In the Matter of the Involuntary Termination of the Parent-Child Relationship of M.R.D. (Minor Child) and M.B. (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 Oct 29 2019, 8:58 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
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General
Lafayette, Indiana Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary October 29, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of M.R.D. (Minor 19A-JT-812
Child) Appeal from the Tippecanoe
and Superior Court
The Honorable Faith A. Graham,
M.B. (Mother), Judge
Appellant-Respondent, Trial Court Cause No.
79D03-1808-JT-121
v.
Indiana Department of Child
Services,
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] M.B. (“Mother”) challenges the sufficiency of the evidence to support the trial
court’s order terminating her parental relationship with her daughter, M.R.D.
(“Child”). Finding that she has failed to meet her burden of establishing clear
error, we affirm.
Facts and Procedural History
[2] Child was born in August 2016 to Mother and N.D. (“Father”) (collectively
“Parents”). In the spring of 2017, the Indiana Department of Child Services
(“DCS”) received two reports of neglect due to Parents’ drug use and unstable
housing. In June 2017, shortly after Child’s hair follicle tested positive for
methamphetamine, DCS removed her from Parents’ care and filed a petition to
adjudicate Child a child in need of services (“CHINS”). Parents admitted to
the CHINS allegations, and Mother was ordered to participate in a substance
abuse assessment and treatment, homebased case management, a mental health
assessment, and supervised visitation. She also was ordered to remain drug-
and alcohol-free and to submit to drug screens at DCS’s request.
[3] On August 13, 2018, DCS filed a petition to terminate Parents’ parental
relationships with Child. The trial court conducted a factfinding hearing, and
on March 13, 2019, the court issued an order with findings of fact and
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conclusions thereon, terminating the parent-child relationships between Parents
and Child. The unchallenged findings include the following: 1
The child … has been removed from the parent(s) for a
continuous period of at least six (6) months under a dispositional
decree issued on August 11, 2017 ….
9. Mother is twenty-three (23) years old and has a long-standing
history of instability. Mother was herself a Child in Need of
Services due to parental drug use. Mother was adopted at seven
(7) years of age. Mother did not graduate high school attending
through the eleventh grade only during which time she had both
academic and behavioral difficulties. Mother never obtained a
driver’s license.
10. Mother has a juvenile delinquency history including
runaway, theft, and arson. As a juvenile, Mother received
treatment at various residential facilities and was eventually
committed to the Indiana Department of Correction. Mother has
a history of adult arrests including Theft and Driving Without a
License. Mother was charged with Possession of Paraphernalia
in May 2018 and entered a Pretrial Diversion Agreement in
August 2018.
11. At the onset of the current CHINS case, Mother resided in a
subsidized apartment obtained in April 2017 after being homeless
for three (3) years. Throughout the current CHINS case, Mother
was evicted, stayed in a hotel, and has resided with friends.
Mother never established stable housing. At the time of the
termination hearing, Mother was utilizing the Lafayette
Transitional Housing address to receive mail.
1
To the extent that the findings include the parties’ proper names and initials, we refer to the parties as
previously designated.
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12. Mother was sporadically employed at various locations
during the current CHINS case. At the time of the termination
hearing, Mother reported recent employment at Denny’s.
….
20. Mother failed to complete a parenting assessment or
parenting education.
21. Throughout most of the current CHINS case, Mother was
noncompliant with individual therapy and unsuccessfully
discharged. Mother was scheduled to resume weekly individual
therapy commencing September 21, 2018. Since that time,
Mother has attended six (6) scheduled sessions.…
22. Mother failed to participate in recommended substance
abuse treatment throughout most of the current CHINS case.
Mother was unsuccessfully discharged from recommended
intensive outpatient treatment at two (2) service provider
agencies. Mother resumed outpatient substance abuse treatment
on July 6, 2018. Since that time, Mother has failed to attend
thirty-one (31) of approximately forty-nine (49) scheduled
sessions for various reported reasons or no reported reason at all.
…. Mother failed to make progress toward goals of attending
group sessions, completing assignments, attending 12 Step
Meetings, and passing all drug screens.
23. During the current CHINS case, Mother tested positive for
alcohol [seven times and] synthetic cannabinoids [three times].
Mother failed to submit to all drug screens as requested.
….
29. Mother and Father were unsuccessfully discharged from the
first case management provider for lack of compliance.
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30. Between May 2017 and July 2018, Mother and Father were
scheduled to participate in case management services twice per
week. Mother and Father failed to attend twenty-six (26)
scheduled sessions.… Mother and Father argued during sessions.
Mother and Father failed to provide verification of income for
purposes of budgeting. Mother and Father lacked sufficient
income to meet basic needs for food and other necessities.
Mother and Father lacked a vehicle and relied on bus
transportation or rides from friends.
31. At that time, Mother and Father were renting and slept
on a mattress, the electricity had just been turned back on in
the home, and there was no furniture in the home. Various
clutter was observed in the home and the refrigerator was full
of maggots. Mother and Father were mostly unemployed
with sporadic short-term work.… Parents were evicted
reportedly because the police were dispatched to the home.
The parents then began residing with a friend.
32. Since July 17, 2018, case management sessions were
reduced to once per week due to attendance issues.… The
parents routinely bicker, Mother is consistently negative, and
Mother can be prone to angry outbursts. Neither Mother nor
Father has commenced parenting education due to ongoing
crisis management involving basic necessities.
33. At the time of the termination hearing, Mother and
Father had made limited progress toward overarching goals to
obtain housing, to obtain employment, to establish a
sustainable budget, and to remain drug free. Mother obtained
employment at Denny’s but was recently suspended for a
week due to attendance issues.… The parents have never
obtained housing and continuously report staying with an
unnamed friend.
34. …. The relationship between Parents is toxic. Both
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parents disclosed domestic violence including emotional and
physical abuse.
35. The communication and relationship between the parents
w[ere] the most concerning observation[s] during parenting
time as the parents struggled to calm when arguments
erupted. The level of progress made by Parents in managing
the frustrations of their relationship was sporadic. Both
parents rapidly escalate during heated moments with
screaming, cursing, and throwing items causing a concern for
Child’s physical, mental, and emotional well-being.
….
38. CASA, Virginia Black, supports termination of parental
rights and adoption in the best interests of Child. CASA noted
Parents are loving and attentive during parenting time.
However, Parents have never obtained appropriate housing, have
limited employment, [an]d continue to lack transportation.
Parents have acknowledged the need for treatment related to
mental health and substance use issues but neither has invested in
treatment to successfully address those issues. CASA has
observed Parents demonstrate a pattern of minimal progress
followed by regression over the course of the current CHINS
case. Both Parents have disclosed not eating for an entire day
and at times struggle to meet their own basic needs. Child is
bonded with the foster family and the foster parents are willing to
adopt Child.
Appealed Order at 3-7. Based on the findings, the trial court concluded that
there is a reasonable probability that the conditions that precipitated Child’s
removal will not be remedied, that continuation of the parent-child
relationships poses a threat to Child’s well-being, that DCS has a satisfactory
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plan for Child’s care and treatment (adoption), and that termination is in
Child’s best interests.
[4] Mother appeals the termination order. 2 Additional facts will be provided as
necessary.
Discussion and Decision
[5] Mother challenges the sufficiency of the evidence supporting the trial court’s
termination order. When reviewing a trial court’s findings of fact and
conclusions thereon in a case involving the termination of parental rights, we
first determine whether the evidence supports the findings and then whether the
findings support the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). We
will set aside the trial court’s judgment only if it is clearly erroneous. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We
neither reweigh evidence nor judge witness credibility. E.M., 4 N.E.3d at 642.
Rather, we consider only the evidence and inferences most favorable to the
judgment. Id. “[I]t is not enough that the evidence might support some other
conclusion, but it must positively require the conclusion contended for by the
appellant before there is a basis for reversal.” Best v. Best, 941 N.E.2d 499, 503
(Ind. 2011) (citations omitted). Where, as here, the appellant does not
specifically challenge any of the trial court’s findings, they stand as proven, and
we simply determine whether the unchallenged findings are sufficient to
2
Father is not participating in this appeal.
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support the judgment. T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110
(Ind. Ct. App. 2012), trans. denied; see also McMaster v. McMaster, 681 N.E.2d
744, 747 (Ind. Ct. App. 1997) (unchallenged findings are accepted as true).
[6] In Bester, our supreme court stated,
The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and
raise their children. A parent’s interest in the care, custody, and
control of his or her children is perhaps the oldest of the
fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture.
We recognize of course that parental interests are not absolute
and must be subordinated to the child’s interests in determining
the proper disposition of a petition to terminate parental rights.
Thus, parental rights may be terminated when the parents are
unable or unwilling to meet their parental responsibilities.
839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).
[7] To obtain a termination of a parent-child relationship, DCS is required to
establish in pertinent part:
(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.
….
(B) that one (1) of the following is true:
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(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).
[8] In recognition of the seriousness with which we address parental termination
cases, Indiana has adopted a clear and convincing evidence standard. Ind.
Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,
377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need
not reveal that the continued custody of the parents is wholly inadequate for the
child’s survival. 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.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.
2013) (citation omitted). “[I]f the court finds that the allegations in a
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[termination] petition … are true, the court shall terminate the parent-child
relationship.” Ind. Code § 31-35-2-8(a) (emphasis added).
[9] Mother does not challenge the trial court’s conclusions regarding the reasonable
probability of continued unremedied conditions, the threat to Child’s well-
being, or the satisfactory plan for Child’s care and treatment. Rather, she limits
her challenge to the trial court’s conclusion that termination of the parent-child
relationship is in Child’s best interests. To determine what is in the best
interests of a child, we must look at the totality of the circumstances. In re
A.W., 62 N.E.3d 1267, 1275 (Ind. Ct. App. 2016). Although not dispositive,
permanency and stability are key considerations in determining the child’s best
interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). “A parent’s historical
inability to provide a suitable environment along with the parent’s current
inability to do the same supports a finding that termination of parental rights is
in the best interests of the children.” In re A.P., 981 N.E.2d 75, 82 (Ind. Ct.
App. 2012) (quoting Lang v. Starke Cty. Office of Family & Children, 861 N.E.2d
366, 373 (Ind. Ct. App. 2007), trans. denied). Likewise, “the testimony of service
providers may support a finding that termination is in the child’s best interests.”
In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010), trans. dismissed.
[10] Here, the totality of the circumstances shows Mother to be in a constant battle
to control and overcome her anger and substance abuse issues, abide by the
law, and maintain a consistent pattern of positive, productive behavior. As a
result of this ongoing battle, she has been unable to maintain stable
employment and housing. In relation to parenting, we find her pattern of
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frustrated, angry outbursts to be particularly concerning. Sadly, she has been
unable to capitalize on her limited progress and has, in the words of CASA
Virginia Black, “regressed in addressing substance use, mental health and
financial issues.” Ex. C2. Child is currently in a stable home and has bonded
with her preadoptive foster parents. As CASA Black concluded in her report,
“[Child], who will turn 2 next month, deserves a more stable home. CASA
recommends termination of parental rights.” Id.[11] The totality of the circumstances supports the trial court’s conclusion that
termination is in Child’s best interests. Mother has failed to meet her burden of
demonstrating that the trial court clearly erred in terminating her relationship
with Child. Accordingly, we affirm.
[12] Affirmed.
Baker, J., and Kirsch, J., concur.
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