In the Matter of the Termination of the Parent-Child Relationship of B.M. (Minor Child) and A.M. (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
regarded as precedent or cited before any FILED
court except for the purpose of establishing Dec 13 2019, 8:45 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT B.M. ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 13, 2019
of the Parent–Child Relationship Court of Appeals Case No.
of B.M. (Minor Child) 19A-JT-1677
and Appeal from the Vermillion Circuit
Court
A.M. (Mother),
The Honorable Jill Wesch, Judge
Appellant-Respondent,
Trial Court Cause No.
v. 83C01-1810-JT-4
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bradford, Judge.
Case Summary
[1] A.M. (“Mother”) is the biological parent of B.M. (“Child”), (born October 8,
2006). In May of 2016, Child was adjudicated to be a child in need of services
(“CHINS”) due to Mother’s drug and alcohol abuse. In October of 2018, the
Department of Child Services (“DCS”) petitioned for the termination of
Mother’s parental rights. On June 21, 2019, the juvenile court ordered that
Mother’s parental rights to Child be terminated. Mother contends that the
juvenile court’s termination of her parental rights was clearly erroneous. We
affirm.1
Facts and Procedural History
[2] On March 28, 2016, DCS learned of allegations of domestic violence, drinking,
and methamphetamine use by Mother and her boyfriend T.C. On March 30,
2016, Family Case Manager (“FCM”) Robin Gossett Fisher went to Mother’s
home to discuss the allegations. Mother denied any drug use but admitted to
1
The juvenile court also terminated Father’s parental rights, but he does not participate in this appeal.
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drinking a twelve pack of beer on the weekends when Child was not home.
FCM Fisher administered a drug screen, and Mother tested positive for
methamphetamine and amphetamine. FCM Fisher later administered a second
drug screen on Mother, and she tested positive for methamphetamine,
amphetamine, Klonopin2, and Morphine. On May 12, 2016, DCS petitioned
for Child to be adjudicated a CHINS. On May 24, 2016, Child was adjudicated
to be a CHINS. On July 20, 2016, the juvenile court held a dispositional
hearing on the CHINS petition and ordered Mother to, inter alia, maintain
contact and keep all appointments with DCS, enroll in all programs
recommended by the FCM, maintain suitable and safe housing, secure a legal
and stable source of income, abstain from consuming any illegal controlled
substances or alcohol, obey the law, complete a substance abuse assessment and
follow all recommendations, complete intensive family-preservation program,
engage in home-based counseling, and submit to random drug and alcohol
screens.
[3] Mother was compliant with services until December 27, 2016, when she was
arrested for domestic battery after beating T.C. with a broom while the two
were drinking, which resulted in Child’s removal from the home. Mother was
released from jail at the end of January and began living at CODA, which is a
facility for domestic violence victims. In February of 2017, while Mother was
still living at CODA, Child was placed with Mother on a trial home visit. In
2
Mother had a valid prescription for Klonopin.
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March of 2017, Mother was taken into custody after failing to appear for a court
hearing. Prior to turning herself in, however, Mother overdosed on Klonopin
and had to be taken to the hospital. Mother remained incarcerated for several
weeks and the trial home visit was terminated. On June 19, 2017, Mother pled
guilty to Level 6 felony domestic battery. Upon her release, Mother was
compliant with services and unsupervised visitation was implemented.
[4] In August of 2017, Mother became noncompliant with services, canceling
appointments with home-based therapy and home-based casework such that
both were closed out, and her compliance with drug screening was “[o]ff and
on.” Tr. Vol. II p. 74. On November 1, 2017, Child was again removed from
Mother’s care after Mother left Child at T.C.’s home for a couple of days while
she went out drinking. Although T.C. was living in the home at the time, T.C.
worked from 4:00 a.m. until 3:00 p.m., which left Child unsupervised for
extended periods of time. After Child’s removal, Mother failed to comply with
services for the remainder of 2017.
[5] On January 6, 2018, Mother voluntarily admitted herself into Club Soda, which
is a rehabilitation center for drug and alcohol addiction. Mother, however, was
discharged from Club Soda after an altercation with another resident. The other
resident began yelling at Child because the resident did not want to play a game
with Child, which resulted in Mother calling the resident a “f*****g f****t” and
a “[n]****r.” Tr. Vol. II p. 84. In February of 2018, DCS referred Mother to the
Hamilton Center for a drug and alcohol assessment, which was administered by
Dominique Jackson. Jackson recommended Mother participate in Matrix
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Group and motivational interviewing, neither of which Mother successfully
completed. In August of 2018, visitation was ceased at the recommendation of
Child’s therapist. The Child’s therapist advocated for visitation to stop because
“Mother is a negative, traumatic influence on Child.” Appellant’s App. Vol. II
p. 99. During supervised visitation, Mother was telling Child to “act out in the
foster home, to try to hurt them, to make it difficult so that way she would get
them home faster.” Tr. Vol. II p. 78. Thereafter, Mother completely stopped
engaging in services.
[6] On October 15, 2018, DCS petitioned for the termination of Mother’s parental
rights. The juvenile court held evidentiary hearings on February 7 and 8, 2019.
At a hearing, FCM Fisher testified that it was in Child’s best interests that
Mother’s parental rights be terminated and Child be adopted. FCM Fisher also
testified that Mother had taken 201 drugs screens over the duration of this
matter and failed to appear for forty. Mother had tested positive twenty-one
times for various substances including alcohol, methamphetamine,
amphetamine, THC, and morphine, with the most recent being on November
13, 2018. Moreover, FCM Fisher noted that in October of 2018, Mother had
left FCM Fisher a voicemail regarding birthday presents for Child, and when
FCM Fisher had returned Mother’s call, Mother had stated that “she hopes
[FCM Fisher] and [FCM Fisher’s husband] die a slow, miserable death and
called [FCM Fisher] a fat, f*****g c**t.” Tr. Vol. II p. 80. Guardian Ad Litem
(“GAL”) Angela Bullock also informed the juvenile court that she believed it
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was in Child’s best interests that Mother’s parental rights be terminated. On
June 21, 2019, the juvenile court terminated Mother’s parental rights.
Discussion and Decision
[7] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). The
parent–child relationship is “one of the most valued relationships in our
culture.” Neal v. DeKalb Cty. Div. of Family & Children, 796 N.E.2d 280, 286 (Ind.
2003) (internal citations omitted). Parental rights, however, are not absolute
and must be subordinated to the child’s interests when determining the proper
disposition of a petition to terminate the parent–child relationship. Bester, 839
N.E.2d at 147. Therefore, when parents are unwilling or unable to fulfill their
parental responsibilities their rights may be terminated. Id.
[8] In reviewing the termination of parental rights on appeal, we neither reweigh
the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of
Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.
We consider only the evidence and reasonable inferences therefrom which are
most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile
court has entered findings of facts and conclusions of law, our standard of
review is two-tiered. Id. First, we determine whether the evidence supports the
factual findings and second, whether the factual findings support the judgment.
Id. The juvenile court’s findings and judgment will only be set aside if found to
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be clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences
drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.
2005). “A judgment is clearly erroneous if the findings do not support the
juvenile court’s conclusions or the conclusions do not support the judgment.”
Id.
[9] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to
support a termination of parental rights. Of relevance to this case, DCS was
required to establish by clear and convincing evidence
(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.
[and]
(C) that termination is in the best interests of the child[.]
Ind. Code § 31-35-2-4(b)(2).3 In challenging the sufficiency of the evidence to
sustain the termination of her parental rights, Mother contends that the juvenile
3
It is not disputed that the Child had been removed from Mother for at least six months under a dispositional
decree and that there was a satisfactory plan for the care and treatment of the Child, both required findings
pursuant to Indiana Code section 31-35-2-4(b)(2).
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court erred by concluding that (1) the conditions that resulted in the removal of
Child from Mother’s care would not be remedied, (2) the continuation of the
parent–child relationship between Child and Mother posed a threat to Child’s
well-being, or (3) termination of Mother’s parental rights was in Child’s best
interests.4
I. Indiana Code Section 31-35-2-4(b)(2)(B)
[10] Mother contends that there is insufficient evidence to establish a reasonable
probability that the conditions that resulted in Child’s removal would not be
remedied or that the continued parent–child relationship posed a threat to
Child. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive, DCS was only required to establish one of the circumstances. We
choose to first address Mother’s contention that the trial court erred by
concluding that the conditions which resulted in Child’s removal would not be
remedied.
In determining whether the conditions that resulted in the
child[ren]’s removal…will not be remedied, we engage in a two-
step analysis[.] First, we identify the conditions that led to
removal; and second, we determine whether there is a reasonable
probability that those conditions will not be remedied. In the
4
Mother challenges the juvenile court’s finding that “An additional report, filed March 29, 2016, alleged that
the Child was a victim of neglect due to domestic violence in the family’s home.” Appellant’s App. Vol. II p.
86. While DCS was unable to find an additional report filed on said date, FCM Fisher did testify that the
initial report that she received on March 28, 2019, alleged “domestic violence, drinking, and
methamphetamine use.” Tr. Vol. II p. 60. Nonetheless, because there is sufficient evidence outside of this
erroneous finding to support the juvenile court’s conclusion, it is harmless and in no way prejudiced Mother.
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second step, the trial court must judge a parent’s fitness as of the
time of the termination proceeding, taking into consideration
evidence of changed conditions—balancing a parent’s recent
improvements against habitual pattern[s] of conduct to determine
whether there is a substantial probability of future neglect or
deprivation. We entrust that delicate balance to the trial court,
which has discretion to weigh a parent’s prior history more
heavily than efforts made only shortly before termination.
Requiring trial courts to give due regard to changed conditions
does not preclude them from finding that parents’ past behavior
is the best predictor of their future behavior.
In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (internal citations, quotations, and
footnote omitted, first and third set of brackets in original, second set added).
[11] The conditions that led to Child’s removal were alcohol and drug abuse. We
conclude that DCS has produced ample evidence to establish a reasonable
probability that these conditions will not be remedied. Throughout this entire
matter, Mother has failed to maintain sobriety. Mother failed to appear for forty
drugs screens and tested positive on twenty-one. She tested positive for alcohol,
methamphetamine, amphetamine, THC, and morphine, with the most recent
being a November 13, 2018, drug screen which returned positive results for
methamphetamine, amphetamine, and THC. Moreover, Mother’s substance
abuse led to her conviction for Level 6 felony domestic battery, after she beat
her then-boyfriend T.C. with a broom while the two had been drinking.
Mother’s substance abuse also caused Child to be left unsupervised at T.C.’s
home for a couple of days while she went out drinking with friends. Mother has
consistently chosen alcohol and drugs over the welfare of Child. The juvenile
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court did not clearly err in concluding that the conditions that led to Child’s
removal would not be remedied.
II. Indiana Code Section 31-35-2-4(b)(2)(C)
[12] Mother contends that there is insufficient evidence to support the juvenile
court’s conclusion that termination of her parental rights was in the Child’s best
interests. We are mindful that, in determining what is in the best interests of a
child, the juvenile court must look beyond factors identified by DCS and
consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct.
App. 2009). The juvenile court need not wait until a child is irreversibly harmed
before terminating the parent–child relationship because it must subordinate the
interests of the parents to those of the children. McBride v. Monroe Cty. Office of
Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). We have
previously held that recommendations from the FCM and court-appointed
special advocate to terminate parental rights, in addition to evidence that
conditions resulting in removal will not be remedied, is sufficient evidence to
show that termination is in the child’s best interests. In re J.S., 906 N.E.2d at
236.
[13] FCM Fisher testified that it was in Child’s best interests that Mother’s rights be
terminated and that Child be adopted. GAL Bullock also believed that
termination of Mother’s parental rights was in Child’s best interests. While
coupling that testimony with our previous conclusion that there was sufficient
evidence to show that the conditions of removal would not be remedied is
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sufficient to support the juvenile court’s termination of Mother’s parental rights,
it is not as though this testimony is unsupported by other evidence in the record.
[14] In addition to Mother’s substance abuse issues, Mother’s influence on Child
seems to be detrimental to his well-being. While in the presence of Child at
Club Soda, Mother used racial and homophobic slurs as she yelled at another
resident. Mother also told Child to act out in his foster home and hurt his foster
parent. Moreover, Mother failed to successfully complete services
recommended by DCS and had her visitation with Child terminated after
Child’s therapist said it was detrimental to his well-being. Considering the
totality of the evidence, Mother has failed to establish that the juvenile court’s
determination that termination was in the Child’s best interest was clearly
erroneous.
[15] The judgment of the juvenile court is affirmed.
Robb, J., and Altice, J., concur.
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