In the Matter of the Term. of the Parent-Child Rel. of K v. and Q.M.S. 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 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:
STEVEN KNECHT CRAIG JONES
Vonderheide & Knecht Indiana Department of Child Services
Lafayette, Indiana Tippecanoe County Office
ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana
IN THE FILED
Jan 25 2012, 9:23 am
COURT OF APPEALS OF INDIANA
CLERK
In the Matter of the Termination of the Parent-Child
) of the supreme court,
court of appeals and
tax court
Relationship of K.V., minor child, and )
Q.M.S., the mother, )
)
Q.M.S., )
)
Appellant-Respondent, )
)
vs. ) No. 79A02-1105-JT-535
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
)
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Loretta Rush, Judge
Cause No. 79D03-1010-JT-150
January 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Q.S. (“Mother”) appeals the involuntary termination of her parental rights to her
child, K.V. In so doing, Mother challenges the sufficiency of the evidence supporting the
trial court’s judgment.
We affirm.
FACTS AND PROCEDURAL HISTORY
Mother is the biological mother of K.V., born in June 2009. The facts most
favorable to the trial court’s judgment reveal that, in March 2010, K.V. was removed
from Mother’s care and placed in relative foster care after the local Tippecanoe County
office of the Indiana Department of Child Services (“TCDCS”) substantiated a report that
Mother and K.V.’s biological father, D.V. (“Father”), were addicted to heroin, did not
have stable housing, and had engaged in a recent incident of domestic violence during
which Mother physically struck Father.1 Although Mother initially denied any substance
abuse, she soon admitted to the TCDCS assessment caseworker that she had a heroin and
prescription drug addiction and that both she and Father were homeless. Mother
thereafter voluntarily entered a residential detoxification treatment program on March 18,
2010, and TCDCS filed a petition alleging K.V. was a child in need of services
(“CHINS”). Approximately one week later, Mother was successfully discharged from
the detoxification program.
Following an evidentiary hearing later the same month, K.V. was adjudicated a
CHINS based on evidence of: (1) extensive substance abuse, with Mother’s addiction
dating back to the age of fourteen; (2) domestic violence between the parents; and (3)
1
We observe that in April 2011, Father voluntarily relinquished his parental rights to K.V.
Father does not participate in this appeal. Consequently, we limit our recitation of the facts to those
pertinent solely to Mother’s appeal.
2
lack of housing. In April 2010, the trial court issued a dispositional order formally
removing K.V. from Mother’s custody and making the child a ward of TCDCS. The
court’s dispositional order also directed Mother to participate in a variety of programs
and services designed to address her parenting deficiencies and substance abuse issues in
an attempt to facilitate reunification of the family. Specifically, Mother was ordered to,
among other things: (1) refrain from consuming alcohol and possessing and/or
consuming any legend drug or controlled substance without a prescription; (2) submit to
random drug screens and produce clean test results; (3) successfully complete an
intensive out-patient substance abuse program (“IOP”); (4) obtain and maintain stable
housing and income (including public assistance) sufficient to support all household
members; (5) participate in home-based case management services; and (6) exercise
regular visitation with K.V. after producing a clean drug screen.
Mother’s participation in court-ordered services was inconsistent from the
beginning of the CHINS case and ultimately unsuccessful. During the underlying
proceedings, Mother was unsuccessfully discharged from three different residential
substance abuse treatment programs for a variety of reasons including continued
substance abuse, falsifying records, engaging in prohibited relationships with male
residents, and being dishonest with case workers. Additionally, TCDCS filed numerous
show cause petitions against Mother for failing to comply with court orders.
In July 2010, Mother was found in contempt of court for failing to appear at a
scheduled court hearing and was ordered either to enroll in a residential drug treatment
program within ten days or serve thirty days in jail with a recommendation of work
release. By August 2010, Mother had failed to enroll in a treatment program, as directed,
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and was thus found to be in contempt of court and ordered to serve thirty days in work
release. During a subsequent hearing in October 2010, Mother was found in contempt of
court for a third time, but she was incarcerated on an unrelated matter at the time so the
sanction was taken under advisement.
Following her release from incarceration, Mother began participating in services at
Keepin’ It Real, Inc., a women’s residential recovery house, as well as began
participating in an IOP through Wabash Valley in November 2010. Initially, Mother
positively engaged in treatment and produced negative drug screens in November and
December 2010. She also successfully completed Phase I of the IOP and began Phase II,
which focused on relapse prevention, in mid-January 2011. After the birth of her second
child2 in February 2011, however, Mother secretly obtained a prescription for opiate pain
medication. Although Mother admitted her actions concerning the newly-obtained
prescription, her treatment team deemed Mother’s actions to be a relapse and
recommended that she re-engage in Phase I of the IOP. Mother complied, but in March
2011 she tested positive for THC3 and was thereafter terminated from all Wabash Valley
Allied services, including the Keepin’ It Real, Inc. residential program. The same month,
Mother was arrested on a petition to revoke her probation as a result of the positive drug
screen.
Meanwhile, in October 2010, TCDCS filed a petition seeking the involuntary
termination of Mother’s parental rights. A two-day evidentiary hearing commenced in
January 2011 and was continued in April 2011. During the termination hearing, TCDCS
2
Mother’s second-born child is not a party to these proceedings.
3
Tetrahydrocannabinol, commonly referred to as “THC,” is the main active chemical in
marijuana.
4
presented evidence showing that Mother remained incarcerated on pending probation
revocation charges and had failed to successfully complete and/or benefit from a majority
of the court-ordered reunification services, including substance abuse treatment. At the
conclusion of the termination hearing, the trial court took the matter under advisement.
On April 19, 2011, the court entered its judgment terminating Mother’s parental rights to
K.V. This appeal ensued.
DISCUSSION AND DECISION
When reviewing a termination of parental rights case, 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 trial 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.
Here, in terminating Mother’s parental rights, the trial court entered specific
findings and conclusions. When a trial court’s judgment contains specific findings of fact
and conclusions thereon, 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 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 trial court’s
decision, we must affirm. L.S., 717 N.E.2d at 208.
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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. These parental interests, however,
are not absolute and must be subordinated to the child’s interests when determining the
proper disposition of a petition to terminate parental rights. Id. In addition, 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. In re K.S., 750 N.E.2d 832, 836
(Ind. Ct. App. 2001).
Before an involuntary termination of parental rights may occur 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.
(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 . . . .
Ind. Code § 31-35-2-4(b)(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, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if
the court finds that the allegations in a petition described in Indiana Code section 31-35-
2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-
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8(a). Mother challenges the sufficiency of the evidence supporting the trial court’s
findings as to subsection (b)(2)(B) & (C) of the termination statute cited above.
I. Conditions Remedied/Threat to Well-Being
To properly effectuate the termination of parental rights under Indiana Code
section 31-35-2-4(b)(2)(B), the trial court need only find that one of the three
requirements of subsection (b)(2)(B) has been established by clear and convincing
evidence. See e.g., L.S., 717 N.E.2d at 209. Here, the trial court determined that the first
two elements of subsection (b)(2)(B) had been established. Because we find it to be
dispositive under the facts of this case, however, we shall only discuss whether TCDCS
established, by clear and convincing evidence, that there is a reasonable probability the
conditions resulting in K.V.’s removal or continued placement outside of Mother’s care
will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).
When making such a determination, a trial 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 trial court may also
consider any services offered to the parent by the county department of child services and
the parent’s response to those services, as evidence of whether conditions will be
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remedied. Id. Moreover, TCDCS 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).
On appeal, Mother states that “[s]everal of the conditions resulting in K.V.’s
removal have been remedied,” and that the “rest will be remedied with more work by
[Mother]” following her eventual release from incarceration. Appellant’s Br. at 11.
Mother further contends that because she is “now putting forth genuine effort” and is
“highly motivated to do what is necessary to be a good mother to K.V.,” the trial court
erred in terminating her parental rights to K.V. Id. In terminating Mother’s parental
rights, the trial court made extensive findings regarding the “massive amounts of
individual attention, services, and assistance” Mother received throughout the underlying
proceedings in an attempt to help Mother overcome her parenting and substance abuse
issues and to achieve reunification with K.V. Appellant’s App. at 15. In so doing, the
court noted Mother was “unsuccessfully discharged from three (3) different residential
programs” in June 2010, August 2010, and April 2011. Id. at 13. The court further found
Mother was unsuccessfully discharged from and/or failed to attend multiple out-patient
drug treatment programs as well, including the St. Joseph Trinity House IOP in April
2010, Wabash Valley Matrix IOP in Lafayette in July 2010, IOP treatment through
Turning Point in July/August 2010, and Wabash Valley IOP in Delphi in February 2011.
Additional findings by the trial court indicate that Mother “has had numerous
suicide attempts and hospitalizations,” including episodes in 2007, 2009, and 2010, as
well as inpatient hospitalization at the Home Hospital Psychiatric Unit in June 2010, but
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that she has “failed to follow through with her mental health treatment.” Id. at 14. The
court also found Mother “has never been able to maintain any employment” and has not
had “any stable housing during the case,” having lived in “at least four (4) substance
abuse facilities, the Woman’s Shelter, jail on numerous occasions, and with family.” Id.
As for Mother’s involvement in criminal activities, the trial court found Mother
“has been in jail on several occasions during the pendency of the case for continued
substance abuse,” that “[a]ll of Mother’s criminal cases have involved Mother’s drug
use,” that she was “currently in jail on a petition to revoke probation and is being held
without bond.” Id. In recounting Mother’s criminal history, the court further noted that,
following Mother’s guilty plea in 2009 for Class D felony theft, three separate petitions
to revoke her probation were filed in February 2010, September 2010, and March 2011.
Mother served forty-two days of incarceration on the first violation, an additional
seventy-six days on the second violation, and was awaiting a hearing on the third.
Additionally, Mother pleaded guilty to disorderly conduct under a separate cause number
in April 2010 and was sentenced to one-hundred eighty days incarceration. Although
Mother’s sentence was ordered suspended based on her timely completion of the terms
and conditions of probation, she failed to comply with the terms of her probation, and a
second probation revocation hearing was pending at the time of the termination hearing
in this matter as well.
Although the trial court acknowledged in its judgment that Mother is “very
intelligent, loves [K.V.], and could be a good mother,” it further found that “over the
course of the . . . CHINS case, Mother has demonstrated a lack of insight into the reasons
[why] K.V. was removed from her care and a lack of genuine investment in her own
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services as evidenced by the following: Mother’s relationship with a man who is
participating in the work release program and is struggling with drug issues, a subsequent
pregnancy, and her own continual drug usage.” Id. at 15. The court went on to find:
26. Neither parent understands how their complete lack of commitment
to treatment, recovery, services, visitations, and their rampant
dishonesty impact [K.V.]. Mother and Father chronically put their
own needs ahead of those of [K.V.].
***
29. The Court finds, as a matter of law, that reasonable, appropriate,
necessary services have been offered to Mother . . . and child over an
extended period of time commencing with the initial removal [i]n
March 2010 to date. The services have been exhaustive and have
been designed to address the difficulties presented by the family in
the initial CHINS petitions . . . and to address other difficulties that
have come to light since [TCDCS] became involved with this
family. . . .
30. The Court finds, as a matter of law, that after more than thirteen (13)
months of rendering services of various kinds with different
providers to this family, that there is not any basis for any reasonable
belief that the circumstances which resulted in the removal of the
child from the parent’s care or the reasons for continued placement
outside the home will be remedied. Mother has demonstrated a
continuing pattern of impulsive behavior, continued drug use, non-
compliance, failure to participate consistently in services, and an
over-riding failure to place her child as a priority. Mother does not
indicate that she has a basic understanding or belief of the harm her
child has suffered given her choices and instabilities in her own life.
Mother, therefore, is unable to provide a minimally safe, secure, and
stable home for this child.
Id. at 15-16. Our review of the record leaves us convinced that ample evidence supports
the trial court’s findings cited above.
At the time of the termination hearing, rather than having improved, Mother’s
circumstances had actually worsened, as she was being held without bond in the local
county jail on criminal probation revocation charges. Moreover, Mother’s history of
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drug-related criminal activities and significant, unresolved substance abuse issues
supports the trial court’s determination that Mother would likely never be able to provide
K.V. with a safe and stable home environment following her eventual release from
incarceration. Notwithstanding Mother’s brief period of compliance with court orders
and substance abuse treatment, it was the general consensus among case workers and
service providers that by the time of the final day of the termination hearing, Mother had
failed to acquire any lasting benefit from the services she participated in and had
exhausted TCDCS’s available services. For example, during the termination hearing,
TCDCS case manager Robert Hall (“Hall”) testified that this was one of the “rare” cases
where Mother had participated in “most of the substance abuse programs in Tippecanoe
County” and “the surrounding counties for that matter.” Tr. at 132. Hall further stated
that he did not believe there were any “more intense or more supportive” case
management services available to recommend for Mother. Id.
Jackie Partlow, Executive Director of Keepin’ It Real, Inc., and Steve Stone
(“Stone”), Mother’s therapist and licensed clinical addictions counselor with Wabash
Valley Alliance, both confirmed that despite her initially positive start with services
offered through Keepin’ It Real, Inc., and the IOP program in November 2010, Mother
experienced a “relapse” following the birth of her second child by “covertly” obtaining a
prescription for an “opioid” pain medication in February 2011 and then testing positive
for THC in March 2011. Id. at 15, 20, 61-62. Stone further testified that in light of
Mother’s “significant opioide (sic) depend[ent] lifestyle” and “extensive use and reuse
history,” he believed Mother would need to participate in a “long[-]term residential
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program” for at least one year at a “closed” residential facility to overcome her addiction
issues. Id. at 15, 36.
In recommending termination of Mother’s parental rights, court-appointed special
advocate (“CASA”) Sharon Cornell (“Cornell”) informed the trial court that based on
“the number of treatment programs that [Mother] has tried and has been unsuccessful for
one reason or another in completing[,] I don’t think [Mother] recognizes her triggers or
the behaviors that might lead her to be triggered or to use again.” Id. at 148-49. Cornell
further informed the trial court that she had ongoing concerns regarding Mother’s ability
to maintain “long-term stability, both with her sobriety as well as her maintaining
employment, housing, [and] all of the appropriate necessities to raising a child.” Id. at
151.
As noted above, a trial 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, in addition to Mother being unavailable to care for K.V. at the time of the
termination hearing due to her incarceration, Mother has demonstrated a persistent
unwillingness and/or inability to take the actions necessary to show she is capable of
overcoming her addiction to heroin and opiates and of refraining from criminal activity in
order to provide K.V. with the safe, stable, and drug-free home environment the child
needs. Based on the foregoing, we conclude that the trial court’s determination that there
12
is a reasonable probability the conditions resulting in K.V.’s removal from Mother will
not be remedied is supported by clear and convincing evidence. Mother’s assertions to
the contrary amount to an impermissible invitation to reweigh the evidence. D.D., 804
N.E.2d at 265.
II. Best Interests
We next consider Mother’s assertion that TCDCS failed to prove that termination
of her parental rights is in K.V.’s best interests. In determining what is in the best
interests of a child, the trial court is required to look beyond the factors identified by
TCDCS and 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, the court
must subordinate the interests of the parent to those of the child. Id. The court need not
wait until a child is irreversibly harmed before terminating the parent-child relationship.
Id. Moreover, we have previously held that the recommendations of both the case
manager and child advocate to terminate parental rights, in addition to evidence that the
conditions resulting in removal will not be remedied, is sufficient to show by clear and
convincing evidence that termination is in the child’s best interests. In re M.M., 733
N.E.2d 6, 13 (Ind. Ct. App. 2000).
In addition to the findings previously cited, the trial court made several additional
pertinent findings relating to K.V.’s best interests. Specifically, the court found that K.V.
has been “in and out of home placement for the majority of her life” that she has
“bonded” with her pre-adoptive relative placement and cousins. Appellant’s App. at 15.
The court also acknowledged CASA Cornell’s testimony that she believes “K.V. needs
the permanency, stability, and security that she is receiving in her current relative
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placement.” Id. Finally, in finding that it “would not be in the best interests of the child
to try to reunite this family,” the trial court indicated in its judgment that “[f]urther efforts
to reunify will have continuing deleterious effects on [K.V.],” and that an “appropriate
adoptive home” would “enable [K.V.] to grow up to be a responsive and capable adult
who is able to participate and interact in society in a positive way.” Id. at 16. These
findings, too, are supported by the evidence.
In recommending termination of Mother’s parental rights, Hall and Cornell
testified that K.V. is “doing wonderful[ly]” in her adoptive home, is “bonded” to her
relative foster parents, “fits right in” with the other children in the home, and is “very
happy.” Tr. at 65, 151. When questioned as to what she believed the long-term affect
would be on K.V. if she were returned to Mother’s care and then Mother relapsed,
Cornell replied, “I think it would be very devastating . . . .” Id. at 152
Based on the totality of the evidence, including Mother’s significant and
unresolved substance abuse issues, history of drug-related criminal activities, current
incarceration, and continuing inability to provide K.V. with a safe and stable home
environment, coupled with the testimony from Hall and Cornell recommending
termination of the parent-child relationship, we conclude that there is ample evidence to
support the trial court’s determination that termination of Mother’s parental rights is in
K.V.’s best interests. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005)
(concluding that testimony of court-appointed advocate and family case manager,
coupled with evidence that conditions resulting in continued placement outside home will
not be remedied, is sufficient to prove by clear and convincing evidence that termination
is in child’s best interests), trans. denied.
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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.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly
v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find
no such error here.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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