In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.L. and J.R. (Minor Children) and J.L. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                             FILED
    this Memorandum Decision shall not be
    regarded as precedent or cited before any                                    Jan 31 2020, 8:53 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
    Daniel G. Foote                                           Curtis T. Hill, Jr.
    Indianapolis, Indiana                                     Attorney General
    Catherine Brizzi
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Involuntary                          January 31, 2020
    Termination of the Parent-Child                           Court of Appeals Case No.
    Relationship of A.L. and J.R.                             19A-JT-1781
    (Minor Children)                                          Appeal from the Marion Superior
    and                                                       Court
    The Honorable Marilyn A.
    J.L. (Mother),                                            Moores, Judge
    Appellant-Respondent,                                     The Honorable Scott Stowers,
    Magistrate
    v.
    Trial Court Cause No.
    49D09-1808-JT-953, - 954
    Indiana Department of Child
    Services,
    Appellee-Petitioner
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020                     Page 1 of 14
    Crone, Judge.
    Case Summary
    [1]   J.L. (“Mother”) appeals the trial court’s order involuntarily terminating her
    parental rights to her minor children A.L. and J.L. (collectively “the
    Children”). We affirm.
    Facts and Procedural History
    [2]   Mother is the biological mother of ten-year-old A.L and five-year-old J.R. 1 In
    August 2017, the Marion County Department of Child Services (“DCS”) filed a
    child in need of services (“CHINS”) petition regarding both Children alleging
    that Mother failed to provide the Children with a home free from violence and
    substance abuse. Following an initial hearing, the Children were removed from
    Mother’s care. 2 The Children were adjudicated CHINS on December 1, 2017,
    after Mother admitted to the allegations in the CHINS petition. A dispositional
    hearing was held that same day, and the trial court ordered Mother to: (1)
    participate in home-based case management; (2) complete a substance abuse
    assessment; (3) submit to random drug and alcohol screens; and (4) ensure that
    the Children were participating in age-appropriate therapy. The permanency
    plan for the Children was reunification.
    1
    A.L. and J.R. have different biological fathers, both of whom signed consents to adoption and were
    dismissed from the termination action.
    2
    The Children were placed together in relative/kinship care in October 2017. (The placement was
    considered relative care for J.R. and kinship care for A.L.)
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020               Page 2 of 14
    [3]   As part of home-based case management, Mother was referred for seventy
    parenting time sessions. She missed at least thirty-one of those sessions,
    admitting to service providers that she missed those sessions due to her
    methamphetamine addiction. Whenever Mother missed sessions, J.R. would
    become angry and scream and cry. Mother’s behavior made A.L. feel
    unwanted. During some of the sessions that Mother did attend, she would
    engage in inappropriate conversations with the Children. Mother continued to
    be inconsistent with her attendance and, after she missed three consecutive
    sessions, her parenting time referral was closed unsuccessfully in April 2018.
    [4]   Regarding substance abuse, home-based case manager Sara Franklin set one of
    Mother’s goals as obtaining sobriety. Mother confirmed to Franklin that
    methamphetamine was her “drug of choice.” Tr. Vol. 2 at 131. Franklin
    accompanied Mother to the Salvation Army substance abuse treatment
    program and stayed with Mother as long as she could. However, later that
    same day, Mother sent a text message to Franklin indicating that she would not
    participate in the Salvation Army treatment program. Mother further failed to
    participate in other offered treatment programs and, other than expressing a
    desire to obtain sobriety, she made no progress toward that goal. Although
    Mother was scheduled to submit to three drug screens per week, she submitted
    fewer than twenty drug screens during the pendency of this case and has not
    submitted any screens since January 2018.
    [5]   A.L. reported that she did not feel safe when residing with Mother and that she
    had observed Mother and J.R.’s father using drugs. J.R. began receiving
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 3 of 14
    therapy in March 2018. J.R. was diagnosed with post-traumatic stress disorder
    and attention deficit hyperactivity disorder. The therapist believes that J.R.’s
    trauma was caused by witnessing domestic violence and substance abuse in the
    home, as well as being removed from the home. J.R. is at a high risk for
    suicide, depression, and drug abuse. J.R. has made substantial progress since
    being removed from Mother’s care and placed in a structured and stable
    environment.
    [6]   At some point, after being unsuccessfully discharged from several services,
    Mother completely stopped communicating with the DCS family case manager.
    In March 2018, Mother was charged with level 6 felony unlawful possession of
    a syringe, level 6 felony possession of a counterfeit instrument, and class C
    misdemeanor possession of paraphernalia. In August 2018, the trial court held
    a permanency hearing and, after hearing evidence regarding Mother’s failure to
    participate in services, the court entered an order changing the Children’s
    permanency plan from reunification to adoption. At the time of that hearing,
    Mother’s whereabouts were unknown.
    [7]   On August 12, 2018, DCS filed a petition to terminate Mother’s parental rights.
    The termination factfinding hearing took place over three days in February,
    May, and June 2019. Mother appeared on only one of those dates. On July 8,
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 4 of 14
    2019, the court entered its order terminating Mother’s parental rights. The trial
    court entered extensive findings of fact and concluded in relevant part that: 3
    51. There is a reasonable probability that the conditions that
    resulted in the [C]hildren’s removal and continued placement
    outside the home will not be remedied by their mother. Mother
    has had over a year and a half to put forth an effort and has not
    done so. The [family case manager] has referred all court ordered
    services and Mother has completed none. Stability and sobriety
    remain major concerns.
    52. Continuation of the parent-child relationship poses a threat
    to the [C]hildren’s well-being in that it would serve as a barrier
    for them obtaining permanency through adoption when their
    mother is unable and unwilling to put forth an effort and parent.
    The [C]hildren would be traumatized if the [parent]-child
    relationship would continue. Both are happy in their current
    placement and both feel safe.
    53. Termination of the parent[-]child relationship is in the best
    interests of the [C]hildren. Termination would allow them to be
    adopted into a stable and permanent home where their needs will
    be safely met.
    54. There exists a satisfactory plan for the future care and
    treatment of the [C]hildren, that being adoption.
    55. The Guardian ad Litem agrees with the permanency plan of
    adoption being in the [C]hildren’s best interests.
    3
    We have replaced any references to the parties’ names with the aforementioned designations.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020                  Page 5 of 14
    Appealed Order at 3. Accordingly, the trial court determined that DCS had
    proven the allegations of the petition to terminate by clear and convincing
    evidence and therefore terminated Mother’s parental rights. Mother now
    appeals.
    Discussion and Decision
    [8]   “The purpose of terminating parental rights is not to punish the parents but,
    instead, to protect their children. Thus, although parental rights are of a
    constitutional dimension, the law provides for the termination of these rights
    when the parents are unable or unwilling to meet their parental
    responsibilities.” In re A.P., 
    882 N.E.2d 799
    , 805 (Ind. Ct. App. 2008) (citation
    omitted). “[T]ermination is intended as a last resort, available only when all
    other reasonable efforts have failed.” 
    Id. A petition
    for the involuntary
    termination of parental rights must allege in pertinent 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.
    (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
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 6 of 14
    (D) that there is a satisfactory plan for the care and treatment of the child.
    Ind. Code § 31-35-2-4(b)(2). DCS must prove that termination is appropriate by
    a showing of clear and convincing evidence. In re V.A., 
    51 N.E.3d 1140
    , 1144
    (Ind. 2016). If the trial court finds that the allegations in a petition are true, the
    court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
    [9]   “We have long had a highly deferential standard of review in cases involving
    the termination of parental rights.” C.A. v. Ind. Dep’t of Child Servs., 
    15 N.E.3d 85
    , 92 (Ind. Ct. App. 2014).
    We neither reweigh evidence nor assess witness credibility. We
    consider only the evidence and reasonable inferences favorable to
    the trial court’s judgment. Where the trial court enters findings
    of fact and conclusions thereon, we apply a two-tiered standard
    of review: we first determine whether the evidence supports the
    findings and then determine whether the findings support the
    judgment. In deference to the trial court’s unique position to
    assess the evidence, we will set aside a judgment terminating a
    parent-child relationship only if it is clearly erroneous.
    
    Id. at 92-93
    (citations omitted). “A judgment is clearly erroneous if the findings
    do not support the trial court’s conclusions or the conclusions do not support
    the judgment.” In re R.J., 
    829 N.E.2d 1032
    , 1035 (Ind. Ct. App. 2005).
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 7 of 14
    Section 1 – Clear and convincing evidence supports the trial
    court’s conclusion that there is reasonable probability of
    unchanged conditions.
    [10]   Mother challenges the trial court’s conclusion that there is a reasonable
    probability that the conditions that resulted in the Children’s removal from and
    continued placement outside the home will not be remedied.4 In determining
    whether there is a reasonable probability that the conditions that led to the
    Children’s removal and continued placement outside the home will not be
    remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,
    
    989 N.E.2d 1225
    , 1231 (Ind. 2013). First, “we must ascertain what conditions
    led to their placement and retention in foster care.” 
    Id. Second, “we
    ‘determine whether there is a reasonable probability that those conditions will
    not be remedied.’” 
    Id. (quoting In
    re I.A., 
    934 N.E.2d 1132
    , 1134 (Ind. 2010).
    In the second step, the trial court must judge a parent’s fitness at the time of the
    termination proceeding, taking into consideration evidence of changed
    conditions, and balancing a parent’s recent improvements against “habitual
    pattern[s] of conduct to determine whether there is a substantial probability of
    future neglect or deprivation.” In re E.M., 
    4 N.E.3d 636
    , 643 (Ind. 2014)
    (quoting 
    K.T.K., 989 N.E.2d at 1231
    ). “A pattern of unwillingness to deal with
    4
    Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
    continuation of the parent-child relationship poses a threat to Children’s well-being. However, Indiana Code
    Section 31-35-2-4(b)(2)(B) is written in the disjunctive, such that, to properly effectuate the termination of
    parental rights, the trial court need only find that one of the three requirements of that subsection has been
    established by clear and convincing evidence. A.D.S. v. Ind. Dep’t of Child Servs., 
    987 N.E.2d 1150
    , 1156 (Ind.
    Ct. App. 2013), trans. denied. Accordingly, we will address only one of the three requirements.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020                   Page 8 of 14
    parenting problems and to cooperate with those providing social services, in
    conjunction with unchanged conditions, support a finding that there exists no
    reasonable probability that the conditions will change.” Lang v. Starke Cty. Office
    of Family & Children, 
    861 N.E.2d 366
    , 372 (Ind. Ct. App. 2007) (citation
    omitted), trans. denied. The evidence presented by 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).
    [11]   Here, the Children were removed from Mother’s care following her admission
    that they were CHINS. Specifically, the CHINS petition alleged that, among
    other things, Mother had failed to provide the Children with a home free from
    violence and illegal substance abuse, that Mother had continually tested
    positive for illegal drugs, and that Mother had failed to adequately address her
    substance abuse issues. Mother admitted that the coercive intervention of the
    court was necessary and that she needed the assistance of DCS to address her
    substance abuse issues. In its dispositional decree, the trial court ordered
    Mother to participate in home-based case management, complete a substance
    abuse assessment, submit to random drug and alcohol screens, and ensure that
    the Children were participating in age-appropriate therapy. The evidence
    indicates that Mother failed to comply with the trial court’s order in that she has
    not completed any of the court-ordered services.
    [12]   First, as part of home-based case management, Mother was scheduled to have
    seventy parenting time sessions with the Children. However, she missed at
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 9 of 14
    least thirty-one sessions. Mother admitted to service providers that she often
    missed the sessions due to her methamphetamine addiction. After three
    consecutive missed parenting time sessions, that referral was closed
    unsuccessfully, and Mother has not seen the Children since October 2018.
    [13]   As for Mother’s substance abuse, the evidence indicates that DCS attempted to
    help Mother achieve sobriety through enrollment in a substance abuse
    treatment program. However, Mother left that program the same day she
    entered. Indeed, throughout the pendency of this case, Mother exhibited
    resistance to receiving any treatment whatsoever for her substance abuse.
    Further, Mother failed to comply with court-ordered drug screen requirements
    and, rather than submitting the required three drug screens per week, she
    submitted only twenty screens total over a two-year period. By all accounts,
    Mother has done nothing to address her admitted addiction issue in order to
    provide her Children with a safe and stable environment.
    [14]   Mother suggests that there is no evidence that her substance abuse is ongoing,
    and further that there is no evidence that she ever used drugs in front of the
    Children or that her substance abuse negatively affected the Children. First, a
    parent whose drug use led to a child’s removal cannot be permitted to refuse to
    submit to drug testing, then later claim the DCS has failed to prove that the
    drug use has continued. In re A.B., 
    924 N.E.2d 666
    , 671 (Ind. Ct. App. 2010).
    Moreover, A.L. testified that she witnessed Mother using drugs and that she
    had been asked to “pass a joint around” to Mother’s friends. Tr. Vol. 2 at 72.
    Mother also asked A.L. to lie to DCS about her drug use, and A.L. reported
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 10 of 14
    that she felt safer after Mother’s parenting time was suspended. Contrary to
    Mother’s suggestion, DCS presented ample evidence that Mother’s substance
    abuse is ongoing and further that such abuse negatively affected the Children.
    [15]   The record supports the trial court’s determination that there is a substantial
    probability of future neglect or deprivation based upon Mother’s failure to
    participate in services and her habitual pattern of behavior. The trial court’s
    conclusion that there is a reasonable probability that the conditions that led to
    the Children’s removal and continued placement outside the home will not be
    remedied is supported by clear and convincing evidence.
    Section 2 – Clear and convincing evidence supports the trial
    court’s conclusion that termination of Mother’s parental
    rights is in the Children’s best interests.
    [16]   Mother also challenges the trial court’s conclusion that termination of her
    parental rights is in the Children’s best interests. In considering whether
    termination of parental rights is in the best interests of a child, the trial court is
    required to look beyond the factors identified by DCS and look to the totality of
    the evidence. McBride v. Monroe Cty. Office of Family & Children, 
    798 N.E.2d 185
    ,
    203 (Ind. Ct. App. 2003). In doing so, the trial court must subordinate the
    interests of the parent to those of the child involved. 
    Id. The trial
    court need not
    wait until the child is irreversibly harmed before terminating parental rights. 
    Id. “[T]he historic
    inability to provide adequate housing, stability, and supervision,
    coupled with the current inability to provide the same, will support a finding
    that continuation of the parent-child relationship is contrary to the child’s best
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 11 of 14
    interests.” In re A.H., 
    832 N.E.2d 563
    , 570 (Ind. Ct. App. 2005). The testimony
    of service providers may support a finding that termination is in the child’s best
    interests. 
    McBride, 798 N.E.2d at 203
    .
    [17]   Here, home-based case worker Sara Franklin testified that, due to Mother’s
    failure to cooperate with offered services, Mother had made no progress in
    reaching the set goals of achieving sobriety or obtaining employment and
    housing. Franklin emphasized Mother’s continued substance abuse and how it
    severely and negatively affected Mother’s ability to provide adequate care and
    supervision of the Children. Franklin stated that she felt that termination of
    Mother’s parental rights was in the Children’s best interests because Mother
    had not remedied any of the reasons for the Children’s removal, and that a
    continuing relationship would be a threat to the Children’s well-being.
    [18]   DCS family case manager Britney Richardson testified regarding Mother’s
    noncompliance with ordered services, including parenting time, which was
    extremely hard on the Children. Richardson stated that in addition to Mother’s
    strained relationship with the Children, she had made no progress in dealing
    with her substance abuse issues and that such failure made it impossible to
    provide the Children with stability. Richardson opined that termination of
    Mother’s parental rights was in the Children’s best interests and noted that
    “these [C]hildren have been through so much … they are now in a place where
    they are [] happy, they feel safe … they’re able to just be kids ….” Tr. Vol. 2 at
    159.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 12 of 14
    [19]   Similarly, guardian ad litem Christa Rodarte opined that termination of
    Mother’s parental rights is in the Children’s best interests. Rodarte noted that
    none of Mother’s parenting “issues have been remedied” due to her failure to
    participate in services and to address her substance abuse. 
    Id. at 185.
    Indeed,
    “no [service] providers” were “recommending that the [C]hildren be placed
    back in [Mother’s] care.” 
    Id. Rodarte observed
    that DCS had been involved
    with the Children for almost two years and stated that it is not fair to leave the
    Children “in limbo” and that they instead “need some kind of permanent
    option” because “they have the right to be in one spot and know that they’re
    going to be able to stay there.” 
    Id. [20] As
    our supreme court has often stated, “[c]hildren have an interest in
    terminating parental rights that prevent adoption and inhibit establishing
    secure, stable, long-term, continuous relationships.” 
    K.T.K., 989 N.E.2d at 1230
    (quoting In re C.G., 
    954 N.E.2d 910
    , 917 (Ind. 2011)). Clear and
    convincing evidence supports the trial court’s conclusion that termination of
    Mother’s rights is in the Children’s best interests.
    Section 3 – Clear and convincing evidence supports the trial
    court’s conclusion that adoption is a satisfactory plan for the
    care and treatment of the Children.
    [21]   Finally, Mother challenges the trial court’s conclusion that there is a
    satisfactory plan for the care and treatment of the Children. While the trial
    court must find that there is a satisfactory plan for the care and treatment of the
    child, “[t]his plan need not be detailed, so long as it offers a general sense of the
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 13 of 14
    direction in which the child will be going after the parent-child relationship is
    terminated.” In re S.L.H.S., 
    885 N.E.2d 603
    , 618 (Ind. Ct. App. 2008).
    Generally, adoption is a satisfactory plan. 
    Id. [22] It
    is clear from the trial court’s findings that the permanency plan here is for the
    Children to be adopted by their current relative/kinship care placement. The
    service providers were all in agreement that the Children had progressed and
    are thriving in that placement. Thus, there is clearly a general sense of direction
    in which the Children will be going after the parent-child relationship is
    terminated. Clear and convincing evidence supports the trial court’s conclusion
    that adoption is a satisfactory plan for the care and treatment of the Children.
    [23]   Decisions to terminate parental rights “are among the most difficult our trial
    courts are called upon to make” and are very fact-sensitive. 
    E.M., 4 N.E.3d at 640
    . We 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. In re A.N.J., 
    690 N.E.2d 716
    , 722 (Ind. Ct. App. 1997).
    Based on the record before us, we cannot say that the trial court’s termination
    of Mother’s parental rights to the Children was clearly erroneous. Accordingly,
    the trial court’s termination order is affirmed.
    [24]   Affirmed.
    May, J., and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 19A-JT-1781 | January 31, 2020   Page 14 of 14