In re the Termination of the Parent-Child Relationship of Z.S. (Minor Child), H.M. (Mother) and T.S. (Father) v. The Indiana Department of Child Services (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                   FILED
    regarded as precedent or cited before any
    May 04 2017, 9:12 am
    court except for the purpose of establishing
    the defense of res judicata, collateral                                 CLERK
    Indiana Supreme Court
    estoppel, or the law of the case.                                      Court of Appeals
    and Tax Court
    ATTORNEY FOR APPELLANT H.M.                              ATTORNEYS FOR APPELLEE
    Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
    Wieneke Law Office                                       Attorney General of Indiana
    Brooklyn, Indiana                                        Robert J. Henke
    James D. Boyer
    ATTORNEY FOR APPELLANT T.S.
    Deputy Attorneys General
    Mark Small
    Indianapolis, Indiana
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In re the Termination of the                             May 4, 2017
    Parent-Child Relationship of                             Court of Appeals Case No.
    Z.S. (Minor Child),                                      60A01-1607-JT-1552
    H.M. (Mother) and T.S.                                   Appeal from the Owen Circuit
    (Father),                                                Court
    Appellants-Respondents,                                  The Honorable Kelsey B. Hanlon,
    Judge
    v.                                               Trial Court Cause No.
    60C02-1512-JT-279
    The Indiana Department of
    Child Services,
    Appellee-Petitioner.
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017          Page 1 of 12
    Mathias, Judge.
    [1]   The Owen Circuit Court entered an order terminating the parental rights of
    H.M. (“Mother”) and T.S. (“Father”) to their minor child Z.S. Father appeals
    and argues that the trial court erred in concluding that the Indiana Department
    of Child Services (“DCS”) met its burden of proving by clear and convincing
    evidence that termination of his parental rights was in the best interests of the
    child. Mother also appeals and argues that the trial court erred in concluding
    that DCS met its burden of showing that the conditions that led to the child
    being removed from her care would not be remedied and that continuation of
    the parent-child relationship posed a threat to the well-being of the child.
    Concluding that both parents’ arguments are little more than a request that we
    reweigh the evidence, we affirm.
    Facts and Procedural History
    [2]   Mother and Father were in a romantic relationship for over a year. During this
    relationship, Mother became pregnant and, in April 2014, gave birth to a
    daughter, Z.S. At birth, Z.S. tested positive for amphetamine,
    methamphetamine, and THC.1 Mother initially denied using drugs but then
    later admitted that both she and Father were addicted to methamphetamine.
    On April 8, 2014, DCS removed Z.S. from her parents’ care and petitioned the
    1
    THC is the abbreviated name for tetrahydrocannabinol, the main active chemical in marijuana. Radick v.
    State, 
    863 N.E.2d 356
    , 359 (Ind. Ct. App. 2007).
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017            Page 2 of 12
    trial court to find that Z.S. was a child in need of services (“CHINS”). The trial
    court held a hearing on the CHINS petition on May 29, 2014, and issued an
    order finding Z.S. to be a CHINS on July 8, 2014. The court issued a
    dispositional order on October 7, 2014, and ordered both parents to engage in
    services to address their substance abuse issues, including addiction counseling,
    recovery coaching, and life-skills training. The trial court also ordered both
    parents to participate in a regimen of chemical testing to monitor their sobriety
    and to participate in visitation with their daughter.
    [3]   After the dispositional hearing, Father was initially compliant with the services
    offered, participated in drug testing, and was in contact with the assigned DCS
    family case manager (“FCM”). However, on October 2014, Father stopped
    participating in services, stopped submitting drug tests, and did not attend
    visitation with Z.S. Indeed, Father effectively dropped off the map for a year
    between October 2014 and October 2015, during which time the FCM was
    unable to contact Father. Then, in November 2015, Father attended a visit with
    Z.S. and began to communicate with the FCM. DCS then attempted to
    establish a drug testing schedule for Father. DCS also made another referral for
    Father to receive a substance abuse evaluation. Father failed to attend the
    scheduled evaluation. Over the course of the CHINS case, Father missed
    numerous scheduled drug tests and consistently tested positive for
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017   Page 3 of 12
    methamphetamine when he did submit to testing.2 Thus, Father wholly failed
    to address his methamphetamine addiction.
    [4]   Like Father, Mother was initially compliant. She underwent a substance abuse
    evaluation on April 9, 2014, and participated in the offered services up to the
    time of the dispositional hearing in July 2014. After the dispositional hearing,
    Mother missed two scheduled drug tests, but was negative on the twenty-six
    tests she did submit to. But thereafter, Mother’s participation in drug testing
    became very inconsistent. From November 2014 through August 2015, she
    missed thirty-two drug tests. And the tests she did submit to were invariably
    positive for methamphetamine use.3 Mother last contacted her service providers
    in June 2015, after which she made no further contact.
    [5]   Mother was also incarcerated at various times during the CHINS proceedings.
    As found by the trial court, Mother was in jail on a probation violation from
    June 26 to July 20, 2015. Later again that year, she was in jail on another
    probation violation from October 6 to October 14, 2015. Then, from April 1 to
    May 2, 2016, Mother was incarcerated in relation to a new criminal case.
    [6]   On December 1, 2015, DCS filed a petition to terminate Mother and Father’s
    parental rights. The trial court held an evidentiary hearing on the petition on
    2
    The trial court specifically found that Father tested positive for methamphetamine on April 6, 2014; April 8,
    2014; April 11, 2014; April 16, 2014; April 21, 2014; April 23, 2014; April 25, 2014; April 30, 2014; June 16,
    2014; October 16, 2014; April 1, 2016; and April 4, 2016.
    3
    The trial court specifically found that Mother tested positive for methamphetamine use on November 17.
    2014; December 29, 2014; March 25, 2015; June 12, 2015; October 7, 2015; and March 1, 2016.
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017               Page 4 of 12
    May 16, 2016. The trial court issued findings of fact and conclusions of law on
    June 17, 2016, terminating Mother and Father’s parental rights to Z.S. Both
    parents now appeal.
    Termination of Parental Rights
    [7]   We have long noted that the purpose of terminating parental rights is not to
    punish parents but instead to protect their children. In re S.P.H., 
    806 N.E.2d 874
    , 880 (Ind. Ct. App. 2004). Although parental rights have a constitutional
    dimension, the law allows for the termination of such rights when the parents
    are unable or unwilling to meet their responsibilities as parents. 
    Id.
     Indeed, the
    parents’ interests must be subordinated to the child’s interests in determining
    the proper disposition of a petition to terminate parental rights. In re G.Y., 
    904 N.E.2d 1257
    , 1259 (Ind. 2009).
    [8]   The termination of parental rights is controlled by Indiana Code section 31-35-
    2-4(b)(2), which provides inter alia that a petition to terminate parental rights
    must allege
    (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;
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017   Page 5 of 12
    (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.
    [9]    The burden is on DCS to prove each element by clear and convincing evidence.
    
    Ind. Code § 31-37-14-2
    ; G.Y., 904 N.E.2d at 1261. However, as Indiana Code
    section 4(b)(2)(B) is written in the disjunctive, the trial court is required to find
    that only one prong of subsection (b)(2)(B) has been established by clear and
    convincing evidence. In re A.K., 
    924 N.E.2d 212
    , 220 (Ind. Ct. App. 2010).
    “Clear and convincing evidence” need not establish that the continued custody
    of the parent is wholly inadequate for the child’s very survival. Bester v. Lake
    Cnty. Office of Family & Children, 
    839 N.E.2d 143
    , 147 (Ind. 2005). It is instead
    sufficient to show by clear and convincing evidence that the child’s emotional
    and physical development are put at risk by the child remaining with the
    parents. 
    Id.
     If the court finds the allegations in a petition are true, the court shall
    terminate the parent-child relationship. I.C. § 31-35-2-8(a).
    [10]   On appeal, we have long had a highly deferential standard of review in cases
    involving the termination of parental rights. In re D.B., 
    942 N.E.2d 867
    , 871
    (Ind. Ct. App. 2011). That is, we neither reweigh the evidence nor assess
    witness credibility, and we consider only the evidence and reasonable inferences
    favorable to the trial court’s judgment. 
    Id.
     In deference to the trial court’s
    unique position to assess the evidence, we will set aside a judgment terminating
    a parent-child relationship only if it is clearly erroneous. 
    Id.
     Clear error is that
    which leaves us with a definite and firm conviction that a mistake has been
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017   Page 6 of 12
    made. J.M. v. Marion Cnty. Office of Family & Children, 
    802 N.E.2d 40
    , 44 (Ind.
    Ct. App. 2004), trans. denied.
    I. Father’s Argument
    [11]   Father claims on appeal that the trial court clearly erred in determining that
    termination of his parental rights was in the best interests of Z.S.4 When
    deciding what is in the best interests of the child, the trial court must look
    beyond the factors identified by DCS and to look to the totality of the evidence.
    A.D.S. v. Ind. Dep’t of Child Servs., 
    987 N.E.2d 1150
    , 1158 (Ind. Ct. App. 2013),
    trans. denied. The trial court must subordinate the interests of the parent to those
    of the child, and the court need not wait until the child is irreversibly harmed
    before terminating the parent-child relationship. 
    Id.
     A recommendation by the
    case manager or child advocate to terminate parental rights, in addition to
    evidence that the conditions resulting in removal will not be remedied, is
    sufficient to show by clear and convincing evidence that termination is in the
    child’s best interests. 
    Id.
    [12]   Based on the totality of the evidence presented, we conclude that there was
    sufficient evidence from which the trial court could reasonably conclude that
    termination of Father’s parental rights was in the Z.S.’s best interests.
    Throughout the course of the underlying CHINS case, Father made little or no
    4
    Father does not argue that DCS failed to meet its burden with regard to the other elements set forth in
    Indiana Code section 31-35-2-4(b)(2).
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017                Page 7 of 12
    progress. Although Father initially participated in some services, he failed to
    visit his daughter or contact DCS for over a year. See Lang v. Starke Cnty. Office of
    Family & Children, 
    861 N.E.2d 366
    , 372 (Ind. Ct. App. 2007) (observing that the
    failure to exercise the right to visit one’s child demonstrates a lack of
    commitment to complete the actions necessary to preserve the parent-child
    relationship). Moreover, the Court Appointed Special Advocate (“CASA”)
    testified that termination of Father’s parental rights was in the best interests of
    Z.S., noting that the CHINS case had been open for two years, yet Father had
    made no progress and had even regressed with regard to his substance abuse
    problem.
    [13]   In short, Father has a serious and untreated addiction to methamphetamine and
    failed to take advantage of the services offered to him. He failed to maintain
    contact with DCS and failed for a considerable period to even visit his child.
    Under these facts and circumstances, the trial court did not clearly err in
    determining that termination of Father’s parental rights was in the best interests
    of Z.S.
    II. Mother’s Argument
    [14]   Mother argues on appeal that DCS failed to present clear and convincing
    evidence that the conditions which led to Z.S.’s removal from Mother’s care
    would not be remedied and that continuation of the parent-child relationship in
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017   Page 8 of 12
    this case would pose a threat to Z.S.’s well-being.5 As noted above, however,
    Subsection 4(b)(2)(B) is written in the disjunctive, and the trial court is required
    to find that only one prong of subsection (b)(2)(B) has been established by clear
    and convincing evidence. In re A.K., 
    924 N.E.2d at 220
    . Accordingly, we
    address only the first prong, i.e. whether there was a reasonable probability that
    the conditions which led to Z.S.’s removal from Mother’s care would not be
    remedied.
    [15]   When deciding whether there is a reasonable probability that the conditions
    resulting in a child’s removal or continued placement outside of a parent’s care
    will not be remedied, the trial court must determine a parent’s fitness to care for
    the child at the time of the termination hearing while also taking into
    consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child
    Servs., 
    987 N.E.2d 1150
    , 1156-57 (Ind. Ct. App. 2013). The trial court may
    disregard efforts made only shortly before termination and weigh more heavily
    a parent’s history of conduct prior to those efforts. In re K.T.K., 
    989 N.E.2d 1225
    , 1234 (Ind. 2013). The termination statute does not focus only on the
    initial reason for a child’s removal for purposes of determining whether a
    parent’s rights should be terminated, but also those reasons resulting in the
    continued placement outside the home. In re N.Q., 
    996 N.E.2d 385
    , 392 (Ind.
    Ct. App. 2013).
    5
    Mother makes no argument that DCS failed to meet its burden with regard to the remaining elements of
    Indiana Code section 31-35-2-4(b)(2).
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017           Page 9 of 12
    [16]   Here, the condition that led to Z.S.’s removal from Mother’s care and her
    continued placement outside of Mother’s home was that Mother used
    methamphetamine and other drugs. Z.S. tested positive for amphetamine and
    methamphetamine at birth. Although Mother showed some initial
    improvement, she relapsed and never successfully treated her serious substance
    abuse problem. Indeed, Mother tested positive for methamphetamine as
    recently as March 1, 2016, less than three months prior to the termination
    hearing.
    [17]   Mother admits that she relapsed but attempts to minimize the import of this by
    noting that a DCS witness stated that relapse is a normal part of recovery. She
    also claims that she demonstrated an ability to maintain sobriety for significant
    periods of time. However, the facts most favorable to the trial court’s decision
    demonstrate that, although Mother did initially show some progress in treating
    her drug addiction, she later relapsed and was never again able to maintain any
    long-term sobriety and went into a “downward spiral.” Tr. p. 24. She tested
    positive for methamphetamine use on November 17, 2014, December 29, 2014,
    March 25, 2015, June 12, 2015, October 7, 2015, and March 21, 2016. And
    from November 2015 to March 2016, she missed dozens of drug screens. The
    trial court could reasonably infer that Mother missed these drug screens because
    she would have tested positive. See In re A.B., 
    924 N.E.2d 666
    , 671 (Ind. Ct.
    App. 2010) (noting that a parent cannot be permitted to refuse to submit to drug
    testing then later claim that there was no proof that the parent continued to use
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017   Page 10 of 12
    drugs). Mother stopped participating in services in June 2015, and was pregnant
    with another child as she continued to use methamphetamine.
    [18]   It is clear from this evidence that, at the time of the termination hearing,
    Mother continued to have serious, untreated substance abuse problem. This
    problem resulted in Mother being incarcerated during the underlying CHINS
    case. In fact, DCS had trouble contacting Mother for a certain period because
    Mother was afraid of being arrested on an outstanding warrant and being sent
    back to jail. Contrary to Mother’s claim that she did not act inappropriately
    during visits with Z.S. or “misuse” the service providers, there was evidence
    that Mother threatened the visitation coordinator and her children during one
    visitation.6
    [19]   In short, Mother did not have a temporary setback during a period of steady
    progress toward managing her addiction. To the contrary, after an initial period
    of progress, Mother began to consistently use methamphetamine again.7
    Accordingly, the trial court did not clearly err when it determined that the there
    was a reasonable probability that the reason for Z.S.’s removal from Mother’s
    care, Mother’s methamphetamine use, would not be remedied. See In re A.S., 
    17 N.E.3d 994
    , 1005 (Ind. Ct. App. 2014) (concluding that evidence supported
    6
    Accordingly, Mother’s claim that her behavior was not as detrimental as that of the mother in Wedding v.
    Dep’t of Child Servs. Of Vanderburgh Cnty., 
    907 N.E.2d 533
     (Ind. Ct. App. 2008), is unavailing.
    7
    Because Mother did not merely temporarily relapse, her claim that her behavior was not as egregious as the
    mother in In re A.B. is without merit.
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017             Page 11 of 12
    trial court’s finding that the conditions that led to children’s removal,
    specifically parents’ substance abuse, would not be remedied, where mother’s
    substance abuse worsened and mother failed to participate in substance abuse
    treatment), trans. denied.
    Conclusion
    [20]   The trial court did not clearly err in concluding that termination of Father’s
    parental rights was in the best interests of Z.S. Nor did the trial court clearly err
    in concluding that there was a reasonable probability that the conditions that
    led to Z.S.’s removal from Mother’s care would not be remedied. We therefore
    affirm the order of the trial court terminating Mother and Father’s parental
    rights to Z.S.
    [21]   Affirmed.
    Kirsch, J., and Altice, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 60A01-1607-JT-1552 | May 4, 2017   Page 12 of 12