In re the Termination of the Parent-Child Relationship of N.H. (Minor Child), and J.G. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Dec 09 2016, 9:23 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew J. Sickmann Gregory F. Zoeller
Boston Bever Klinge Cross & Chidester Attorney General of Indiana
Richmond, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the December 9, 2016
Parent-Child Relationship of Court of Appeals Case No.
N.H. (Minor Child), 89A04-1606-JT-1262
and Appeal from the Wayne Superior
Court 3
J.G. (Mother),
The Honorable Darrin M.
Appellant-Respondent, Dolehanty, Judge
v. Trial Court Cause No.
89D03-1602-JT-5
Indiana Department of Child
Services,
Appellee-Petitioner.
Mathias, Judge.
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[1] J.G. (“Mother”) appeals the order of the Wayne Superior Court terminating her
parental rights to her minor child, N.H. (“Son”). On appeal, Mother claims that
there is insufficient evidence to support the trial court’s determination that there
is a reasonable probability that the conditions that led to Son’s removal from
Mother’s care would not be remedied.
[2] We affirm.
Facts and Procedural History
[3] Son was born in October 2014 to Mother and N.H. (“Father”). At birth, Son
tested positive for both marijuana and opiates. Also, while in Mother’s care in
the hospital, Son fell from the bed. As a result, the Indiana Department of Child
Services (“DCS”) began an investigation. During this investigation, Mother
admitted to using marijuana and methadone but claimed to have a valid
prescription for the methadone. Mother also admitted that Son had fallen out of
bed when she fell asleep.
[4] On January 5, 2015, DCS filed a petition alleging that Son was a Child in Need
of Services (“CHINS”). The parents subsequently admitted that Son was a
CHINS at an initial hearing held on January 30, 2015. Initially, Son remained
in the care of Father. However, on February 17, 2015, the trial court authorized
Son’s removal from Father’s care due to ongoing substance abuse and domestic
violence between Father and Mother.
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[5] At the time of Son’s removal, the parents’ home was filthy and smelled of feces.
Garbage and feces were all over the kitchen floor. Shortly after Son’s removal,
the parents left that home. Thereafter, Mother and Father were homeless.
[6] At a dispositional hearing held on February 20, 2015, the trial court ordered
Mother to participate in a counseling program that would be referred to her by
DCS, complete a substance abuse assessment and comply with all
recommendations of the assessment, submit to random drug and alcohol
screenings, attend scheduled visitations with Son, and refrain from the use of
illicit drugs.
[7] DCS referred mother to Harbor Lights for detox and Meridian for a variety of
services, including individual counseling, family counseling, a substance abuse
assessment, and intensive outpatient substance abuse treatment. Mother,
however, did not complete her detox treatment at Harbor Lights; she instead
left the program against medical advice. Mother did not subsequently complete
a detox program. Mother did complete the substance abuse assessment at
Meridian before her unsuccessful stint at Harbor Lights. However, she did not
complete the intensive outpatient treatment and only visited the counselor “a
couple of times.” Tr. p. 156.
[8] Mother also continued her substance abuse during the CHINS case. Indeed, in
addition to her admission to using marijuana and methadone during the initial
assessment, Mother admitted that she had used a variety of drugs, including,
Suboxone, Xanax, “pills,” heroin, and methamphetamine. Mother also had five
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positive drugs screens in August 2015. Thereafter, Mother agreed to meet with
her family case manager to submit to additional drug testing. However, Mother
did not always follow through, and although the case manager could not recall
precisely how many drug tests were positive, she testified that Mother did
continue to test positive for drug use. Mother’s second family case manager
testified that Mother failed to submit nine scheduled drug tests. As late as
January 2016, Mother tested positive for methamphetamine use.
[9] Mother was also not fully compliant with the requirement that she regularly
participate in visitations with Son. Visitations were scheduled twice per week,
but Mother consistently missed approximately half of these scheduled visits.
Also, Mother’s behavior during the visits she did attend was, at times, unusual.
The visitations where held at a DCS office due to Mother’s behavior, which
included her becoming angry and aggressive toward DCS staff and failing to
accept criticism. The family case manager believed that Mother was intoxicated
or under the influence during several visits based on her erratic behavior.
During one visitation, Mother repeatedly went into the bathroom with her
backpack, leaving Son unattended while she did so. In July 2015, DCS was
unable to locate Mother, and she attended none of the scheduled visitations.
[10] On August 21, 2015, the State charged Mother with possession of
paraphernalia. Mother pleaded guilty four days later and was sentenced to a
sixty-day suspended sentence and probation. On September 21, 2015, the State
filed a petition to revoke Mother’s probation. A warrant was issued for
Mother’s arrest, and the chronological case summary (“CCS”) for the criminal
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case reveals that she was arrested for this and “new charge(s).” Ex. Vol. p. 28.
This CCS entry also indicated that Mother was “too intoxicated to bring to
court for hearing today.” Id. Mother admitted to violating her probation, and
her probation was revoked.
[11] At a periodic review hearing held on August 10, 2015, the trial court found that
Mother was not participating in services and that she was homeless and
unemployed. Thereafter, DCS filed a petition to hold Mother in contempt of
the trial court’s dispositional order. On August 24, 2015, the trial court found
Mother in contempt for failing to participate in services and visitation and for
continuing to use illicit drugs. The trial court imposed a sixty-day sentence but
suspended the sentence so long as Mother complied with the dispositional
order. Mother failed to do so, and the trial court found her in contempt again
on November 5, 2015. The court ordered Mother to serve twenty-four days in
jail and attend an intake appointment at Centerstone; if Mother failed to do so,
the court indicated it would impose the balance of the original sixty-day
sentence.
[12] Mother did complete a substance abuse assessment at Centerstone after she was
released from incarceration. Centerstone recommended that Mother participate
in intensive outpatient drug treatment and undergo psychiatric and medical
examinations. Mother participated in the intensive outpatient treatment at
Centerstone but was eventually discharged from the program for lack of
attendance and continued substance abuse. Due to Mother’s continued drug
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use, Centerstone was never able to complete the medical or psychiatric
evaluations.
[13] In December 2015, Mother was referred to a third-party service provider for her
supervised visitations with Son. During these twice-weekly visits, Mother had
difficulty maintaining Son’s attention, as Son tended to interact more with
Father. In addition, during these visitations, Mother disturbingly referred to
Son as “my little Jew,” and “Hitler.” Tr. p. 102. Moreover, as of the April 2016
termination hearing, Mother had last visited Son in January of that year.
Apparently, Mother had again been incarcerated for possession of
paraphernalia, and would not be released until May 2016. Mother was also
facing pending charges for possession of a legend drug. 1
[14] In February 2016, Son’s permanency plan was changed from reunification with
the parents to termination of the parents’ parental rights. On February 9, 2016,
DCS filed a petition to terminate Mother and Father’s parental rights to Son.
Both Mother and Father initially agreed to voluntarily relinquish their parental
rights. Mother, however, later withdrew her consent to the termination. The
trial court then held an evidentiary hearing on the termination petition on April
26, 2016, and entered an order terminating Mother’s parental rights on May 5,
2016. Mother now appeals.2
1
See Ind. Code ch. 16-42-19 (Indiana Legend Drug Act).
2
Father does not participate in this appeal.
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Termination of Parental Rights
[15] The purpose of terminating parental rights is not to punish parents but instead
to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. Indeed, parental interests must be subordinated to
the child’s interests in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).
[16] Indiana Code section 31-35-2-4(b)(2) provides that a petition to terminate
parental rights must allege:
(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.
[17] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; G.Y., 904 N.E.2d at 1261. Because Indiana Code section 4(b)(2)(B)
is written in the disjunctive, the trial court is required to find that only one
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prong of subsection (b)(2)(B) has been established by clear and convincing
evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010).
[18] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). It is instead
sufficient to show by clear and convincing evidence that the child’s emotional
and physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[19] We have long had a highly deferential standard of review in cases involving the
termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.
2011). We neither reweigh the evidence nor assess witness credibility. Id. We
consider only the evidence and reasonable inferences favorable to the trial
court’s judgment. Id. In deference to the trial court’s unique position to assess
the evidence, we will set aside a judgment terminating a parent-child
relationship only if it is clearly erroneous. Id. Clear error is that which leaves us
with a definite and firm conviction that a mistake has been made. J.M. v. Marion
Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.
denied.
Discussion and Decision
[20] On appeal, Mother claims that there was insufficient evidence to support the
trial court’s findings that she still struggled with an addiction to illicit drugs.
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Mother focuses her argument on the fact that DCS did not admit into evidence
the results of the drugs screens she failed. We understand Mother’s argument to
be that DCS failed to meet its burden to show, by clear and convincing
evidence, that there was a reasonable probability that the conditions that
resulted in the Son’s removal or the reasons for his placement outside the
parents’ home, i.e., Mother’s substance use problem, would not be remedied.3
[21] When deciding whether there is a reasonable probability that the conditions
resulting in a child’s removal or continued placement outside of a parent’s care
will not be remedied, the trial court must determine a parent’s fitness to care for
the child at the time of the termination hearing while also taking into
consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the trial court
may disregard efforts made only shortly before termination and weigh more
heavily a parent’s history of conduct prior to those efforts. In re K.T.K., 989
N.E.2d 1225, 1234 (Ind. 2013).
[22] Here, notwithstanding Mother’s assertions to the contrary, there was ample
evidence from which the trial court could conclude that the reason for Son’s
removal from Mother’s care, specifically that Mother’s drug abuse, continued
and would not be remedied. Indeed, the evidence presented to the trial court
3
Mother makes no cognizable argument that DCS failed to meet its burden of proof on the remaining
elements it was required to prove: that Son had been removed from the parents’ care for the requisite period
of time, that termination of Mother’s parental rights was in Son’s best interests, and that DCS had a
satisfactory plan for the care and treatment of Son. We therefore do not address these elements.
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was sufficient to establish that Mother has a serious and untreated substance
abuse problem. Son was born with drugs in his system, and Mother admitted to
using drugs during her pregnancy. Thereafter, from the time that Son was
removed from Mother’s care until Son’s care permanency plan was changed
from reunification to termination, Mother had more than one year to make
significant progress in the treatment of her drug addiction, but she never did.
Mother underwent a substance abuse assessment but never completed any of
the substance abuse treatment programs to she was referred. Instead, she was
removed from the intensive outpatient treatment program for her continued
drug abuse. Mother also showed up to visitations apparently under the
influence. Mother missed several drug screens and tested positive for others.
Furthermore, Mother was arrested and convicted for possession of
paraphernalia and was facing charges for possession of a legend drug. Clearly,
Mother has a history of drug abuse which has yet to be successfully addressed.
[23] Therefore, the trial court did not clearly err when it concluded that DCS had
presented clear and convincing evidence establishing that there was a
reasonable probability that the conditions that resulted in the Son’s removal or
the reasons for his placement outside the parents’ home would not be remedied.
As this is Mother’s only argument, we affirm the order of the trial court
terminating Mother’s parental rights to Son.
[24] Affirmed.
Baker, J., and Pyle, J., concur.
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