In the Matter of the Termination of the Parent-Child Relationship of: C.P. & M.P. (Minor Children) and S.S. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Feb 04 2016, 5:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William W. Gooden Gregory F. Zoeller
Mount Vernon, Indiana Attorney General of Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination February 4, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of: 65A01-1508-JT-1177
C.P. & M.P. (Minor Children) Appeal from the Posey Circuit
Court
and
The Honorable James M.
S.S. (Mother), Redwine, Judge
Appellant-Respondent, Trial Court Cause Nos.
65C01-1412-JT-237
v. 65C01-1412-JT-238
The Indiana Department of
Child Services,
Appellee-Petitioner.
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Bailey, Judge.
Case Summary
[1] S.S. (“Mother”) appeals the termination of her parental rights as to C.P. and
M.P. (“Children”). We affirm.
Issue
[2] Mother raises one issue for our review: whether the Department of Child
Services (“DCS”) established by clear and convincing evidence that there was
no reasonable probability that the conditions that resulted in Children’s removal
from the home would be remedied.
Facts and Procedural History
[3] M.P. was born to Mother and B.P. (“Father”) on August 12, 2012; C.P. was
born on March 9, 2011.1 On September 24, 2013, a caseworker from DCS and
a Mount Vernon police officer went to Mother’s home in response to a report of
neglect as to M.P. The home was extremely cluttered and in disrepair, there
was no running water, the refrigerator was not working properly and was full of
bugs, and a cooler in which Father kept milk for the Children had stagnant
1
Father was not present and did not participate in the termination hearing, and he does not appeal the
termination of his parental rights.
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water and no ice. M.P.’s diaper had not been changed for some time. Mother
tested positive for oxycodone, amphetamine, methamphetamine, and opiates.
[4] DCS removed Children from Mother’s care. On September 26, 2013, DCS
alleged Children to be Children in Need of Services (“CHINS”); the court
adjudicated the Children as CHINS on November 26, 2013, after several
continuances of the initial hearing on DCS’s petition. Also in September 2013,
Mother was charged with Neglect, as a Class D felony. In August 2014,
Mother was found guilty of that offense and was sentenced to probation.
[5] During the pendency of the CHINS proceedings, DCS extended services to
Mother, including substance abuse counseling services; inpatient substance
abuse treatment; random drug testing; mental health counseling; parent aide
services; and supervised visitation with Children. Mother declined inpatient
substance abuse treatment, attended outpatient substance abuse counseling,
submitted to drug testing, and participated in visits with Children. Mother was
found to have used methamphetamine or other drugs on eleven occasions.
Though she attended visits with Children, Mother never progressed to
unsupervised visitation. Some visits were cancelled because Mother never
obtained independent housing, and one individual with whom Mother resided
would occasionally refuse to permit visitation with Children at the home. The
frequency of cancelled visits increased toward the end of 2014.
[6] On December 19, 2014, DCS filed a petition to terminate Mother’s parental
rights.
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[7] In January 2015, Mother was found to have violated the terms of her probation,
and was incarcerated with an expected release date in October 2015.
[8] The termination court conducted a hearing on DCS’s petition to terminate
Mother’s parental rights on April 6, May 11, and May 14, 2015. On July 15,
2015, the court entered its order terminating Mother’s parental rights.
[9] This appeal ensued.
Discussion and Decision
[10] Mother contends that the trial court erred when it terminated her parental
rights, arguing that there was insufficient evidence from which the court could
properly terminate her parental rights.
[11] Our standard of review is highly deferential in cases concerning the termination
of parental rights. In re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). This
Court will not set aside the trial court’s judgment terminating a parent-child
relationship unless it is clearly erroneous. In re A.A.C., 682 N.E.2d 542, 544
(Ind. Ct. App. 1997).
[12] Parental rights are of a constitutional dimension, but the law provides for the
termination of those rights when the parents are unable or unwilling to meet
their parental responsibilities. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 147 (Ind. 2005). The purpose of terminating parental rights is not
to punish the parents, but to protect their children. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied.
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[13] Indiana Code section 31-35-2-4(b)(2) sets out the elements that DCS must allege
and prove by clear and convincing evidence in order to terminate a parent-child
relationship:
(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.
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[14] If the court finds that the allegations in a petition described above are true, the
court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a). 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 trial
court must also “evaluate the parent’s habitual patterns of conduct to determine
the probability of future neglect or deprivation of the child.” Id.[15] Here, Mother challenges the trial court’s order with respect to Subsections 31-
35-2-4(b)(2)(B). Indiana Code section 31-35-2-4(b)(2)(B) is written in the
disjunctive, and therefore the court needed only to find that one of the three
requirements of subsection (b)(2)(B) had been established by clear and
convincing evidence. See L.S., 717 N.E.2d at 209. Mother contends that there
was insufficient evidence to establish any of the requirements.
[16] We disagree. During the course of the CHINS proceedings, Mother lived with
several of her fiancé’s family members. One of these individuals would refuse
to allow visitation with Children to occur at the residence, resulting in cancelled
visits. Thus, Mother was unable to obtain stable housing for supervised
visitation with Children, let alone a home in which she and the children could
reside. DCS eventually reduced the frequency of Mother’s scheduled visits with
Children from three days per week to two days per week as a result of Mother’s
increasingly frequent cancellation of visits in the latter half of 2014. Children,
then aged three and two, had not lived with Mother for more than one-and-one-
half years by the time of the termination of Mother’s parental rights.
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[17] During the pendency of the CHINS proceedings, Mother declined inpatient
substance abuse treatment until she was incarcerated for violating probation,
was “moderately compliant” with outpatient counseling, and prior to her
incarceration continued to use methamphetamine. (Tr. at 74.) After the
termination petition was filed, Mother continued to use drugs, which resulted in
the revocation of her probation and incarceration in January 2015. Mother was
imprisoned during the remainder of the CHINS proceedings, and was not
expected to be released until October 2015—almost five months after the
conclusion of the hearing on DCS’s petition, and three months after the court’s
order terminating Mother’s parental rights.
[18] There was clear and convincing evidence from which the termination court
could conclude that there was a reasonable probability that the reasons for
removal of the children—stable housing and Mother’s drug use—would not be
remedied, and sufficient evidence from which the court could conclude that
continuation of the parent-child relationship posed a threat to Children’s well-
being.
[19] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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