In the Matter of the Termination of the Parent-Child Relationship of: G v. (Minor Child) and M v. (Mother) v. Indiana Department of Child Services ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Aug 14 2014, 9:35 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEIDRE L. MONROE GREGORY F. ZOELLER
Lake Superior Court, Juvenile Division Attorney General of Indiana
Public Defender’s Office
Gary, Indiana ROBERT J. HENKE
DAVID E. COREY
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE )
TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF: )
)
G.V. (Minor Child) )
)
And )
)
M.V. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 45A03-1312-JT-502
)
INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas W. Webber, Sr., Senior Judge
Cause No. 45D06-1304-JT-111
August 14, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
Appellant-Respondent M.V. (Mother) appeals the decision of the juvenile court
terminating her parental rights with regard to G.V. Mother contends that the Appellee-
Petitioner Indiana Department of Child Services (DCS) presented insufficient evidence to
show that the conditions leading to G.V.’s removal would not be remedied, that Mother
posed a threat to G.V.’s well-being, and that the termination of her parental rights is in
G.V.’s best interests. Finding sufficient evidence to support the termination of Mother’s
parental rights, we affirm the judgment of the juvenile court.
FACTS
G.V. tested positive for trace amounts of marijuana when he was born on February
2, 2012. Mother also tested positive for marijuana. DCS allowed Mother to take G.V.
home from the hospital; however, the infant was removed from Mother on March 5,
2012, after his meconium tested positive for THC. Mother also tested positive for THC
and cocaine at the time of G.V.’s removal.
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G.V. was adjudicated to be a Child in Need of Services in April 2012. In May
2012, Mother pleaded guilty to November 2011 theft charges and was sentenced to one
year in the Lake County Work Release Program at the Kimbrough Center and one year of
probation. Mother participated in many programs at the Kimbrough Center, including
parenting classes and a substance abuse education program. Despite her participation in
these programs, following her October 2012 release from Kimbrough, Mother tested
positive for marijuana. Mother also tested positive for marijuana in November 2012.
DCS filed a petition to terminate Mother’s parental rights in April 2013.
Testimony at the December 2013 termination hearing revealed that Mother participated
in an intensive substance abuse inpatient program in July 2013 and then tested positive
for marijuana in August 2013, which was a probation violation. The testimony further
revealed that Mother had prior convictions for battery, obtaining a controlled substance
by forgery, and theft, as well as recent convictions for operating a vehicle while
intoxicated and possession of marijuana. She also had pending charges for three counts
of conversion, operating while intoxicated, and resisting law enforcement.
At the time of the hearing, Mother was back at the Kimbrough Center with an
anticipated release in March 2014. She did not have housing or employment, and she
testified at the hearing that she was unable to care for G.V. She had not visited with her
child since February 2013.
G.V., who has been in foster care with Mother’s cousin for almost two years, has
problems with his hearing and balance, which have required several surgeries. He was
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scheduled for an additional surgery for an ear infection at the time of the termination
hearing. According to DCS case worker Darren Washington, G.V.’s foster mother “has
definitely been on target when there have been problems with him to take care of him.”
Tr. p. 61. The DCS plan is for foster mother to adopt G.V.
On December 4, 2013, the juvenile court issued an order terminating Mother’s
parental relationship with G.V. Mother now appeals the termination.
DISCUSSION AND DECISION
The traditional right of parents to establish a home and raise their child is
protected by the Fourteenth Amendment to the United States Constitution. Bester v.
Lake County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). However,
parental rights may be terminated when parents are unable or unwilling to meet their
parental responsibilities. Id. The purpose of terminating parental rights is not to punish
the parent but to protect the child. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999),
trans. denied.
In reviewing the termination of parental rights, we will neither reweigh the
evidence nor judge the credibility of witnesses. Id. We consider only the evidence most
favorable to the judgment that supports the trial court’s decision and the reasonable
inferences drawn from that evidence. Id. In deference to the trial court's unique position
to assess the evidence, we set aside the judgment terminating a parent-child relationship
only if it is clearly erroneous. Id. If the evidence and inferences support the trial court's
decision, we must affirm. Id.4
When DCS seeks to terminate parental rights, it must plead and prove by clear and
convincing evidence:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
....
(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.
....
(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); In re I.A., 934 N.E.2d 1127, 1133 (Ind. 2010).
Mother argues that there is insufficient evidence to support the termination of her
parental rights. Specifically, she first contends that there is insufficient evidence to show
that there is a reasonable probability that the conditions that resulted in G.V.’s removal or
the reasons for placement outside the home will not be remedied and that there is a
reasonable probability that the continuation of the parent-child relationship poses a threat
to G.V.’s well-being.
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Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only
one of the two requirements in subsection (B). Id. As we find it to be dispositive under
the facts of this case, we consider only whether DCS established there was a reasonable
probability that the conditions resulting in the removal or reasons for placement of G.V.
outside the home would not be remedied.
To make this determination, the trial court should judge a parent’s fitness to care
for 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). The trial court
must also evaluate a parent’s habitual patterns of conduct to determine the probability of
future neglect or deprivation of the child. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.
2010). Among the circumstances that the trial court may properly consider are a parent’s
criminal history, drug and alcohol abuse, historical failure to provide support, and lack of
adequate housing and employment. McBride v. Monroe County Office of Family and
Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The Indiana Supreme Court has
explained that we entrust that delicate balance to the trial court, which has the discretion
to weigh a parent’s prior history more heavily than efforts made only shortly before
termination. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Requiring trial courts to give
due regard to changed conditions does not preclude them from finding that parents’ past
behavior is the best indicator of their future behavior. Id.Here, Mother has consistently demonstrated an inability to stop using illegal
drugs, to avoid arrest and incarceration, and to provide her son with the safe, stable, and
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drug-free environment that he needs. Mother has consistently shown her disdain for the
criminal justice system by violating terms of probation. We find sufficient evidence that
there is a reasonable probability that the conditions that resulted in G.V.’s removal will
not be remedied.
Mother also contends that there is insufficient evidence that termination of the
parent-child relationship is in G.V.’s best interests. A parent’s historical inability to
provide adequate housing, stability, and supervision coupled with a current inability to do
the same supports a finding that termination of parental rights is in the best interests of
the child. Lang v. Starke County Office of Family and Children, 861 N.E.2d 366, 373
(Ind. Ct. App. 2007). Here, Mother has historically been unable to provide adequate
housing, stability and supervision. Further, testimony at the termination hearing reveals
that she is currently unable to provide the same. We therefore find sufficient evidence
that termination of the parent-child relationship is in G.V.’s best interests.
CONCLUSION
We 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.”
Egly v. Blackford County Department of Public Welfare, 592 N.E.2d 1232, 1235 (Ind.
1992). We find no such error here.
Affirmed.
KIRSCH, J., and ROBB, J., concur.
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