in-re-the-involuntary-term-of-the-parent-child-relationship-of-aur-and ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Dec 02 2015, 8:32 am
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
Mark Small Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Involuntary December 2, 2015
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 54A05-1506-JT-743
Au.R. and Ay.R. (Minor Appeal from the Montgomery
Children) Circuit Court
The Honorable Harry A. Siamas,
and Judge
R.W. (Mother), Trial Court Cause Nos.
Appellant-Respondent, 54C01-1501-JT-18
54C01-1501-JT-19
v.
Indiana Department of Child
Services,
Appellee-Petitioner.
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 1 of 16
Mathias, Judge.
[1] R.W. (“Mother”) appeals the order of the Montgomery Circuit Court
terminating her parental rights to her two minor children, Au.R. (“Son”) and
Ay.R. (“Daughter”). On appeal, Mother presents two issues: (1) whether the
trial court erred in admitting testimony of an Indiana Department of Child
Services (“the DCS”) caseworker that, in her opinion, Mother posed a threat to
the wellbeing of the children; and (2) whether the trial court’s decision to
terminate Mother’s parental rights was supported by sufficient evidence.
[2] We affirm.
Facts and Procedural History
[3] As Mother does not challenge the trial court’s findings of fact, we set forth the
facts as found by the court:
1. [Daughter] was born [in] 2004. [Son] was born [in] 2008.
Their parents are [Mother] and A.R. A.R. was murdered in
August 2012.
2. On December 9, 2013, the DCS were called to the Riviera
Motel in Crawfordsville to assist Crawfordsville police. The
police were investigating a counterfeiting operation at that
location. [Mother] and her boyfriend J.M. had been living at the
motel for about three weeks along with [Daughter] and [Son].
[Daughter and Son] had not been attending school. The motel
room was filled with boxes of merchandise which had been
purchased with counterfeit money. A large amount of counterfeit
money was found in the motel room. The children’s clothes were
in Tupperware tubs. Drug paraphernalia for methamphetamine
use was found in the motel room and some drug paraphernalia
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 2 of 16
was found mixed in with the children’s clothes.
Methamphetamine, heroin, hashish and Suboxone was found in
the motel room. The children had head lice. The children were
fearful. [Mother] had been using methamphetamine and heroin
daily for at least six weeks prior to December 9, 2013. She was
smoking methamphetamine in the motel bathroom with the
children in the next room when the police knocked on the door
of the room on December 9th. She tested positive for
methamphetamine when given a drug test. [Mother] had sores on
her body and was under the influence of methamphetamine on
December 9th.
3. The DCS had done previous investigations of [Mother] and
her care of the children. In January 2011, [Mother] was found
unresponsive from a drug overdose in her home in Marion
County. The children were present at the time.
4. [Mother] has a history of abusing controlled substances. She
had treatment at Harbor Lights for two or three months and was
able to maintain sobriety for a period of time before relapsing
into illegal drug use again.
5. [Mother] was convicted of possession of methamphetamine,
a class B felony and forgery a class C felony in July 2014. She
received a ten year sentence for the possession of
methamphetamine conviction. Five years of the sentence were
executed and five years were suspended. She received a four year
sentence for the forgery conviction. All four years were
suspended. At the time of the termination hearing, [Mother] was
incarcerated at the Indiana Department of Correction[] for these
convictions. [Mother]’s earliest release date is either December of
2015 or February 2016 depending on sentence cuts she may
receive for completion of programs in IDOC. [Mother] has
pending criminal charges in Boone County that she believes will
be resolved by plea agreement.
6. On December 9, 2013, the DCS took both children into
protective custody and placed them with their maternal
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 3 of 16
grandmother. The children have been removed from their mother
who was the custodian of both children from that date to the date
of the hearing on the petition to terminate [Mother]’s parental
rights.
7. On December 11, 2013, the DCS filed its “Verified Petition
Alleging Child in Need of Services” as to both [Daughter] and
[Son].
8. On January 28, 2014, a fact finding hearing was held and
the Court adjudicated both children to be in need of services.
9. On February 24, 2014, the Court held a dispositional
hearing. The Court ordered that both children were made wards
of the DCS. The children continued in their placement with their
maternal grandmother and her husband. The Court ordered the
children to have a mental health evaluation. No services were
offered to [Mother] since she was in jail.
10. The children have remained in placement with their
maternal grandmother and her husband since December 9, 2013.
11. On June 16, 2014, a review hearing was held by the court.
The Court ordered that the children continue to be placed with
their maternal grandmother with services offered to the children
that included mental health counseling through Cummins
Mental Health. No services were offered to [Mother] since she
was incarcerated in jail.
12. On December 5, 2014, the court held a permanency hearing.
The children’s placement and counseling services were
continued. The Court ordered that the permanency plan be
changed to a concurrent plan of reunification and adoption.
13. [Daughter] suffers from post traumatic stress disorder and
episodic depressive disorder. [Daughter]’s removal from her
mother is the traumatic event that causes her PTSD. She receives
weekly therapy for these conditions.
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 4 of 16
14. [Son] suffers from post traumatic stress disorder and reactive
attachment disorder. His PTSD is caused by his father’s death,
removal from his mother and the stress caused by prison visits
with his mother. [Son] has outbursts at school that are getting
worse. These outbursts occur around the time of his prison visits
with this mother. [Son] was not nurtured prior to his removal
from his mother. He is bonded with his grandmother. [Son]
receives weekly therapy for these mental health issues. [Son] will
be held back in his current school grade.
15. Both children need the stability and support that they
currently receive in their grandmother’s home. The children have
lived with their maternal grandmother prior to December 2013.
They lived with her from May 2012 to January 2013. When
[Son] was two years old he lived with maternal grandmother for
two months while [Mother] and his father were in drug rehab.
16. The DCS plan post termination is adoption of the children.
While maternal grandmother does not believe termination of
[Mother]’s parental rights is in the best interests of the children,
she would adopt them both . . . if necessary. [Grandmother] and
her husband are in their 60’s and she is concerned about both
their advanced age to adopt and the financial burden that
adoption might cause herself and her husband.
17. [Mother] is participating in substance abuse and parenting
programs while she is incarcerated. She has received minor
misconduct reports while she is incarcerated. She plans to live
with a cousin upon her release from IDOC. She wants to reunite
with her children.
Appellant’s App. pp. 5-8.
[4] As noted by the trial court, the DCS filed its petition alleging that the Children
were in need of services (“CHINS”) on December 11, 2013. The trial court held
a detention hearing on December 11, 2013, and ordered the children to be
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 5 of 16
placed with their maternal grandmother (“Grandmother”). The court found the
Children to be CHINS after a January 24, 2014 factfinding hearing. At the
dispositional hearing held on February 24, 2014, the trial court ordered Mother
to contact DCS for services upon her release from incarceration. The court also
ordered the Children to have visitation with Mother while she was incarcerated.
[5] As of the June 14, 2014, review hearing, the court determined that Mother had
not improved her parenting abilities and that she could not participate in
services due to her continued incarceration. Then, at the December 5, 2014,
permanency hearing, the trial court approved of a concurrent plan of
reunification and adoption.
[6] On January 23, 2015, the DCS filed petitions to terminate Mother’s parental
rights to the Children. The trial court held an evidentiary hearing on the matter
on May 28, 2015. On June 23, 2015, the trial court issued its findings of fact
and conclusions of law, ordering that Mother’s parental rights be terminated.
Mother now appeals.
Termination of Parental Rights
[7] “The purpose of terminating parental rights is not to punish parents but to
protect their children. Although parental rights have a constitutional dimension,
the law allows for their termination when parties are unable or unwilling to
meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.
App. 2004) (citation omitted). Indeed, parental interests “must be subordinated
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 6 of 16
to the children’s interest[s]” in determining the proper disposition of a petition
to terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009).
[8] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental
rights must meet the following relevant requirements:
(2) The petition must allege:
(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.
[9] Section 31-35-2-4(b)(2)(B) is written in the disjunctive; therefore, the trial court
is required to find that only one prong of subsection 2(b)(2)(B) has been
established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010). The DCS must prove “each and every element” by clear
and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2.
Clear and convincing evidence need not establish that the continued custody of
the parents is wholly inadequate for the child’s very survival. Bester v. Lake Cnty.
Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 7 of 16
sufficient to show by clear and convincing evidence that the child’s emotional
development and physical development are put at risk by the parent’s custody.
Id. 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).
I. Admission of Evidence
[10] Mother first argues that the trial court erred in the admission of certain
testimony. In addressing this argument, we observe that questions regarding the
admission of evidence are left to the sound discretion of the trial court, and we
will not reverse that decision except for an abuse of that discretion. In re the
Involuntary Termination of the Parent Child Relationship of A.H., 832 N.E.2d 563,
567 (Ind. Ct. App. 2005), trans. denied. An abuse of discretion occurs when the
trial court’s decision is against the logic and effect of the facts and
circumstances before it. Id.
[11] Here, Mother takes issue with the admission of certain testimony from DCS
case manager,1 Itzayno Prieto (“Prieto”). Prieto testified that she had an
Associate’s degree in “pub science and criminal justice” and a Bachelor’s
Degree in liberal arts from Purdue University, with “some of her background . .
. in child development and psychology, sociology.” Tr. p. 86. When asked if she
thought Mother posed a threat to the Children’s well being, Mother’s counsel
1
Prieto testified that her current title is “permanency worker,” which used to be referred to as a family case
manager or ongoing case manager.
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 8 of 16
objected based on Prieto’s lack of education and expertise in evaluating threats.
The trial court overruled the objection, and Prieto testified that Mother was a
threat to the Children’s well being because:
Again, this was a conscious decision by [Mother]. We did not
land her here. Her actions landed her in a situation. She is
incarcerated because of the consequences of her actions. She
knowingly put her children in that situation with the
paraphernalia in their clothes; she knowingly, willingly did that.
She could have made arrangements for her children, but she did
not. So we had to step in and we have been overseeing the care,
control and placement of her children this whole time.
Tr. pp. 95-96.
[12] On appeal, Mother claims that this evidence should have been excluded under
Indiana Evidence Rule 701. This rule provides:
If a witness is not testifying as an expert, testimony in the form of
an opinion is limited to one that is:
(a) rationally based on the witness's perception; and
(b) helpful to a clear understanding of the witness’s testimony
or to a determination of a fact in issue.
[13] Mother argues that Prieto’s testimony was not based on her own observations
of Mother and therefore fails under subsection 701(a). Mother notes that the
Children were removed from her care in December 2013, whereas Prieto was
not assigned to the case until June 2014. She also notes that Prieto only spoke
with Mother twice, once briefly in a holding room and once over the telephone.
She also claims that the testimony was inadmissible because it was not helpful
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 9 of 16
to a clear understanding of the witness’s testimony or to a determination of a
fact at issue.
[14] However, even if we assume arguendo that the testimony was inadmissible, its
admission was at most harmless error. The improper admission of evidence is
harmless error when the trial court’s judgment is supported by substantial
independent evidence to satisfy the reviewing court that no substantial
likelihood exists that the questioned evidence contributed to the judgment. B.H.
v. Indiana Dep’t of Child Servs., 989 N.E.2d 355, 363 (Ind. Ct. App. 2013).
[15] Mother claims that Prieto’s testimony was prejudicial to her because the
testimony specifically addressed one of the factors the DCS had to establish, i.e.
whether a reasonable probability exists that the continuation of the parent-child
relationship poses a threat to the well being of the child. See I.C. § 31-35-2-
4(b)(2)(B).
[16] The trial court, however, did not base its termination decision on a finding of a
threat to the well being of the Children. As noted above, the termination statute
is written in the disjunctive and the trial court is required to find that only one
prong of subsection 2(b)(2)(B) has been established by clear and convincing
evidence. In re A.K., 924 N.E.2d at 220. The trial court here based its
termination decision on its conclusion a reasonable probability exists that the
conditions that resulted in the children’s removal would not be remedied, not
on a conclusion that Mother poses a threat to the well being of the children. See
Appellant’s App. p. 10.
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 10 of 16
[17] Because the trial court did not terminate Mother’s parental rights based upon
the “threat” prong of subsection 2(b)(2)(B), the admission of Prieto’s testimony
regarding her opinion that Mother posed a threat to the well being of the
Children was at most harmless error. See B.H., 989 N.E.2d at 363 (concluding
that erroneous admission of progress reports into evidence was harmless where
the trial court’s termination order did not reference the reports or their content).
II. Sufficiency of the Evidence
[18] Mother also claims that the trial court’s decision to terminate her parental rights
was not supported by sufficient evidence. We have a highly deferential standard
of review in cases involving the termination of parental rights. In re D.B., 942
N.E.2d 867, 871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor
assess witness credibility. Id. We consider only the evidence favorable to the
trial court’s judgment and the reasonable inferences to be drawn from this
evidence. Id. Where, as here, the trial court enters findings of fact and
conclusions of law in its termination of parental rights,2 we apply a two-tiered
standard of review. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156
(Ind. Ct. App. 2013), trans. denied. We first determine whether the evidence
supports the findings; we then determine whether the findings support the
judgment. Id. Findings are clearly erroneous only when the record contains no
2
Although trial courts are not statutorily required to enter findings of fact and conclusions of law when
terminating parental rights, we have nevertheless held that, given the constitutional import of such a decision,
trial courts must “enter findings of fact that support the entry of the conclusions called for by Indiana statute
and the common law” when issuing an order terminating parental rights. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010).
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 11 of 16
facts to support them either directly or by inference. Id. If the evidence and
inferences support the trial court’s decision, we must affirm. Id. Likewise, we
will set aside the trial court’s judgment terminating a parent-child relationship
only if it is “clearly erroneous.” Id. In this context, “clear error” is that which
“leaves us with a definite and firm conviction that a mistake has been made.”
Id. (quoting J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44
(Ind. Ct. App. 2004)).
[19] Here, Mother contends that the DCS failed to meet its burden with regard to
the elements set forth in Indiana Code section 31-35-2-4(2)(B)(2) and (C). We
address both of these arguments in turn.
A. Conditions That Led to the Children’s Removal
[20] The trial court concluded that a reasonable probability exists the conditions
which led to the Children’s removal were unlikely to be remedied. When
making a determination as to whether a reasonable probability exists that the
conditions resulting in a child’s removal or continued placement outside of a
parent’s care will not be remedied, the trial court must judge a parent’s fitness to
care for her child at the time of the termination hearing while also taking into
consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156-
57. The trial court is also required to consider the parent’s habitual patterns of
conduct in order to determine the probability of future neglect or deprivation of
the child. Id. at 1157. The trial court may consider 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. Id. The trial court may
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 12 of 16
also consider the services offered to the parent by the DCS and the parent’s
response to those services as evidence of whether conditions will be remedied.
Id. The DCS is not required to provide evidence ruling out all possibilities of
change. Id. Instead, it needs to establish only that a “reasonable probability”
exists that the parent’s behavior will not change. Id.
[21] Considering only the facts favorable to the trial court’s judgment, we cannot say
that the trial court clearly erred in determining that a reasonable probability
exists that Mother’s behavior would not change. Mother was thirty-seven years
old at the time of the termination hearing and has a long history of substance
abuse, beginning when she was only fifteen years old. Throughout her adult
life, Mother has abused cocaine, opiates, and methamphetamine. Importantly,
most of Mother’s drug use occurred after her children were born. Mother’s drug
use led to the DCS becoming involved in 2011, when Mother overdosed and
the Children first lived with their Grandmother. Although Mother sought
treatment after the overdose and temporarily maintained sobriety, she began
using again. When the Children returned to Mother’s care, Grandmother was
so concerned that she contacted the DCS regarding her daughter’s drug use.
Shortly thereafter, the DCS was called to the scene where Mother was using
methamphetamine in a hotel room containing drug paraphernalia,
counterfeiting equipment, and counterfeit cash. Some of the paraphernalia was
even stored with the Children’s clothing. In fact, Daughter was even able to
direct the police to where Mother kept her drugs.
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 13 of 16
[22] On appeal, Mother refers us to her testimony in which she claimed to have
participated in services while incarcerated and to Grandmother’s testimony that
Mother had changed. The trial court in fact considered Mother’s participation
in services while incarcerated. However, upon reviewing Mother’s past
behavior, the court came to the conclusion that a reasonable probability exists
that Mother’s drug abuse problem would continue. Under the facts and
circumstances of this case, we cannot say that this conclusion was clearly
erroneous.
B. Best Interests of the Children
[23] Mother also challenges the conclusion of the trial court that termination of her
parental rights is in the best interests of the Children. In determining what is in
the best interests of a child, the trial court must look beyond the factors
identified by the DCS and look to the totality of the evidence. A.D.S., 987
N.E.2d at 1158. In so doing, the court must subordinate the interests of the
parent to those of the children. Id. The court need not wait until the children are
irreversibly harmed before terminating the parent-child relationship. Id. A
recommendation by both the case manager or child advocate to terminate
parental rights is sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. Id. at 1158-59. Permanency is a
central consideration in determining the best interests of a child. Id. at 1159.
[24] Here, Prieto and the court-appointed special advocate (“CASA”) both testified
that termination of the parent-child relationship would be in the Children’s best
interests. The CASA explained that the Children needed a stable and secure
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 14 of 16
home environment. Also, the Children’s therapist testified that both Children
needed stability, which they had obtained in Grandmother’s care.
[25] Mother’s arguments are again little more than a request that we consider the
evidence not favorable to the trial court’s decision, reweigh the evidence, and
come to a conclusion opposite that reached by the trial court. However, this is
not our role as an appellate court. See In re D.B., 942 N.E.2d at 871. The facts
most favorable to the trial court’s decision show that the Children were
removed from Mother’s care in December 2013. Mother’s earliest possible
release date is in December 2015. However, at the time of the termination
hearing, Mother was also facing pending charges in Boone County. Although
Mother believed that these charges would be resolved by a plea agreement, this
had not yet happened, and no evidence in the record indicates what sentence
Mother will receive in that case. In short, at the time of the hearing, the
Children had already been removed from Mother’s care for approximately a
year and a half. Mother’s argument would have us keep the Children in the
limbo of foster care for at least another six months, and quite possibly longer,
despite the evidence regarding the Children’s need for stability.
[26] Further, evidence indicates that the Children were neglected while in Mother’s
care. Indeed, Son was diagnosed with attachment disorder, which is mostly
seen in children who are not nurtured at a young age. Son has also had
outbursts that occurred when he visited Mother in prison. The Children are
bonded to Grandmother, who also provided care for them at an earlier point in
their lives when Mother was in drug therapy. In Grandmother’s care, the
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 15 of 16
Children receive weekly therapy to assist them with their mental health and
behavioral issues. Grandmother, although she did not wish to see Mother’s
parental rights terminated, testified that she would be willing to adopt the
Children, if necessary.3
[27] Again, based on the facts and circumstances of the present case, we are unable
to conclude that the trial court clearly erred in concluding that termination of
Mother’s parental rights was in the Children’s best interests.
Conclusion
[28] The trial court’s admission of the testimony regarding Mother being a threat to
the well being of the Children was at most harmless error because the trial court
did not base its termination decision on this factor. Also, the trial court’s
decision to terminate Mother’s parental rights is based on sufficient evidence.
[29] Affirmed.
Baker, J., and Bailey, J., concur.
3
Mother makes no argument regarding a satisfactory plan for the care and treatment of the Children. See
I.C. § 31-35-2-4(b)(2)(D). Even if she did, the plan for adoption is a satisfactory plan. See In re A.S., 17 N.E.3d
994, 1007 (Ind. Ct. App. 2014), trans. denied.
Court of Appeals of Indiana | Memorandum Decision No. 54A05-1506-JT-743 | December 2, 2015 Page 16 of 16