Term. of the Parent-Child Rel. of: D.C. M.C. M.G. & L.C. (Minor Children) and T.G. (mother) 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 FILED
any court except for the purpose of Oct 25 2012, 9:09 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
R. PATRICK MAGRATH MARJORIE A. MILLMAN
Alcorn Goering & Sage, LLP DCS, Jackson County Local Office
Madison, Indiana Seymour, Indiana
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF: )
D.C.; M.C.; M.G.; & L.C. (Minor Children) )
and T.G. (mother), )
Appellant-Respondent, )
)
vs. ) No. 36A01-1204-JT-150
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
Appellee-Petitioner. )
APPEAL FROM THE JACKSON SUPERIOR COURT
The Honorable Bruce A. MacTavish, Judge
Cause No. 36D02-1112-JT-309, 310, 311, 312
October 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
T.G. (“Mother”) appeals an order terminating her parental rights to D.C., M.C., M.G.,
and L.C. (collectively, “the Children”) upon the petition of the Jackson County Department
of Child Services (“DCS”).1 We affirm.
Issue
Mother presents a single issue for review: Whether DCS established, by clear and
convincing evidence, the requisite statutory elements to support the termination of parental
rights.
Facts and Procedural History
In January of 2011, DCS received a report that Mother was neglecting the medical
needs of her youngest child, M.C., who had been born prematurely and had chronic lung
disease. Family case manager Lissa Allman (“Allman”) investigated the report and
determined that M.C. had been released from the hospital in August of 2010, with referrals to
four specialists. By January, M.C. had not been seen by any specialist; his medication and
respiratory injections were not being administered and, at times, he was without access to his
bottled oxygen.
Allman also determined that the Children lacked adequate food and clothing, and that
the family was in imminent danger of eviction. Mother’s four children and infant grandchild
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The parental rights of two named fathers and one unknown father were also terminated. Although the fathers
are parties of record, they are not active participants in this appeal.
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were removed from the home.2 M.C. was soon hospitalized for a severe lung infection; he
was “life lined” from Columbus Regional Hospital and spent three and one-half weeks in an
Indianapolis pediatric facility. (Tr. 82.) Mother was charged with and pled guilty to one
count of Neglect of a Dependent, as a Class A misdemeanor,3 for failing to provide M.C.
with appropriate medical care. Mother received a one-year sentence, suspended to probation.
On February 2, 2011, the Children were determined to be Children in Need of
Services. At the disposition hearing, Mother was ordered to participate in individual
counseling, contact DCS on a weekly basis, complete a substance abuse assessment and
follow recommendations, submit to random drug tests, maintain a stable home, obtain
reliable transportation and seek full-time employment, become educated regarding M.C.’s
special needs care, make medical appointments for the Children, complete parenting classes,
and visit with the Children.
Mother’s participation in reunification services was inconsistent. She regularly visited
with the Children and maintained sporadic contact with DCS. However, she did not
participate in a substance abuse assessment. On three occasions, she refused to submit to
drug screens. On several other occasions, she tested positive for substances including
methamphetamine, oxycodone, and oxymorphone. She attended seven individual counseling
appointments, but failed to show up for twenty-five appointments. Mother appeared for three
of M.C.’s medical appointments, but did not obtain training related to his gastric tube.
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M.G. had become pregnant at age thirteen and had recently given birth. The seven-week-old had not received
her recommended immunizations and M.G. had not had her post-natal checkup.
3
Ind. Code § 35-46-1-4.
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On August 3, 2011, Mother appeared at a periodic review hearing in the custody of
law enforcement. She had been arrested for welfare fraud for having retained M.C.’s
Supplemental Security Income checks after the removal.
On December 8, 2011, DCS petitioned to terminate Mother’s parental rights. The
Jackson County Superior Court, Juvenile Division, conducted an evidentiary hearing on
March 7, 2012. On March 10, 2012, the court issued an order terminating Mother’s parental
rights. She now appeals.
Discussion and Decision
A. Standard of Review
Our standard of review is highly deferential in cases concerning the termination of
parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This Court will not set
aside the trial court’s judgment terminating a parent-child relationship unless it is clearly
erroneous. In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997). When reviewing the
sufficiency of the evidence to support a judgment of involuntary termination of a parent-child
relationship, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.We consider only the evidence that supports the judgment and the reasonable inferences to be
drawn therefrom. Id.B. Requirements for Involuntary Termination of Parental Rights
Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet their parental
responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147
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(Ind. 2005). The purpose of terminating parental rights is not to punish the parents, but to
protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.
Indiana Code Section 31-35-2-4(b)(2) sets out the elements that DCS must allege and
prove by clear and convincing evidence in order to terminate a parent-child relationship:
(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.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are
not required, including a description of the court’s finding, the
date of the finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and has been under
the supervision of a county office of family and children for at
least fifteen (15) months of the most recent twenty-two (22)
months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need
of services or a delinquent child;
(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.
If the court finds that the allegations in a petition described above are true, the
court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a). A trial
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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 trial court must
also “evaluate the parent’s habitual patterns of conduct to determine the probability of
future neglect or deprivation of the child.” Id. 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.
C. Analysis
Mother does not challenge the juvenile court’s determination pursuant to Indiana Code
Section 31-35-2-4(b)(2)(A) (removal from parent), (C) (best interests of the children) or (D)
(satisfactory plan). She challenges the determination relating to Indiana Code Section 31-35-
2-4(b)(2)(B) (conditions will not be remedied or relationship poses a threat to child’s well-
being).
Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and therefore
the court needed only to find that one of the three requirements of subsection (b)(2)(B) had
been established by clear and convincing evidence. See L.S., 717 N.E.2d at 209. As Mother
observes, the trial court did not specifically conclude that there exists a “reasonable
probability” the conditions leading to removal “will not” be remedied, instead finding that
“[t]he reasons for the removal or reasons for placement outside of the home have not been
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remedied.” (App. 19.) (emphasis added.) However, the court specifically found that
continuation of the parent-child relationships posed a threat to the well-being of the Children.
Accordingly, we will consider whether DCS established, by clear and convincing evidence,
the existence of such a threat. See Ind. Code § 31-35-2-4(b)(2)(B)(ii).4
Mother admits that she “did not comply with all aspects of the case plan or participate
in all offered services” but alternatively suggests that she will be able to complete the
services, or effectively parent without the services. Appellant’s Brief at 14-15. She argues
that her lack of progression as measured by DCS expectations is not a threat to the Children’s
well-being.
Family case manager Mary Ann Spray (“Spray”) testified that Mother had failed to
attend sufficient individual therapy appointments to progress toward the anticipated family
counseling with her two oldest children, and did not complete a formal substance abuse
assessment. Spray explained that L.C. had been diagnosed with Attention Deficit –
Hyperactivity Disorder. She described D.C. as “a wild child” with severe tantrums, head
banging, poor speech development, and defiance, although he had made progress in foster
care. (Tr. 90.) She opined that M.G.’s needs, as a young teen mother, were “extreme.” (Tr.
95.) According to Spray, Mother had signed up for two sessions of parenting classes, but
failed to complete either session.
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The DCS notes that the trial court concluded “DCS has proven by clear and convincing evidence that the
allegations in the petition are true.” (App. 20.) Nonetheless, the DCS allegation was written in the disjunctive,
alleging either that the conditions leading to removal were unlikely to be remedied or that continuation of the
parent-child relationships posed a threat to the Children’s well-being. Thus, we cannot determine, on the basis
of the petitions for termination and orders, that the trial court entered a conclusion of law with respect to
likelihood of conditions being remedied.
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Spray detailed Mother’s drug screens as follows. In January of 2011, Mother refused
a drug test. She again refused a test in early February. On February 9, 2011, Mother tested
positive for amphetamines and methamphetamines. On February 24, 2011, she tested
positive for methamphetamines. In early March, she tested positive for oxycodone; later that
month, she refused a drug screen. On March 23, 2011, she tested positive for
methamphetamines. Twice in June and twice in July, she tested positive for oxycodone and
oxymorphone. In September, Mother was observed touching a swab as if to alter the test
results; she was given a second test and that test was positive for oxycodone and
oxymorphone. Those tests had been administered when Mother appeared for visitation with
the Children; Mother was not cooperative with random drug testing at her home because she
would not appear at agreed-upon times. Despite the positive drug screens, Mother did not
pursue substance abuse evaluation and treatment.
Lacking full-time employment, she did not provide financial support while the
Children were in foster care. Mother and her boyfriend had obtained housing approximately
one year prior to the termination hearing. The property belonged to the boyfriend’s mother,
who allowed the occupancy although Mother and her boyfriend were not paying rent and did
not have a rental or purchase contract. Spray described the initial condition of the residence
as “very dilapidated” and needing an “extreme amount of work, both inside and outside.”
(Tr. 58.) Spray testified that the couple had made substantial progress in renovating the
residence, but it was “not suitable to put these children back in.” (Tr. 59.) In particular,
Spray had concerns with regard to mold, missing windows, uncovered insulation, gaps in the
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drywall, exposed electrical wiring, displacement of foundational bricks, plywood on the
porch, and a lack of electricity in one of the bedrooms. The utility bills were delinquent, with
the gas company threatening disconnection.
Spray testified that Mother did not appreciate the complexity of the Children’s issues
and, in particular, had “minimized” M.C.’s medical needs. (Tr. 78.) She appeared unable to
appropriately respond to alarms from M.C.’s heart monitor and did not seek out instruction
with regard to the gastric tube or nebulizers.
The Court Appointed Special Advocate (“CASA”) testified that, in her opinion,
Mother was unable to provide the Children with a stable, safe, drug-free home. More
specifically, the CASA testified that Mother “has pretty much flat out refused to complete
any of [the case plan] things” and thus never received the therapy directed toward substance
abuse. (Tr. 43-44.) The CASA also opined that Mother did not consider either M.C.’s health
or the Children’s education to be a priority. Ultimately, the CASA believed that termination
of parental rights was in the Children’s best interests.
There is ample evidence that Mother has historically been unable to provide for the
Children’s physical and psychological needs. As of the termination hearing, she lacked
suitable housing, full-time work, or training with regard to M.C.’s special medical needs.
Despite her refused and failed drug screens, and the lack of substance abuse evaluation and
treatment, Mother insists that she has been drug free for three months and that this is
predictive of her future stability. She points to testimony that she has made progress in her
employment and her home renovation. In essence, Mother asks that we reweigh the evidence
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and accord greater weight to her testimony of her recent efforts and future aspirations. We
will not do so. See In re A.A.C., 682 N.E.2d at 544.
DCS presented clear and convincing evidence from which the trial court could
conclude that the continuation of the parent/child relationships posed a threat to the Children.
Conclusion
DCS established by clear and convincing evidence the requisite elements to support
the termination of parental rights.
Affirmed.
RILEY, J., and CRONE, J., concur.
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