Over the
next year, Mother struggled to comply with the trial court’s order. She
frequently cancelled visitations, tested positive for hydrocodone, failed to
complete psychiatric and psychological evaluations and a domestic violence
assessment, failed to participate consistently with individual therapy, threatened
service providers, and was homeless. According to Mother, she has previously
been diagnosed with “bipolar, anxiety disorder, stress disorder, borderline
personality disorder, axis 1, 2, and 3” and post-traumatic stress disorder. Tr.
Vol. II p. 31.
[6] M.O. was born in December 2014 and remained in Mother’s care. In mid-
2015, Mother and Father were living in Gary, and visits with the Children
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started increasing to unsupervised visits in their home and overnight weekend
visits. During one of the weekend visits in September 2015, Father became
intoxicated, and there was a domestic violence incident. When the police and
DCS arrived at the house, Mother was “antagonizing” Father and “calling him
names and yelling and cursing.” Id. at 108. The Children were upset, crying,
and trying to calm Mother down. Mother “appeared to be not on her
medication,” could not calm down, and could not parent the Children. Id. at
111. DCS took the four older children back to their foster home and removed
M.O. from Mother’s care at that time. The following day Mother was arrested
for driving with a suspended license and was placed on house arrest. DCS then
filed a petition alleging that M.O. was a CHINS, which the trial court granted.
[7] Mother tested positive for synthetic marijuana in December 2015, violated her
probation as a result, and had to serve jail time. Mother was also evicted from
her home at that time. Mother and Father were involved in another domestic
violence incident in January 2016. In February 2016, DCS filed a motion to
suspend visitation between Mother and the Children. DCS reported that
Mother was incoherent at a supervised visitation and a therapy session and that
visits were detrimental to C.O. and F.J. DCS requested that Mother be ordered
to complete an in-patient detox program. Service providers were concerned
that Mother was “doctor hopping,” and she was attempting to refill
prescriptions prior to the refill date. Ex. Vol. II p. 7. Visits with the older
Children were suspended in March 2016.
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[8] In May 2016, Mother’s drug screens indicated that she was not taking her
prescription medications for her mental health issues. Mother also tested
positive for barbiturates and benzodiazepines, for which she did not have a
prescription, alcohol, and an opiate. DCS noted that Mother had a prescription
for oxycodone but, during a pill count on May 19, 2016, Mother “only had 16
pills left out of 60 pills and she got the prescription filled on May 17, 2016.” Id.
at 74.
[9] In June 2016, the trial court adopted a permanency plan that included
independent living for J.J., termination of parental rights and adoption for F.J.,
C.O., and J.O., and reunification for M.O. Also in June 2016, Father
overdosed and died in a possible suicide. Over the next few months, Mother
continued to test positive for alcohol and opiates. She did not, however, test
positive for her mental health medications. In October 2016, DCS noted that
Mother had a prescription for clonazepam but had been taking the pills more
often than directed by the prescription. In November 2016, Mother tested
positive for marijuana, ethyl, and methamphetamine. She tested positive for
hydrocodone without a prescription in December 2016. In January 2017,
Mother’s hair follicle tested positive for cocaine, her specimen was diluted in
January and March 2017, and she tested positive for hydrocodone twice in
March 2017 without a prescription. In August 2017, Mother tested positive for
marijuana on multiple occasions, cocaine, and hydrocodone. The trial court
authorized DCS to discontinue all services except for supervised visitation of
M.O. and random drug screens.
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[10] In December 2015, DCS filed a petition to terminate Mother’s parental rights to
F.J., J.O., and C.O. In March 2017, DCS filed a petition to terminate her
parental rights to M.O. After an evidentiary hearing in November 2017, the
trial court entered findings of fact and conclusions thereon granting DCS’s
petitions. Mother now appeals.
Analysis
[11] Mother challenges the termination of her parental rights to the Children. The
Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. In re
I.A., 934 N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care,
custody, and control of his or her children is ‘perhaps the oldest of the
fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65,
120 S. Ct. 2054 (2000)). “Indeed the parent-child relationship is ‘one of the
most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb County
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). We recognize, of
course, that parental interests are not absolute and must be subordinated to the
child’s interests when determining the proper disposition of a petition to
terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when
the parents are unable or unwilling to meet their parental responsibilities.’” Id.
(quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied).
[12] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. Id. We consider only the evidence and
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reasonable inferences that are most favorable to the judgment. Id. We must
also give “due regard” to the trial court’s unique opportunity to judge the
credibility of the witnesses. Id. (quoting Ind. Trial Rule 52(A)). Here, the trial
court entered findings of fact and conclusions thereon in granting DCS’s
petition to terminate Mother’s parental rights. Such findings of fact and
conclusions thereon are required by Indiana Code Section 31-39-2-8(c). When
reviewing findings of fact and conclusions thereon entered in a case involving a
termination of parental rights, 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. We will set aside the
trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.
[13] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in 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.
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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.
DCS must establish these allegations by clear and convincing evidence. Egly v.
Blackford County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992).
I. Changed Conditions
[14] Mother challenges the trial court’s finding of a reasonable probability that the
conditions resulting in the Children’s removal or the reasons for placement
outside her home will not be remedied.3 In making this determination, the trial
3
Mother also briefly argues that the trial court’s conclusion that the continuation of the parent-child
relationship poses a threat to the well-being of the Children is clearly erroneous. Indiana Code Section 31-35-
2-4(b)(2)(B) is written in the disjunctive. Subsection (b)(2)(B)(iii), which concerns repeated CHINS
adjudications, is inapplicable here. Consequently, DCS was required to demonstrate by clear and convincing
evidence a reasonable probability that either: (1) the conditions that resulted in the Children’s removal or the
reasons for placement outside the home of the parents will not be remedied, or (2) the continuation of the
parent-child relationship poses a threat to the well-being of the Children. The trial court found a reasonable
probability that the conditions that resulted in the Children’s removal and continued placement outside
parents’ home would not be remedied, and there is sufficient evidence in the record to support the trial
court’s conclusion. Thus, we need not determine whether there was a reasonable probability that the
continuation of the parent-child relationship poses a threat to the Children’s well-being. See, e.g., Bester v. Lake
County Office of Family & Children, 839 N.E.2d 143, 148 n.5 (Ind. 2005); In re T.F., 743 N.E.2d 766, 774 (Ind.
Ct. App. 2001), trans. denied.
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court must judge a parent’s fitness to care for his or her child at the time of the
termination hearing and take into consideration evidence of changed
conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.
The trial court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id.
[15] On this issue, the trial court found:
There is a reasonable probability that the conditions resulting in
the removal of the children from [their] parents’ home will not be
remedied in that: The Department of Child Services became
involved with this family in June of 2013 when the mother was
traveling from North Carolina to Illinois and was arrested for a
OWI with the children in the vehicle. There were several reports
to the Lebanon Police Department stating that there was a van
veering off the road and nearly striking other vehicles going
Northbound on I-65. [Mother] was identified as the driver.
[Mother] was arrested on the site for Operating a Vehicle While
Intoxicated leaving no one to care for her children. The children
were placed in foster care. [Mother] professes to not have been
intoxicated and only pled guilty out of convenience. [Mother]
indicated she was fleeing North Carolina to Illinois to get away
from the domestic violence.
Parents were offered services pursuant to a case plan which
included substance abuse assessments, parenting assessment,
home based casework services, initial clinical assessments,
random drug and alcohol screens, individual therapy, domestic
violence therapy and supervised visitations.
Mother was placed on probation in her criminal matter and
mother violated her probation by testing positive on her drug
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screen. Mother was incarcerated due to the violation in late
2015.
The CHINS cases were transferred from Boone County to Lake
County, Indiana in July of 2013.
Mother has a history with the Department of Child Services in
her home State of North Carolina. There was an open CHINS
case in the State of North Carolina at the time of Indiana’s
Department of Child Services’ involvement. The CHINS case in
North Carolina stemmed from domestic violence in the family’s
home between Mother and [L.C.]. North Carolina closed their
CHINS cases when Indiana became involved.
Mother began a relationship with [Father] and eventually
married [Father]. The domestic violence issue continued but
now between mother and [Father]. Mother testified that the
domestic violence occurred for many years.
Father of [C.O., J.O. and M.O.], [Father] is deceased. Mother
found him dead from what sounds like an intentional drug
overdose. Mother still struggles with the effects of that event
today. This occurred mid June 2016.
*****
Mother and [L.C. and Father] lacked stability in housing and
employment. They were homeless for a period of time when
these cases were initiated. Services were offered to the parents in
efforts to obtain stability for the parents. The parents eventually
did obtain housing and the children began participating in in-
home supervised visits with the children. A transition plan was
put into place for the reunification process to begin.
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Mother had another child, [M.O.] who was born in December of
2014. Parents were participating in services and participating in
the transition plan for the other children. The case plan seemed
to go well at first with mother. In September of 2015, mother
and [Father] had a domestic violence episode with the children
present in the home on a weekend visitation. [Father] was highly
intoxicated and became violent in the home. Father had busted
out of the windows in their van and in the home. The children
were removed from parental care and [M.O.] became a ward of
the Department of Child Services. Mother was extremely irate
some hour and forty minutes after the event occurred per DCS
worker, Shavon Smith.
Mother has a long history of mental health issues. Mother has
been diagnosed with bipolar, borderline personality disorder and
PTSD. Mother was hospitalized in 2003 due to a nervous
breakdown. Mother is on numerous medications for her mental
health issues, but does not take her medications as prescribed.
Mother refuses to take medications, and testified that she uses
marijuana instead.
Mother’s visitations stopped with [F.J., C.O., and J.O.] in
February of 2016 when the mother would appear incoherent at
the visits and would miss her visitations. The mother continued
to test positive for cocaine and marijuana on her drug screens.
Mother was ordered to enter an inpatient substance abuse
treatment program. Mother did not enter any such program.
The family’s situation degenerated even further when, in June of
2016, [Father] died of an overdose. Mother used the father’s
death as a catalyst and a reason for her continued drug use.
Although mother participated in therapy, mother could not
conquer her substance abuse issues. Mother continued to test
positive for alcohol and illegal drugs on her screens. Psychiatric
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services were given to mother, but mother did not take her
prescribed medications and self medicated with marijuana and
alcohol. Mother was given medication management services, but
mother either over medicated herself or did not take her
medications. Mother was referred to attend A/A meetings for
her alcohol use and N/A meetings for her narcotic usage.
Mother did not attend neither. Mother participated in her
therapy, but continued with her self medicating lifestyle.
Mother indicates that she is not a chronic user of marijuana, but
testified in open court that she smokes marijuana every night.
Mother continues with her struggles with substances and her
struggles with housing stability. Mother currently does not have
independent housing and resides with her family in the State of
Illinois.
Mother continues with her substance abuse issues and continues
to test positive on her drug screens. Mother admits to using
marijuana, cocaine and methamphetamines. Mother has not
been able to address her substance abuse issues. Mother would
not enter a substance abuse program. Mother is unable to remain
drug free. Mother is in complete denial of her drug problem and
testified to same.
Mother’s dangerous lifestyle is not conducive for children.
Mother has a long history of domestic violence issues with her
partners. Mother has a history of mental health issues and
abusing or ignoring her medications. Mother continues with her
illegal substance abuse. Mother has an alcohol problem which
she has not addressed. Mother’s unstable behaviors, housing,
and complete lifestyle choices have not been remedied in the past
four years despite all the services offered to mother. Mother
continued to test positive on her drug screens throughout these
cases. Mother has tested positive for marijuana and cocaine on
her drug screens as early as July of this year. Mother has not
addressed her substance abuse concern in the last four years and
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it is unlikely that mother will obtain sobriety. Mother refuses to
attend inpatient treatment and continues to struggle with her
sobriety. Mother has recently moved to the State of Illinois and
does not participate in any services any longer. Mother has
missed visitations with her children due to her relocation to the
State of Illinois. Mother does not take her mental health issues
seriously, it is unlikely that she will be able to address her
children’s mental health issues.
Despite multiple attempts at reunification, the children remain
outside of the parents’ care. The children have never been placed
in parental care or custody since their initial removal in 2013.
The original allegations of neglect have not been remedied by the
parents. Neither of the parents have demonstrated an ability to
independently parent the children and provide necessary, care,
support, and supervision. Even considering the mother’s
continued involvement in services, there is no basis for assuming
she will complete the necessary services and find herself in a
position to receive the children back into the home. For
approximately four years, the parents failed to utilize the
available services and make the necessary efforts to remedy the
conditions which led to intervention by DCS and the Court.
All the children have special needs and require specialized care.
[F.J. and C.O.] were diagnosed with ADHD. [J.O.] was
diagnosed with autism. [M.O.] was also diagnosed with autism,
mother is in denial of [M.O.’s] diagnosis.
Mother has limited capacity of the needs of her children. The
children have witnessed years of trauma while in parental care
and require stability and consistency in their lives. The children
continue to require therapy and are suffering from PTSD from
what they witnessed while they were in parental care. Mother
has asked her children to lie about their past and what they have
witnessed, even though mother knew her children suffered from
PTSD and needed to overcome their traumas. During family
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therapy sessions, the children would become upset with mother
for mother not validating their emotions and not putting the
needs of her children first. Mother would have to be redirected
in her parenting style during the supervised visits with mother.
The mother had to be redirected to keep her children safe. The
children would sometimes get injured during the visits and
mother would be unaware or unable to prevent such injuries.
Mother is unable to validate the children’s emotions and
understand the children’s feelings. Mother was inconsistent with
nurturing her children. The children do not have a loving bond
or relationship with their mother.
*****
No parent is providing any emotional or financial support for the
children. No parent has completed any case plan for
reunification. No parent is in a position to properly parent these
children. The children are in placement and are bonded and
thriving.
Appellant’s App. pp. 3-5.
[16] Mother argues that she currently has housing, has received significant therapy,
has employment, is no longer involved in a domestic violence relationship, and
fully participated in her case plan. She denies recent drug usage but admits to
daily marijuana usage. She contends that DCS “never really attempted to
reunite these children with their mother” and that the Children were not
harmed in her care. Appellant’s Br. p. 14. Despite reunification services dating
back to 2013, Mother is still unable to parent to the Children. She continues to
test positive for illegal substances and fails to take her mental health
medications. At the termination hearing, Mother testified that she smokes
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marijuana every night to help with stress. We acknowledge that she has
secured housing and employment, but she fails to recognize the distress and
harm that her instability has caused the Children. Despite years of services,
Mother still has untreated substance abuse and mental health issues. The trial
court’s findings are not clearly erroneous.
II. Best Interests
[17] Mother also challenges the trial court’s finding that termination of her parental
rights is in the Children’s best interests. In determining what is in the best
interests of a child, the trial court is required to look at the totality of the
evidence. D.D., 804 N.E.2d at 267. In doing so, the trial court must
subordinate the interests of the parents to those of the child involved. Id.
[18] Mother argues that she is young enough to have other children and that the
Children have a right to a relationship with further siblings. She also argues
that she has a right to raise the Children and that the Children will “suffer when
they realize that they will not have any further contact with their Mother.”
Appellant’s Br. p. 15.
[19] The focus here is on the Children’s best interests, not Mother’s wishes. Despite
years of services, Mother has failed to address her substance abuse and mental
health issues. During family therapy, Mother had a pattern of “making it about
her instead of [the Children’s] concerns.” Tr. Vol. II p. 120. Mother was
unable to validate the Children’s feelings and empathize with them. Mother
would sometimes make progress in the therapy sessions but would regress and
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was unable to maintain the progress. Angela Krumrie, therapist and program
supervisor, testified that adoption was in the Children’s best interests.
Particularly for J.O. and M.O, who have autism, structure is “very important to
their everyday life.” Id. at 126. The family case manager testified that
termination of parental rights was in the Children’s best interests because they
need stability, they are thriving in foster care, and they “definitely feel as if their
mom still needs to get herself together.” Id. at 142. The trial court’s findings
regarding the Children’s best interests are not clearly erroneous.
III. Satisfactory Plan
[20] Finally, Mother also challenges the trial court’s finding that there is a
satisfactory plan for the care and treatment of the Children. Indiana courts
have held that for a plan to be “‘satisfactory,’” for the purposes of the
termination statute, it “‘need not be detailed, so long as it offers a general sense
of the direction in which the child will be going after the parent-child
relationship is terminated.’” In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App.
2014) (quoting Lang v. Starke Cnty. Office of Family and Children, 861 N.E.2d 366,
375 (Ind. Ct. App. 2007), trans. denied), trans. denied.
[21] The trial court found:
The children continue to reside in stable foster homes which have
indicated both a willingness and ability to adopt these children.
The children are placed in separate foster homes, but the sibling
relationship continues to the foster parents being relatives to one
another. The children have demonstrated significant
improvements in their placements. There is a strong bond
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between the children and the foster parents. DCS has identified a
satisfactory plan for the long term care and treatment of the
children. It would be detrimental to the best interests of the
children to disrupt the stability of their current placements.
Appellant’s App. Vol. II p. 5. The court then concluded: “The Indiana
Department of Child Services has a satisfactory plan for the care and treatment
of the children which is Adoption by the respective foster parents.” Id. at 6.
Mother argues that DCS has failed to prove it has a satisfactory plan because
there was “no testimony by either foster parent that they would agree to adopt
these children.” Appellant’s Br. p. 15. However, the DCS family case manager
testified that the foster parents were “[w]illing and wanting to adopt the
children.” Tr. Vol. II p. 143. DCS was not required to present the testimony of
specific foster parents regarding whether they are willing to adopt. DCS’s
general plan of adoption is satisfactory. The trial court’s finding is not clearly
erroneous.
Conclusion
[22] The evidence is sufficient to support the termination of Mother’s parental rights
to the Children. We affirm.
[23] Affirmed.
Vaidik, C., J., and Pyle, J., concur.
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