In the Matter of the Term. of Parent-Child Rel. of Ge.S. & O.S., and G.S. v. The Indiana Dept. of Child Services ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
JOANN M. PRICE ROBERT J. HENKE
Merrillville, Indiana DCS, Central Administration
Indianapolis, Indiana
EUGENE M. VELAZCO, JR.
DCS, Lake County Office
Gary, Indiana
ATTORNEY FOR CASA:
DONALD W. WRUCK
Dyer, Indiana
FILED
Sep 20 2012, 9:21 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
______________________________________________________________________________ tax court
IN THE MATTER OF THE TERMINATION )
OF PARENT-CHILD RELATIONSHIP OF )
Ge.S. & O.S., Minor Children )
)
and )
)
G.S., Mother, )
)
Appellant, )
)
vs. ) No. 45A03-1201-JT-11
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee. )
APPEAL FROM LAKE SUPERIOR COURT
The Honorable Mary Beth Bonaventura, Judge
Cause Nos. 45D06-1011-JT-201 and 45D06-1011-JT-202
September 20, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
G.S. (“Mother”) appeals the involuntary termination of her parental rights to her
children, G.S. and O.S., claiming there is insufficient evidence supporting the juvenile
court’s judgment. We affirm.
Facts and Procedural History
Mother is the biological mother of G.S., born in March 2008, and O.S., born in
December 2009. The facts most favorable to the juvenile court’s judgment reveal that
following O.S.’s birth, the local Lake County office of the Indiana Department of Child
Services (“LCDCS”) was notified by hospital officials that O.S. was born testing positive
for cocaine. Mother, too, had tested positive for cocaine at O.S.’s birth. During
LCDCS’s ensuing assessment, Mother admitted to having a history of substance abuse,
including using cocaine from the age of twenty-four. Mother also reported that she had
used crack-cocaine throughout the beginning of her pregnancy, and that she did not know
the paternity of either of the children.1 As a result of its investigation, LCDCS took both
children into emergency protective custody and filed petitions alleging G.S. and O.S.
were children in need of services (“CHINS”).
1
G.S.’s biological father remains unknown. During the underlying proceedings, the biological father of
O.S. was determined to be A.C. The juvenile court terminated the parental rights of both children’s
biological fathers in its November 2011 termination order. Neither father participates in this appeal. We
therefore limit our recitation of the facts to those pertinent solely to Mother’s appeal.
2
During a hearing in January 2010, Mother admitted to the allegations of the
CHINS petitions, and the children were so adjudicated. The juvenile court proceeded to
disposition the same day and thereafter issued an order formally removing G.S. and O.S.
from Mother’s care and custody, retroactive to the date of their removal in December
2009. As part of its dispositional order, the juvenile court also directed Mother to
participate in and successfully complete a variety of tasks and services designed to
address her parenting and substance abuse issues, a process the juvenile court hoped
would facilitate reunification of the family. Specifically, Mother was ordered to, among
other things: (1) successfully complete a substance abuse evaluation and any
recommended treatment; (2) submit to random drug screens; (3) undergo a psychological
evaluation; (4) participate in parenting classes and individual counseling; and (5) exercise
regular supervised visitation with the children.
During the ensuing CHINS case, Mother failed to demonstrate any enduring
commitment to completing court-ordered services and achieving reunification with the
children. For example, Mother was “really evasive” during her psychological
assessment, and it took three attempts on three different dates just to complete the
evaluation. Tr. p. 48. In addition, Mother failed to participate in the recommended
individual counseling by failing to show for all but one of her scheduled appointments.
As for parenting classes, Mother attended only four classes. She also was very
inconsistent in attending visits with the children, visiting only twice during the months of
December 2009 and January 2010.
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Regarding random drug screens, Mother did not make herself available until the
end of January 2010 when she tested positive for cocaine. In February 2010, Mother
tested positive for cocaine four times and for marijuana once. The following month,
Mother tested positive for cocaine and alcohol three times before she was arrested and
incarcerated on March 18, 2010, on an outstanding warrant from the Gary Drug Court.
Near the time of her incarceration, Mother’s referral to Human Beginnings for individual
counseling was closed due to her lack of participation and numerous “no shows” for
scheduled appointments. Id.
Although Mother was sentenced to twelve months of incarceration, LCDCS case
managers were able to work with the Drug Court and make arrangements for Mother to
serve her sentence through the Transitions in-patient program in Fort Wayne. At
Transitions, Mother would be able to complete her parenting classes, participate in
individual counseling, and exercise visitation with the children while simultaneously
serving her criminal sentence. Mother entered the Transitions program in late-April
2010, but four weeks later she was discharged from the program prior to completion due
to her bizarre behavior culminating in a psychotic episode.
Immediately following this episode, Mother was transported to Parkview
Behavioral Health Center where she underwent a psychiatric evaluation and was
diagnosed with a mood disorder, borderline personality disorder, and substance abuse
dependency. The evaluator recommended further psychological and psychiatric
evaluations to help Mother address her mental health issues, explaining that these issues
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needed to be resolved before Mother could effectively address her substance abuse
problems. Because the Transitions program was not equipped to deal with Mother’s
psychiatric problems, Mother was returned to the Lake County Jail. Sometime later,
Mother was permitted to participate in a work release program but was returned to jail
after her involvement in an altercation with another inmate. Mother served the remainder
of her sentence in jail and was released from incarceration in November 2010.
Meanwhile, in July 2010, the juvenile court approved LCDCS’s recommendation to
change the children’s permanency plans from reunification to termination of parental
rights and adoption.
Notwithstanding this change in permanency plans, LCDCS and the juvenile court
continued to offer Mother services as a final “new chance” to “achieve her goal of
sobriety and getting her children back” following her release. Id. at 73. To that end,
Mother completed parenting classes and began participating in individual counseling. In
addition, the juvenile court ordered Mother to complete the in-patient substance abuse
treatment program she had begun with Transitions. Transitions, however, would not
accept Mother back into its program until Mother addressed her mental health issues and
obtained an updated psychological/psychiatric evaluation.
In January 2011, Mother submitted to a psychiatric examination with Dr. Martha
Hernandez. Based on this assessment, Dr. Hernandez recommended that Mother
participate in long-term inpatient and outpatient programs due to her dual diagnosis of
mental health and substance abuse issues. It was also recommended that Mother undergo
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a neurological examination to determine if the deficits Mother was displaying were
“organic.” Id. at 77. Mother was subsequently referred to various mental health and
substance abuse treatment programs.
Mother’s participation in these referrals, however, was sporadic and ultimately
unsuccessful. For example, Mother completed a two-week inpatient substance abuse
treatment program with Regional Mental Health Center, which was to be immediately
followed by an eight-week intensive outpatient program. Although Mother was expected
to attend classes four days per week during the outpatient treatment program, she only
appeared for a handful of classes during the months of May and June 2011, none in July,
three in August, and two in September. Ultimately, Mother completed only twelve of the
thirty-two required classes. As a result of this sporadic participation in outpatient
treatment, Regional Mental Health declined to provide Mother with any psychiatric and
individual counseling to address her mental health issues.
Mother also continued to use cocaine and alcohol throughout 2011, failing several
random drug screens in February, March and August 2011. A ninety-day hair follicle
test, which covered the months of May through August 2011, likewise came back
positive for cocaine. In addition, Mother tested positive for alcohol in October 2011.
A consolidated evidentiary hearing on the termination petitions commenced in
November 2011. During the termination hearing, LCDCS presented substantial evidence
concerning Mother’s history of substance abuse, prior involvement with LCDCS
concerning two older children, and ongoing mental health and substance abuse issues.
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The evidence also established that Mother (1) had not visited with the children since
March 2011 when her visitation privileges were cancelled after the court learned Mother
had attended a visitation with cocaine in her system; (2) was essentially unemployed,
working occasionally for neighbors and depending upon family members to pay her
utilities; and (3) had failed to successfully complete a majority of the trial court’s
dispositional goals. Finally, LCDCS presented evidence showing that the children were
living together, thriving, and bonded with their pre-adoptive foster mother.
At the conclusion of the termination hearing, the juvenile court took the matter
under advisement. Approximately two weeks later, the court entered its judgment
terminating Mother’s parental rights to both children. Mother now appeals.
Discussion and Decision
When reviewing a judgment terminating parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. 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
juvenile 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. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
When a juvenile court’s judgment contains specific findings of fact and
conclusions thereon, as is the case here, we apply a two-tiered standard of review. Bester
v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we
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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
juvenile court’s decision, we must affirm. L.S., 717 N.E.2d at 208.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a juvenile court must
subordinate the interests of the parents to those of the child when evaluating the
circumstances surrounding a termination. K.S., 750 N.E.2d at 837. 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 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.
Before parental rights may be involuntarily terminated in Indiana, the State 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.
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(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)(B)-(D).2 The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,
904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). “[I]f
the court finds that the allegations in a petition described in section 4 of this chapter are
true, the court shall terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a)
(emphasis added). Mother challenges the sufficiency of the evidence supporting the
juvenile court’s findings as to subsections (b)(2)(B) and (D) of the termination statute
cited above.
I. Sufficiency of the Evidence - Conditions Remedied
In challenging the sufficiency of the evidence supporting the juvenile court’s
determination that there is a reasonable probability the conditions resulting in the
children’s removal will not be remedied, Mother claims that the juvenile court’s findings,
in general, were “unfounded” and “unreasonable.” Appellant’s Br. at 6. Mother further
2
Indiana Code section 31-35-2-4 was amended by Public Law No. 48-2012 (eff.
July 1, 2012). The changes to the statute became effective after the filing of the termination petition
involved herein and are not applicable to this case.
9
asserts that LCDCS’s services inappropriately focused primarily on treatment of
Mother’s substance abuse issues, rather than her mental health issues. Mother therefore
contends she is entitled to reversal.
We begin our review by observing that Indiana’s termination statute requires the
juvenile court to find only one of the three requirements of Indiana Code section 31-35-2-
4(b)(2)(B) to be established by clear and convincing evidence before it can properly
terminate parental rights. See id. Because we find it to be dispositive under the facts of
this case, we only consider whether LCDCS established, by clear and convincing
evidence, that there is a reasonable probability the conditions resulting in the children’s
removal or continued placement outside Mother’s care will not be remedied. See I.C. §
31-35-2-4(b)(2)(B)(i).
In making such a determination, the juvenile court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001),
trans. denied. The court must also “evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. Pursuant to
this rule, courts have properly considered evidence of a parent’s prior criminal history,
drug and alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children,
762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The juvenile court may also
consider any services offered to the parent by the local Indiana Department of Child
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Services office (here, LCDCS) and the parent’s response to those services, as evidence of
whether conditions will be remedied. Id. Moreover, LCDCS is not required to provide
evidence ruling out all possibilities of change; rather, it need establish only that there is a
reasonable probability the parent’s behavior will not change. In re Kay L., 867 N.E.2d
236, 242 (Ind. Ct. App. 2007).
Here, the juvenile court made detailed findings in its judgment regarding Mother’s
unresolved parenting, substance abuse, and mental health issues. In so doing, the
juvenile court acknowledged that the children were removed from Mother’s care at the
time of O.S.’s birth, as both O.S. and Mother tested positive for cocaine. The court
further found that Mother failed to take advantage of the many services offered to her,
was “non-compliant” and “very evasive” with service providers throughout the
underlying proceedings, failed to complete “any program for substance abuse
rehabilitation,” does not have “steady” employment, “depends on others to provide for
the utilities on her house,” and remains “in denial” of her ongoing “drug problem.”
Appellant’s App. p. ii. The court also found Mother “has psychological problems and
has refused to take her psychotropic medication.” Id. In addition, the court
acknowledged that Mother “was offered every service available for rehabilitation,” but
“was not amenable to the services.” Id. at iii. Finally, the juvenile court found:
Mother has failed to demonstrate the necessary skills to raise the children.
Mother has four children, none of which are in her care. Mother has
demonstrated that she could not remain drug free. . . . It is unlikely that any
of the parents would be in a position to properly parent these children.
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Id. A thorough review of the record leaves us satisfied that clear and convincing
evidence supports the juvenile court’s findings set forth above, which in turn support the
court’s ultimate decision to terminate Mother’s parental rights to both children.
The record makes clear that, at the time of the termination hearing, Mother had
made little, if any, progress in demonstrating that she will ever be capable of providing
the children with a safe, stable, and drug-free home environment. Specifically, Mother
did not have steady employment, failed to successfully complete individual therapy and
substance abuse treatment, refused to take her prescribed medication, and had not visited
with the children since March 2011. During the termination hearing, LCDCS case
manager Monroe confirmed that prior to Mother’s incarceration she was “not complying
with anything,” was “very combative with all of the services,” and was “not willing to
admit her addiction to cocaine . . . and all of her problems.” Tr. p. 58. When asked to
explain why LCDCS changed the children’s permanency plan from reunification to
adoption, Monroe again referred to Mother’s “noncompliance,” with services, explaining
that “[o]ther than [Mother] being drug[-]free, because she could not use drugs while
incarcerated, there was no progress. . . . [Mother] was not, uh, consistent with the case
plan before her incarceration.” Id. Monroe also testified that she had observed Mother
“was not bonding with [O.S.] at all” during visits with the children and that Mother had
indicated “from the beginning” that she wanted to “give [O.S.] up for adoption . . . but
she did want to keep [G.S.].” Id. at 58-59. Similar testimony was likewise provided by
visit supervisors.
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Moreover, Mother admitted during the termination hearing that she had failed to
complete any of the recommended substance abuse and individual therapy services. She
also acknowledged that her current employment consisted solely of working for “some of
[her] neighbors” doing “[h]ome healthcare” such as cooking and cleaning. Id. at 176.
When asked to describe her client base, Mother indicated that she had two clients, that
“everyone else” was “not very consistent” and “may not call and ask for my services.”
Id. She went on to explain that her rates varied from five dollars to twenty-five dollars
for “a couple of hours” of work. Id. at 177. Finally, Mother informed the juvenile court
that she believed she had “come a long way” and that she believed she could “with time”
complete the long-term drug program and “probably find a medication that would help
me keep my emotional psychotic, whatever you guys call this, under control.” Id. at 180-
81.
As noted earlier, a juvenile court must judge a parent’s fitness to care for his or her
child at the time of the termination hearing, taking into consideration the parent’s habitual
patterns of conduct to determine the probability of future neglect or deprivation of the
child. D.D., 804 N.E.2d at 266. Moreover, where a parent’s “pattern of conduct shows
no overall progress, the court might reasonably find that under the circumstances, the
problematic situation will not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
2005). Here, LCDCS presented clear and convincing evidence to support the juvenile
court’s findings and ultimate determination that there is a reasonable probability the
conditions leading to G.S.’s and O.S.’s removal or continued placement outside of
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Mother’s care will not be remedied. Mother’s arguments to the contrary, including her
assertion that LCDCS should have provided more mental health services and focus less
on helping Mother overcome her substance abuse issues, amount to an invitation to
reweigh the evidence, which we may not do. D.D., 804 N.E.2d at 265; see also In re
E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (concluding that provision of services is
not requisite element of Indiana’s termination statute and even complete failure to
provide reunification services does not serve to negate necessary element of termination
statute).
II. Best Interests
We next consider Mother’s assertion that termination of her parental rights is not
in the children’s best interests. We are ever mindful that, when determining what is in a
child’s best interests, a juvenile court is required to look beyond the factors identified by
the Indiana Department of Child Services and to look to the totality of the evidence.
McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). In so doing, however, the court must subordinate the interests of the parent
to those of the child. Id. Moreover, we have previously explained that recommendations
from the case manager and child advocate that parental rights should be terminated
support a finding that termination is in the child’s best interests. Id.
Here, in addition to the findings set forth previously, the juvenile court found that
Mother “did not bond with [O.S.] and often indicated that she was not interested in
parenting this child.” Appellant’s Appendix pp. ii-iii. The court went on to find that
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Mother had failed to provide “any emotional or financial support for the children,” to
“demonstrate the necessary parental skills to raise the children,” and to “remain drug
free.” Id. at iii. As for the children, the court specifically found that they were “bonded
in the foster home and are thriving.” Id. Based on these and other findings, the juvenile
court concluded that it is in the “best interests of the child[ren] and their health, welfare
and future that the parent-child relationships . . . be forever fully and absolutely
terminated.” Id. These findings and conclusions, too, are supported by the evidence.
It was the general consensus of LCDCS case managers and services providers
alike that termination of Mother’s parental rights was in the children’s best interests. In
recommending termination, case manager Monroe informed the juvenile court that both
children were found in a poor state of health when initially removed from Mother’s care.
Monroe further confirmed that O.S. tested positive for cocaine, was suffering from
symptoms of withdrawal, and “was kind of a spastic newborn.” Tr. p. 59. G.S., who was
two years old at the time, was likewise described as “a very sickly child.” Id. He was
“very small,” had pneumonia, did not respond to his own name, and could not give more
than “one-word responses.” Id.
When asked to describe how the children were currently doing in foster care,
current LCDCS case manager Geralyn Martin (“Martin”) testified that the children had
“improved greatly,” that their health problems were “starting to subside,” and that they
were living together and thriving in foster care. Id. at 89. Martin went on to testify that
she believed the children’s progress was due in large part to the “stability they now have
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with [foster mother].” Id. at 91. Additionally, Martin explained that the children “need
to grow up in a drug[-]free environment,” with a parent that can “protect them” and
“ensure that their medical needs are going to be met, [and] that they will have
consistency, structure, [and] nurturance . . . .” Id. at 102.
A juvenile court need not wait until a child is irreversibly influenced by a deficient
lifestyle such that his or her physical, mental, and social growth is permanently impaired
before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287 (Ind. Ct.
App. 2002). For all these reasons, including Mother’s unresolved mental health and
substance abuse issues, coupled with the testimony from Martin and Monroe and other
service providers recommending termination of the parent-child relationships, we
conclude that the juvenile court’s determination that termination of parental rights is in
G.S.’s and O.S.’s best interests is supported by the evidence.
III. Satisfactory Plan
Finally, we turn to Mother’s assertion that LCDCS failed to show it has a
satisfactory plan for the future care of the children. Indiana Code section 31-35-2-
4(b)(2)(D) provides that before a juvenile court may terminate a parent-child relationship,
it must find there is a satisfactory plan for the future care and treatment of the child. Id.;
see also D.D., 804 N.E.2d at 268. It is well-established, however, that this plan 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. Id. Here, LCDCS’s plan is for
G.S. and O.S. to be adopted by their current foster mother who has expressed a desire to
16
do so. This plan provides the juvenile court with a general sense of the direction of the
children’s future care and treatment. LCDCS’s plan is therefore satisfactory. See id.
(concluding that State’s plan for child to be adopted by current foster parents or another
family constituted suitable plan for future care of child).
This Court will reverse a termination of parental rights “‘only upon a showing of
‘clear error’– that which leaves us with a definite and firm conviction that a mistake has
been made.’” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly v.
Blackford Cnty. Dep’t of Public Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
VAIDIK, J., and BARNES, J., concur.
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