In the Matter of Involuntary Termination of the Parent-Child Relationship of: M.R., M.D., and A.D. (Minor Children) and D.D. (Mother) v. The Indiana Department of Child Services (mem. dec.) , 121 N.E.3d 140 ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 22 2019, 6:07 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joann M. Price Curtis T. Hill, Jr.
Merrillville, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of Involuntary January 22, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 18A-JT-1960
Appeal from the Lake Superior
M.R., M.D., and A.D. (Minor Children) Court
and The Honorable Thomas P.
Stefaniak, Judge
D.D. (Mother),
Trial Court Cause Nos.
Appellant-Respondent, 45D06-1705-JT-126
45D06-1705-JT-127
v. 45D06-1705-JT-128
The Indiana Department of Child
Services,
Appellee-Petitioner,
and
Court of Appeals of Indiana | Memorandum Decision 18A-JT-1960 | January 22, 2019 Page 1 of 16
Lake County Court Appointed
Special Advocate
Co-Appellee, Court Appointed
Special Advocate.
Robb, Judge.
Case Summary and Issue
[1] D.D. (“Mother”) appeals the juvenile court’s termination of her parental rights
to M.R., M.D., and A.D., raising only one issue for our review which we
restate as whether the juvenile court’s termination of her parental rights was
clearly erroneous. Concluding the termination of Mother’s parental rights was
not clearly erroneous, we affirm.
Facts and Procedural History
[2] M.R. was born to Mother on January 8, 2013, followed by M.D. on August 5,
2014, and A.D. on December 16, 2015 (collectively the “Children”).1 Three
1
M.R. and M.D. share the same father while A.D.’s father was initially unknown. A.D.’s father was
eventually located and both fathers were appointed counsel. Neither father participated in the underlying
proceedings and the juvenile court terminated their parental rights. Since neither father participates in this
appeal, we recite only the facts pertinent to Mother.
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days after A.D.’s birth, on December 19, the Indiana Department of Child
Services (“DCS”) received a report alleging that Mother had tested positive for
opiates and amphetamine while she was pregnant with A.D., that A.D. had
tested positive for opiates at birth, and that A.D. was exhibiting signs of
withdrawal.
[3] After Mother was discharged,2 a DCS family case manager, Areca Griggs, met
with Mother and spoke to her about the allegations. Mother denied any drug
use other than methadone. However, in addition to methadone, Mother’s
saliva drug screen tested positive for amphetamine and opiates. The two older
children, M.R. and M.D., were not at Mother’s home at the time so Griggs
scheduled an appointment to return. Mother was not there when Griggs
returned, and Mother later admitted that she had left M.R. and M.D. in the
care of their paternal grandmother.
[4] On January 6, 2016, the Children were removed from Mother’s care due to her
ongoing drug use.3 On January 7, DCS filed a petition alleging the Children
were children in need of services (“CHINS”), and the juvenile court held an
initial hearing authorizing the Children’s continued removal. With that order,
the juvenile court also required Mother to complete random drug screens, a
substance abuse evaluation, a parenting assessment, an initial clinical
2
A.D. remained in the Neonatal Intensive Care Unit (“NICU”).
3
M.R. and M.D. were initially placed in foster care but returned to their paternal grandmother once DCS
completed a background check. A.D. remained in the NICU.
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assessment, to receive supervised visitations and home-based services, and to
follow any corresponding recommendations. See State’s Exhibits A to Z at 128-
29. The Children were adjudicated CHINS on May 12.
[5] From April 2016 until August 2017, Mother was provided supervised visitation
with Asencia Sanchez at Higher Dimensions Incorporated (“HDI”). At
Mother’s request, visitations were held twice a week for a total of four hours
instead of the eight hours specified on the referral. Sanchez testified that while
these visits “always started out good . . . towards the end of the visit, [Mother]
was just frustrated.” Transcript, Volume II at 66. Mother’s attendance at these
visitations was “inconsistent” but “she attended more than she missed.” Id. at
66-67. Sanchez characterized Mother’s approach with the Children as
“aggressive[,]” and recalled that Mother would occasionally threaten the
Children that she would “whoop [their] a**[,]” despite being asked to stop
doing so. Id. at 71, 69. Sanchez also reported that Mother’s nickname for the
Children was “slaves” while referring to herself as “their master.” Id. at 70.
[6] A.D. has dealt with severe food allergies since birth. These allergies include
peanuts, tree nuts, soy, and most seeds including poppy and sesame seeds. Soy
causes A.D. gastrointestinal issues and A.D. carries an Epi Pen to treat a
potential anaphylactic reaction to her other allergies. Despite Mother’s
awareness of these allergies and knowledge of A.D.’s sugar free diet, Mother
would “sneak[] [A.D.] Cheetos or . . . macaroni and sugar.” Id. at 71. A.D.’s
foster mother testified that A.D. “would come home from visitations hurled
over in pain. She would stay up all night. She would scream. She would have
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meltdowns.” Id. at 53. M.R. and M.D. had no such dietary restrictions but
also exhibited negative effects of visits with Mother. Sanchez testified that
“[w]hen it was bad, it was really, really bad.” Id. at 76. On the “really bad
times,” Sanchez was afraid to put the Children in the car because she was afraid
“they were crying so hard that they would choke.” Id.
[7] During a visit on June 7, 2017, Mother tested positive for heroin, morphine,
and hydrocodone and Sanchez requested that supervised visitation with Mother
be terminated. On July 27, DCS formally requested that visitations be
discontinued based on concerns that Mother had attended many visits “high
and incoherent” and that “Mother’s random drug screens at her last four visits
were positive for either methadone, hydrocodone or heroin.” State’s Exhibits
AA to ZZ at 85. The juvenile court subsequently terminated supervised
visitations. Overall, Sanchez testified that these visits were unsuccessful
“[b]ecause [Mother’s] duration with them was two hours and . . . more often
than not, it ended negatively.” Tr., Vol. II at 70.
[8] Sanchez also provided services to Mother in order to assist her with housing
and employment. It was difficult for Sanchez to arrange visits with Mother but
Mother eventually secured employment at a Speedway and housing with her
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mother.4 Mother completed a parenting assessment 5 and parenting classes but
“slowly digressed and quit using what was offered” or “suggested.” Id. at 65.
[9] Mother admits she has struggled with opiate addiction but denies that she has a
substance abuse problem. Although Mother initially completed a substance
abuse evaluation by Eugene Wilson at Apostolic and was referred to substance
abuse therapy, Mother did not attend therapy on a consistent basis and failed to
complete an inpatient treatment program, as recommended by Wilson. Mother
submitted to drug screens inconsistently and tested positive for opiates and/or
other illegal substances on twelve occasions. See State’s Exhibits A-Z at 26-93.
Between November 20, 2017 and March 2, 2018, Mother failed to submit to
any drug screens at all. When she finally resumed screening on March 2, she
tested positive for tramadol and synthetic marijuana, alcohol on March 8, and
synthetic marijuana on May 24, before producing two negative screens on June
1 and June 6.
[10] DCS filed a verified petition for the termination of parent-child relationship
between Mother and the Children and the juvenile court conducted a fact-
finding hearing on June 19, 2018. After taking the matter under advisement,
the juvenile court granted the petition and terminated Mother’s rights through
4
Maternal grandmother, however, also struggles with substance abuse issues.
5
It is unclear as to when this assessment was completed or what recommendations were made, if any.
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written findings of fact and conclusions of law issued on July 16, 2018,
concluding, in relevant part:
Mother would not make herself available for the drug screens
through the service provider, Redwood. Mother did not submit
to any drug screens in the year 2016. The case manager would
attend the visitations in 2017 that [M]other had with her
[C]hildren to drug screen the [M]other. Mother would
consistently test positive on the drug screens that she would
submit to with the case manager.
Mother was inconsistent with the visitations with the [C]hildren.
Mother would be inappropriate with the service providers and
would curse at the providers. Mother had recurring issues with
controlling her temper and her language at the visitations. The
[M]other would call the [C]hildren names and would be
inappropriate with her interactions with the [C]hildren. Mother’s
lack of control over her temper was a recurring issue at the
visitations. Mother would become aggravated with the
[C]hildren. Mother would have to be redirected on numerous
occasions with her interactions with the [C]hildren. The
visitations were very stressful on the [C]hildren and would often
times have to be consoled by the transportation provider when
the [C]hildren would become upset after the visitations. [A.D.]
does not know who the parents are and does not have any
significant bond with either parent. [A.D.] has never seen her
father . . . . [M.R. and M.D.] do not have a healthy relationship
with the [M]other. Mother’s approach to the [C]hildren is
aggressive in nature and the [C]hildren have no significant bond
to the [M]other. Due to [M]other’s inconsistency with attending
the visitations, behavior at the visits and continued drug usage,
visitations were stopped in August of 2017.
Mother did not complete her substance abuse assessment.
Mother did not consistently make herself available for the drug
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screens. Mother was offered substance abuse services, but
[M]other did not avail herself to the services. Mother is non—
compliant with the case plan for reunification. Mother has made
marginal effort in participating in the case plan. Mother has not
remedied the reasons for removal or the reasons for continued
out of home placement. Mother has not addressed her substance
abuse issues, nor has [M]other participated in any substance
abuse treatment.
***
Mother by her own testimony indicated that she cannot afford
independent housing and is residing with her mother. Mother
testified that the visitations with her [C]hildren were stressful due
to being held at a facility, although the court notes [M]other has
never progressed to unsupervised visits with her [C]hildren.
Mother testified that she is now planning on entering a substance
abuse program, although her [C]hildren have been wards in out
of home placement since January of 2016. Mother furthered
testified that she does not have a substance abuse problem.
Although the court applauds [M]other on her verbal attempt at
treatment for her substance abuse issues, the court must 1ook at
the best interest of these [C]hildren. Delaying permanency for
the possibility of [M]other beginning and completing services
outlined in the case plan is not in these [C]hildren’s best interests.
Mother was given over two years and has not progressed in any
portion of the case plan. After two and a half years, Mother
continues to struggle with her substance abuse issues. After two
and a half years, [M]other is no closer to reunification with her
[C]hildren.
All efforts attempted to obtain reunification with any of the
parents have failed. The [C]hildren have remained out of
parental care. The [C]hildren have bonded in their current
placements and removal of these [C]hildren from their current
placements would be detrimental to these [C]hildren’s well—
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beings. The best interest of these [C]hildren is continued
placement in their current placements.
No parent is providing any emotional or financial support for the
[C]hildren. No parent has completed any case plan for
reunification. No parent is in a position to properly parent these
[C]hildren. The [C]hildren are bonded and thriving in their
placements.
The [C]hildren remain outside of the parents’ care. The original
allegations of neglect have not been remedied by the parents.
None of these parents have demonstrated an ability to
independently parent the [C]hildren and provide necessary care,
support and supervision. The Court finds no basis for assuming
any of the parents will complete the necessary services and find
one or all of themselves in a position to receive the [C]hildren
back into the home. The parents failed to utilize the available
services and make the necessary efforts to remedy the conditions,
which led to intervention by DCS and the Court.
The [C]hildren continue to reside in a stable foster homes which
has [sic] indicated both a willingness and ability to adopt all the
[C]hildren. Although the [C]hildren are in separate homes, the
[C]hildren maintain contact with each other. It would be unfair
to the [C]hildren to delay such permanency on the very remote
likelihood of the parents committing to and completing services.
There is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the well-being of the
[C]hildren in that: for the reasons stated above. Additionally, the
[C]hildren deserve a loving, caring, safe, stable and drug free
home.
It is in the best interest of the [C]hildren and his [sic] health,
welfare and future that the parent-child relationship between the
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[C]hildren and his [sic] parents be forever fully and absolutely
terminated.
[DCS] has a satisfactory plan for the care and treatment of the
[C]hildren which is Adoption by Grandmother, [for M.R. and
M.D.]; Adoption by the foster parents [for A.D.].
Appellant’s Appendix, Volume 2 at 3-5. Mother now appeals.
Discussion and Decision
Termination Order
[11] The only issue presented for our review is whether the termination of Mother’s
parental rights was clearly erroneous. We note that a parent’s interest in the
care, custody, and control of his child is “perhaps the oldest of the fundamental
liberty interests[,]” Bester v. Lake Co. OFC, 839 N.E.2d 143, 147 (Ind. 2005), and
these rights are protected by the Fourteenth Amendment to the United States
Constitution, In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied.
Although these rights are constitutionally protected, they are not without
limitation, and the law provides for the termination of the parent-child
relationship when parents are unable or unwilling to meet their parental
responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App. 2008).
A. Standard of Review
[12] We do not reweigh the evidence or judge the credibility of witnesses when
reviewing the termination of parental rights. In re D.D., 804 N.E.2d at 265.
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Rather, we consider only the evidence, and reasonable inferences therefrom,
most favorable to the judgment, id., and we will only set aside the court’s
judgment terminating a parent-child relationship when it is clearly erroneous.
In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied,
534 U.S. 1161 (2002).
[13] As required by Indiana Code section 31-35-2-8, the juvenile court entered
findings of fact and conclusions thereon when terminating Mother’s parental
rights. We therefore apply a two-tiered standard of review. Bester, 839 N.E.2d
at 147. We must first determine whether the evidence supports the findings;
then we determine whether the findings support the judgment. Id. Findings
will only be set aside if they are clearly erroneous and findings are clearly
erroneous only “when the record contains no facts to support them either
directly or by inference.” Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).
B. Termination of Mother’s Parental Rights
[14] To terminate parental rights, Indiana Code section 31-35-2-4(b)(2) requires the
State to prove, in relevant part:
(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.
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(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.
The State must prove the foregoing elements by clear and convincing evidence.
Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016). However,
because subsection (b)(2)(B) is written in the disjunctive the juvenile court need
only find one of the three elements by clear and convincing evidence. See, e.g.,
In re I.A., 903 N.E.2d 146, 153 (Ind. Ct. App. 2009).
[15] “[I]f the court finds that the allegations in a petition described in [Indiana Code
section 31-35-2-4(b)(2)] are true, the court shall terminate the parent-child
relationship.” Ind. Code § 31-35-2-8(a) (emphasis added). Here, the juvenile
court found that the State proved both subsections (i) and (ii) of Indiana Code
section 31-35-2-4(b)(2)(B) by clear and convincing evidence. Mother now
challenges those findings.6
6
Notably, Mother does not challenge the juvenile court’s findings that termination is in the best interests of
the Children and that there is a satisfactory plan for the care and treatment of the Children. We therefore
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[16] Mother contends the State failed to prove by clear and convincing evidence the
conditions resulting in the Children’s removal will not be remedied. In
determining whether the conditions that resulted in a child’s removal will not
be remedied,
we engage in a two-step analysis. First, we identify the
conditions that led to removal; and second, we determine
whether there is a reasonable probability that those conditions
will not be remedied. In the second step, the trial court must
judge a parent’s fitness as of the time of the termination
proceeding, taking into consideration evidence of changed
conditions—balancing a parent’s recent improvements against
habitual patterns of conduct to determine whether there is a
substantial probability of future neglect or deprivation. We
entrust that delicate balance to the trial court, which has
discretion to weigh a parent’s prior history more heavily than
efforts made only shortly before termination. Requiring trial
courts to give due regard to changed conditions does not preclude
them from finding that parents’ past behavior is the best predictor
of their future behavior.
In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014) (citations, quotations, and footnote
omitted).
[17] Here, the Children were initially removed from Mother’s care on January 6,
2016, due to Mother’s drug use while she was pregnant with A.D. The
Children have never returned to Mother’s care.
accept these findings as true. See McMaster v. McMaster, 681 N.E.2d 744, 747 (Ind. Ct. App. 1997) (“Father
does not challenge these findings and we accept them as true.”).
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[18] In challenging the juvenile court’s conclusion on this issue, Mother argues the
court “failed to take into consideration any evidence of changed conditions
presented at the fact finding [hearing].” Appellant’s Brief at 9. In support of
her argument, Mother cites her own testimony that she “was no longer taking
prescription drugs and that she no longer required methadone. In fact, Mother
indicated [t]hat she had not had methadone in a year prior to the fact finding
[hearing].” Id. Mother also produced evidence that she completed a seven-day
detox program in May 2018.
[19] We begin by noting the requirement that juvenile courts consider evidence of
changed conditions does not preclude a conclusion that the parent’s past
behavior is the best predictor of the future. In re E.M., 4 N.E.3d at 643. The
record reveals that during the underlying CHINS case, Mother was inconsistent
in submitting to drug screens, and when she did submit to screens, she often
tested positive for opiates and other illegal substances. See State’s Exhibits A-Z
at 26-93 (indicating Mother failed over twelve drug screens). Although
Mother’s most recent drug screens were either entirely negative or positive only
for synthetic marijuana, Mother failed to complete a drug screen for the
immediately preceding three to four-month period. See id. at 94-95; Tr., Vol. II
at 110 (testimony by the family case manager that prior to Mother’s screens
within a week and a half before the fact-finding hearing, Mother had not
produced a screen for three to four months).
[20] To the extent Mother now relies on her participation in a seven-day detox
program, we agree that her willingness to complete such a program is indeed
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progress. Viewed in the context of this case and Mother’s history of substance
abuse, however, the extent of that progress is minimal. See, e.g., Thompson v.
State, 804 N.E.2d 1146, 1149 (Ind. 2004) (a factfinder is not obliged to credit a
party’s testimony or assign evidence the same value as a party does). This is
further evidenced by the fact that after completing the detox program, Mother
failed yet another drug screen, testing positive for tramadol and synthetic
marijuana a week before the fact-finding hearing. Tr., Vol. II at 108, 140.
[21] Furthermore, contrary to Mother’s assertion, our review of the record reveals
that the juvenile court did, in fact, take into consideration Mother’s recent
efforts. The juvenile court stated it “applauds [M]other on her verbal attempt at
treatment for her substance abuse issues” but ultimately concluded “[a]fter two
and a half years, [M]other is no closer to reunification with her [C]hildren.”
Appellant’s App., Vol. 2 at 4. We agree. And while we also commend
Mother’s recent progress and participation in a detox program, the
overwhelming evidence of Mother’s history far outweighs those recent efforts.
Therefore, in the absence of any prolonged effort or even Mother’s
acknowledgment of her substance abuse issues, we conclude the juvenile court
was well within its discretion to “disregard the efforts Mother made only
shortly before termination and to weigh more heavily Mother’s history of
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conduct prior to those efforts.” K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d
1225, 1234 (Ind. 2013) (quotation and citation omitted).7
Conclusion
[22] The juvenile court’s conclusion that the conditions that led to the removal of
the Children would not be remedied was not clearly erroneous. We therefore
affirm the order of the juvenile court terminating Mother’s parental rights.
[23] Affirmed.
Riley, J., and Kirsch, J., concur.
7
Mother also challenges the juvenile court’s conclusion that there is a reasonable probability that
continuation of the parent-child relationship poses a threat to the well-being of the Children. As noted,
Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires only one element be proven
to terminate Mother’s parental rights. See In re I.A., 903 N.E.2d at 153. Therefore, having concluded the
evidence is sufficient to show a reasonable probability that the conditions resulting in Children’s removal will
not be remedied, we need not address Mother’s argument on this issue.
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