In the Termination of the Parent-Child Relationship of: A.B. and D.B. (Minor Children) and J.L. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 04 2019, 7:58 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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
Kimberly A. Jackson Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- September 4, 2019
Child Relationship of: Court of Appeals Case No.
19A-JT-641
A.B. and D.B. (Minor Children)
Appeal from the Vigo Circuit
and Court
J.L. (Mother) The Honorable Sarah K. Mullican,
Appellant-Respondent, Judge
The Honorable Daniel W. Kelly,
v. Magistrate
Trial Court Cause Nos.
Indiana Department of Child 84C01-1805-JT-626, 84C01-1805-
Services, JT-627
Appellee-Petitioner
Altice, Judge.
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Case Summary
[1] J.L. (Mother) appeals following the termination of her parental rights to A.B.
and D.B., Jr. (collectively, the Children). On appeal, Mother argues that the
evidence is insufficient to support the court’s termination of her parental rights
to the Children.
[2] We affirm.
Facts & Procedural History
[3] D.B. (Father) 1 and Mother are the biological parents of A.B., born August 25,
2012, and D.B., Jr., born August 5, 2013. 2 On June 7, 2016, the Department of
Child Services (DCS) filed, under separate cause numbers, petitions alleging
that the Children were children in need of services (CHINS). At an initial
hearing on June 21, 2016, Mother and Father admitted to the allegations in the
CHINS petitions as follows:
a. On or about March 22, 2016, the [DCS] hotline received a
report that there was a chemical smell coming from the [family’s]
trailer . . ., and that it burned your nose to smell it and that there
were two young children in the home;
1
The court also terminated Father’s parental rights to the Children. Father, however, does not participate in
this appeal. We thus set forth the facts only as they relate to Mother.
2
Mother has an older child who has been adopted by Mother’s mother (Maternal Grandmother). In
September 2017, while the CHINS case was pending, Mother gave birth to a fourth child.
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b. [Family Case Manager (FCM)] Gonthier went to the home on
March 25, 2016, and observed the home to be very cluttered,
dirty dishes and trash throughout the home, there was very little
food in the home;
c. Mother advised FCM that she was out of food stamps and
would not receive next month[’]s until April 5, 2016;
d. [Mother] advised FCM that [Maternal Grandmother] would
be bringing her food later in day [sic];
e. FCM asked [M]other to drug screen and she immediately
began crying and stated that she had used methamphetamine the
day before;
f. Mother’s drug screen from March 25, 2016 was positive for
methamphetamine;
g. [Maternal Grandmother] came to the home with food;
h. The [M]aternal [G]randmother . . . agreed to be the sober
caregiver and signed a safety plan to do so;
i. That [F]ather refused to drug screen unless there was a Court
Order;
j. On April 8, 2016 FCM went to the home and it was messy and
clutter[ed] and [M]other advised FCM that they were being
evicted.
k. [Mother] showed FCM a hole punched in the wall that she
stated she had done and that she needed help with anger
management.
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l. That both parents repeatedly told FCM that everything was
fine and they didn’t need services;
m. The family was evicted and now are living with [Mother’s]
grandmother, the [C]hildren’s great grandmother.
n. Due to [the] high risk associated with methamphetamine use,
the young age of the [C]hildren, the condition of the home, lack
of food, and [M]other’s self-disclosure of anger issues the DCS
believes that the [C]hildren are in imminent risk of abuse and
neglect and that the coercive intervention of the Court is
necessary to ensure that services are in place and followed by the
family.
Exhibits 27-28, 32-33. The court adjudicated the Children to be CHINS. At that
time, however, the Children were not removed from the home.
[4] On August 5, 2016, the court entered its dispositional order, requiring Mother
to maintain weekly contact with DCS and service providers, enroll in all
programs recommended by DCS and/or service providers, maintain suitable
housing, secure employment, not use illegal drugs, complete a substance-abuse
assessment and all recommendations, and submit to random drug screens with
any screen not completed in a timely manner considered a positive result.
[5] On December 8, 2016, after Mother tested positive for and admitted using
methamphetamine, the Children were removed from her care. At that time,
DCS also noted a lack of compliance with services, ongoing concerns about a
lack of a sober caregiver, and ongoing concerns about the cleanliness of the
Children. Following a dispositional modification hearing on December 12,
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2016, the court approved of the Children’s placement in foster care and ordered
Mother to participate in supervised visits.
[6] Over the course of the next few months, Mother completed the medication
evaluation and started medication management services at Hamilton Center for
her psychiatric conditions, including bi-polar disorder, ADHD, anxiety,
depression, PTSD, and possible split personality disorder. Mother also
completed a substance-abuse assessment on April 3, 2017. Mother, however,
attended only two or three days of the eight-week group therapy recommended
for her substance abuse.
[7] Beginning in May 2017, Mother secured stable housing and employment and
kept in regular contact with FCM Charissa Antrobus as well as service
providers. Mother rented a house owned by and across the street from
Maternal Grandmother’s home. Mother attended her supervised visits and
developed a bond with the Children. Mother was also consistent in submitting
to drug screens. FCM Antrobus testified that Mother was “very determined
and focused” on getting the Children home. Transcript at 60. Given Mother’s
compliance with services, DCS increased the frequency of Mother’s visits with
the Children. On December 22, 2017, DCS permitted the Children to be
returned to Mother’s care for a trial home visit.
[8] In February 2018, Maternal Grandmother reported to DCS that the Children
complained of being hungry and that Mother often left the Children in the care
of their great-grandmother, who also lived in the house, while Mother slept.
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DCS removed the Children from Mother’s home on February 27, 2018.
According to FCM Antrobus, the “determining factor” for ending the trial
home visit was that Mother submitted a positive drug screen. 3 Id. at 69. Over
the next few months, Mother struggled with substance abuse, was unable to
maintain stable housing, and did not visit with the Children. Due to Mother’s
non-compliance with services, DCS put services “on hold.” Id. at 54. On June
25, 2018, DCS filed its petition to terminate Mother’s parental rights to the
Children. A fact-finding hearing was held on September 25, 2018, and January
28, 2019.
[9] At the September fact-finding hearing, Mother admitted she has a substance-
abuse problem and that she has struggled with methamphetamine for “two,
three years off and on.” Id. at 15. Mother explained that she started using
methamphetamine because she was “working . . . seven days a week, twelve
hour shifts plus doing on-line classes and taking care of the two kids by myself
basically. Not getting no sleep, going to work half asleep or falling asleep at
work.” Id. Mother claimed she only uses methamphetamine to “stay awake
and function.” Id. at 27. She admitted that “major life events have triggered
most of her relapses.” Id. at 33-34.
[10] Mother also admitted that she had stopped participating in services after the
Children were removed in February. She stopped regularly submitting to drug
3
DCS also removed Mother’s youngest child, who then was only a few months old, and started CHINS
proceedings with respect to that child.
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screens, admitting that she missed “too many to count.” Transcript at 20. Of
the drug screens to which Mother did submit, all were positive for
methamphetamine. Her last positive screen was eleven days before the
September hearing. Mother was charged with possession of methamphetamine
on June 4, 2018. Mother had not visited with the Children since they were
removed in February. Mother was also evicted from her home and for several
months, lived “[h]ere and there. On the streets basically.” Id. at 13. At the
time of the September fact-finding hearing, Mother was not working. She relied
on friends to pay her rent and pay for her vehicle.
[11] The court adjourned the September 25 hearing and set an additional hearing
date for January 28, 2019. Mother understood that after the September hearing
she needed to “aggressively engage in services” if she wanted her Children
returned to her care. Id. at 108. After the September hearing, Mother was
evicted from where she was living because she used methamphetamine. She
explained, “I’d rather go out and get high than pay my bills is what it was down
to.” Id. at 102. Mother was on the streets until she went to a domestic violence
shelter in Terre Haute. Mother was “asked” to leave that program because she
“didn’t go to rehab.” Id. at 144.
[12] In October 2018, Ramona Holland, a court appointed special advocate (CASA)
assigned to the Children for purposes of the termination proceedings, 4 initiated
4
CASA Holland was initially appointed in the Clay County CHINS case regarding Mother’s youngest child
and interacted with Mother and the Children prior to her appointment in these proceedings.
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a no-contact order against Mother in October 2018. The no-contact order was
in response to Mother’s attempts to see the Children while they were at school.
According to CASA Holland, Mother also threatened multiple times to murder
various individuals associated with the CHINS cases if she did not get the
Children back and also threatened to kill herself.
[13] On December 21, 2018, Mother went to Stepping Stones for substance-abuse
treatment. Mother refused to stay, however, because, according to Mother, she
was “treated like a prisoner” and “just didn’t feel comfortable.” Id. at 104.
Mother testified that she did not like the tone of their voices and that they tried
to make her throw away her e-cigarette and her phone.
[14] Mother tried to do a substance abuse assessment in December 2018, but the
service referral had expired. Mother testified that she planned to schedule a
walk-in appointment. Two weeks prior to the January hearing, Mother again
started medication management. Maternal Grandmother testified that she did
not believe that Mother’s medications were helpful and that Mother does not
always take her medications.
[15] Mother did not visit the Children until nearly two months after the September
hearing. Since their removal in February, Mother visited the Children only six
times out of thirty possible visits and appeared impaired during some of the
visits. Her last visit with the Children was on December 14, 2018.
[16] FCM Antrobus opined that the reasons for DCS’s involvement were not likely
to be remedied, noting that the case had been open for nearly three years. She
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testified that the Children need stability and need to know where they are going
to be for more than a few months. She was of the opinion that returning the
Children to Mother’s care would be harmful to the Children because of
Mother’s drug use and inconsistency. FCM Antrobus expressed concern about
Mother’s inability to maintain sobriety given Mother’s admitted relapse
triggers. FCM Antrobus acknowledged that Mother was “highly capable of
being a decent parent.” Id. at 73. She explained, however, that “we just go
back to the addiction and the issues of substance use and how triggers can easily
lead to a relapse and unfortunately in life there’s many triggers and there’s
many things that could lead to relapse and that would be at the expense of [the
C]hildren and that definitely concerns me.” Id.
[17] FCM Alisha Hon took over the case on December 14, 2018. She testified that
reunification was not an option because Mother did not have a stable home, the
length of time the case had been open, and Mother had just started medication
management two weeks before the January hearing date. She also cited
concerns with Mother’s choice in relationships, noting that she seeks out
individuals who can take care of her but “they’re not always the best
influences.” Id. at 147. FCM Hon noted that the most recent individual
Mother was living with was arrested in October 2018 for possession of
methamphetamine.
[18] CASA Holland likewise recommended termination based on Mother’s unstable
housing, drug use, and threats to kill individuals associated with the case in
addition to threats to kill herself. She testified that the Children need
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permanency and should not need to wonder “where am I going to be” if
Mother “has a meltdown” and “goes back to drugs.” Id. at 177.
[19] With regard to placement of the Children, after they were removed in February
2018, DCS placed them with Maternal Grandmother. In October 2018,
Maternal Grandmother advised DCS that she could no longer care for them.
DCS placed the Children in a foster home, where they remain together. DCS’s
plans for the Children include adoption by a foster family or perhaps a relative
placement.
[20] At the January 2019 hearing, Mother testified that she had obtained housing
and transportation, had taken steps to address domestic violence in the home
and separate herself from bad influences, had enrolled in online college courses,
and had been sober since late November 2018. Mother testified that she
believes she can successfully complete all required services within two months
and requested that she be given the opportunity to do so.
[21] At the conclusion of the hearing, the court took the matter under advisement.
On February 7, 2019, the court entered its ordering terminating Mother’s
parental rights to D.B. On February 11, 2019, the court entered its order
terminating Mother’s parental rights to A.B. Mother now appeals both orders.
Additional facts will be provided as necessary.
Discussion & Decision
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[22] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the 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 unique position to assess the evidence, we will set aside its
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. Thus, if the
evidence and inferences support the decision, we must affirm. Id.[23] The trial court entered findings in its order terminating Mother’s parental rights.
When the trial court enters specific 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). First, we determine whether the
evidence supports the findings, and second, we determine whether the findings
support the judgment. Id. A judgment is clearly erroneous only if the findings
do not support the court’s conclusions or the conclusions do not support the
judgment thereon. Id.[24] We recognize that 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.
Although parental rights are of constitutional dimension, the law provides for
the termination of these 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). In addition, a court must subordinate the interests of the parents to those
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of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.[25] Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by “clear and convincing evidence,” among
other things:
(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[.]
Ind. Code § 31-37-14-2; Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove
by clear and convincing evidence that termination is in the best interests of the
child. I.C. § 31-35-2-4(b)(2)(C).
[26] Mother does not challenge any of the court’s findings of fact. Thus, the issue
before us is whether the unchallenged findings support the court’s judgment. In
re S.S., 120 N.E.3d 605, 611 (Ind. Ct. App. 2019) (noting that “because neither
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Father nor Mother has challenged these findings on appeal, we must accept
these findings as true”) (citing Bester, 839 N.E.2d at 147).
[27] Mother challenges the court’s conclusions as to subsection (b)(2)(B)(i) and (ii).
We note that DCS was required to establish only one of the three requirements
of subsection (b)(2)(B) by clear and convincing evidence before the court could
terminate parental rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App.
2003). Here, the court found that DCS presented sufficient evidence to
conclude that there is a reasonable probability the conditions resulting in the
Children’s removal or continued placement outside Mother’s care will not be
remedied and that continuation of the parent-child relationship poses a threat to
the Children’s well-being. See I.C. § 31-35-2-4 (b)(2)(B)(i), (ii). We focus our
review on the requirements of subsection (b)(2)(B)(i).
[28] In determining whether there is a reasonable probability that the conditions
resulting in the Children’s removal or continued placement outside Mother’s
care will not be remedied, the trial court must judge a parent’s fitness to care for
his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App.
2001), trans. denied. The court must also evaluate the parent’s habitual patterns
of conduct to determine whether there is a substantial probability of future
neglect or deprivation of the child. Id. In making this determination, courts
may consider 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. A.F. v. Marion Cty. Office of Family & Children, 762
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N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The court may also
consider the parent’s response to the services offered through DCS. Lang v.
Starke Cty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007),
trans. denied.
[29] Mother argues that the court’s conclusion in this regard is clearly erroneous and
premature. She asserts that she has shown she is “capable of overcoming her
drug abuse” and that she is “well on her way and has indicated her intent to
maintain her sobriety and reclaim her children.” Appellant’s Brief at 23, 24.
Mother points out that after the September 2018 hearing, she sought medical
assistance, started taking her mental health medications, obtained housing and
transportation, and attempted to engage in services aimed at addressing her
drug addiction. Mother is essentially requesting us to reweigh the evidence,
which we will not do. See D.D., 804 N.E.2d at 265.
[30] After the Children were removed in February 2018, Mother put forth minimal
effort to participate in services. She admitted that she missed “too many drug
screens” to count and that when she did screen, the results were positive.
Transcript at 20. Mother also admitted that she was essentially homeless, living
on the streets for a period of time. Mother also did not visit with the Children.
[31] Mother’s situation did not improve much after the September 25 hearing at
which she was told she needed to “aggressively engage in services” if she
wanted the Children returned to her care. Id. at 108. Mother did not visit the
Children until November and had not visited with the Children since December
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14, 2018. Mother also walked out of a substance-abuse treatment facility
because she did not like the rules, relied on friends to pay her rent and for her
transportation, and waited until two weeks prior to the January hearing to start
participating in medication management for her psychological disorders.
Mother had nearly three years to remedy the conditions that led to removal of
the Children and their continued placement outside her home. During that
time, Mother made poor decisions for herself and the Children, relapsed, and
thereafter continued to use methamphetamine, failed to address her mental
health issues, failed to complete services, failed to maintain suitable housing,
and failed to visit the Children. At the time of the final hearing, Mother had
not demonstrated an ability to care for the Children or that she should be
afforded more time to engage in services.
[32] Mother’s pattern of substance abuse and her minimal effort to engage in
services since the Children were removed in February 2018 support the court’s
conclusion that there is a reasonable probability that the conditions resulting in
removal of the Children and their continued placement outside Mother’s home
will not be remedied.
[33] Mother also argues that the court’s conclusion that termination is in the
Children’s best interests is clearly erroneous. To determine what is in the
children’s best interests, the court must look to the totality of the evidence. In re
A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so,
the court must subordinate the interests of the parents to those of the children.
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[34] Mother argues that giving her additional time to participate in and complete
services is in the Children’s best interests. She cites FCM Antrobus’s testimony
that Mother has the potential to be a good mother. Again, Mother is simply
requesting that we reweigh the evidence. Although acknowledging that Mother
“is highly capable of being a decent parent,” FCM Antrobus opined that the
reasons for removal were not likely to be remedied and expressed concern that
returning the Children to Mother’s care would harm the Children due to
Mother’s inconsistency and her inability to maintain sobriety. While Mother
was able to achieve sobriety, such sobriety was short-lived and was followed by
a year of non-compliance with services.
[35] Further, we note that two FCMs and a CASA discussed the Children’s need for
permanency and stability and testified that termination of Mother’s parental
rights is in the best interests of the Children. See In re J.S., 906 N.E.2d 226, 236
(Ind. Ct. App. 2009) (“the recommendations of the case manager and court-
appointed advocate to terminate parental rights, in addition to evidence that the
conditions resulting in removal will not be remedied, is sufficient to show by
clear and convincing evidence that termination is in the child’s best interests”).
The trial court’s best interest conclusion is not clearly erroneous.
[36] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
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