In the Matter of the Termination of the Parent-Child Relationship of: Z.C., Minor Child, S.C., Mother v. The Indiana Department of Child Services , 2014 Ind. App. LEXIS 312 ( 2014 )

FOR PUBLICATION
Jul 11 2014, 6:09 am
ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
ROBERT J. HENKE
CHRISTINE REDELMAN
Deputies Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
)
Z.C., Minor Child, )
)
S.C., Mother, )
)
Appellants-Respondents, )
)
vs. ) No. 33A01-1310-JT-434
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Mary G. Willis, Judge
Cause No. 33C01-1306-JT-13
July 11, 2014
OPINION - FOR PUBLICATION
MAY, Judge
S.C. (“Mother”) appeals a termination of her parental rights to her son, Z.C. (“Child”).
She asserts the trial court proceedings denied her due process and the evidence is insufficient
to support termination of her rights. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 6, 2012, Child was born with controlled substances in his bloodstream.
Mother admitted using heroin, morphine, Xanax, and Oxycontin. Due to the severe
withdrawal symptoms he was experiencing, Child remained hospitalized for a number of
weeks. Prior to Child’s release, Mother was arrested on federal drug charges and
incarcerated in Kentucky. Because Mother was incarcerated, the State obtained an
emergency order to take custody of Child on August 22, 2012, when he was released from
the hospital.
In September 2012, the court held a hearing on the State’s petition to declare Child a
child in need of services (“CHINS”). Mother admitted she was unable to take care of Child
because of her incarceration and because, when released from incarceration, she would need
“services to address her substance abuse.” (DCS Ex. 13.) The court declared Child a
CHINS. One month later, the court entered a dispositional order requiring Mother to
complete a number of services following her release from incarceration.
On May 23, 2013, the court modified its dispositional order to indicate unification
efforts between Mother and Child were ending because Mother had not participated in
services or developed a relationship with Child. (DCS Ex. 16, 24.) In August 2013, the
court approved a permanency plan calling for termination of parental rights. The State filed a
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petition to terminate Mother’s rights on June 24, 2013, and the court held a hearing thereon.
Thereafter, the court entered an order that included the following pertinent findings:
25. Mother never had Child in her exclusive care or custody, nor has she had
contact with the Child since the Child’s detention [by DCS]. Mother is
not able to care properly for Child due to her incarceration.
26. Mother has remained incarcerated in the State of Kentucky since August
22, 2012 and has an unknown release date. Mother’s current incarceration
is the result of federal charges for conspiracy to deal heroin conspiracy
[sic] to which she has admitted guilt through a plea agreement.
27. Attorney Howard Bernstein represents Mother in her pending federal
criminal case. He states that Mother has pled guilty in the heroin
conspiracy case and is currently facing a minimum ten-year sentence. Mr.
Bernstein believes Mother may be able to renegotiate her sentence for a
lesser time period of between 18 months and ten years but the sentencing
date and term of incarceration are unknown.
28. Mother has a lengthy adult criminal history beginning in 2001 that includes
convictions for Illegal Consumption on three occasions, Criminal
Mischief, Theft, Possession of Marijuana, Visiting a Common Nuisance,
felony Possession of Cocaine, felony Possession of Schedule IV
Controlled Substance with a habitual substance offender enhancement,
Operating While Intoxicated, and Conversion. Mother is facing an
additional Operating While Intoxicated charge.
29. Mother was nine months pregnant with the Child at the time she committed
the federal drug offense for which she is currently incarcerated.
30. Mother admitted to [family case manager] Hoffman that she had used
illegal and non-prescribed controlled substances daily during her
pregnancy with the Child. Mother’s drug use during pregnancy included
consumption of marijuana, suboxone, hydrocodone, morphine and heroin.
31. Mother admitted to FCM Hoffman that her drug abuse began at the age of
twelve years and that her longest period of sobriety was one year in 2007,
despite having received substance abuse treatment intervention on six
occasions.
32. Mother has one older child, age 16 years, who is in the informal
guardianship care of the child’s maternal grandmother although Mother
has never been the primary physical custodian living alternately with her
mother, various partners and incarcerated intermittently during her adult
life.
33. Mother objects to the DCS plan of adoption and that the originally
designated maternal relatives have bonded with the child, love the child,
and desire to become the permanent parents for the child. Mother
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proposed that the child be placed with her Mother (maternal grandmother)
on a similar informal guardianship basis as her older 16 year old child
until some unknown time when she may be released from federal
incarceration or, alternately, that the newly named Father, Michael
Kendall, being given [sic] an opportunity to “get on his feet” upon release
from incarceration and introduced to the child.
34. Mother misrepresented the identity of the putative father to the Court and
DCS from August, 2012 to April, 2013 because Father was incarcerated at
the time DCS initiated its assessment and she thought it would “look
worse on her” in the assessment if she named a man who was incarcerated
as the Child’s father. Alleged Father was residing in the Mother’s home at
the time of assessment and is a named co-conspirator in the heroin case.
Alleged Father purported himself to be the father in court proceedings
when he was aware that it was not possible for him to be the child’s
biological father. Mother continued to misrepresent the identity of the
father in correspondence to the Court.
35. Mother used heroin days before the birth of the Child and while the Child
was hospitalized.
36. DCS’ plan for Child is that he be adopted; this plan is satisfactory for
Child’s care and treatment and an adoptive family has been identified as
the family he has resided with continuously since he release [sic] from the
hospital following his recovery from drug withdrawal symptoms.
37. Child has been in the same relative care family since detention on August
23, 2012. The child is very bonded with the prospective adoptive parents,
Mr. and Mrs. Jones, and they are willing to adopt Child.
38. The Child’s CASA is supportive of the plan of termination of parental
rights and believes it is in the Child’s best interests to be adopted by Mr.
and Mrs. Jones with whom the Child has a close bond.
39. DCS believes it is in the best interests of the child to be adopted due to the
inability of the Mother and Father to provide appropriate care for the
Child.
(Appellant’s App. at 19-21.) Based thereon, the court concluded there was a reasonable
probability the conditions resulting in Child’s removal would not be remedied and the
continuation of the parent-child posed a threat to Child’s well-being. The court also
concluded termination of rights was in Child’s best interests and the State had a satisfactory
plan for Child’s future care and treatment and, therefore, the court terminated Mother’s
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parental rights.
DISCUSSION AND DECISION
We review termination of parental rights with great deference. In re K.S., 750 N.E.2d
832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of
witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we
consider only the evidence and reasonable inferences most favorable to the judgment. Id. 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. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S. 1161 (2002).
When, as here, a judgment contains specific findings of fact and conclusions thereon,
we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of Family & Children,
839 N.E.2d 143, 147 (Ind. 2005). We determine whether the evidence supports the findings
and whether the findings support the judgment. Id. “Findings are clearly erroneous only
when the record contains no facts to support them either directly or by inference.” Quillen v.
Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences support the trial
court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B., 666
N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must subordinate the interests
of the parents to those of the child, however, when evaluating the circumstances surrounding
a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not
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be terminated solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
To terminate a parent-child relationship:
(2) The petition must allege:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are
not required, including a description of the court’s finding, the
date of the finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and has been
under the supervision of a local office or probation department
for at least fifteen (15) months of the most recent twenty-two
(22) months, beginning with the date the child is removed from
the home as a result of the child being alleged to be a child in
need of services or a delinquent child;
(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
(D) that there is a satisfactory plan for the care and treatment of the
child.
Ind. Code § 31-35-2-4(b)(2). The State must prove these allegations by clear and convincing
evidence. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court finds
the allegations in the petition are true, the court must terminate the parent-child relationship.
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Ind. Code § 31-35-2-8.
The trial court concluded there was a reasonable probability the conditions resulting in
Child’s removal would not be remedied and the continuation of the parent-child relationship
posed a threat to Child’s well-being. Because our legislature wrote subsection (B) in the
disjunctive, stating only one of those three circumstances needed to exist, the trial court
needed to find only one of the three established by clear and convincing evidence before
terminating parental rights. See In re L.S., 717 N.E.2d at 209. Accordingly, we may affirm
the trial court’s decision if the evidence and findings support the court’s determination as to
the existence of one of those circumstances. See id. (finding supporting conclusion that one
circumstance listed under Ind. Code § 31-35-2-4(b)(2)(B) is sufficient to affirm termination
of parental rights).
We review first the finding the conditions that resulted in Child’s removal would not
be remedied. In making such a determination, a trial court must judge a parent’s fitness to
care for his or her child at the time of the termination hearing, taking into consideration
evidence of changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans.
denied. The court must evaluate a parent’s habitual patterns of conduct to determine whether
there is a substantial probability of future neglect or deprivation. Id. Pursuant to this rule,
courts have properly considered evidence of a parent’s prior criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing
and employment. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251
(Ind. Ct. App. 2002), trans. denied. The trial court may also properly consider, as evidence
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of whether conditions will be remedied, the services offered to the parent by DCS, and the
parent’s response to those services. Id. A trial court need not wait until a child is irreversibly
influenced by a deficient lifestyle such that his or her physical, mental, and social growth are
permanently impaired before terminating the parent-child relationship. In re E.S., 762
N.E.2d 1287, 1290 (Ind. Ct. App. 2002).
Here, the Record indicated Child came into the State’s custody because Mother was
arrested on drug charges before Child was released from hospitalization for drug withdrawal
symptoms. Mother admitted Child was a CHINS because she was incarcerated and would
need substance abuse treatment when released. At the termination hearing, Mother’s
criminal defense counsel testified Mother had agreed to plead guilty to conspiracy to deal
heroin and her minimum sentence would be ten years. Counsel testified that he hoped to
renegotiate Mother’s plea agreement but at the time of the termination hearing, Mother’s
sentencing date and the length of her sentence remained unknown. That evidence supports
the conclusion the conditions that resulted in Child’s removal from Mother’s custody would
not be remedied. See In re L.S., 717 N.E.2d at 208 (appellate court must affirm trial court
decision if evidence supports facts that lead to the conclusions of law).
Mother also asserts the court should not have concluded the reasons for Child’s
placement outside her care would not be remedied because the court’s participation order
instructed her that to keep rights over Child, she “needed to participate in services upon her
release from incarceration.” (Appellant’s Br. at 10.) However, at the time termination
proceedings commenced on May 31, 2013, the services offered to Mother as part of Child’s
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CHINS adjudication ceased. Therefore, we are unable to address the alleged inadequacy of
services offered to Mother during the CHINS proceeding because that issue is unavailable
during an appeal following termination of parental rights. See In re H.L., 915 N.E.2d 145,
148 n. 3 (Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on which
to directly attack a termination order as contrary to law”).
Mother claims the same arguments demonstrate the court erred when determining the
termination of her rights would not be in Child’s best interests. We cannot agree. As the
court found, both DCS and Child’s CASA believed termination of Mother’s rights was in
Child’s best interests. The testimony of such individuals supports the court’s findings and
conclusion. See In re L.S., 717 N.E.2d at 208 (appellate court must affirm trial court decision
if evidence supports facts that lead to the conclusions of law).
Finally, Mother asserts a number of “procedural irregularities as to Father . . . violated
her due process rights to family integrity.” (Appellant’s Br. at 16.) We decline to find a due
process violation, as it was Mother who misled the court regarding Father’s true identity for
over six months, because she was concerned that his status as a prisoner might have a
negative impact on her ability to maintain her own parental rights. Moreover, Mother cannot
assert error in the termination of her rights based on an alleged denial of due process to
Father. See Rumple v. Bloomington Hospital, 422 N.E.2d 1309, 1314 (Ind. Ct. App. 1981)
(litigants are normally barred “from asserting the rights or legal interests of others in order to
obtain relief from injury themselves.”) (quoting Warth v. Seldin, 422 U.S. 490, 509 (1975)),
trans. denied.
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Mother’s arguments are an invitation for us to reweigh the evidence, which we cannot
do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge
credibility of witnesses). DCS presented sufficient evidence that the conditions under which
Child was removed from Mother’s care would not be remedied and that termination was in
Child’s best interests. Accordingly, we affirm.
Affirmed.
KIRSCH, J., and BAILEY, J., concur.
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