In re the Termination of the Parent-Child Relationship of L.L. (Minor Child) and J.L. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 09 2019, 8:36 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
John R. Worman Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Abigail R. Recker
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the October 9, 2019
Parent-Child Relationship of Court of Appeals Case No.
L.L. (Minor Child) and 19A-JT-891
J.L. (Mother), Appeal from the Vanderburgh
Superior Court
Appellant-Respondent,
The Honorable Brett J. Niemeier,
v. Judge
Trial Court Cause No.
Indiana Department of Child 82D04-1811-JT-2122
Services,
Appellee-Petitioner.
Mathias, Judge.
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[1] The Vanderburgh Superior Court terminated J.L.’s (“Mother”) parental rights
to her minor child. Mother appeals and raises two issues, which we restate as:
I. Whether the Indiana Department of Child Service’s (“DCS”)’s failure
to provide Mother with a mental health referral violated her due
process rights; and,
II. Whether the trial court’s order terminating her parental rights is
supported by clear and convincing evidence.
[2] We affirm.
Facts and Procedural History
[3] L.L. was born on January 14, 2013.1 Shortly thereafter, L.L. was removed from
Mother’s care because she had used methamphetamine. L.L. was returned to
Mother’s care in May 2014 after Mother completed court-ordered services.2
[4] In April 2016, DCS removed L.L. from Mother’s home for a second time
because she was using methamphetamine and was in possession of non-
prescribed substances. Paraphernalia, methamphetamine, and pills were found
within three-year-old L.L.’s reach, near his toys.
1
L.L.’s biological father’s parental rights were terminated in a separate cause.
2
However, Mother was unsatisfactorily discharged from Drug Court because she forged her attendance at
AA/NA meetings.
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[5] On April 29, 2016, DCS filed a petition alleging that L.L. was a Child in Need
of Services (“CHINS”). L.L. was adjudicated a CHINS on May 11, 2016.
Mother was ordered to abstain from use of drugs and alcohol, undergo
substance abuse and mental health evaluations, submit to random drug screens,
participate in supervised or monitored visitations, and remain in contact with
the family case manager.
[6] On the same date that the CHINS petition was filed, Mother was charged with
Level 6 felony neglect of a dependent, Level 6 felony maintaining a common
nuisance, Level 6 felony possession of methamphetamine, two counts of Class
A misdemeanor possession of a controlled substance, and Class C
misdemeanor possession of paraphernalia. After the State agreed to reduce the
felony charges to misdemeanors, Mother pleaded guilty to all charges and was
ordered to serve eighteen months in the Drug Abuse Probation Services
Program.
[7] Mother was not compliant with the conditions of that program, and three
petitions to revoke were filed by her probation officer due to non-compliance.
The first, filed in January 2017, was due to Mother’s failure to submit to a drug
screen and failure to participate in substance abuse treatment. The second, filed
in February 2017, was due to her failure to submit to a drug screen and pay
probation fees. The third, filed in March 2017, was due to a positive test for
methamphetamine. Mother was unsatisfactorily discharged from the program
after the third violation.
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[8] Mother also failed to comply with court-ordered services in the CHINS
proceedings, including failure to submit to drug screens. As a result, during the
CHINS proceedings, two verified informations for rule to show cause were filed
against Mother.
[9] After the first rule to show cause was filed in the fall of 2016, Mother’s
compliance with services briefly improved, including her participation in drug
rehabilitation services. Therefore, L.L. was returned to Mother’s care for a
temporary trial home visit on December 20, 2016. Approximately two weeks
later, the child was removed from Mother’s care because she stopped
participating in random drug screens, and she was taken into custody by law
enforcement after the first petition to revoke was filed in her criminal case.
[10] Mother resides with her fiancé, who has a history of manufacturing, possessing,
and using methamphetamine. Mother admitted to using methamphetamine
with her fiancé. Mother’s fiancé was ordered to participate in services, but he
“participated only minimally in the case.” Appellant’s App. p. 15. Her fiancé
“has not been supportive of Mother pursuing reunification with [L.L.]” Id.
[11] Mother lived with her father, L.L.’s grandfather, before she moved in with her
fiancé. Her father also uses methamphetamine, and Mother admitted to using
with her father. And Mother admitted delivering methamphetamine to her
father. Id. at 17.
[12] Mother agrees that children require a sober caregiver, yet she failed to maintain
her own sobriety throughout the CHINS and termination proceedings. Mother
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admitted to using methamphetamine in March 2017 but denied any other use.
However, she tested positive for methamphetamine in July 2017, October 2018,
and December 2018.
[13] Mother completed substance abuse treatment on July 5, 2017, but continued to
use methamphetamine. Mother refused to participate in additional treatment
that was offered to her. She tested positive for alcohol use even though she was
also ordered not to consume alcohol. Mother also missed approximately half of
the drug screens offered by her family case managers. Mother admits that she is
an addict and uses methamphetamine because she is depressed.
[14] Mother participated in visitation with L.L., and the visitation reports were
generally positive. However, she was frequently late to visitation and missed
visitation while she was incarcerated for the three probation violations. Each
time visitation progressed beyond supervised visitation, Mother would miss a
drug screen or test positive for methamphetamine resulting in a return to
supervised visitation for Mother and L.L.
[15] Mother is unemployed and relies on her fiancé for financial support. Mother
has not expressed any inclination or interest in maintaining an independent
source of income for herself or her child. Mother’s continued stability is
dependent on her fiancé who is also a methamphetamine addict.
[16] DCS filed a petition to terminate Mother’s parental rights on November 19,
2018. On January 2, 2019, before the scheduled fact-finding hearing, the family
case manager made a scheduled visit to Mother’s home. The home was not
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suitable for a child. Empty beer bottles were lying in the backyard. Boxes
blocked the front door and access to other rooms leaving only a small path
between the living room and kitchen. Because the home’s bedrooms were
unsuitable, Mother and her fiancé were using the living room as a bedroom.
[17] The fact-finding hearing was held on February 14, 2019. The trial court
concluded that Mother’s continuing methamphetamine use and risk of relapse
is “very high, given Mother’s past performance.” Appellant’s App. p. 21. In
addition, the trial court found:
26. Mother’s absolute lack of participation to demonstrate her
sobriety and stability in order to regain custody of the child
leaves the Court without a doubt that Mother is unwilling and
unable to fulfill her parental obligations to the child.
27. Overall, Mother has failed to remedy the situation that
brought about the removal of the [child]. Based on the pattern of
behaviors and continuing pattern of substance abuse by Mother,
the Court finds that there is not a reasonable probability the
situation which brought about the removal of the child is likely to
be remedied. The Court finds that Mother’s past behavior is the
best predictor of her future behavior.
Id. The court also concluded that continuation of the parent-child relationship
poses a threat to L.L.’s wellbeing because of Mother’s continued drug use. And,
L.L. “has already suffered years without being with his Mother due to []
Mother’s drug usage. The emotional and mental health issues associated with
this lack of stability can have lifelong significance.” Id. at 22. The court also
concluded that termination of Mother’s parental rights was in L.L.’s best
interest.
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[18] Mother now appeals the trial court’s order termination her parental rights to her
minor child, L.L.
I. Due Process
[19] First, Mother argues that she was denied due process because DCS failed to
provide a referral for mental health treatment. She argues the services were
necessary, and therefore, DCS was required to request dismissal of its petition
to terminate her parental rights pursuant to Indiana Code section 31-35-2-
4.5(d)(3). It is well-settled that when the State seeks to terminate the parent-
child relationship, it must do so in a manner that meets the requirements of due
process. Hite v. Vanderburgh Cty. Office of Family & Children, 845 N.E.2d 175, 181
(Ind. Ct. App. 2006).
[20] In pertinent part, Indiana Code section 31-35-2-4.5(d)(3) provides:
(d) A person described in section 4(a) of this chapter may file a
motion to dismiss the petition to terminate the parent-child
relationship if any of the following circumstances apply: . . .
(3) That:
(A) IC 31-34-21-5.6 is not applicable to the child;
(B) the department has not provided family services
to the child, parent, or family of the child, in
accordance with applicable provisions of a currently
effective case plan prepared under IC 31-34-15 or IC
31-37-19-1.5, or a permanency plan or dispositional
decree approved under IC 31-34 or IC 31-37; and
(C) the services that the department has not
provided are substantial and material in relation to
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implementation of a plan to permit safe return of the
child to the child’s home.
***
The motion to dismiss shall specify which of the allegations
described in subdivisions (1) through (4) apply to the motion. If
the court finds that any of the allegations described in
subdivisions (1) through (4) are true, as established by a
preponderance of the evidence, the court shall dismiss the
petition to terminate the parent-child relationship. In determining
whether to dismiss a petition to terminate a parent-child
relationship pursuant to a motion to dismiss that specifies
allegations described in subdivision (4), the court may consider
the length of time remaining in the incarcerated parent's sentence
and any other factor the court considers relevant.
(Emphasis added).
[21] DCS observes that, under the plain language of the statute, it is not statutorily
obligated to move to dismiss a termination petition, and further, that it had
provided Mother with reasonable efforts to reunify with L.L before it filed its
petition to terminate Mother’s parental rights.3 DCS observes that in “‘seeking
termination of parental rights,’” DCS has no obligation “‘to plead and prove
that services have been offered to the parent to assist in fulfilling parental
obligations.’” In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015)
3
Mother argues that Indiana Code section 31-35-2-4.5(d) requires DCS to state in the petition for
involuntary termination of parental rights whether one of the section (d) factors applies as a basis for filing a
motion to dismiss the petition. However, in 2012, the statute was amended to be permissive rather than
mandatory. See D.H. v, Ind. Dep’t of Child Servs., 122 N.E.3d 832, 833 (Ind. Ct. App. 2019), trans. denied.
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(quoting S.E.S. v. Grant Cty. Dep’t of Welfare, 594 N.E.2d 447, 448 (Ind. 1992)),
trans. denied. Likewise, although DCS “‘is generally required to make
reasonable efforts to preserve and reunify families during the CHINS
proceedings,’” that requirement under our CHINS statutes “‘is not a requisite
element of our parental rights termination statute, and a failure to provide
services does not serve as a basis on which to directly attack a termination order
as contrary to law.’” Id. (quoting A.Z. v. Ind. Dep’t of Child Servs., 915 N.E.2d
145, 148 & n.3 (Ind. Ct. App. 2009)).
[22] Furthermore, DCS provided Mother with services throughout the CHINS and
termination proceedings, but her participation was inconsistent. Mother
initially completed substance abuse treatment but refused to continue with
treatment after she tested positive for methamphetamine in July 2017. She also
missed almost half of the random drug screens that DCS provided. DCS made a
referral for a mental health evaluation, but Mother did not follow through with
the resulting recommendation to participate in individual therapy.4 Tr. pp. 78–
79. Mother was resistant to both substance abuse treatment and mental health
treatment.5 Tr. pp. 82–84. DCS provided Mother with supervised and
4
Mother challenges the trial court’s finding concerning her failure to obtain mental health treatment. We
agree with Mother that her family case manager did not provide her with a referral for individual therapy.
However, when Mother and the case manager discussed individual therapy, Mother was resistant and
indicated that she was not willing to undergo mental health treatment. Tr. pp. 82-84. To the extent the trial
court’s finding implies that Mother received a referral for individual mental health treatment, we agree that is
not supported by the evidence. But this error does not require reversal of the trial court’s order.
5
Mother admits that the case managers encouraged her to seek treatment and provided her with information
if she decided to seek treatment on her own. Appellant’s Br. at 16.
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monitored visitation and a parenting aide. Mother utilized those offered
services.
[23] For all of these reasons, we conclude that DCS provided Mother with
reasonable efforts to reunify with L.L. and that its failure to provide her with a
referral for individual therapy does not equate with a denial of due process.
II. Sufficient Evidence
[24] Mother also argues that the evidence is insufficient to support the termination
of her parental rights to L.L. The controlling statute 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.
Ind. Code § 31-35-2-4(b)(2).
[25] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana
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Code section 4(b)(2)(B) is written in the disjunctive, the trial court is required to
find that only one prong has been established by clear and convincing evidence.
In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). 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 Cty. Office of Family &
Children, 839 N.E.2d 143, 148 (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).
[26] 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, and 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
Cty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct. App. 2004), trans.
denied.
[27] We have also often noted that the purpose of terminating parental rights is not
to punish parents but 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,
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the law allows for their termination when clear and convincing evidence
establishes that they are unable or unwilling to meet their responsibilities as
parents. Id. Thus, parental interests must be subordinated to the children’s
interests in determining the proper disposition of a petition to terminate
parental rights. G.Y., 904 N.E.2d at 1259.
[28] Mother argues that DCS failed to present clear and convincing evidence to
prove both prongs of Indiana Code section 31-35-2-4(b)(2)(B). Because that
section is written in the disjunctive, we need only address Mother's argument
that the DCS did not prove continuation of the parent-child relationship poses a
threat to L.L.'s well-being.
[29] Importantly, a trial court “need not wait until a child is irreversibly influenced
by a deficient lifestyle such that [his or] her physical, mental, and social growth
is permanently impaired before terminating the parent-child relationship.” K.E.
v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 649 (Ind. 2015) (citation omitted).
“In determining whether the continuation of a parent-child relationship poses a
threat to the child[], a trial court should consider a parent’s habitual pattern of
conduct to determine whether there is a substantial probability of future neglect
or deprivation.” In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App. 2012).
[30] First, we acknowledge that Mother and L.L. are bonded. And the visitation
reports were generally positive. Mother and L.L. enjoyed spending time
together, and it is evident that Mother loves her child. But Mother has struggled
with substance abuse addiction, and in particular methamphetamine use, for
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several years. She tested positive for methamphetamine throughout the CHINS
proceedings and after the petition to terminate her parental rights was filed.
Mother relies on her fiancé for financial support and is not employed. Her
fiancé is also a methamphetamine addict. Mother admitted that her fiancé
manufactures, possesses, and uses methamphetamine. On the date of the fact-
finding hearing, he was on probation for possession of methamphetamine. And
Mother’s fiancé is not supportive of Mother reunifying with L.L.
[31] Because of Mother’s inconsistent participation in services, refusal to participate
in substance abuse treatment,6 missed and failed drug screens, incarceration at
various times during these proceedings, and her lack of stability, L.L. has not
been placed in Mother’s care for most of his life. L.L. requires stability that
Mother is not able to provide.
[32] For all of these reasons, we conclude that clear and convincing evidence
supports the trial court’s conclusion that continuation of the parent-child
relationship poses a threat to L.L.’s well-being.
[33] Mother also argues that termination of her parental rights was not in L.L.’s best
interest.
[I]n determining what is in the best interests of a child, the trial
court is required to look beyond the factors identified by [DCS]
6
We agree with Mother’s argument that the trial court’s finding concerning the effectiveness of narcotics
anonymous programs is not supported by the evidence. See Appellant’s Br. at 22. But the trial court’s finding
that Mother refused to participate in substance abuse treatment is supported by clear and convincing
evidence.
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and to consider the totality of the evidence. In so doing, the trial
court must subordinate the interests of the parent to those of the
child. The court need not wait until a child is irreversibly harmed
before terminating the parent-child relationship. Moreover, we
have previously held that 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.
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted).
[34] Mother acknowledges that L.L. is thriving in a loving, pre-adoptive home, but
argues that her rights should not be terminated simply because L.L.’s foster
home is a “better place to live.” Appellant’s Br. at 28. The family case manager
and court-appointed special advocate both testified that termination of Mother’s
parental rights was in L.L.’s best interest. Tr. pp. 99, 110–11. Throughout the
CHINS and termination proceedings, Mother refused to address her substance
abuse issues and has continued to use methamphetamine. L.L. needs a stable,
drug-free home. Mother has not demonstrated that she has the ability to support
herself, but instead relies on her fiancé to support her. Moreover, her fiancé is
also a methamphetamine addict who, by Mother’s own admission, is not
supportive of Mother’s reunification with L.L.
[35] For all of these reasons, we conclude that DCS presented clear and convincing
evidence that termination of Mother’s parental rights was in L.L.’s best interest.
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Conclusion
[36] Mother’s due process rights were not violated when DCS failed to provide her
with a referral for individual therapy. And clear and convincing evidence
supports the trial court’s order terminating her parental rights.
[37] Affirmed.
Robb, J., and Pyle, J., concur.
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