In the Matter of the Involuntary Termination of the Parent-Child Relationship of: H.M. (Minor Child) and B.L. (Mother) v. The 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 23 2019, 10:58 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary October 23, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 19A-JT-980
H.M. (Minor Child) Appeal from the Tippecanoe
Superior Court
and
The Honorable Bradley K. Mohler,
B.L. (Mother), Special Judge
Appellant-Respondent, Trial Court Cause No.
79D03-1809-JT-125
v.
The Indiana Department of
Child Services,
Appellee-Petitioner
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Baker, Judge.
[1] B.L. (Mother) appeals the juvenile court’s order terminating her parent-child
relationship with H.M. (Child), arguing that the evidence is insufficient to
support the order. Finding the evidence sufficient, we affirm.
Facts
[2] Child was born to Mother and A.M. (Father)1 on February 2, 2016. On
November 1, 2016, the Department of Child Services (DCS) became involved
with the family and removed Child from the home due to Mother’s untreated
mental health problems, substance abuse issues, and a failed suicide attempt.
DCS did not place Child with Father because Father could not provide
documentation proving paternity of the Child. Even after Father established
paternity, Child remained in foster care with a half-sibling. Mother already had
two other children in foster care at the time.
[3] On November 2, 2016, DCS filed a petition alleging that Child was a Child in
Need of Services (CHINS). At the conclusion of the detention hearing on that
same day, Mother admitted to being addicted to heroin. Mother has a long
history of mental illness and substance abuse. Mother has been diagnosed with
bipolar disorder and has admitted to frequently using both methamphetamine
and heroin. Mother was also taken into custody because of an active warrant
1
Child’s father is not part of this appeal.
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for prostitution. The juvenile court adjudicated Child to be a CHINS on
December 29, 2016, and entered a dispositional decree on January 20, 2017.
Under the terms of that dispositional decree, Mother was required to:
1. Participate in parenting time pursuant to party agreement and
court order.
2. Participate in a substance use assessment and follow all
recommendations.
3. Submit to all drug screen requests, random and non-random.
4. Participate in case management and follow all
recommendations.
5. Participate in mental health assessment and follow all
recommendations.
Appellee’s App. Vol. II p. 83-84. Additionally, both Mother and Father were
required to attend all hearings and court proceedings; provide updates to DCS,
Family Case Managers (FCMs), and Court-Appointed Special Advocates
(CASAs); maintain safe and suitable housing for Child; not possess or consume
alcohol or any illegal or non-prescribed controlled substances; obtain a stable
source of income; and pay child support. See generally id. at 82-83.
[4] Soon enough, Mother began returning positive drug screens. In April 2017, July
2017, October 2017, and February 2018, the juvenile court determined that
Mother had not complied with the terms of the CHINS dispositional decree.
Mother failed to attend therapy appointments and to obtain the medication
needed to treat her ongoing mental health issues.
[5] Mother initially participated in fully supervised visitations with Child at a DCS
facility. Eventually, Child was allowed to stay at Mother’s home for overnight
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visits. However, FCM Sally Messmer testified that by February 2018, Mother
had been consistently missing appointments and drug screens and returning
positive drug screens. Thereafter, DCS stopped the overnight visits.
[6] The juvenile court suspended Mother’s parenting time on May 14, 2018, after
Mother admitted to using methamphetamine. The visits were reinstated on
November 13, 2018, after Mother had returned some clean drug screens and
participated with services. However, Mother proceeded to miss several visits
and returned more positive drugs screens. The juvenile court again suspended
visitation, and Mother has not visited with Child since December 7, 2018.
[7] During the entirety of the CHINS proceedings, Mother held a variety of part-
time jobs. Additionally, Mother’s only housing was an apartment she shared
with her boyfriend, B.S. The record reveals that Mother was receiving
significant financial assistance from B.S. and could not maintain housing on her
own. After B.S. became ill and was hospitalized for an extended period of time,
the couple had to move out in June 2018. The record does not reveal where
Mother has been living since then.
[8] DCS filed a petition for termination of parental rights on September 4, 2018. At
the January 31, 2019, fact-finding hearing, both FCM Messmer and CASA
Hilary Laughner testified that Mother had not been consistent in her treatment,
cooperation with DCS, or commitment to the proceedings for two years and
that she was unable to properly care for Child due to her severe mental health
issues and drug dependency. Mother testified that she had been making
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improvements and had started a new treatment regimen that was showing
positive results. She also testified that she plans to work at the Salvation Army
in order to pay for prospective housing. However, Mother did not specify when
her job would begin or when she would acquire said housing.
[9] On March 31, 2019, the juvenile court issued an order terminating Mother’s
parent-child relationship with Child. Mother now appeals.
Discussion and Decision
I. Standard of Review
[10] When reviewing an order on the termination of a parental relationship:
We do not reweigh the evidence or determine the credibility of
witnesses, but consider only the evidence that supports the
judgment and the reasonable inferences to be drawn from the
evidence. We confine our review to two steps: whether the
evidence clearly and convincingly supports the findings, and then
whether the findings clearly and convincingly support the
judgment. Reviewing whether the evidence “clearly and
convincingly” supports the findings, or the findings “clearly and
convincingly” support the judgment, is not a license to reweigh the
evidence.
In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (internal citations omitted) (some
internal quotations omitted). We must give “due regard” to the juvenile court’s
ability to judge witness credibility firsthand, and we will not set aside its
findings or judgment unless clearly erroneous. Id.
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[11] Pursuant to Indiana Code section 31-35-2-4(b)(2), DCS must prove the
following in order to terminate the parental rights for a CHINS:
(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 local office 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 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.
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DCS must prove these allegations by clear and convincing evidence. In re N.G.,
51 N.E.3d 1167, 1170 (Ind. 2016).
II. Sufficiency
[12] Mother’s sole argument on appeal is that the evidence is insufficient to support
the order terminating her parent-child relationship with Child. Specifically,
Mother contends that DCS failed to prove by clear and convincing evidence
that the conditions that led to removal will not be remedied; that continuation
of the parent-child relationship poses a threat to Child’s well-being; and that
termination is not in Child’s best interest.
Conditions Resulting in Removal
[13] The juvenile court had to first determine what conditions led to DCS’s
placement of Child in foster care and then determine whether there is a
reasonable probability that those conditions will not be remedied. In re I.A., 934
N.E.2d 1127, 1134 (Ind. 2010). Here, Child was removed because of Mother’s
untreated mental health problems, substance abuse issues, and a failed suicide
attempt. Later, in its termination order, the juvenile court held as follows:
By choosing not to fully participate in the CHINS case, the
Parents have demonstrated an unwillingness to change their
behavior. A pattern of unwillingness to deal with parenting
problems and to cooperate with those providing social services, in
conjunction with unchanged conditions, support a finding that
there exists no reasonable probability that the conditions will
change, as grounds for terminating parental rights.
Appellant’s App. Vol. II p. 27.
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[14] There is ample evidence supporting this conclusion. Despite multiple
opportunities for reform, Mother did not comply with services. Mother
consistently failed to attend therapy sessions and to obtain the proper
medication to treat her mental health issues, and she repeatedly refused to
submit to drug screens. And even when she complied, many of the drug screens
were positive—a clear violation of the terms of the CHINS dispositional decree.
Any time Mother showed some indicia of progress, she regressed and directly
violated the juvenile court’s orders. See, e.g., Lang v. Starke Cty. Office of Family &
Children, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007) (holding that the juvenile
court may “consider the parent’s response to the services offered through . . .
DCS[]” in CHINS proceedings).
[15] Mother frequently missed visits or provided positive drug screens, leading to the
suspension of visits. She also failed to make any meaningful efforts to establish
a bond with Child from the moment of birth. This failure to exercise a parental
right to visit one’s child demonstrates a “lack of commitment to complete the
actions necessary to preserve [the] parent-child relationship[.]” In re A.L.H., 774
N.E.2d 896, 900 (Ind. Ct. App. 2002). Mother has not taken the DCS
proceedings seriously, and as a result, has demonstrated that her behavior that
led to Child’s removal will not change. Thus, the evidence is sufficient to
support the juvenile court’s conclusion that there is a reasonable probability that
the conditions resulting in Child’s removal will not be remedied.
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Threat to Child’s Well-Being2
[16] To meet this statutory element, “[c]lear and convincing evidence need not
reveal that ‘the continued custody of the parents 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) (quoting Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592
N.E.2d 1232, 1233 (Ind. 1992)). “Rather, it is sufficient to show by clear and
convincing evidence that ‘the child’s emotional and physical development are
threatened by the respondent parent’s custody.’” Id. (quoting Egly, 592 N.E.2d
at 1234). Here, the record shows that despite assistance from DCS in the form
of inpatient treatment, medication, and supervised visits, Mother has not
improved, threatening Child’s well-being.
[17] In evaluating the well-being of the child, “[juvenile] courts have properly
considered 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
N.E.2d 1244, 1251 (Ind. Ct. App. 2002). Here, Mother has a long history of
mental health problems, substance abuse issues, and neglect of Child. The
evidence demonstrates that Mother is suffering from numerous health issues
and the juvenile court found that in her current state, Mother cannot properly
2
We note that the termination statute is phrased in the disjunctive, and because we find that the element of
showing that the conditions that led to Child’s removal will not be remedied has been satisfied, we are not
required to address this issue. However, we choose to do so briefly.
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care for Child. Additionally, Mother has failed to secure full-time employment
or adequate housing.3 Given this information, we find that the juvenile court
did not err when it concluded that DCS proved by clear and convincing
evidence that Mother’s continued custody of Child would be a threat to Child’s
well-being.
Best Interest of Child
[18] “The purpose of terminating parental rights is not to punish parents but to
protect their children.” In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001).
“[I]n determining what is in the best interests of the children, the court is
required to look . . . to the totality of the evidence.” Id. at 776. In so doing, the
juvenile court must subordinate the interests of the parents to those of the
children involved. Id.
[19] The juvenile court determined that
[I]t is in [Child’s] best interests that the parent-child relationship be
terminated. The FCM and the CASA testified that termination of
the Parents’ parental rights was in [Child’s] best interests. The
recommendation of a child’s caseworker and guardian ad litem
[CASA] that parental rights should be terminated support a
finding that termination is in the child’s best interests. In Re J.C.,
994 N.E.2d 278, 290 (Ind. App. 2013); In Re A.B., 887 N.E.2d 158
(Ind. App. 2008).
3
Though Mother contends that she will soon be working for the Salvation Army and that that job will
hopefully assist her with independent housing, we decline to consider this evidence as persuasive because it
is, at most, speculative and aspirational.
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Appellant’s App. Vol. II p. 28-29. FCM Messmer and CASA Laughner even
testified at the termination hearing that there is a permanency plan established
for Child to be adopted by his foster parents. See generally Tr. Vol. II p. 150-52.
They testified that Child is currently thriving in a safe, comfortable, and healthy
environment and that Child needs this stability in order to grow and prosper.
[20] Given the wealth of evidence already discussed, we find that the juvenile court
did not err by concluding that termination of the parent-child relationship is in
Child’s best interest. We do not dispute the small progress that Mother has
made thus far—she claims to have found a solid inpatient treatment facility and
that she will soon be employed and may secure housing. However, given that
Child and Mother have virtually no bond and that she failed to take advantage
of the mental health and substance abuse treatment available for nearly two
years during the CHINS case, the juvenile court did not err by concluding that
DCS proved by clear and convincing evidence that termination is in Child’s
best interest.
[21] The judgment of the juvenile court is affirmed.
Kirsch, J., and Crone, J., concur.
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