In the Matter of the Termination of the Parent-Child Relationship of M.S. and K.S. (Children) and D.S. (Mother) D.S. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Aug 05 2016, 8:01 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Craig W. Graham Gregory F. Zoeller
Jeffersonville, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination August 5, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of M.S. and K.S. (Children) and 10A01-1512-JT-2376
D.S. (Mother); Appeal from the Clark Circuit
Court
D.S. (Mother), The Honorable Daniel Donahue,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 10C04-1501-JT-1
10C04-1501-JT-2
The Indiana Department of
Child Services,
Appellee-Petitioner.
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May, Judge.
[1] D.S. (Mother) appeals the involuntary termination of her parental rights to
M.S. and K.S. (collectively, Children). We affirm.
Facts and Procedural History
[2] M.S. and K.S. were born to Mother 1 on April 4, 2006, and March 13, 2007,
respectively. On August 6, 2012, the Department of Child Services (DCS) filed
a petition alleging Children were Children in Need of Services (CHINS) based
on Mother’s substance abuse issues, including her intravenous use of heroin in
the presence of Children. The trial court held an initial hearing on the matter
on the same day and authorized the emergency removal of Children from
Mother’s home. On August 21, on Mother’s admission, the trial court
adjudicated Children as CHINS. On September 27, the trial court held a
dispositional hearing and on October 3 it issued dispositional orders requiring
Mother to, among other things, complete substance abuse assessment and
training as well as complete random drug screens.
[3] On December 20, 2012, the trial court held a periodic case review and approved
Mother’s trial home visit. Children were placed back in Mother’s care at that
time. On March 21, 2013, Children were again removed from Mother’s home
1
The fathers do not participate in this appeal. K.S.’s father, A.W., signed a consent to adoption. The record
is unclear regarding the status of M.S.’s father, A.B., as Mother did not include the Termination Order
regarding M.S. in the record filed on appeal.
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because of Mother’s non-compliance with Children’s case plan. On October
17, 2013, and January 16, 2014, the trial court held periodic case review
hearings. During both, the court noted Mother’s non-compliance with the case
plan and dispositional order, as Mother regularly tested positive for illegal
substances and missed therapy sessions.
[4] On March 20, 2014, the trial court held a permanency hearing and changed the
permanency plan for Children from reunification to adoption. On November
20, 2014, the trial court held a periodic case review hearing and noted Mother’s
continued non-compliance with Children’s case plan. By this time, Mother had
tested positive for illegal substances twenty-eight times. On January 5, 2015,
DCS filed petitions to terminate Mother’s parental rights.
[5] The trial court held evidentiary hearings regarding the termination of Mother’s
parental rights to Children on March 19, April 15, and May 21, 2015. Mother
did not attend any of the evidentiary hearings. On December 3, 2015, the trial
court terminated Mother’s parental rights to Children.
Discussion and Decision
[6] We review termination of parental rights with great deference. In re K.S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
the credibility of witnesses. 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 most favorable to the judgment. Id. In deference to the trial court’s
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unique position to assess the evidence, we will set aside a judgment terminating
a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d
204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).
[7] “The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In
re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A juvenile court
must subordinate the interests of the parents to those of the child, however,
when evaluating the circumstances surrounding a termination. In re K.S., 750
N.E.2d at 837. The right to raise one’s own child should not be terminated
solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[8] To terminate a parent-child relationship in Indiana, the State must allege and
prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court’s finding, the date of the finding, and the manner
in which the finding was made.
(iii) The child has been removed from the parent and
has been under the supervision of a county office of family
and children or probation department for at least fifteen
(15) months of the most recent twenty-two (22) months,
beginning with the date the child is removed from the
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home as a result of the child being alleged to be a child in
need of services or a delinquent child;
(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.
(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). The State must provide clear and convincing proof
of these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g
denied. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[9] Mother does not challenge any of the trial court’s findings or conclusions.
Mother contends “D.C.S. failed to meet the burden of I.C. 31-35-2-4(2)(b). 2”
(Br. of Mother at 2) (footnote added). However, she does not indicate which
part of the statute was not met, nor does she make an argument that could be
understood to challenge a portion of the statute. As such, her argument is
waived. See Pasha v. State, 524 N.E.2d 310, 314 (Ind. 1988) (“Bald assertions of
2
We presume this is a typographical error. The relevant statute is Ind. Code § 31-35-2-4(b)(2).
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error unsupported by either cogent argument or citation to authority result in
waiver of any error on review.”).
[10] Waiver notwithstanding, the trial court found Mother did not comply with
numerous requirements of the dispositional orders, noting her continued issues
with substance abuse and her inability to complete treatment. There existed a
satisfactory plan for the care and treatment of Children following termination.
Finally, Children had been removed from Mother for fifteen of the last twenty
two months at the time Mother’s rights were terminated. There is ample
evidence in the record to support those findings, which support the court’s
decision to terminate Mother’s parental rights. See In re C.A., L.A., and M.A., 15
N.E.3d 85, 95 (Ind. Ct. App. 2014) (termination of parental rights affirmed
based on totality of evidence, findings supported by that evidence, and
conclusions pursuant to statute).
[11] Mother also argues “she could have benefitted from more drug treatment. With
further treatment she could have complied with the Dispositional Order.” (Br.
of Mother at 2.) A “failure to provide services does not serve as a basis on
which to directly attack a termination order as contrary to law.” In re J.W., Jr.,
27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015), trans. denied. We therefore cannot
find error on that ground.
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Conclusion
[12] DCS presented sufficient evidence to support the termination of Mother’s
parental rights to Children, and Mother’s argument regarding services cannot
be raised as part of an appeal of the termination of her parental rights.
Accordingly, we affirm.
[13] Affirmed.
Kirsch, J., and Crone, J., concur.
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