In the Matter of the Termination of the Parent-Child Relationship of: Z.S. (Minor Child) and R.S. (Father) v. The 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
Jul 21 2014, 9:14 am
any 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:
MARK LEEMAN GREGORY F. ZOELLER
Logansport, Indiana Attorney General of Indiana
ROBERT J. HENKE
CHRISTINE REDELMAN
Office of Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF: Z.S. (MINOR CHILD), )
)
and )
)
R.S. (FATHER), )
) No. 09A04-1309-JT-473
Appellant-Respondents, )
)
vs. )
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE CASS SUPERIOR COURT
The Honorable Richard A. Maughmer, Judge
Cause No. 09D02-1207-JT-34
July 21, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
R.S. (“Father”) appeals the involuntary termination of his parental rights to his
daughter, Z.S.
We affirm.
ISSUE
Whether the Department of Child Services (“DCS”) presented clear and
convincing evidence to support the termination of Father’s parental rights.
FACTS
Z.S. was born on September 21, 2009. On June 20, 2011, DCS received a report
alleging that Father and Z.S.’s mother, J.S. (“Mother”), were using methamphetamine,
that they were abusing Z.S., that their home was in poor condition, and that they were not
meeting the child’s needs. A DCS worker conducted a home assessment the next day.
The worker “found no concerns at the house during the home assessment.” (Ex. Vol. II
361). Mother passed a drug screen, but Father was not available to take one at that time.
On August 8, 2011, Father submitted a drug screen at DCS’s request and tested
positive for methamphetamine. DCS opened an In-Home Child in Need of Services
(“CHINS”) case that required Father to move out of the house. DCS investigated another
report of drug use by Mother. Mother tested positive for methamphetamine on August
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25, 2011, and DCS took Z.S. into its custody. The following day, DCS filed a petition
alleging that Z.S. was a CHINS.
The juvenile court held an initial detention hearing on September 2, 2011. There,
Father and Mother initially denied that Z.S. was a CHINS. Eventually, they both
admitted that Z.S. was a CHINS on October 11, 2011, and the juvenile court set the case
for a dispositional hearing. At the dispositional hearing on December 7, 2011, the
juvenile court entered its order, continuing Z.S.’s removal from her parents and ordering
them to participate in services aimed at reunification. The juvenile court ordered, in
relevant part, that Father maintain suitable employment and housing, that he refrain from
using and selling any controlled substances, that he complete a substance abuse
evaluation and participate in treatment, and that he submit to random drug screens.1
During the CHINS proceeding, Father had attended every scheduled visit with
Z.S. However, his progress in addressing his substance abuse problem was inconsistent.
Father completed an initial substance abuse evaluation. Yet, between August 2011 and
November 2011, Father failed on two occasions to complete intensive outpatient
treatment and failed two drug screens. On November 22, 2011, Father was arrested and
charged with Class C felony possession of methamphetamine. Father posted bail and
continued with services.
Father failed a third attempt at intensive outpatient treatment. Father was admitted
into inpatient treatment at the TARA Treatment Center (“TARA”), a drug and alcohol
treatment facility. His therapist at TARA, Antoinette Novotny (“Novotny”), stated that
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Mother eventually terminated her parental rights voluntarily.
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Father completed inpatient treatment and did very well while under her care. Father did
not have any positive drug screens while at the TARA facility. Novotny did express
concerns about Father’s aftercare because he planned on “returning [to] . . . the same
triggers and same, basically, atmosphere, [and] barriers.” (Tr. 178). She also expressed
concern about Father’s views on his addiction and marijuana use. Apparently, Father did
not fully accept the possibility that continued use of marijuana was a risk for
methamphetamine relapse. TARA discharged Father successfully from their program on
March 11, 2012.
Father tested positive for amphetamine, methamphetamine, and THC on April 16,
2012. The trial court in Father’s criminal case revoked his bond and remanded him to the
county jail on May 9, 2012. Father eventually pled guilty to Class C felony possession of
methamphetamine and was sentenced to an aggregate sentence of eight years, with six
years executed in community corrections and two years suspended to probation. On July
18, 2012, the juvenile court held a permanency hearing and changed Z.S.’s permanency
plan to adoption; DCS filed a petition to terminate Father’s parental rights shortly
thereafter. The court conducted the evidentiary hearing for DCS’s petition on July 30,
2013 and August 30, 2013.
M.M. has been Z.S.’s foster mother for almost two years. M.M. testified that Z.S.
is bonded to her and her husband and refers to them as mom and dad. M.M. mentioned
that when Z.S. first came to her home, Z.S. had dental issues that needed to be addressed.
Z.S. had to have her four front teeth pulled because of severe bottle rot. According to
M.M., the dentist stated the bottle rot was due in part to what was in Z.S.’s bottles or
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“what might have been in the atmosphere [of her previous home].” (Tr. 210). M.M. also
expressed concerns about disciplining Z.S. and believed that once Z.S.’s placement was
finally determined, those problems could subside. Specifically, M.M. testified that Z.S.
“thinks, she thinks [sic] she gets to go and have fun every day. She thinks that she gets to
go from parent to parent to parent and get whatever she wants out of us and so she’s just
going to keep thinking that.” (Tr. 214). M.M. stated that she and her husband would
adopt Z.S. if Father’s parental rights were terminated.
Stacy Hawkins (“Hawkins”), a therapist with Lifeline Youth and Family Services,
worked with Father and Z.S. Hawkins testified that while she observed good parenting
skills from Father, she had continued concerns about his ability to remain sober.
Specifically, she noted that because Father has a lengthy substance abuse history and that
“Work Release” was “forced sobriety,” there was a concern that he could relapse. (Tr.
49). Hawkins worked with Z.S. because she displayed confusion “with having two
Mommies and two Daddies.” (Ex. Vol. II 454). According to Hawkins, Z.S. was having
tantrums with her foster parents and would sleep in their bed because of her having
nightmares. Z.S. also would cry and beg not to go to visits with Mother and Father.
After working with Hawkins, Z.S. would voluntarily go to visits, but she always
“ensure[d] that she [would] be picked up by the foster parent or [be] returned by the visit
staff.” Id. at 455. M.M. had some success with redirecting some of Z.S.’s behavior, but
some of the techniques she learned were no longer working. Hawkins testified that
termination of Father’s parental rights would be in Z.S.’s best interests because she is
bonded to the foster parents, identifying them as “mommy and daddy.” (Tr. 35).
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Stephanie Neher (“OCM Neher”), the ongoing case manager for DCS testified that
termination of Father’s parental rights was in Z.S.’s best interests because she has
concerns about Father’s ability to stay sober absent incarceration. In addition, OCM
Neher stated that Z.S. had been out of Father’s care for almost two years and “taking her
out of a home that she’s been in longer than she ever was with her parent[s] is not in her
best interest.” (Tr. 259).
Dave Wegner (“Wegner”), the director of the Cass/Pulaski County Community
Corrections department, supervised Father in the work release component. Wegner
mentioned that he had discovered incidents where Father was at unauthorized locations.
Father also violated the facility’s cell phone usage policy by altering the contents of
phone and text messages he received. Father faced an administrative hearing because of
these violations and received a written reprimand. Wegner further stated that because of
Father’s behavior in the facility at that point, they were not willing to modify him to
home detention at that time.
Jeffery Stanton (“GAL Stanton”), the guardian ad litem, filed a report July 23,
2013 stating the following:
On one (1) hand[,] [Father] has been reporting to DCS and has taken
advantage of all services provided to him. He has taken steps to have [Z.S.]
returned to him. However, all of his “steps” have been taken with [the]
hammer of incarceration hanging over his head. Prior to his sentencing, he
had failed to take advantage of services and continued to use [controlled
substances]. [Z.S.] seems to have a bond with her father. On a very close
call, I recommend against the termination of [Father’s] parental rights.
(App. 23). However, as GAL Stanton participated in the evidentiary hearing, he stated
that he was not as comfortable with the recommendation he made in his report. On one
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hand, GAL Stanton stated that he was impressed with the effort Father put forth after he
was incarcerated. On the other hand, he was not comfortable with the fact that
community corrections was not committed to transitioning Father to home detention at
the time of the hearing. At the end of his testimony, GAL Stanton did not offer a new
recommendation.
On September 10, 2013, the trial court entered an order terminating Father’s
parental rights. Essentially, the trial court concluded that there was a reasonable
probability that the reasons for Z.S.’s continued placement out of Father’s care would not
be remedied and that termination of parental rights was in Z.S.’s best interests.
Specifically, the trial court found that Father did not demonstrate that he could stay sober
absent incarceration and that separating Z.S. from her foster parents after two years of
being in their care would have a negative effect on her. Father now appeals. We will
provide additional facts as necessary.
DECISION
Although parental rights are of a constitutional dimension, the law allows for
termination of these rights when parties are unable or unwilling to meet their
responsibilities. In re A.N.J., 690 N.E.2d 716, 720 (Ind. Ct. App. 1997). The purpose of
termination of parental rights is not to punish parents but to protect children. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied.
In reviewing the termination of parental rights, we will neither reweigh the
evidence nor judge the credibility of witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind.
2010). We consider only the evidence most favorable to the judgment. Id. Where the
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trial court has entered findings of fact and conclusions of thereon, we apply a two-tiered
standard of review. Id. We must determine whether the evidence supports the findings
and then whether the findings support the judgment. Id. We will set aside a judgment
terminating a parent-child relationship only if it is clearly erroneous. Id. A judgment is
clearly erroneous if the findings do not support the conclusions or the conclusions do not
support the judgment. Id.When DCS seeks to terminate parental rights pursuant to INDIANA CODE § 31-35-
2-4(b)(2), it must plead and prove, in relevant part:
(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 of 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 . . . .
Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only one of
the three elements by clear and convincing evidence. See Bester v. Lake Cnty Office of
Family and Children, 839 N.E.2d 143, 153 n.5 (Ind. 2005). These allegations must be
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established by clear and convincing evidence. I.A., 934 N.E.2d at 1133. If the trial court
finds the allegations in a petition described in section 4 of this chapter are true, the court
shall terminate the parent-child relationship. I.C. § 31-35-2-8(a).
1. Conditions Remedied
Father argues that DCS did not present clear and convincing evidence that he
would relapse. We restate Father’s claim as whether the trial court erred in concluding
that there was a reasonable probability that the conditions which supported Z.S.’s
removal or continued placement outside of his care would not be remedied.
Determining whether the conditions justifying Z.S.’s removal or continued
placement outside of Father’s home would not be remedied requires a two-step analysis.
First, we must determine what conditions led to Z.S.’s removal. In re K.T.K., 989 N.E.2d
1225, 1231 (Ind. 2013). Second, we “determine whether there is reasonable probability
that those conditions will not be remedied.” I.A., 934 N.E.2d at 1134. The trial court
must judge a parent’s fitness to care for the child at the time of the termination hearing,
taking into consideration any evidence of changed conditions. A.N.J., 690 N.E.2d at 721.
The trial court must also evaluate the parent’s habitual pattern of conduct to determine
whether there is a substantial probability of future neglect or deprivation. Id. A trial
court may properly consider evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of adequate
employment and housing. McBride v. Monroe Cnty Office of Family and Children, 798
N.E.2d 185, 199 (Ind. Ct. App. 1999). Additionally, the trial court can properly consider
the services offered by DCS to the parent and the parent’s response to those services as
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evidence of whether conditions will be remedied. Id. “DCS need not rule out all
possibilities of change; rather, DCS need establish only that there is a reasonable
probability that the parent’s behavior will not change.” In re Kay.L., 867 N.E.2d 236,
242 (Ind. Ct. App. 2007).
Here, we find that the trial court did not err in concluding that the reasons for
Z.S.’s continued placement outside of the home would not be remedied. We
acknowledge that at the time of the termination hearing, Father had been sober for over a
year. However, this was mainly because of Father’s incarceration. During the CHINS
proceeding, Father had five positive drug screens. Father failed outpatient substance
abuse treatment three times. Father did complete a twenty-day intensive inpatient
substance abuse program on March 11, 2012. Yet, Father tested positive for
methamphetamine a month after being discharged and was arrested for possession of
methamphetamine two months later. In addition, Father’s inpatient treatment coordinator
expressed concern about Father returning to the same people and places that served as
triggers for his methamphetamine use. She also testified that Father did not appreciate
the risk that marijuana usage can cause a methamphetamine relapse. This evidence
supports the juvenile’s court’s conclusion that Father could not remain sober absent
incarceration and is sufficient to determine that a reasonable probability that the
conditions for Z.S.’s continued placement outside of the home would not be remedied.
2. Best Interests
For the “best interests of the child” statutory element, the trial court is required to
consider the totality of the evidence and determine whether the custody by the parent is
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wholly inadequate for the child’s future physical, mental, and social growth. In re A.K.,
924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed. In making this
determination, the trial court must subordinate the interest of the parent to that of the
child involved. Id. The recommendations of the service providers that parental rights be
terminated support a finding that termination is in the child’s best interests. See A.J. v.
Marion Cnty. Office of Family and Children, 881 N.E.2d 706, 718 (Ind. Ct. App. 2008),
trans. denied.
Father argues that DCS did not present clear and convincing evidence that
terminating his parental rights was in Z.S.’s best interests. Father compares his case to In
re G.Y., 904 N.E.2d 1257 (Ind. 2009), In re J.M., 908 N.E.2d 191 (Ind. 2009), and H.G.
v. Indiana Dep’t. of Child Services, 959 N.E.2d 272 (Ind. Ct. App. 2011) wherein our
Indiana Supreme Court and this Court held that termination of parental rights was not in
the best interests of the children involved. We distinguish Father’s case from these
previous opinions.
The parents involved in the cases cited by Father made progress with their
respective issues during the CHINS process. In addition, for the parents that were
incarcerated, their release was imminent. Here, after the CHINS dispositional hearing,
Father was ordered to, among other things, maintain suitable and stable housing,
complete an intensive outpatient program, refrain from using illegal controlled substances
and submit to random drug screens. As previously stated, Father failed intensive
outpatient treatment and tested positive for controlled substances five times. Father did
complete an inpatient treatment program but relapsed one month after being discharged
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by testing positive for methamphetamine. Two months after his discharge from inpatient
therapy, Father was arrested and convicted of possession of methamphetamine. In
addition, at the time of the hearing, Father had received several warnings that his
performance in regards to the rules and regulations on work release placed him in danger
of being revoked. Community Corrections was unwilling to commit to a date for Father
to transition to home detention. With these facts, Father’s reliance on G.Y., J.M., and
H.G. fails.
Turning to the evidence, OCM Neher testified that termination was in Z.S.’s best
interest because Z.S. needed a stable home and permanency that Father could not
provide. M.M. essentially testified that a sense of permanency for Z.S. would help in
curbing discipline problems she and her husband were experiencing with Z.S. Four-year-
old Z.S. has lived with her foster family for half of her young life. As our Indiana
Supreme Court has stated, “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. 636, 647 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1235). This is especially
true for children as young as Z.S.
Most importantly, we note that GAL Stanton originally recommended against
terminating Father’s parental rights in his report. However, after participating in the
termination hearing, he withdrew his initial recommendation and made no further
recommendation. Given Father’s demonstrated inability to maintain sobriety absent
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incarceration and the testimony of the service providers, the juvenile court’s decision was
not clearly erroneous. See e.g., Prince v. Dep’t of Child Services, 861 N.E.2d 1223, 1231
(Ind. Ct. App. 2007) (termination of parental rights was in child’s best interests where
parent failed to demonstrate she could remain sober absent compulsion from court).
Affirmed.
FRIEDLANDER, J., and MATHIAS, J., concur.
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