K.L. v. Madison County 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
Oct 05 2020, 8:18 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Dorothy Ferguson Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Robert J. Henke
Abigail Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
K. L., October 5, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-JT-828
v. Appeal from the Madison Circuit
Court
Madison County Department of The Honorable G. George Pancol,
Child Services, Judge
Appellee-Petitioner. Trial Court Cause No.
48C02-1910-JT-264
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, K.L. (Mother), appeals the trial court’s Order
terminating her parental rights to her minor child, R.R. (Child).
[2] We affirm.
ISSUE
[3] Mother presents the court with one issue, which we restate as: Whether the
trial court’s Order terminating her parental rights to Child is clearly erroneous.
FACTS AND PROCEDURAL HISTORY
[4] On June 25, 2013, Child was born to Mother and biological father, T.R.
(Father). 1 Mother and Father have a history of substance abuse. On January 6,
2017, Mother and Father possessed syringes and admitted to
methamphetamine use. Due to Parents’ arrest, on January 12, 2017, the
Department of Child Services (DCS) removed Child from their care, and Child
was placed in a relative’s care.
[5] On January 17, 2017, DCS filed a petition alleging that Child was a child in
need of services (CHINS) because of Mother’s substance abuse issues. On
January 25, 2017, Mother admitted that Child was a CHINS. On February 22,
2017, the trial court ordered Mother to complete a substance abuse assessment
1
On July 25, 2019, Father’s parental rights to R.R. were terminated in a prior proceeding. T.R. does not
participate in this appeal.
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and treatment, random drug screens, a parenting assessment and any
recommended classes, individual counseling, and supervised parenting time.
Mother was also ordered to refrain from consuming illegal substances. On
March 17, 2017, DCS filed a motion to remove Child from his placement with
relatives because Child had been left unsupervised in Mother’s care. Child was
placed in foster care, where he has resided ever since.
[6] Mother’s January 6, 2017, arrest led to the State filing charges against her of
Level 6 felony unlawful possession of a syringe, Level 6 felony maintaining a
common nuisance, Class C misdemeanor possession of paraphernalia, and
Class C misdemeanor operating a motor vehicle without ever receiving a
license under Cause Number 48C05-1703-F6-602 (Cause -602). While Cause -
602 was pending, on April 25, 2017, Mother was charged in Cause Number
48C05-1704-F4-1043 (Cause -1043) with Level 6 felony assisting a criminal
when she refused to answer her door when police arrived to serve a warrant on
Father. On February 26, 2018, Mother pleaded guilty to the maintaining a
common nuisance and operating a vehicle while never being licensed charges in
Cause -604 and to the assisting a criminal charge in Cause -1043. The trial
court sentenced Mother to two years and 182 days in Cause -602 and to 363
days in Cause -1043, all suspended to probation.
[7] As Mother’s criminal cases were unfolding, DCS referred Mother for substance
abuse assessments and treatment. At the beginning of the CHINS case, Mother
completed a substance abuse assessment and did not test positive for illegal
substances for approximately eight months while she was being treated with
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suboxone. Thereafter, Mother did not comply consistently with random drug
screening. Mother was drug screened by DCS throughout the instant case and
the underlying CHINS proceedings. From November 16, 2017, to November
7, 2019, Mother tested positive for illegal substances, mostly methamphetamine
and amphetamine, on twenty occasions. In 2018, Mother checked herself out
of in-patient substance abuse treatment at Transitions in Fort Wayne after one
week. After Mother voluntarily left in-patient treatment, she requested that
random drug screening be reinstated but then never participated. Mother
completed a second substance abuse assessment but did not follow up on the
resulting treatment recommendations. During the CHINS proceedings Mother
was closed out of individual therapy for noncompliance.
[8] DCS also referred Mother for home-based case management to address her
housing instability and unemployment issues. After a permanency hearing on
December 27, 2017, the trial court found that Mother had not yet begun her
home-based services, despite referrals being in place. Once beginning her
home-based services, Mother did not participate consistently. As of January 14,
2019, Mother had been closed out of her home-based services for non-
compliance. Mother did not gain consistent employment. Mother had at least
three residences during the CHINS proceedings, one of which was with her
boyfriend, who she admitted to FCM Andrea Dickerson (FCM Dickerson) on
several occasions had inflicted domestic violence upon her. As of January 14,
2019, Mother had been evicted from her HUD housing for a rule violation.
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[9] Mother did not complete a parenting assessment even though DCS entered a
referral for one. After an initial period of non-attendance, Mother exercised
regular parenting time with Child and completed a “1, 2, 3 Magic” training.
(Transcript p. 49). DCS increased the frequency of Mother’s parenting time,
and Mother was allowed to exercise her parenting time in her home. However,
parenting time was decreased and eventually moved back to a facility due to
Mother’s continued positive drug screens and Mother becoming overwhelmed
and emotional during sessions. The move back to a facility occurred after an
episode where Mother had an emotional outburst and told Child that his
behavior was the reason that he could not come home. In March 2019,
Mother’s supervised parenting time was closed out for non-attendance,
although it was later reinstated.
[10] Mother was arrested on several occasions during the CHINS proceedings for
violating her probation by abusing illegal substances. On December 27, 2017, a
concurrent plan of adoption was added to Child’s permanency plan. On
October 25, 2019, DCS filed a petition seeking to terminate Mother’s parental
rights to Child. In November 2019, Mother was re-incarcerated for violating
her probation. Just prior to becoming re-incarcerated, Mother reported
participating in services again and completing an extended-outpatient, group-
therapy program (EOP), despite her spotty attendance. Mother did not
complete the individual therapy portion of her treatment before becoming re-
incarcerated.
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[11] January 7, 2020, and February 25, 2020, the trial court held evidentiary
hearings on DCS’s termination petition. FCM Robert Barnes (FCM Barnes)
testified that Mother had admitted to him after her last positive drug screen on
November 7, 2019, that she continued to use methamphetamine. FCM
Dickerson related that Mother had abducted Child from a prior placement and
had threatened to do so again. It was FCM Dickerson’s opinion that it was in
Child’s best interests that Mother’s parental rights be terminated.
[12] By the time of the second termination hearing, Mother had recently been
released from having spent three months in jail. Mother was initially released
to serve six months on house arrest but had been noncompliant with the house
arrest rules and was placed on work release. Mother had completed the “No
More Excuses” substance abuse program while in jail and was attending
twelve-step and Celebrate Recovery groups. (Tr. p. 78). Mother acknowledged
that her recent three-month period of abstinence from substance abuse had
occurred while she had been incarcerated. Mother requested more time to
engage in services before her parental rights were terminated.
[13] Child had been placed with the same foster family since February 20, 2018. By
the time of the termination hearings, Child no longer required any services
through DCS and had discontinued therapy in fall 2019. Child’s foster father
related that he and Child’s foster mother were able to provide for Child’s needs.
Child has two foster sisters in his home. Child’s foster family sought to adopt
Child and had already filed a petition to do so.
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[14] Child’s CASA, Stephanie Hamilton (CASA Hamilton), served during the
CHINS and termination proceedings. CASA Hamilton recognized that Mother
loved Child but that Mother had been unable to address her substance abuse
issues and provide Child with a stable environment. After interacting with
Mother throughout the proceedings, CASA Hamilton had concluded that
Mother’s intentions were good but that she could not follow through with
treatment or services for extended periods of time. Mother had not exercised
parenting time with Child in the months prior to the termination hearing.
CASA Hamilton noted that after this period of Mother’s absence, “there is a
light in [Child’s] eyes that I haven’t seen previously.” (Tr. p. 64). CASA
Hamilton had inspected Child’s foster home and found it suitable and
appropriate for Child. CASA Hamilton believed that it was in Child’s best
interests that Mother’s parental rights be terminated.
[15] On February 25, 2020, in a separate proceeding, Mother admitted that she had
violated her probation in Cause -1043, and the trial court revoked her probation
to 231 days in the Continuum of Sanctions program.
[16] On March 11, 2020, the trial court issued its Order terminating Mother’s rights
to Child. In its eleven-page Order, the trial court entered findings consistent
with the facts recited herein. The trial court concluded that there was no
reasonable probability that the conditions that resulted in Child’s removal from
Mother would be remedied and that it was in Child’s best interests that
Mother’s parental rights be terminated.
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[17] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[18] Mother challenges the evidence supporting the trial court’s Order terminating
her rights to Child. It is well-settled that when reviewing the evidence
supporting the termination of parental rights, we neither reweigh the evidence
nor determine the credibility of witnesses. In re E.M., 4 N.E.3d 636, 642 (Ind.
2014). In addition, we consider only the evidence that supports the judgment
and the reasonable inferences to be drawn from that evidence. Id. “We confine
our review to two steps: whether the evidence clearly and convincingly
supports the findings, and then whether the findings clearly and convincingly
support the judgment.” Id. We must give due regard to the trial court’s
opportunity to judge the credibility of witnesses firsthand, and we do not set
aside the trial court’s findings or judgment unless it is clearly erroneous. Id.
Mother does not challenge any of the trial court’s specific findings of fact, so we
will accept those findings as correct. S.S., 120 N.E.3d 605, 610 (Ind. Ct. App.
2019).
II. Termination of Mother’s Rights
[19] “[O]ne of the most valued relationships in our culture” is that between a parent
and his or her child. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied.
Indeed, “[a] parent’s interest in the care, custody, and control of his or her
children is ‘perhaps the oldest of the fundamental liberty interests.’” Id.
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(quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Accordingly, the
Fourteenth Amendment to the United States Constitution safeguards “the
traditional right of parents to establish a home and raise their children.” Id.
Nevertheless, parental interests are not absolute; rather, termination of parental
rights is appropriate when parents are unable or unwilling to meet their parental
responsibilities. In re A.B., 887 N.E.2d 158, 164 (Ind. Ct. App. 2008).
[20] Termination of parental rights is an extreme sanction that is intended as a “last
resort” and is available only when all other reasonable efforts have failed. C.A.
v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 91 (Ind. Ct. App. 2014). As such,
before a termination of parental rights is merited, the State is required to prove
a host of facts by clear and convincing evidence, the most relevant for our
purposes being that there is a reasonable probability that the conditions which
resulted in the child’s removal and continued placement outside the home will
not be remedied by the parents, Mother’s continued relationship with Child
poses a threat to Child’s well-being, and that termination is in the best interests
of the child. Ind. Code §§ 31-35-2-4(b)(2)(B)(i-ii), (C); I.C. § 31-37-14-2. We
address those factors in turn.
A. Reasonable Probability Conditions Will Not Be Remedied
[21] When reviewing a trial court’s determination that the conditions that resulted in
the child’s removal will not be remedied, we engage in a two-step analysis.
E.M., 4 N.E.3d at 642-43. First, we must identify the conditions that led to
removal; second, we determine whether there is a reasonable probability that
those conditions will not be remedied. Id. at 643. When engaging in the
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second step of this analysis, a trial court must judge a parent’s fitness as of the
time of the TPR proceeding, taking into account evidence of changed
conditions, balancing any recent improvements against habitual patterns of
conduct to determine whether there is a substantial probability of future neglect
or deprivation. Id. This delicate balance is entrusted to the trial court, and a
trial court acts within its discretion when it weighs a parent’s prior history more
heavily than efforts made only shortly before termination. Id. “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.”
Id.
[22] Here, Child was removed from Mother’s care because of her substance abuse
issues which affected other areas of her life, such as her ability to maintain
stable housing and employment. The trial court ordered Mother to participate
in a number of services to address her substance abuse, housing instability, and
unemployment, but she did not consistently engage in those services or benefit
from them when she did engage. Mother completed substance abuse
assessments and participated in some services but was closed out of random
drug screening, home-based services, and individual counseling. When Mother
submitted to drug screens through DCS, she tested positive for
methamphetamine and amphetamine on twenty occasions throughout the
underlying CHINS and after the termination proceedings were initiated.
Mother checked herself out of in-patient substance abuse treatment after one
week in 2018 and continued to use drugs after she completed EOP in 2019 until
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she was reincarcerated. Mother did not find employment or establish a stable
residence for Child, and her reincarceration in 2019 further prevented her from
reaching those goals. Accordingly, we find that the trial court’s findings
supported its conclusion that there was a reasonable likelihood that the
conditions that merited Child’s removal would not be remedied. See In re D.W.,
969 N.E.2d 89, 96-97 (Ind. Ct. App. 2012) (finding sufficient evidence that
conditions of removal would not be remedied where Father “consistently failed
to take advantage of services provided and ordered by the trial court and
consistently failed to stay clean of drugs.”).
[23] In her argument to the contrary, Mother directs our attention to evidence in the
record of her recent efforts at sobriety, employment, and housing. Mother was
sober for the three months she was incarcerated and found employment when
she was placed on work release after violating the terms of her home detention.
Mother also testified at the second termination hearing that her father was
keeping an apartment for her until she was able to take it over. (Tr. p. 76). We
commend Mother’s efforts toward sobriety, finding employment, and possibly
procuring an apartment. However, it was within the trial court’s discretion to
weigh Mother’s two-year, documented history of repeated substance abuse
relapses, failure to engage in services, and housing and employment instability
more heavily than her short-term sobriety while in jail, her employment
required as part of her conditional release on work release, and nebulous
testimony about an apartment. E.M., 4 N.E.3d at 643; see also In re L.R., 79
N.E.3d 985, 992 (Ind. Ct. App. 2017) (upholding the trial court’s order despite
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Mother’s engagement in services and clean drug screens because, by her own
admissions, her recent stability had lasted only a few months), trans. denied. In
addition, although Mother expressed the hope that her probation officer would
approve her being switched from work release to home detention, the record
shows that on the same day as the second termination hearing, Mother was
ordered to serve 231 days with the Continuum of Sanctions program. Because
the evidence and the trial court’s findings clearly and convincingly supported its
determination, we find no clear error on its part. See E.M., 4 N.E.3d at 642.
[24] Mother contends that the trial court “terminated mother’s rights because she
was incarcerated at the time of the termination proceeding.” (Appellant’s Br. p.
10). Mother likens her case to Rowlett v. Vanderburgh Cty. OFC, 841 N.E.2d 615,
622 (Ind. Ct. App. 2006), trans. denied, wherein another panel of the Court
reversed the termination of Rowlett’s parental rights based partially on its
conclusion that DCS had failed to show that there was a reasonable likelihood
that the conditions that merited removal would not be remedied. Rowlett had
been incarcerated for all but two months of the CHINS proceedings and for all
of the termination proceedings. Id. DCS did not communicate with Rowlett
while he was incarcerated. Id. Nevertheless, during his incarceration, Rowlett
had participated in over 1,000 hours of individual and group services directed at
improving his parenting, anger management, and sobriety; he took college
courses and was working toward a degree; and he had remained sober during
his lengthy incarceration. Id. Observing that conditions must be assessed as of
the time of the termination hearing, the Court held that DCS’s evidence of
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Rowlett’s long pre-incarceration history of substance abuse, criminal activity,
transient lifestyle, unemployment, and lack of parenting skills did not accurately
reflect his current ability to parent. Id. at 621-22.
[25] We find that Mother’s case is factually distinguishable from Rowlett. Here,
Mother was not incarcerated for the majority of the CHINS and for all of the
termination proceedings, and, thus, she had an opportunity to engage in DCS
services that was absent in Rowlett. DCS referred her to a host of services in
which she either participated inconsistently or not at all. Mother did not put in
the quality and quantity of effort displayed by Rowlett, either when she was free
in society or when she was incarcerated. Rowlett had also maintained his
sobriety for a much longer period of time than Mother. As such, we do not find
Mother’s reliance on Rowlett to be persuasive.
[26] Mother also argues that there was insufficient evidence to support the trial
court’s conclusion that her continued relationship with Child constituted a
threat to Child’s well-being. However, the trial court did not enumerate that
legal conclusion in its Order as a basis for terminating Mother’s parental rights.
Even if it had, the termination statute is written in the disjunctive, such that the
State was required to make either the ‘conditions’ or ‘threat’ showing, not both.
Bester v. Lake Cty. OFC, 839 N.E.2d 143, 148 n.5 (Ind. 2005). Therefore,
because we have found that the evidence supported the trial court’s conclusion
on the ‘conditions’ factor, we do not address the second portion of Mother’s
argument.
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B. Child’s Best Interests
[27] Mother also contends that the evidence did not support the trial court’s
conclusion that termination was in Child’s best interests. Our supreme court
has recognized that one of the most difficult aspects of a termination of parental
rights determination is the issue of whether the termination is in the child’s best
interest. E.M., 4 N.E.3d at 647 (noting that the question “necessarily places the
children’s interest in preserving the family into conflict with their need for
permanency”). The trial court’s determination that termination was in a child’s
best interests requires it to look at the totality of the evidence of a particular
case. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans. denied. “In
doing so, the trial court must subordinate the interests of the parents to those of
the children involved.” Id.
[28] Here, the trial court found that there was a reasonable likelihood that the
conditions meriting Child’s removal from Mother’s care would not be
remedied; FCM Dickerson opined that termination was in Child’s best
interests; and CASA Hamilton had concluded that termination was in Child’s
best interests. These findings alone supported the trial court’s determination
that termination of Mother’s parental rights was in Child’s best interests. See
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind. Ct. App.
2013) (finding the evidence supported the trial court’s ‘best interests’
determination where the family case manager and CASA supported
termination and the conditions resulting in removal would not be remedied),
trans. denied.
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[29] Other evidence and findings buttressed the trial court’s determination. At times
during supervised parenting time during the CHINS proceedings, Mother
displayed a lack of patience with Child and spoke inappropriately to him, such
as when she essentially blamed the fact that they no longer lived together on his
behavior instead of her own drug use. Mother had abducted Child from a
previous placement and expressed a willingness to do so again, which is not an
act consistent with good parenting and which indicates that Mother continued
to place her own needs above Child’s. In the months leading up to the
termination hearings when Mother was not exercising parenting time, Child’s
CASA noted that he seemed happier and “his emotions became more
regulated[.]” (Tr. p. 65). Child had been in a secure, stable, pre-adoptive home
for two years where he no longer required services and was thriving with his
two foster sisters. In short, we conclude that the totality of the evidence and
findings supported the trial court’s determination that termination was in
Child’s best interests and, therefore, was not clearly erroneous. See E.M., 4
N.E.3d at 642.
CONCLUSION
[30] Based on the foregoing, we conclude that the trial court’s Order terminating
Mother’s parental rights to Child was supported by the evidence and was not
clearly erroneous.
[31] Affirmed.
[32] May, J. and Altice, J. concur
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