In the Matter of the Termination of the Parent-Child Relationship of K.S. (Minor Child) T.R. (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 Nov 21 2019, 9:39 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
Jennie Scott Curtis T. Hill, Jr.
Muncie, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 21, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of K.S. (Minor Child); 19A-JT-1363
T.R. (Mother), Appeal from the Delaware Circuit
Court
Appellant-Respondent,
The Honorable Kimberly S.
v. Dowling, Judge
The Honorable Amanda L.
Indiana Department of Child Yonally, Magistrate
Services, Trial Court Cause No.
18C02-1809-JT-88
Appellee-Petitioner.
Najam, Judge.
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Statement of the Case
[1] T.R. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor child, K.S. (“Child”). 1 Mother raises three issues for our review,
which we consolidate and restate as whether the trial court clearly erred when it
terminated her parental rights. We affirm.
Facts and Procedural History
[2] Mother gave birth to Child on September 28, 2009. On September 2, 2016, the
Indiana Department of Child Services (“DCS”) received a report that Mother,
who was Child’s sole caregiver, had tested positive for methamphetamine. In
response to that report, DCS Family Case Manager (“FCM”) Samantha
Winans removed Child from Mother’s home. On September 7, DCS filed a
petition alleging that Child was a Child in Need of Services (“CHINS”). That
same day, the trial court held an initial hearing. At that hearing, Mother
admitted that she “uses illicit substances such as, but not limited to,
methamphetamine.” Ex. at 7. Accordingly, the trial court adjudicated Child a
CHINS.
[3] On November 14, the court entered its dispositional decree and ordered Mother
to contact the FCM every week, to maintain suitable housing, to not use any
illegal substances, and to obey the law. The court also ordered Mother to
participate in services, including a substance abuse assessment, random drug
1
Child’s father does not participate in this appeal.
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screens, home-based case management, and visitation with Child, and to follow
all recommendations of the service providers. In November 2016, Mother was
arrested and charged with theft. Mother ultimately pleaded guilty to that
charge. Mother was not compliant with services. FCM Winans put in a
referral for Mother to complete a substance abuse assessment, but Mother did
not complete that assessment. Mother also did not consistently contact FCM
Winans. In late 2016 and early 2017, Mother would go “quite a few months”
without communicating with FCM Winans. Id. at 52. And FCM Winans was
“unable to locate” Mother for most of 2017. Id.
[4] After the trial court entered its dispositional decree, Mother initially visited with
Child under the supervision of family members. However, due to “issues that
were ongoing with the family,” DCS “ended up putting in service providers” to
supervise the visits. Id. at 47. After DCS moved the visits to a service provider,
Mother was “fairly consistent” with visits. Id. But Mother became
“inconsistent” with visits in early 2017. Id. at 54. Mother would visit with
Child for a period of time but would then go “missing for a few months.” Id.
Throughout that time, FCM Winans believed that Mother was visiting with
Child at her placement, which was “outside the court order.” Id. at 98.
[5] Between June and December 2016, Mother submitted to “some” drug screens.
Id. at 47. But Mother’s testing schedule was “[v]ery sporadic.” Id. at 50. On a
few occasions, Mother requested drug treatment because “she knew that she
needed to get sober.” Id. at 51. But Mother did not follow through with any of
the treatment DCS had recommended, nor did she complete any treatment on
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her own. Mother was not able to maintain “any period of sobriety.” Id. at 52.
Mother tested positive for illegal substances on ten occasions in the second half
of 2016, and she did not submit to any drug tests during 2017. In early 2018,
Mother was arrested and charged with possession of methamphetamine.
Thereafter, Mother pleaded guilty to possession of paraphernalia.
[6] On May 15, 2018, Mother completed the initial intake for the home-based case
work. However, the next day, Child’s court appointed special advocate
(“CASA”) filed a motion to suspend visitation because Mother had not visited
Child “in well over a year” and because Child told the CASA that she “did not
wish to visit with her mother and could contemplate no circumstance in which
she would want to visit her Mother.” Id. at 84, 85. Based on Child’s wishes
and Mother’s “lack of engagement in services,” the trial court granted the
CASA’s motion to suspend visitation. Id. at 86. Because the court had
suspended Mother’s visits with Child, Mother informed Brittany Little, her
home-based case worker, that “she didn’t want to work with” Little. Id. at 33.
Little informed Mother that she still wanted to work on other areas of home-
based case work, including sobriety and appropriate housing, but Mother
declined to work with Little. Mother “never” completed the home-based case
work. Id. at 44.
[7] In mid-2018, FCM Winans put in a second referral for Mother to complete a
substance abuse assessment, which Mother ultimately completed in May. As a
result of that assessment, it was recommended that Mother engage a recovery
coach. But Mother did not work with the recovery coach. Mother told FCM
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Winans that “she was not going to participate in services” if she could not visit
with Child. Id. at 45. FCM Winans attempted to explain to Mother that the
services “could still help her” and that “doing certain services and showing that
she could maintain sobriety and consistency with those services could lead to
her getting her visits back.” Id. at 46. But Mother did not participate in
services.
[8] On September 5, 2018, DCS filed a petition to terminate Mother’s parental
rights over Child. Thereafter, on September 10, Mother tested positive for
methamphetamine and amphetamine. Mother again tested positive for
methamphetamine, amphetamine, and THC on October 19. The court held a
fact-finding hearing on the petition to terminate Mother’s parental rights on
November 29, 2018, and February 28, 2019. Meanwhile, on January 16, 2019,
Mother again tested positive for a “controlled substance.” Id. at 112.
[9] Thereafter, on May 21, the court entered the following findings of fact and
conclusions of law:
4. [Child] was removed from the care of Mother on an
emergency basis on or about September 2, 2016[,] due to
allegations of abuse and/or neglect.
5. DCS filed a Verified Petition alleging a child to a be a Child in
Need of Services under cause number 18C02-1609-JC-000270 on
or about September 7, 2016.
6. [Child] was adjudicated to be a Child in Need of Services on
October 4, 2016.
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7. A Dispositional Decree was entered against Mother on or
about December 7, 2016.
8. Under the Dispositional Decree, Mother was ordered to
maintain contact with DCS, obtain and maintain stable housing
and employment, not consume any illicit substance, obey the
law, complete a substance abuse assessment and follow all
recommendations, submit to random and scheduled drug
screens, attend all supervised visitation[,] and participate in home
based casework to assist with parenting skills, coping skills,
housing, employment[,] and transportation as needed.
9. DCS Family Case Manager, Samantha Winans, was assigned
to this case and had been working with Mother prior to the
child’s removal in September 2016.
10. During DCS’ assessment, Mother admitted to FCM Winans
that she used methamphetamine in the presence of [Child].
FCM Winans attempted to work with Mother to avoid removal
of [Child] from her care. However, Mother continued to test
positive for methamphetamine, and [Child] was removed from
her care on September 2, 2016.
11. FCM Winans made service referrals for Mother for a
substance abuse assessment, homebased casework[,] and
supervised visitation with [Child].
12. Mother failed to complete the substance use assessment with
Meridian Health Services on two (2) separate occasions.
13. Mother completed a substance use assessment with
Centerstone in May 2018. Recommendations from the substance
use assessment included that Mother should work with a
recovery coach.
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14. Mother did not engage with a recovery coach.
15. Although she initially seemed motivated, Mother did not
complete homebased casework. Mother completed an intake
with Children’s Bureau for homebased casework in May 2018
but then failed to participate in the service.
16. Mother was inconsistent in her participation in supervised
visitation with [Child].
17. Mother’s visitation with [Child] was suspended on or about
May 15, 2018[,] upon the request and recommendation of the
CASA. Mother had not been participating in supervised
visitation but had been visiting with [Child] at her kinship
placement, contrary to the Court’s order on visitation for Mother.
18. [Child] does not wish to visit with Mother.
19. Following the suspension of her visitation, Mother stopped
engaging in any services, stating that she was not going to
participate in services if she could not visit with [Child].
20. Mother failed to complete any service ordered under the
Dispositional Decree.
21. As part of disposition in this case, Mother was ordered to
provide random and scheduled drug screens. Mother provided
some screens but was not consistent.
22. Mother continues to use illicit substances, including
methamphetamine. Most recently, Mother tested positive for
illicit substances on September 10, October 4, and October 18,
2018[,] and January 16, 2019.
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23. Mother requested substance abuse treatment but failed to
follow through with any recommended treatment.
24. By her own admission, Mother gave up on reunification with
[Child].
25. Mother failed to demonstrate that she could maintain
suitable and safe housing for [Child].
26. Mother failed to demonstrate that she has a legal source of
income to support [Child].
27. Mother failed to maintain communication with DCS on a
consistent basis.
28. Through 2017, FCS Winans was unable to locate Mother
and communication with Mother was minimal throughout 2017.
29. Mother has been convicted of theft under 18C02-1703-F6-
000230.
30. Mother was criminally charged with possession of
methamphetamine in February 2018.
31. [Child] has been removed from Mother’s care for over 29
months. [Child] is currently placed in licensed foster care . . .
and is thriving in her current environment.
32. [Child’s] foster placement is willing and able to adopt [Child]
if parental rights are terminated.
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33. Melissa Staton is [Child’s] CASA. Ms. Staton has
determined that terminating Mother’s parenting rights is in the
best interest of [Child] and that [Child] should be adopted.
34. Mother admitted that adoption is appropriate for [Child] but
would like her ex-husband to adopt [Child].
35. [Child] needs a safe, stable, secure[,] and permanent
environment in order to thrive. Mother has not shown the
inclination or the ability to provide [Child] with such an
environment and has not demonstrated that she is able to provide
a home free of abuse or neglect for [Child]. Mother’s habitual
patterns of conduct support the substantial probability of future
neglect or deprivation of [Child]. Evidence of Mother’s criminal
history, continued substance abuse, and lack of adequate housing
and employment are all factors that support termination of
Mother’s parental rights.
36. There is a reasonable probability that the conditions that
resulted in [Child’s] removal and continued placement outside of
the home will not be remedied. Throughout the duration of
[Child’s] CHINS case, Mother either failed to participate in or
benefit from services ordered in the Dispositional Decree.
Mother did not avail herself of services that could have assisted
her. Mother did not maintain communication with DCS and has
not demonstrated that she has addressed her substance abuse.
DCS has presented clear and convincing evidence upon which
the court can reasonably conclude that Mother has not remedied
the conditions that resulted in [Child’s] removal from her care.
37. [Child] has been removed from her parents and under the
supervision of the local office of family and children for at last six
months under a dispositional decree and more than fifteen of the
most recent twenty-two months. As of the date of the conclusion
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of the fact-finding hearing, [Child] had been out of her Mother’s
care for approximately two and a half years.
38. Termination of the parent/child relationship is in the best
interest of [Child].
39. The Indiana DCS has a satisfactory plan for the care and
treatment of [Child], which includes adoption.
Appellant’s App. Vol. II at 52-54 (citation omitted). In light of its findings and
conclusions, the court terminated Mother’s parental rights over Child. This
appeal ensued.
Discussion and Decision
Standard of Review
[10] Mother appeals the trial court’s termination of her parental rights over Child.
We begin our review of this appeal by acknowledging that “[t]he traditional
right of parents to establish a home and raise their children is protected by the
Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe
Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans.
denied. However, a trial court must subordinate the interests of the parents to
those of the child when evaluating the circumstances surrounding a
termination. Schultz v. Porter Cty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d
832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is
proper where a child’s emotional and physical development is threatened. Id.Although the right to raise one’s own child should not be terminated solely
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because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
[11] Before an involuntary termination of parental rights can occur in Indiana, DCS
is required to allege and prove:
(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) (2018). DCS’s “burden of proof in termination of
parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind.
Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
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[12] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cty. Off. of
Fam. & Child. (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 that
are most favorable to the judgment. Id. Moreover, in deference to the trial
court’s unique position to assess the evidence, we will set aside the court’s
judgment terminating a parent-child relationship only if it is clearly erroneous.
Judy S. v. Noble Cty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind.
Ct. App. 1999), trans. denied.
[13] Here, in terminating Mother’s parental rights, the trial court entered specific
findings of fact and conclusions thereon. When a trial court’s judgment
contains special findings and conclusions, we apply a two-tiered standard of
review. Bester v. Lake Cty. Off. of Fam. & Child., 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. “Findings are clearly
erroneous only when the record contains no facts to support them either
directly or by inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If
the evidence and inferences support the trial court’s decision, we must affirm.
In re L.S., 717 N.E.2d at 208.
[14] On appeal, Mother contends that the juvenile court erred when it concluded
that: (1) the conditions that resulted in Child’s removal and the reasons for
Child’s placement outside of her home will not be remedied; (2) termination is
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in Child’s best interests; and (3) there is a satisfactory plan for the care and
treatment of the Child. 2 We address each argument in turn.
Reasons for Removal from Mother’s Home
[15] Mother first asserts that the trial court erred when it concluded that the
conditions that resulted in Child’s removal from her care will not be remedied.
In determining whether the conditions that led to a child’s placement outside
the home will not be remedied, a trial court is required to (1) ascertain what
conditions led to the child’s removal or placement and retention outside the
home; and (2) determine whether there is a reasonable probability that those
conditions will not be remedied. R.C. v. Ind. Dep’t of Child Servs. (In re K.T.K.),
989 N.E.2d 1225, 1231 (Ind. 2013). Here, the trial court found that DCS had
removed Child from Mother’s home because of Mother’s drug use.
[16] In order to determine whether there is a reasonable probability that the
conditions that resulted in removal will not be remedied, the court should assess
a parent’s “fitness” at the time of the termination hearing, taking into
consideration any evidence of changed conditions. E.M. v. Ind. Dep’t of Child
Servs. (In re E.M.), 4 N.E.3d 636, 643 (Ind. 2014). The court must weigh any
improvements the parent has made since removal against the parent’s “habitual
patterns of conduct to determine whether there is a substantial probability of
2
Mother also contends that DCS “did not meet the burden of proof in proving that Mother poses a threat to
the well-being of the child” and that “child has not been adjudicated as a child in need of services on two
separate occasions.” Appellant’s Br. at 21, 22. However, the trial court did not make any such conclusions.
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future neglect or deprivation.” Id. When making such decisions, courts should
consider evidence of a “parent’s prior criminal history, drug and alcohol abuse,
history of neglect, failure to provide support, lack of adequate housing, and
employment.” Evans v. St. Joseph Cty. Off. of Fam. & Child. (In re A.L.H.), 774
N.E.2d 896, 990 (Ind. Ct. App. 2002).
[17] Here, the evidence demonstrates that Mother failed to complete services.
Mother only submitted to “some” drug screens between June and December
2016, but her testing schedule was “very sporadic.” Id. at 47, 50. During that
time frame, Mother tested positive for illegal substances on ten occasions. And
Mother did not submit to any drug tests as ordered in 2017. Mother ultimately
completed a substance abuse assessment in May 2018, but she did not follow
through with the recommendation to engage with a recovery coach. 3 Mother
continues to use illegal substances. Indeed, Mother tested positive for
methamphetamine and amphetamine in September and October 2018. And, by
Mother’s own admission, Mother tested positive for a “controlled substance”
on January 16, 2019, which was approximately two months after the court
began the fact-finding hearing on the petition to terminate her parental rights
and only one month before the court concluded that hearing. Id. at 112.
3
Mother contends that “there is no evidence that this was the recommendation of the assessment[.]”
Appellant’s Br. at 15. But FCM Winans testified at the fact-finding hearing that a recovery coach was
recommended after Mother’s substance abuse assessment. See Tr. Vol. II at 46.
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[18] Mother also failed to participate in the home-based case work. While Mother
completed the initial intake in mid-2018, she refused to work with her home-
based case worker because her visits with Child had been suspended. Mother
“never” completed that service. Id. at 44. And Mother did not maintain
contact with DCS. Indeed, in late 2016 and early 2017, Mother would go
“quite a few months” without contacting FCM Winans. Tr. Vol. II at 52. And
FCM Winans was unable to locate Mother for most of 2017. Additionally,
while Mother initially visited with Child on a fairly consistent basis, as of early
2017, Mother became inconsistent with her supervised visits. But Mother
violated the court order and continued to visit with Child at her placement.
And in May 2018, Child’s CASA filed a motion to suspend visitation because
Mother had not visited Child “in well over a year.” Id. at 84. Further,
throughout the CHINS proceedings, Mother was twice convicted of crimes.
[19] That evidence supports the trial court’s findings, and the findings support the
court’s conclusion. 4 Mother’s argument on appeal is simply a request for this
Court to reweigh the evidence, which we cannot do. The trial court did not
clearly err when it concluded that there is a reasonable probability that the
4
Mother challenges the trial court’s findings that she lacks a legal source of income and that she lacks
suitable housing. However, we need not determine whether those findings are supported by the record. It is
well settled that erroneous findings do not warrant reversal if they amount to mere surplusage and add
nothing to the trial court’s decision. See Lasater v. Lasater, 809 N.E.2d 380, 398 (Ind. Ct. App. 2004). Here,
as discussed above, the trial court found that Mother continues to use drugs, that she failed to complete
services, and that she was twice convicted of crimes during the CHINS proceedings. Those findings are
supported by the record, and they support the court’s conclusion. Accordingly, the court’s findings that
Mother lacks income or appropriate housing is mere surplusage and, as such, does not warrant reversal even
if erroneous.
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conditions that resulted in the Child’s removal or the reasons for placement
outside of Mother’s home will not be remedied. 5
Best Interests
[20] Mother next contends that the trial court clearly erred when it concluded that
termination of her parental rights is in Child’s best interests. In determining
whether termination of parental rights is in the best interests of a child, the trial
court is required to look at the totality of the evidence. A.S. v. Ind. Dept’s of
Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “A parent’s
historical inability to provide adequate housing, stability and supervision
coupled with a current inability to provide the same will support a finding that
termination of the parent-child relationship is in the child's best interests.”
Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006),
trans. denied. “Additionally, a child’s need for permanency is an important
consideration in determining the best interests of a child.” In re A.K., 924
N.E.2d at 224.
[21] When making its decision, the court must subordinate the interests of the
parents to those of the child. See Stewart v. Ind. Dep’t of Child Servs. (In re J.S.),
906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a
5
To the extent Mother contends that the court’s termination order is clearly erroneous because DCS did not
offer her adequate services during the CHINS proceedings, that contention is without merit. Our courts have
“long recognized that, in ‘seeking termination of parental rights,’ the DCS has no obligation to ‘plead and
prove that services have been offered to the parent to assist in fulfilling parental obligations.’” T.D. v. Ind
Dep’t of Child Servs. (In re J.W.), 27 N.E.3d 1185, 1190 (Ind. Ct. App. 2015) (quoting S.E.S. v. Grant Cty. Dep’t
of Welfare, 594 N.E.3d 447, 448 (Ind. 1992)), trans. denied.
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child is irreversibly harmed before terminating the parent-child relationship.”
Id. Moreover, this Court has previously held that recommendations of the
family case manager and court-appointed advocate to terminate parental rights,
coupled with evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id.[22] Here, Mother contends that termination was not in Child’s best interests
because Mother “was engaged in supervised visitation” with Child and because
Mother “was not given a chance to reunify the relationship” with Child.
Appellant’s Br. at 23. In essence, Mother maintains that DCS “has not
submitted any evidence that it is in the best interests of the child for the
Mother’s parental rights to be terminated.” Id.[23] Mother’s contentions on appeal again amount to a request that we reweigh the
evidence, which we cannot do. Both FCM Winans and Child’s CASA testified
that adoption was in Child’s best interests. Child’s CASA also testified that
Child is “thriving” in her current placement and she is “making a bond with the
family.” Id. Further, the evidence demonstrates that Mother received referrals
for several services but that she did not complete any one service. And Mother
continues to use drugs. By her own admission, Mother tested positive for a
“controlled substance” as recently as January 16, 2019. Prior to that, Mother
testified positive for methamphetamine and amphetamine in September and
October 2018. And Mother was convicted of crimes on two separate occasions
during the CHINS proceedings.
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[24] Child needs consistent and reliable care, and she needs permanency. The
totality of the evidence, including Mother’s substance abuse issues and criminal
history and Mother’s failure to complete any service, supports the trial court’s
conclusion that termination of Mother’s parental rights is in Child’s best
interests.
Satisfactory Plan
[25] Finally, Mother asserts that the trial court erred when it concluded that DCS
has a satisfactory plan for the care and treatment of Child. Mother specifically
contends that DCS’s plan is not satisfactory because the “case manager did not
go into detail about the child or the child’s plan.” Appellant’s Br. at 24. In
essence, Mother asserts that, because DCS’s plan lacks detail, “[t]here is no way
to determine if the plan is satisfactory[.]” Id. We cannot agree.
[26] Indiana courts have traditionally held that for a plan to be satisfactory, for the
purposes of the termination statute, it need not be detailed, so long as it offers a
general sense of the direction in which the child will be going after the parent-
child relationship is terminated. K.W. v. Ind. Dep’t of Child Servs. (In re A.S.), 17
N.E.3d 994, 1007 (Ind. Ct. App. 2014) (citation omitted), trans. denied. A DCS
care plan is satisfactory if the plan is to attempt to find suitable parents to adopt
the children. Id. Here, DCS presented evidence that Child’s current foster
parents plan to adopt her. Thus, the care plan is satisfactory.
[27] Still, Mother contends that DCS’s plan for Child to be adopted by her current
placement is not satisfactory because it would be better for Child to be adopted
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by Mother’s ex-husband. In other words, Mother contends that Child’s foster
parents are not suitable people to adopt Children. However, we need not
address whether the foster parents are suitable adoptive parents. It is within the
authority of the adoption court, not the termination court, to determine whether
an adoptive placement is appropriate. See id. We conclude that the juvenile
court did not err when it determined that DCS’s plan of adoption was
satisfactory.
[28] In sum, we affirm the juvenile court’s termination of Mother’s parental rights
over Child.
[29] Affirmed.
Bailey, J., and May, J., concur.
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