In re the Termination of the Parent-Child Relationship of K.R.L.F., N.F., Kev.F., Ke.F., and Kr.F., (Minor Children) and A.F. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 08 2020, 11:59 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
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the April 8, 2020
Parent-Child Relationship of Court of Appeals Case No.
K.R.L.F., N.F., Kev.F., Ke.F., 19A-JT-2165
and Kr.F. (Minor Children) and Appeal from the
A.F. (Mother), Parke Circuit Court
The Honorable
Samuel Swaim, Judge
A.F. (Mother), Trial Court Cause Nos.
Appellant-Respondent, 61C01-1904-JT-53
61C01-1904-JT-54
v. 61C01-1904-JT-55
61C01-1904-JT-56
61C01-1904-JT-57
Indiana Department of Child
Services,
Appellee-Petitioner
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Vaidik, Judge.
Case Summary
[1] A.F. (“Mother”) appeals the termination of her parental rights to her five
children. We affirm.
Facts and Procedural History
[2] The facts that follow are taken primarily from the trial court’s findings of fact,
none of which Mother challenges on appeal.1 Mother and K.F. (“Father”)
(collectively, “Parents”) are the parents of K.R.L.F., born in 2002, N.F., born
in 2014, Kev.F., born in 2015, and twins Ke.F. and Kr.F., born in 2017
(collectively, “Children”).2
[3] On May 3, 2017, the Department of Child Services (DCS) received a report
alleging that Ke.F. and Kr.F.’s meconium had tested positive for THC at birth.
The next day, DCS interviewed Parents at their house. Mother was tested for
drugs, and the results were later returned as positive for THC. DCS also saw
that Parents’ house was cluttered and dirty. DCS opened an Informal
Adjustment (IA) to provide the family services, and Children remained with
1
Because Mother does not challenge the trial court’s findings of fact, we accept them as true. See Maldem v.
Arko, 592 N.E.2d 686, 687 (Ind. 1992).
2
Father’s parental rights were also terminated, but he does not participate in this appeal; therefore, we limit
our narrative to the facts relevant to Mother.
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Parents. Parents were provided a home-based case worker to help them clean
and repair their house, but its conditions continued to deteriorate. There were
“animal feces smashed into the carpet throughout the home.” Tr. p. 31.
Family Case Manager (FCM) Supervisor Amanda Holt said that the “dogs had
free reign of the home and left feces all over the place” and that the family’s
“sleeping arrangements were difficult to view because they were just wherever
the piles were not.” Id. During the IA, Mother continued to test positive for
THC.
[4] In October 2017, DCS filed petitions alleging Children to be Children in Need
of Services (CHINS), claiming that Parents were not in compliance with drug
screens and that the conditions of the family’s house had worsened. Later that
day, the trial court held an initial hearing and allowed Children to remain with
Parents under an “in-home” CHINS.
[5] In December 2017, Mother twice tested positive for methamphetamine,
amphetamine, and THC. By the end of December, Children were removed
from Parents’ care due to “poor home conditions,” “ongoing concerns for drug
use,” and a “lack of progress through the in-home CHINS.” Id. at 32. A
detention hearing was held on January 3, 2018, and the trial court approved the
removal of Children from Parents’ care. The next day, one of Mother’s drug
screens was returned as positive for methamphetamine, amphetamine, and
THC. See Ex. H. On January 9, the trial court held a CHINS fact-finding
hearing, and Mother admitted that Children were CHINS. Later that month,
following a dispositional hearing, the trial court ordered Parents to participate
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in services, including drug and alcohol treatment, random drug screens, home-
based case management, and supervised visitation. See Tr. p. 38. The trial
court also ordered Mother to obtain and maintain stable and appropriate
housing and employment; not use, consume, or possess illegal substances;
complete a family-preservation program; complete parenting and substance-
abuse assessments; and follow all recommendations that came from such
assessments. See Ex. C.
[6] For the next year, Mother was somewhat compliant with services. She
attended almost all supervised visitation with Children, but she “cusse[d] at the
children throughout the visits” and refused contact with Children on weekends
because she claimed that the weekend was “Mother and Father’s time
together.” Ex. C. She also completed her substance-abuse assessment and was
referred to individual therapy, motivational interviewing, and the matrix
program. Mother completed her psychological evaluation and was diagnosed
with bipolar disorder, cannabis-use disorder, and an unspecified anxiety
disorder. It was recommended that before engaging in therapy to address her
bipolar disorder, Mother work on reducing her chronic use of marijuana. See
Tr. p. 132. Regarding the family’s house, Mother refused to engage in home-
based case management, and the house continued to deteriorate. For example,
DCS received a report that there were “dead rats in the kitchen sink with live
rats eating the dead rats.” Id. at 46. DCS was also concerned that there was
possibly mold in the house, there were “[d]og feces throughout the home due to
an estimated twelve dogs in the home,” and the house did not have working
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utilities. Id. At some point, Parents moved to a house in Clinton, but they
struggled to keep the new house safe and clean and, eventually, refused to allow
DCS inside the home. See Ex. C. As for her participation in random drug
screens, in October 2018, Mother submitted to eleven out of twenty-one
requested drug screens. See id. Nine of those eleven drug screens were positive
for THC. See id.
[7] In January 2019, the trial court suspended Mother’s visits until she attended
one self-help session per week, complied with drug screens, and attended all
sessions for motivational interviewing (a therapy that helps individuals
recognize their problems and build motivation to find solutions) and related
drug and alcohol assistance programs. See id. In February 2019, Mother was
arrested for stabbing her brother.3 See Tr. p. 65. Two weeks later, Mother and
Father got into an altercation. Father was suicidal at the time, and police were
called to Parents’ house. See id. at 65-66. In March, citing Mother’s lack of
progress and noncompliance with services, the trial court approved DCS’s
request to change Children’s permanency plan to termination of parental rights
and adoption.
[8] In April, DCS filed petitions to terminate Mother’s parental rights to Children.
Later that month, DCS went to Parents’ house along with a new home-based
case manager to try to get Mother reengaged in services. However, Mother was
3
According to DCS, no charges were filed for this incident. See Tr. p. 78.
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“extremely aggressive . . . to the point that [the DCS worker] and the [home-
based] case manager ultimately just got back in [their] car and left.” Id. at 66.
In May, Mother submitted to only three out of the twenty drug screens
requested by DCS. Of those three, one was later returned as positive for
methamphetamine, amphetamine, and THC. See Ex. C. On June 17, Mother
was charged with Class A misdemeanor domestic battery against Father. See
83C01-1906-CM-110. Allegedly, Father was trying to leave the house when
Mother pulled his beard and hair and threw glass at him, cutting his hand. See
Ex. E. Both Mother and Father were arrested and ordered to have no contact
with each other.4 See id.
[9] Less than two weeks later, the termination fact-finding hearing was held.
Father did not appear, and although Mother did appear, she was almost two
hours late to the hearing. See Appellant’s App. Vol. II p. 92. FCM Tamyra
Robinson testified that she had been the family’s case manager since October
2018. FCM Robinson said that Mother told her that she could not engage in
home-based case management because she was “too tired to engage in the
service because of her visitations with [Children].” Tr. p. 45. FCM Robinson
stated that she did not believe that Mother had “any kind of meaningful
relationship with [Children].” Id. at 73. FCM Robinson testified that DCS’s
plan for Children is adoption and that all five children were in pre-adoptive
4
In September 2019, Mother and the State entered into a pretrial diversion agreement.
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foster homes. Id. at 74. FCM Robinson also stated that she did not believe that
the conditions that caused the removal of Children would ever be remedied. Id.
at 82. Regarding the allegations of domestic violence, FCM Robinson said that
in November 2018, Mother told her that Father “had attempted to kill her three
times, one with an ax, one with a BB gun and one with a machete.” Id. at 61.
[10] Sarah Szerlong, a psychologist, testified that she conducted Mother’s
psychological evaluation and determined that Mother was suffering from
bipolar disorder, cannabis-use disorder, and an unspecified anxiety disorder. Id.
at 131. However, Szerlong said that Mother was “cognitively able to make
positive choices for herself and her children” and that there was no reason to
believe that Mother was not able to improve her parenting skills. Id. at 134.
Donna Coy, a toxicologist with Forensic Fluids, testified that her lab processed
forty drug screens for Mother and of those forty, twenty-four were positive for a
variety of substances, including methamphetamine, THC, buprenorphine, and
hydrocodone. Id. at 21. John Martin, a toxicologist with Redwood
Toxicology, testified that his lab processed five drug screens for Mother and of
those five, three were positive for THC. Id. at 107. Gretchen Peterson testified
that she supervised visits for Mother and Children and that she was never able
to resolve Mother’s issue of “cuss[ing]” at Children during visits. Id. at 154-55.
Jennifer Roach, a mental-health counselor, testified that she provided therapy
to K.R.L.F., N.F., and Kev.F., who were all diagnosed with an “other specified
trauma and stress related disorder.” Id. at 114. Regarding Parents’ house,
Counselor Roach said that K.R.L.F. “has talked about there being animal feces
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on the floor, animals dying, feeling hungry for food and having to crawl on
countertops and in cabinets to find something to eat.” Id. at 118. Counselor
Roach said that K.R.L.F., N.F., and Kev.F. “need to remain outside of the
home” because “they could suffer mental health related setbacks if they’re
placed in [Parents’ home].” Id. at 119-20.
[11] Court Appointed Special Advocate (CASA) Director Audrey Hayman testified
that she was appointed as Children’s CASA in October 2017. CASA Hayman
stated that she believes termination is in Children’s best interests and that the
conditions resulting in Children’s removal had not been remedied. See id. at
144. CASA Hayman stated that she did not observe any changes in Mother’s
behavior throughout this case. See id. at 147. Mother testified that she recently
“went to jail on domestic battery because [her] husband was beating . . . the
crap out of [her] and [she] called the police.” Id. at 91. Mother said that she
planned on divorcing Father but had not yet filed. Id. Mother asserted that
Father “tried sabotaging everything. He done everything in his power to make
sure [she] lost [Children] and [she] wouldn’t get them back.” Id. at 174.
Mother claimed that she could “do it with [Father] gone.” Id. However,
Mother also admitted that she was addicted to marijuana and not compliant
with services. See id. at 95, 176. In August 2019, the trial court issued its order
terminating Mother’s parental rights.
[12] Mother now appeals.
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Discussion and Decision
[13] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.
2013). Rather, we consider only the evidence and reasonable inferences that
are most favorable to the judgment of the trial court. Id. When a trial court has
entered findings of fact and conclusions of law, we will not set aside the trial
court’s findings or judgment unless clearly erroneous. Id. To determine
whether a judgment terminating parental rights is clearly erroneous, we review
whether the evidence supports the trial court’s findings and whether the
findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[14] A petition to terminate parental rights must allege, 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.
(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
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(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 the alleged circumstances by
clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the 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).
[15] Mother first challenges the trial court’s conclusion that there is a reasonable
probability that the conditions resulting in Children’s removal will not be
remedied. In determining whether the conditions that resulted in a child’s
removal will not be remedied, the trial court engages in a two-step analysis.
First, the trial court must ascertain what conditions led to the child’s placement
and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial
court determines whether there is a reasonable probability that those conditions
will not be remedied. Id. “The trial court must consider a parent’s habitual
pattern of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” Id. The trial court has discretion to weigh a
parent’s prior history more heavily than efforts made only shortly before
termination, and the court may find that a parent’s past behavior is the best
predictor of her future behavior. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct.
App. 2016).
[16] Mother specifically argues that “she was the victim” of domestic violence and
“had left Father and would be filing for divorce,” and therefore that she can
now remedy the conditions that resulted in Children’s removal. Appellant’s Br.
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p. 18. First, by no means is it clear from the record that Mother was the victim
of domestic violence. There is evidence showing that Father and Mother were
both arrested in June 2019 for battering each other and that during the incident,
Mother threw glass at Father and cut his hand. See Ex. E. But even if we
assume that Mother was the victim of domestic violence and that she followed
through on her plan to divorce Father, there is plenty of other evidence showing
that she is no closer to providing Children a safe, stable home than she was at
the beginning of the CHINS case in October 2017. The evidence shows that
Mother did not participate in cleaning the home and did not provide for
Children’s needs. Therefore, the trial court found that Parents “failed to
demonstrate that they could clean their residence to ensure the safety of the
Children.” Appellant’s App. Vol. II p. 110. Mother herself admitted that she
did not comply with services. Tr. p. 176. Furthermore, the evidence shows that
Mother used THC and methamphetamine a month before the termination
hearing and that she consistently tested positive for THC throughout the
CHINS case. The trial court found that “Mother continued abusing THC on a
regular basis.” Appellant’s App. Vol. II p. 113. Indeed, Mother even admitted
that she is addicted to marijuana. See Tr. p. 95. Accordingly, the trial court did
not err when it concluded that there is a reasonable probability that the
conditions resulting in Children’s removal and continued placement outside the
home will not be remedied.
[17] Mother also challenges the trial court’s conclusion that termination is in
Children’s best interests. To determine what is in the child’s best interests, the
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trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d
1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must
subordinate the interests of the parents to those of the child. Id. The trial court
need not wait until the child is irreversibly harmed before terminating the
parent-child relationship. Id. Moreover, we have previously held that the
recommendation by 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. Id. at 1158-59.
[18] Here, FCM Robinson and CASA Hayman both testified that terminating
Mother’s parental rights is in Children’s best interests. See Tr. pp. 74, 144. The
trial court also found that Mother “demonstrated repeatedly that [she] did not
have a significant or meaningful relationship with the Children.” Appellant’s
App. Vol. II p. 115. The evidence shows that Mother “cusse[d] at the children
throughout the visits” and refused contact with Children on the weekends
because she claimed that the weekend was “Mother and Father’s time
together.” See Ex. C. Furthermore, Counselor Roach testified that the children
she worked with—K.R.L.F., N.F., and Kev.F.—needed to remain outside
Parents’ home to ensure that their mental-health needs were met. Tr. p. 119.
Indeed, Counselor Roach said that K.R.L.F. told her that when she lived with
Mother, she remembered “feeling hungry for food and having to crawl on
countertops and in cabinets to find something to eat.” Id. at 118. For all of
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these reasons, the trial court did not err when it found that termination is in
Children’s best interests.
[19] Affirmed.
May, J., and Robb, J., concur.
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