In the Matter of the Termination of the Parent-Child Relationship of S.L. (Minor Child) and D.K. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 13 2020, 12:32 pm
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 13, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of S.L. (Minor Child) 19A-JT-2335
Appeal from the Madison Circuit
and Court
The Honorable G. George Pancol,
D.K. (Mother), Judge
Appellant-Respondent, Trial Court Cause No.
48C02-1902-JT-134
v.
Indiana Department of Child
Services,
Appellee-Petitioner.
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Bradford, Chief Judge.
Case Summary
[1] D.K. (“Mother”) is the biological mother of S.L. (“Child”). The Department of
Child Services (“DCS”) became involved with Mother and Child due to
concerns of drug use by Mother. Child was removed from Mother’s care and
alleged to be a child in need of services (“CHINS”) on February 7, 2017.
Following the CHINS adjudication, Mother was ordered to complete certain
services, but failed to do so. In light of Mother’s failure to complete services,
DCS eventually petitioned to terminate her parental rights to Child. Following
an evidentiary hearing, the juvenile court granted DCS’s termination petition.
On appeal, Mother challenges three of the juvenile court’s findings and
contends that DCS failed to present sufficient evidence to support the
termination of her parental rights.1 We affirm.
Facts and Procedural History
[2] Child was born on August 4, 2002. DCS received two unsubstantiated reports
about Mother and Child in the fall of 2016. DCS again became involved with
Mother and Child on January 14, 2017, after receiving reports of drug use by
Mother. Specifically, Mother was alleged to be using amphetamine,
1
D.L. is Child’s biological father. He does not participate in this appeal. As such, we will limit our
discussion to facts relevant to the termination of Mother’s parental rights to Child.
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methamphetamine, opiates, and THC. Also at this time, DCS received a report
that Mother had taken Child’s then-thirteen-year-old brother to the emergency
room after he made suicidal statements.
[3] DCS removed Child from Mother’s care and filed a petition alleging that Child
was a CHINS in Marion County on February 7, 2017. On March 29, 2017, the
juvenile court adjudicated Child to be a CHINS and entered a dispositional
order. In this order, the juvenile court ordered Mother to complete certain
services including therapy, home-based case management, random drug
screens, and a substance-abuse assessment. The CHINS case was transferred to
Madison County on August 8, 2017. The permanency plan was changed to
adoption on October 24, 2018, after the juvenile court determined that “[i]n the
29 months since the Child had been removed from her home, Mother had made
no significant progress [in] remedying the conditions which necessitated the
removal of the Child from her care and custody[.]” Appellant’s App. Vol. II p.
9.
[4] On March 1, 2019, DCS filed a petition to terminate Mother’s parental rights to
Child. The juvenile court conducted a two-day evidentiary hearing on May 28
and July 23, 2019. During this hearing, DCS presented evidence outlining
Mother’s failure to comply with services, remain drug free, and make any
significant progress in improving her ability to provide the necessary care for
Child. Following the conclusion of the evidence, the juvenile court took the
matter under advisement. On September 9, 2019, the juvenile court issued an
order terminating Mother’s parental rights to Child.
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Discussion and Decision
[5] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although
parental rights are of a constitutional dimension, the law allows for the
termination of those rights when parents are unable or unwilling to meet their
parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),
trans. denied. Parental rights, therefore, are not absolute and must be
subordinated to the best interests of the children. Id. Termination of parental
rights is proper where the children’s emotional and physical development is
threatened. Id. The juvenile court need not wait until the children are
irreversibly harmed such that their physical, mental, and social development is
permanently impaired before terminating the parent–child relationship. Id.
[6] In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re Involuntary Termination
of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only
consider the evidence that supports the juvenile court’s decision and reasonable
inferences drawn therefrom. Id. Where, as here, the juvenile court includes
findings of fact and conclusions thereon in its order terminating parental rights,
our standard of review is two-tiered. Id. First, we must determine whether the
evidence supports the findings, and, second, whether the findings support the
legal conclusions. Id.
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[7] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent–child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.
I. Challenge to Trial Court’s Findings
[8] Mother contends that three of the juvenile court’s findings are not supported by
the record. Specifically, Mother challenges Findings Numbers 4, 5, and 7, all of
which detail procedural facts occurring while the CHINS case was pending in
Marion County.2 In Finding Number 4, the juvenile court found as follows:
4. On February 7, 2017, DCS filed a petition alleging the
Child to be a Child In Need of Services under cause number
49D09l-702-JC-000399 because Mother had failed to provide a
safe and stable living environment, Mother had an untreated
substance abuse problem, Mother had used illegal substances in
front of her children, the Child’s sibling had multiple hospital
stays for suicidal ideation, Mother had demonstrated
inappropriate attitudes and behaviors during the sibling’s hospital
stay that were inconsistent with safe and appropriate parenting,
and Father could not be located or otherwise made available to
2
DCS seems to have introduced incomplete copies of the underlying CHINS documents into evidence
during the evidentiary hearing. While we conclude in this case that the challenged findings are supported by
the record, we believe that the better practice would have been to introduce full, certified copies of all relevant
CHINS documents into evidence during the termination proceedings and encourage DCS to do the same.
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assume care of the children. The Marion Superior Court
authorized the filing of the CHINS Petition on February 7, 2017
and authorized the continued removal of the Child and her
sibling from their parents’ care.
Appellant’s App. Vol. II p. 7. In challenging this finding, Mother argues that
the finding is unsupported by the record as the CHINS petition was not part of
the record in the termination proceedings. While Mother is correct that the
CHINS petition was not included in the record, other evidence in the record,
including the testimony of family case manager (“FCM”) Marlana Bertram and
service provider Deana Heller and certain other documents, establishes the
relevant facts contained therein. The juvenile court’s finding is therefore
supported by the evidence.
[9] In Finding Number 5, the juvenile court found as follows:
5. On March 29th, 2017, the CHINS court conducted a fact-
finding hearing on the CHINS petition. This Court finds the
following facts and reasonable inferences from this hearing for
purposes of these termination proceedings:
a. Mother admitted that the Child and her sibling
were CHINS, that Mother required the assistance of
DCS to maintain a safe and stable home free from
substance abuse, and that the course of intervention
of the court was necessary to ensure the safety and
well-being of the children.
b. Mother waived her right to a pre-dispositional
report, the CHINS Court conducted a dispositional
hearing, and the court issued a Parental Participation
Order that Mother participate in home based therapy,
home based case management, random drug screens,
and a substance abuse assessment if she were to test
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positive for any illicit substances.
c. The Child was adjudicated a Child in Need of
Services.
d. The Child remained out of Mother’s custody
and care.
Appellant’s App. Vol. II p. 7. Mother challenges the portion of this finding
indicating that she admitted that Child was a CHINS and waived her right to a
pre-dispositional report. However, whether Mother admitted that Child was a
CHINS or waived her right to a pre-dispositional report is irrelevant given the
evidence establishing that Child was subsequently adjudicated to be a CHINS
and, following a dispositional hearing, Mother was ordered to complete the
services listed.
[10] In Finding Number 7, the juvenile court found as follows:
7. On July 5th, 2017, the CHINS Court conducted a periodic
review hearing. This Court now finds the following facts and
reasonable inferences from this hearing for purposes of these
termination proceedings:
a. Conditions still required the Child’s removal
from the home.
b. Mother agreed to reduced visitation time with
the Child due to ongoing tensions between the two of
them.
c. Mother was continuing to test positive for the
use of opiates.
d. Father resided in Louisiana. He agreed to
contact the Louisiana DCS in order to participate in
random drug screens and an evaluation of his home
to determine the appropriateness of placement of the
Child in his care.
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e. The Child was having significant behavioral
issues, including the use of marijuana and statements
regarding self-mutilation. The parties agreed to
continued drug screens and a psychological
evaluation of the Child.
Appellant’s App. Vol. II p. 8. Mother challenges the portion of this finding
indicating that she agreed to reduced visitation time with Child due to ongoing
tension between her and Child. Service provider Allie Raveed testified that
Mother’s visitation with Child was reduced and eventually stopped at Child’s
request due to inappropriate behavior by and tension with Mother. Whether
Mother agreed to the reduced visitation is irrelevant given the evidence that
Mother’s visitation with Child was in fact reduced due to inappropriate
behavior by Mother and tensions between Child and Mother.
[11] For the reasons set forth above, we conclude that the challenged findings are
not clearly erroneous. In any event, we note that Mother only challenged three
of the juvenile court’s twenty-nine factual findings. The twenty-six
unchallenged factual findings must be accepted as correct, see Madlem v. Arko,
592 N.E.2d 686, 687 (Ind. 1992), and we may affirm judgment of the juvenile
court if the court’s unchallenged findings support the its conclusions. See In re
Termination of Parental Rights of S.S., 120 N.E.3d 605, 611 (Ind. Ct. App. 2019).
Upon review, we conclude that the unchallenged findings support the juvenile
court’s conclusions thereon as discussed below.
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II. Sufficiency of the Evidence
[12] Mother also contends that the evidence is insufficient to sustain the termination
of her parental rights to Child. In order to support the termination of Mother’s
parental rights to Child, DCS was required to prove, inter alia, the following:
(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.
Ind. Code § 31-35-2-4(b)(2). Mother claims that DCS failed to present sufficient
evidence to prove these subsections by clear and convincing evidence.
A. Indiana Code Section 31-35-2-4(b)(2)(B)
[13] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive, the juvenile court need only find that one of the conditions
listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.
2003), trans. denied. Therefore, where the juvenile court determines that one of
the above-mentioned factors has been proven and there is sufficient evidence in
the record supporting the juvenile court’s determination, it is not necessary for
DCS to prove, or for the juvenile court to find, either of the other factors listed
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in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
DCS does not allege that Child has been adjudicated CHINS on two separate
occasions. As such, DCS had to prove either that (1) the conditions resulting in
removal from or continued placement outside Mother’s home will not be
remedied or (2) the continuation of the parent–child relationship poses a threat
to Child.
[14] The juvenile court determined that the evidence established a reasonable
probability that the conditions that resulted in Child’s removal and continued
placement outside Mother’s care would not be remedied. When making a
determination as to whether the conditions leading to placement outside a
parent’s care are likely to be remedied, juvenile courts “should judge a parent’s
fitness at the time of the termination hearing, considering any change in
conditions since the removal.” Lang v. Starke Cty. Office of Family & Children, 861
N.E.2d 366, 372 (Ind. Ct. App. 2007). “The trial court can also consider the
parent’s response to the services offered through the DCS.” Id. “‘A pattern of
unwillingness to deal with 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.’” Id. (quoting In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999),
trans. denied).
[15] In determining that the conditions for placement outside Mother’s care would
not be remedied, the juvenile court noted that after Child was found to be a
CHINS, Mother was ordered to participate in home-based therapy, home-based
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case management, and random drug screens. She was also ordered to complete
a substance-abuse assessment and all recommended services. With respect to
Child’s ongoing placement outside Mother’s care, the juvenile court found as
follows:
a. Mother has failed to adequately participate in reunification
services designed to overcome her mental health, chronic
instability, and substance abuse issues. Mother has been offered
multiple opportunities to address these concerns, including
multiple assessments, individual and group therapy, home based
case management, substance abuse treatment, and drug screens.
Mother has disregarded these opportunities by denying that she
has a problem at all, denying the accuracy of screen results, and
failing to appear for scheduled and rescheduled service provider
appointments. Mother also failed to cooperate and communicate
with service providers, including her frequently relocating
without contacting these parties resulting in the disruption of all
efforts to engage her in reunification services.
b. Mother’s substance abuse has not abated. Mother
provided a copious history of positive screens for multiple
different illegal controlled substances, spanning multiple years.
Mother alleged during the CHINS proceeding that she sought
treatment for her substance abuse with a non-DCS referred
provider, but failed to provide proof of this treatment or to sign
releases so that other parties could obtain this proof. Further,
Mother continued to test positive after these alleged periods of
treatment, demonstrating that either the treatment was not
actually or meaningfully undertaken or was otherwise ineffective
in resolving the problem. The Court notes that Mother cannot
adequately provide necessary supervision and oversight of any of
her children while engaging in substance abuse.
c. While the allegations at the outset of the CHINS matter
did not include mental health concerns beyond Mother’s
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substance abuse, it has become clear that her substance abuse and
instability are intertwined with significant mental health
concerns. Mother has been afforded multiple opportunities to
identify and address these concerns, but has persistently avoided
meaningful engagement with such services, accepting
responsibility for those failures to pursue treatment, and
acknowledging the consequences of her behaviors for the Child.
Appellant’s App. Vol. II pp. 15–16.
[16] In support of its findings, the juvenile court pointed to evidence which
demonstrates that Mother has made little or no progress in remedying the
conditions which have necessitated the Child’s ongoing placement outside of
her care. Specifically, Mother has exhibited continued issues with substance
abuse, housing and financial instability, and mental health. Mother
consistently failed to engage with services and numerous services were closed
out unsuccessfully due to Mother’s non-compliance. Further, while Mother
participated in random drug screens, the results of these screens demonstrated a
persistent pattern of ongoing substance abuse. Mother failed to maintain stable
housing and her frequent relocations resulted in multiple service disruptions
and frequently hindered her progress in improving her parental abilities. We
agree with the juvenile court’s determination that the evidence demonstrates a
reasonable probability that the conditions resulting in Child’s removal from or
continued placement outside Mother’s care will not be remedied.
[17] In challenging the sufficiency of the evidence to sustain the termination of her
parental rights, Mother claims that DCS failed to verify whether her positive
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drug screens could have possibly resulted from prescribed medications,
asserting that at least one DCS witness “seemed quite disinterested in
confirming or denying [Mother’s] claimed health problems.” Appellant’s Br. p.
10. Mother also suggests that some of the positive screens might not
“necessarily represent daily use but instead be carryover results of single prior
usages.” Appellant’s Br. p. 11. If so, the evidence might have “improperly
exaggerate[d] her problem.” Appellant’s Br. p. 11. Mother further claims that
“[t]here were no findings on the effect of the levels of drugs shown to be present
in the positive screens had on [her] ability to function properly as a parent.
Without such [a] determination[,] the use of drugs should not be a proper basis
for termination of parental rights[.]” Appellant’s Br. p. 14. Mother’s claims in
this regard amount to nothing more than an invitation for this court to reweigh
the evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
[18] During the underlying proceedings, Mother reported to service provider Ashley
Galloway-Stafford that she and Child were “not close” and “that she didn’t
have [a]n overt desire to be close with her.” Tr. p. 75. On appeal, she
acknowledges that she “has made mistakes in the past” and admitted that she
“will never be mistaken for June Clever [sic] or any other situation comedy
mother from the 50’s or 60’s.” Appellant’s Br. pp. 13, 14. She claims,
however, that “[t]here was no basis … to conclude that any drug abuse problem
[she had] had an ongoing disabling effect on her ability to parent.” Appellant’s
Br. p. 14. For the reasons stated above, we disagree.
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B. Indiana Code Section 31-35-2-4(b)(2)(C)
[19] We are mindful that in considering whether termination of parental rights is in
the best interests of a child, the juvenile 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 juvenile court must subordinate the interests of the
parents to those of the children involved. Id. “A parent’s historical inability to
provide a suitable environment along with the parent’s current inability to do
the same supports a finding that termination of parental rights is in the best
interests of the children.” Lang, 861 N.E.2d at 373. Furthermore, this court has
previously determined that the testimony of the case worker, guardian ad litem
(“GAL”), or a CASA regarding a child’s bests interests supports a finding that
termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666
N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
[20] In finding that termination of Mother’s parental rights was in Child’s best
interests, the juvenile court found as follows:
[Child]’s DCS case manager and CASA have both testified that
termination of the parent-child relationship and adoption[3] of the
child are in the child’s best interests. The Court agrees with these
opinions, and now accepts and adopts them as its own finding of
3
The record reflects that the DCS plan is for maternal grandmother to adopt Child and maternal
grandmother stands ready to do just that.
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fact in these proceedings, supported additionally by [Mother’s]
unremedied parenting deficiencies[.]
Appellant’s App. Vol. II p. 16.
[21] CASA Danielle Bell testified that at the time of the termination hearing, Child
was “doing phenomenal.” Tr. p. 81. CASA Bell further testified that since
being placed with maternal grandmother, Child had done really well in therapy,
was no longer self-harming, was responding well to medication for anxiety and
depression, and her performance in school was improving. As for Mother,
CASA Bell did not believe that Mother had made progress towards
reunification and “would not” say that there was “a reasonable probability of
reunification with [M]other.” Tr. p. 84. CASA Bell noted that while Child
enjoyed a “very motherly” bond with maternal grandmother, Child had a “very
minimal” relationship with Mother. Tr. pp. 86, 82.
[22] In testifying that she believed that termination of Mother’s parental rights to
Child was in Child’s best interests, CASA Bell indicated that
Outside of just … having concerns about [Mother’s] behaviors
even in my presence and the manipulation [by Mother] that I’ve
noted … is of grave concern for me if [Child] were to ever go
back with [Mother]. I would fear for [Child’s] life because of the
suicidal ideation that she’s had with the self-harming behaviors.
Tr. p. 86. In discussing Child’s best interests, FCM Bertram also testified that
she would have concerns about Child’s mental well-being if Child were
returned to Mother’s care. Specifically, FCM Bertram testified that she did not
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believe that Child could safely return to Mother’s care because Child “suffers
from depression and anxiety and it’s exasperated with contact” with Mother.
Tr. p. 39. The juvenile court’s determination that termination of Mother’s
parental rights is in Child’s best interests is supported by sufficient evidence.
[23] The judgment of the juvenile court is affirmed.
Robb, J., and Altice, J., concur.
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