Term. of Parent-Child Rel. of M.J. C.J. v. 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 Mar 14 2012, 9:12 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:
MICHAEL B. TROEMEL ROBERT J. HENKE
Lafayette, Indiana DAVID E. COREY
DCS Central Administration
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE INVOLUNTARY )
TERMINATION OF THE PARENT-CHILD )
RELATIONSHIP OF M.J., MINOR CHILD, )
AND HER MOTHER, C.J., )
)
C.J. )
)
Appellant-Respondent, )
)
vs. ) No. 79A05-1109-JT-502
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Loretta H. Rush, Judge
The Honorable Faith Graham, Magistrate
Cause No. 79D03-1105-JT-50
March 14, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Respondent C.J. (“Mother”) appeals the juvenile court‟s order terminating
her parental rights to M.J. Mother alleges that the Indiana Department of Child Services
(“DCS”) did not provide sufficient evidence to support the termination of her parental rights.
Concluding that the evidence was sufficient to support the termination of Mother‟s parental
rights, we affirm.
FACTS AND PROCEDURAL HISTORY
Mother has one child, M.J., at issue in this appeal.1 M.J. was born on December 6,
1998. DCS first became involved with M.J. after receiving reports that (1) M.J. was late to
school and Mother was drunk; (2) Mother was so drunk that she defecated in bed; (3) an
adult male who had battered Mother a few weeks earlier, and against whom a protective
order was in place, was back in the home and M.J. was frightened; (4) Mother was hiding
drugs in and selling drugs from her home; and (5) a search of Mother‟s home revealed 2.92
grams of marijuana and certain drug paraphernalia. On February 16, 2010, DCS filed a
petition alleging that M.J. was a child in need of services (“CHINS”).
In addition to the above-stated allegations, with respect to Mother, the CHINS petition
alleged that M.J.‟s “physical or mental condition is seriously impaired or seriously
endangered as a result of the inability, refusal, or neglect of [Mother] to supply [M.J.] with
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The termination of the parental rights of M.J.‟s father is not at issue in this appeal.
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necessary food, clothing, shelter, medical care, education or supervision.” DCS Exhibit 2.
Mother appeared and entered an admission to the CHINS allegations. In light of Mother‟s
admission, the juvenile court found M.J. to be a CHINS, appointed a Court Appointed
Special Advocate (“CASA”) for M.J., and maintained M.J.‟s placement in relative care.
On May 12, 2011, DCS filed a petition seeking the termination of Mother‟s parental
rights to M.J. On July 7, 2011, the juvenile court conducted an evidentiary termination
hearing at which Mother appeared and was represented by counsel. During the termination
hearing, DCS introduced evidence relating to Mother‟s failure to remedy the conditions
leading to M.J.‟s removal and her substantial drug and alcohol abuse, including Mother‟s
failure to complete services and counseling offered by DCS, her recent positive drug screens,
her termination from at least one drug treatment program due to her continued drug use, and
her refusal to discontinue a historically abusive domestic relationship. DCS also provided
evidence indicating that its plan for the permanent care and treatment of M.J. was adoption.
On July 28, 2011, the juvenile court terminated Mother‟s parental rights to M.J. Mother now
appeals.
DISCUSSION AND DECISION
The Fourteenth Amendment to the United States Constitution protects the traditional
right of a parent to establish a home and raise her children. Bester v. Lake Cnty. Office of
Family & Children, 839 N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the
parent-child relationship is “one of the most valued relationships of our culture.” Id.However, although parental rights are of a constitutional dimension, the law allows for the
termination of those rights when a parent is unable or unwilling to meet her responsibility as
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a parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001), trans. denied. Therefore,
parental rights are not absolute and must be subordinated to the child‟s interest in
determining the appropriate disposition of a petition to terminate the parent-child
relationship. Id.The purpose of terminating parental rights is not to punish the parent but to protect the
child. Id. Termination of parental rights is proper where the child‟s emotional and physical
development is threatened. Id. The juvenile court need not wait until the child is irreversibly
harmed such that her physical, mental, and social development is permanently impaired
before terminating the parent-child relationship. Id.Mother contends that the evidence presented at the evidentiary hearing was
insufficient to support the juvenile court‟s order terminating her parental rights. In reviewing
termination proceedings on appeal, this court will not reweigh the evidence or assess the
credibility of the witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806
N.E.2d 874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the
juvenile court‟s decision and reasonable inferences drawn therefrom. Id. Where, as here, the
juvenile court includes findings of fact and conclusions thereon in its order terminating
parental rights, our standard of review is two-tiered. Id. First, we must determine whether
the evidence supports the findings, and, second, whether the findings support the legal
conclusions. Id.In deference to the juvenile court‟s unique position to assess the evidence, we set
aside the juvenile court‟s findings and judgment terminating a parent-child relationship only
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if they are clearly erroneous. Id. A finding of fact is clearly erroneous when there are no
facts or inferences drawn therefrom to support it. Id. A judgment is clearly erroneous only if
the legal conclusions made by the juvenile court are not supported by its findings of fact, or
the conclusions do not support the judgment. Id.In order to involuntarily terminate a parent‟s parental rights, DCS must establish by
clear and convincing evidence that:
(A) one (1) of the following exists:
(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; or
(iii) the child has been removed from the parent and has been under the
supervision of a county office of family and children or probation
department 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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the child.
Ind. Code § 31-35-2-4(b)(2) (2010). Specifically, Mother claims that DCS failed to establish
that either (1) the conditions that resulted in the M.J.‟s removal or the reasons for her
placement outside of Mother‟s care will not be remedied; or (2) the continuation of the
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parent-child relationship posed a threat to M.J.‟s well-being. Mother also claims that DCS
failed to establish that it had a satisfactory plan in place for the care and treatment of M.J.
A. Conditions Resulting in Removal Not Likely to be Remedied
In arguing that DCS failed to establish by clear and convincing evidence that the
conditions resulting in M.J.‟s removal from her care will not be remedied and that the
continuation of the parent-child relationship poses a threat to M.J., Mother fails to
acknowledge that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive, the juvenile court need only find either that the conditions resulting in removal
will not be remedied or that the continuation of the parent-child relationship poses a threat to
the children. In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App. 2003), trans. denied. Therefore,
“where, as here, the trial court specifically finds that there is a reasonable probability that the
conditions which resulted in the removal of the child would not be remedied, and there is
sufficient evidence in the record supporting the trial court‟s conclusion, it is not necessary for
[DCS] to prove or for the trial court to find that the continuation of the parent-child
relationship poses a threat to the child.” In re S.P.H., 806 N.E.2d at 882. In order to
determine that the conditions will not be remedied, the juvenile court should first determine
what conditions led DCS to place M.J. outside of Mother‟s care, and, second, whether there
is a reasonable probability that those conditions will be remedied. Id.When assessing whether a reasonable probability exists that the conditions justifying a
child‟s removal and continued placement outside her parent‟s care will not be remedied, the
juvenile court must judge the parent‟s fitness to care for her child at the time of the
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termination hearing, taking into consideration evidence of changed conditions. In re A.N.J.,
690 N.E.2d 716, 721 (Ind. Ct. App. 1997). The juvenile court must also evaluate the parent‟s
habitual patterns of conduct to determine whether there is a substantial probability of future
neglect or deprivation. Id. A juvenile court may properly consider evidence of the 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 &
Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Moreover, a juvenile court “„can
reasonably consider the services offered by [DCS] to the parent and the parent‟s response to
those services.‟” Id. (quoting In re A.C.C., 682 N.E.2d 542, 544 (Ind. Ct. App. 1997)).
Here, the juvenile court found that DCS presented sufficient evidence to prove that the
conditions that resulted in M.J.‟s removal from Mother‟s care were not likely to be remedied,
and upon review, we conclude that the juvenile court‟s finding to this effect is supported by
the record. The record reveals that although Mother completed some services early on, she
did not successfully complete the services offered by DCS. As the CHINS proceedings
progressed, Mother failed to attend counseling sessions, hearings, and visitation sessions.
The record further reveals that Mother had a history of substance abuse issues, which
continued throughout the CHINS and termination proceedings. Mother continued to test
positive for illegal substances in violation of court orders. Mother was terminated from at
least one substance abuse treatment program during the course of the CHINS proceedings
due to her continued drug use. In addition, Mother refused to discontinue a domestic
relationship which was historically abusive. Mother‟s actions reflected ambivalence on
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Mother‟s part as well as an unwillingness to modify her behavior so as to provide M.J. with a
safe and secure lifestyle.
When considered as a whole, we conclude that the evidence is sufficient to
demonstrate a reasonable probability that the conditions which resulted in M.J.‟s removal
from Mother‟s care will not be remedied. It was within the province of the juvenile court, as
the finder of fact, to minimize any contrary evidence of changed conditions in light of its
determination that Mother‟s failure to provide a safe, stable, and drug free living
environment which led to M.J.‟s removal was unlikely to change. See In re L.S., 717 N.E.2d
204, 210 (Ind. Ct. App. 1999), trans. denied.
Moreover, contrary to Mother‟s claim that the juvenile court “pulled the plug
prematurely” in light of evidence that she claims shows she was working to change her home
environment, Appellant‟s Br. p. 18, it is well-established that the juvenile court, acting as a
trier of fact, was not required to believe or assess the same weight to the testimony as
Mother. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621
N.E.2d 308, 320 (Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp.
v. First Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v.
Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949), trans. denied. Mother‟s claim
effectively amounts to an invitation for this court to reassess witness credibility and reweigh
the evidence, which, again, we will not do. See In re S.P.H., 806 N.E.2d at 879.
Under these circumstances, we cannot say that the juvenile court erred in determining
that DCS established that it is unlikely that the conditions resulting in M.J.‟s removal would
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be remedied. See In re C.M., 675 N.E.2d 1134, 1140 (Ind. Ct. App. 1997). Having
concluded that the evidence was sufficient to support the juvenile court‟s determination, and
finding no error by the juvenile court, we need not consider whether the continuation of the
parent-child relationship poses a threat to the children‟s well-being because DCS has
satisfied the requirements of Indiana Code section 31-35-2-4(b)(2)(B) by clear and
convincing evidence.
B. Satisfactory Plan for Care and Treatment of M.J.
Mother also claims that DCS failed to establish that it had a satisfactory plan for the
care and treatment of M.J. In making this argument, Mother concedes that DCS‟s stated plan
was for adoption, but argues that the plan was unsatisfactory because the plan did not outline
specifically who would be adopting M.J.
In order for the trial court to terminate the parent-child relationship, the court
must find that there is a satisfactory plan for the care and treatment of the
child. In re B.D.J., 728 N.E.2d 195, 204 (Ind. Ct. App. 2000). 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.In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). “Attempting to find suitable
parents to adopt the child[] is clearly a satisfactory plan.” Lang v. Starke Cnty. Office of
Family & Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (citing Matter of A.N.J., 690
N.E.2d at 722). “The fact that there was not a specific family in place to adopt the child[]
does not make the plan unsatisfactory.” Id. (citing In re B.D.J., 728 N.E.2d 195, 204 (Ind.
Ct. App. 2000)).
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Here, it is undisputed that DCS‟s plan for M.J.‟s care and treatment was for adoption.
At the time of the termination hearing, DCS was in the process of approving a relative to
adopt M.J. The fact that DCS did not, at the time of the termination hearing, have a specific
family member in place to adopt M.J. does not make the plan unsatisfactory. See id. Thus,
we conclude that DCS, by demonstrating that its plan for the care and treatment of M.J. was
adoption, satisfied the statutory requirement set forth under Indiana Code section 31-35-2-
4(b)(2)(C).
Having concluded that the evidence was sufficient to prove the statutory requirements
set forth in Indiana Code section 31-35-2-4(b)(2) by clear and convincing evidence, we
affirm the judgment of the juvenile court.
The judgment of the juvenile court is affirmed.
KIRSCH, J., and BARNES, J., concur.
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