In the Matter of the Termination of the Parent-Child Relationship of: S.R.W., Minor Child, S.D., Father, and A.W., Mother v. The Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 25 2019, 9:26 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Curtis T. Hill, Jr.
Greenwood, 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 July 25, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of: S.R.W., Minor Child, 19A-JT-367
S.D., Father, and A.W., Mother, Appeal from the Johnson Circuit
Court
Appellants-Respondents,
The Honorable Andrew S.
v. Roesener
Trial Court Cause No.
The Indiana Department of 41C01-1809-JT-60
Child Services,
Appellee-Petitioner.
Brown, Judge.
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[1] S.D. (“Father”) and A.W. (“Mother” and, together with Father, “Parents”)
appeal the involuntary termination of their parental rights with respect to
S.R.W. We affirm.
Facts and Procedural History
[2] On January 22, 2018, S.R.W. was born and tested positive for
methamphetamine. Parents tested positive for methamphetamine on the same
day, and two days later S.R.W. was released to, and later placed in the care of,
Father’s paternal cousin and her husband. On January 25, 2018, the Indiana
Department of Child Services (“DCS”) filed a petition alleging S.R.W. was a
child in need of services (“CHINS”), that a pipe, resembling a crack/meth pipe,
was present in Parents’ motel room, and that Parents tested positive for
methamphetamine and amphetamine in drug screens administered on January
22, 2018.
[3] On February 20, 2018, Parents acknowledged that S.R.W. was a CHINS and
the court issued an agreed order on facilitation which stated that Parents agreed
to certain dispositional goals, including maintaining appropriate housing that
was safe, clean, and free of any illegal drugs, drug activity, alcohol, or
individuals under the influence; not using, consuming, or distributing any
controlled substances; submitting to substance abuse assessments and following
all recommendations; submitting to random drug screens; obeying the law and,
if arrested, notifying DCS within five days of the arrest; participating in home-
based case management; demonstrating an ability to meet S.R.W.’s physical
and age-appropriate supervisory needs including the provision of appropriate
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clothing, diapers, and food during parenting time; and demonstrating the ability
to meet his medical and mental health needs.
[4] On October 1, 2018, DCS filed a petition to terminate Parents’ parental rights.
On January 18, 2019, the court held a termination hearing at which it heard the
testimony of Parents, the director of the court-appointed special advocate
(“CASA”) program, Father’s cousin, Father’s probation officer, a home-based
care manager, two caseworkers, the women’s program coordinator for the
TARA treatment center, the counselor who completed Mother’s initial
assessment, and a DCS family case manager. Mother answered positively
when asked if she made an admission on February 20th that S.R.W. was a
CHINS due to “your substance abuse issues needing to be addressed.”
Transcript Volume II at 7. When Father was asked if he made the same joint
admission, he stated that he “sure did, under duress.” Id. at 12. Mother
indicated S.R.W. had been involved with DCS since he was born, her last
positive screen was in September, and since she left rehab she had relapsed for a
day on December 15th. Father answered affirmatively when asked if he had a
job “lined up,” testified that he would start at Allied Reliability Group, “which
is a contract-to-hire for Roche,” on January 28th, and stated that he would
make $29.17 an hour, which “absolutely would” be sufficient to provide for his
family’s needs. Id. at 112-113. He indicated he had completed treatment back
in April or May 2018 and that he had made an admission to his probation
officer that he used methamphetamine on December 15th.
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[5] When asked if she believed termination was in S.R.W.’s interests, CASA
director Tammi Hickman (“CASA Hickman”) answered “[a]t this time, yes,”
and stated, “round two, we’ve been here before,” that she thought Parents had
been given adequate time to address their needs, and “[w]e haven’t seen a great
improvement.” Id. at 19. DCS family case manager Kelsie Ferguson (“FCM
Ferguson”) testified that she made substance abuse assessment referrals for
Father to Salvation Army and “two to Adult and Child, one on October 10th
and one recently on January 2nd” and indicated that he did not comply with
any of the assessments. Id. at 77. She testified that she thought termination of
the parent-child relationship was in S.R.W.’s best interests because she did not
believe that Parents can keep him safe, that they are unable to meet his needs,
they struggle with addiction that is not being addressed, they are currently
homeless, and S.R.W. has medical needs. The court admitted Parents’ drug
screen results as Petitioner’s Exhibits 8-13.
[6] On the same day, the court terminated Parents’ parental rights in a twenty-two
page order. The court found that Mother and Father each have other children
besides S.R.W., Mother’s other children are not presently in her care, Father
has four other children, none of whom are presently in his care, and that he was
convicted of child molestation in 2003 related to one of his four children. The
order states that Parents’ child, I., was born on March 8, 2015, and that
Parents, who were living in a garage belonging to I.’s paternal grandparents at
the time of I.’s birth, were ordered to leave because Mother stole a debit card
belonging to I.’s paternal grandfather. It indicates that a CHINS action was
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filed regarding I., during which time period Parents used methamphetamine,
were unable to maintain suitable housing, and were both incarcerated, and that
Parents’ parental rights were terminated on February 16, 2017, “premised
largely on their inability to obtain and maintain housing; serial drug abuse; and
overall lack of participation in dispositional services.” Appellants’ Appendix
Volume II at 43.
[7] The order states that Parents were homeless when they admitted that S.R.W.
was a CHINS and that dispositional services and programming were directed
toward the accomplishment of two principal goals: “[o]btaining and
maintaining appropriate housing” and “[l]iving a life free from addiction to
illicit drugs.” Id. at 43-44. It states that Parents did not satisfy the rent
obligation of an apartment they had briefly obtained and were evicted in July
2018, that during the pendency of the underlying CHINS matter, Parents have
resided in a tent and an abandoned barn among other locations, and that they
were presently homeless and “each conceded at the trial of this matter that their
present living situation is not proper” for S.R.W. Id. at 50.
[8] Regarding Father’s substance abuse, the court found that he successfully
completed an assessment on January 29, 2018, was ordered to complete a
substance abuse curriculum through the “Living in Balance” program and
completed it on April 30, 2018, and relapsed following completion of the
program and returned to the serial abuse of illicit drugs during the months of
May and June 2018, a period during which he tested positive for
methamphetamine in eight instances and was not engaged in any substance
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abuse treatment program. Id. at 44. The order states that subsequent to his
relapse in May and June 2018, DCS issued three separate referrals for new
substance abuse assessments: to the Salvation Army on September 18, 2018,
and to Adult and Child on September 10, 2018, and on January 2, 2019; that he
failed to complete any of these assessments; and that, in addition, DCS made
approximately four referrals for residential treatment and four referrals for
outpatient treatment in which he failed to engage. It indicates he failed to
engage in any referred residential or outpatient treatment programs and has
never meaningfully engaged in treatment following his relapse in May and June
2018. It further indicates that Father was arrested for failure to register as a
convicted sex offender in fall 2018, convicted for failure to register as a sex or
violent offender as a level 6 felony pursuant to a plea agreement, and sentenced
to three hundred and sixty-five days with thirty-two days executed and the
remainder suspended to probation. The court found that Father’s probation
officer conducted a home visit of his residence in an abandoned barn on
December 18, 2018, that the probation officer witnessed evidence of drug use
and found two syringes in the barn, and that he admitted to the probation
officer that he used methamphetamine on December 15, 2018.
[9] Regarding Mother’s substance abuse, the court found that she participated in an
evaluation on January 29, 2018, and failed to follow its treatment
recommendations. The order states that she abstained from the use of illegal
drugs for several months at the inception of the related CHINS matter but
relapsed, began using methamphetamine during May and June 2018, and tested
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positive for methamphetamine in seven instances during those months. It states
that DCS made nine separate referrals for substance abuse treatment and she
failed to complete any, often displaying a recalcitrant and defiant attitude
toward treatment and treatment providers. It details an incident in spring 2018
during a parenting time session in which Mother “asked the parenting time
supervisor if it was okay to be ‘high’ during the visit” and another incident in
fall 2018 in which Mother was admitted to the TARA Treatment Center, left
against advice, returned a month later, and disclosed that she had used heroin
that day. Id. at 49. After completing detoxification, Mother returned to
commence residential services and left on foot and against advice a week later.
The court found Mother displayed a poor attitude and lack of commitment
while she was at the treatment center and that she acknowledged using
methamphetamine as recently as December 15, 2018.
[10] The order details an incident in late summer or early fall 2018 in which Parents
were asked to leave a bakery because Mother was caught attempting to steal
merchandise and stated that she was charged with theft as a level 6 felony on
August 2, 2018, “but it does not appear the charge is related to” the bakery
incident. Id. at 49. It indicates that Father obtained new employment through
a temporary agency, that he was “placed at ‘Roche,’” and that “[i]t is uncertain
whether the position at ‘Roche’ is temporary or permanent.” Id. at 50. It states
that S.R.W., who has a number of consequential health conditions that require
vigilant care and attention, remained in the uninterrupted care of Father’s
cousin and her husband, and that they have demonstrated a willingness to not
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only ensure the correct medical providers are involved in S.R.W.’s care, but
have also implemented those measures recommended by providers in their
home to ensure his safety and development. It indicates that Father’s cousin
and her husband are the adoptive parents of I., with whom S.R.W. is closely
bonded, and that I. and S.R.W. share a half hour to an hour of play time each
morning before the other children in the house awaken. It further indicates that
the court took notice of a case in which Father’s cousin and her husband filed
for the adoption of S.R.W., and found that CASA supports the termination of
Parents’ parental rights and S.R.W.’s adoption and that DCS supports
termination as well.
[11] In its “Conclusions of Law”, the court concluded that Parents have been using
methamphetamine for nearly four years and both continue to use
methamphetamine as recently as the last month, the record is replete with
evidence demonstrating DCS’s commitment to assist Parents in addressing their
addiction, and that neither Mother nor Father is any closer to completing
necessary drug treatment. The order states that Parents continue to be
contumacious as it relates to both drug treatment and their view of DCS,
demonstrate a lack of insight into their own problems, and consistently exercise
poor judgment in innumerable facets of their lives. It states that Parents fail to
see the connection between their drug addiction and their homelessness,
continue to be homeless and concede that this fact itself is a bar to immediate
reunification with S.R.W., and that Parents’ drug addictions and homelessness
can necessarily be said to be habitual at this point. The court further found that
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S.R.W. is well cared for and loved by Father’s cousin, her husband, and I., their
home is the only home he has known, and his best interest is served by
terminating Parents’ parental rights and allowing the adoption to proceed.
Discussion
[12] The issue is whether sufficient evidence supports the termination of Parents’
parental rights. In order to terminate a parent-child relationship, DCS is
required to allege and prove, among other things:
(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). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a). The State’s burden of proof for
establishing allegations in termination cases “is one of ‘clear and convincing
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evidence.’” In re G.Y., 904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind.
Code § 31-37-14-2), reh’g denied. This is “a ‘heightened burden of proof’
reflecting termination’s ‘serious social consequences.’” In re E.M., 4 N.E.3d
636, 642 (Ind. 2014) (quoting In re G.Y., 904 N.E.2d at 1260-1261, 1260 n.1).
“But weighing the evidence under that heightened standard is the trial court’s
prerogative—in contrast to our well-settled, highly deferential standard of
review.” Id. 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. Id. 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. Id. 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. “Because a case that seems
close on a ‘dry record’ may have been much more clear-cut in person, we must
be careful not to substitute our judgment for the trial court when reviewing the
sufficiency of the evidence.” Id. at 640.
[13] We note that Parents do not challenge the trial court’s specific findings.
Further, they do not specifically argue that a reasonable probability that the
conditions which resulted in S.R.W.’s removal or placement outside the home
will not be remedied or a reasonable probability that the continuation of the
parent-child relationship poses a threat to his well-being do not exist. Rather,
they phrase their argument as whether the “evidence was insufficient to
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establish by clear and convincing evidence that it was in the child’s best interest
to terminate [Parents’] parental rights.” Appellant’s Brief at 17; accord id. at 15,
18, 21. They contend that they abstained from drugs and participated in most
drug screens for significant periods of time and they passed the majority of their
screens; they had an apartment at a point before they were evicted due to an
inability to pay rent; Father was starting a full-time job with his first day only
ten days after the termination hearing; and they participated in parenting time
and actively participated in home-based case management services.
[14] In determining what is in the best interests of a child, the trial court is required
to look beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, the court must subordinate the interests of the parent
to those of the children. Id. Children have a paramount need for permanency
which the Indiana Supreme Court has called a central consideration in
determining the child’s best interests, and the Court has stated that children
cannot wait indefinitely for their parents to work toward preservation or
reunification, and courts need not wait until the child is irreversibly harmed
such that the child’s physical, mental, and social development is permanently
impaired before terminating the parent-child relationship. In re E.M., 4 N.E.3d
at 647-648. However, focusing on permanency, standing alone, would
impermissibly invert the best-interests inquiry. Id. at 648. Recommendations
by both the case manager and child advocate to terminate parental rights, in
addition to evidence that the conditions resulting in removal will not be
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remedied, is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of Child Servs., 987
N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.
[15] Our review of the evidence reveals that DCS has been involved with S.R.W.
since his birth. He was adjudicated a CHINS on February 20, 2018, due to
Parents’ substance abuse and pursuant to an agreed order. Subsequent to
agreeing to certain dispositional goals, Mother tested positive for
methamphetamine, as did Father after he had completed treatment for
substance abuse. Father did not comply with or engage in three separate
substance abuse assessment referrals – the last occurring in January 2019 – and,
as the order finds, approximately four referrals for residential treatment and
four referrals for outpatient treatment. At the January 18, 2018 termination
hearing, Mother and Father both admitted to using methamphetamine on
December 15, 2018. Although Father had indicated that he obtained new
employment which he had not yet started, he testified that the position was
contract-to-hire and the court noted the employment was through a temporary
agency and found it uncertain whether the position was permanent. CASA
Hickman indicated she believed termination was in S.R.W.’s best interests at
the time and testified that Parents received adequate time to address their needs
but to no great improvement. FCM Ferguson testified she thought termination
was in S.R.W.’s best interests because she did not believe that Parents can keep
him safe, that they are unable to meet his needs, they struggle with addiction
that is not being addressed, they are currently homeless, and S.R.W. has
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medical needs. To the extent Parents argue that they abstained from drugs for
significant periods of time, passed the majority of their screens, and had an
apartment at some point, this is a reweighing of the evidence, which this Court
will not do. See In re E.M., 4 N.E.3d at 640.
[16] Based on the testimony, as well as the totality of the evidence in the record and
set forth in the court’s termination order, we conclude that the court’s
determination that termination is in the best interests of S.R.W. is supported by
clear and convincing evidence. We find no error and affirm the trial court’s
termination of Parents’ parental rights.
[17] Affirmed.
May, J., and Mathias, J., concur.
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