In Re the Termination of the Parent-Child Relationships of: H.H., A.H., and A.S. (Minor Children) and M.R. v. The Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 19 2018, 9:15 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew W. Foster Curtis T. Hill, Jr.
Rockport, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of the September 19, 2018
Parent-Child Relationships of: Court of Appeals Case No.
18A-JT-790
H.H., A.H., and A.S. (Minor
Children) Appeal from the Spencer Circuit
Court
and
The Honorable Jon Dartt, Judge
M.R., The Honorable Lucy Goffinet,
Appellant-Respondent, Special Judge
Trial Court Cause No.
v. 74C01-1708-JT-185, 74C01-1708-
JT-186, 74C01-1708-JT-187
The Indiana Department of
Child Services,
Appellee-Petitioner
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Altice, Judge.
Case Summary
[1] M.C.R. (Mother) appeals following the termination of her parental rights to her
three children, H.H., A.H., and A.S. (collectively, the Children). Mother
argues that the evidence was insufficient to support the termination of her
rights.
[2] We affirm.
Facts & Procedural History
[3] In September 2015, Mother and the Children, then ages seven, eight, and nine,
lived with Mother’s boyfriend of several years. Mother and her boyfriend had a
history of domestic violence and drug use. The mobile home in which they
lived was dirty, unsafe, and unsuitable for the Children. The Indiana
Department of Child Services (DCS) became involved with the family on
September 8, 2015, and the Children were removed from the home a week later
when Mother tested positive for methamphetamine and other illegal substances
and the conditions of the home had not been adequately remedied. After the
Children’s removal, Mother tested positive for illegal drugs in September and
October 2015.
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[4] The Children were adjudicated CHINS on April 19, 2016,1 and a dispositional
order was issued following a hearing on May 9, 2016. Mother became
generally compliant with services and things were going well. Mother passed
drug screens, participated in family therapy and home-based services, visited
with the Children, and became employed. Mother and her boyfriend also
cleaned up the trailer and took domestic violence classes. As a result, the
Children were returned to Mother for a trial home visit in September 2016.
During the trial home visit, however, Mother lost her job and her relationship
with her boyfriend ended. This resulted in her “downhill spiral” and return to
drug use. Transcript at 54.
[5] On or about December 16, 2016, a therapy provider, Olivia Golike, went to
Mother’s trailer upon discovering that H.H. was not at school for a therapy
session. Golike found all three children home alone inside the trailer and not at
school. They had not eaten breakfast and had not seen Mother. Golike
contacted the family case manager (FCM), Channell Hood, who also came to
the home. When Mother returned home that morning, she submitted to a drug
screen. The Children were removed immediately from Mother’s home and
returned to foster care. Mother’s drug test came back positive for
methamphetamine.
1
The fact-finding hearing on the CHINS petition took place on November 23, 2015. The reason for the
significant delay in issuing the order finding the Children to be CHINS is unclear from the limited record
before us.
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[6] After the failed trial home visit, Mother continued using drugs and was
homeless by March 2017. She stopped showing up for visits with the Children
around March 2017 and has not seen them since. Mother’s sporadic
participation in services during early 2017 eventually ceased, and she had no
contact with service providers in May and June. All services for Mother were
officially put on hold in June due to Mother’s noncompliance. FCM Hood
finally located Mother in July 2017 and attempted to reengage Mother in
services. Thereafter, Mother participated irregularly in services and was placed
on twenty-four-hour call-ahead due to problems with her not showing up.
Mother continued using illegal drugs and failing to obtain mental health and/or
substance abuse treatment as recommended by DCS.
[7] In August 2017, the permanency plan in the CHINS case was changed to
concurrent plans of reunification and adoption. In the August 17, 2017 order
approving the permanency plan, the CHINS court found in part:
[Mother has] not complied with the [Children’s] case plan.
[Mother] stopped participating in parent aide and therapy
sessions. She participated in 4 drug screens and was positive on
4/04/2017 which was the last hearing date. [She] has not
participated in any support groups or treatment programs. She
was not responding to any requests to come into the DCS office
to submit [to] drug screens or otherwise. [Mother] is currently
homeless.
Appellee’s Appendix at 66. DCS filed verified petitions for involuntary
termination of parental rights on August 21, 2017.
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[8] A periodic case review hearing was held in the CHINS case on November 13,
2017. In the order from this review hearing, the court found that Mother was
still not compliant with the case plan, explaining:
Mother is to be screened at the DCS office 2-3x per week. At the
last court hearing, she tested positive for amphetamine,
methamphetamine, and THC…. She was negative on screens in
September, however, in October, she missed several screens.
Home based therapy was reinstated in August to address goals of
relapse prevention, coping skills, dealing with her depression and
trauma as well as relationship with the children and ex-boyfriend.
She missed the first scheduled appointment and admitted to
using methamphetamine during that time slot. Mother
scheduled an evaluation with an in-patient treatment provider,
however, she cancelled due to reporting that someone stole her
money for the evaluation. Mother has reported that she
participates in AA/NA but has never provided documentation.
She has never consistently attending [sic] her therapy sessions.
Mother is employed, but she does not have stable transportation
at this time.
Id. at 75-76. Immediately after this hearing, Mother informed FCM Hood that
she was going into a rehabilitation facility that day. She did not go, nor did she
contact FCM Hood, continue with therapy, or comply with drug screens.
Again, Mother maintained no contact with service providers. Further, a drug
screen taken at this hearing tested positive for THC.
[9] On December 11, 2017, Mother entered a thirty-day inpatient treatment
program. Thereafter, she moved into a shelter and began intensive outpatient
treatment. The treatment was not arranged through DCS, and Mother did not
reach out to FCM Hood until the week before the termination hearing.
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[10] The termination fact-finding hearing took place on January 22, 2018. At the
hearing, Mother acknowledged her long battle with drugs and that she had not
seen the Children since early 2017. Mother indicated that during much of 2017
she was using drugs, homeless, unstable, and even suicidal. Mother testified
that her most-recent rehabilitation effort, which she started the month prior to
the termination hearing, was her sixth time in rehab. When asked why this
time will be different, Mother responded: “I was doing everything okay and
then because of losing everything, I fell apart but this time I’m determined. I
don’t want to lose my kids.” Id. at 17. Regarding substance abuse, Mother
stated that she was participating in a twelve-step program now, with a sponsor
and a support group. She acknowledged, however, that in the past she had
been involved in a twelve-step program and then quit and relapsed. At the time
of the hearing, Mother was unemployed, living in a shelter, without a vehicle,
and less than two months clean and sober.
[11] The CASA, Carol Lichtey, testified that the Children had not spoken about
Mother to her since April 2017. In Lichtey’s opinion, termination is in the best
interests of the Children after a history of ups and downs with Mother and,
particularly, the instability of the prior two years. She testified that each move
“takes a little bit more of them away.” Id. at 47. Lichtey noted that H.H., the
oldest of the Children, was becoming cynical and recently stated, “I don’t get
attached – people come and people go.” Id. at 48.
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[12] Among other things, FCM Hood testified in detail about Mother’s lack of
cooperation with services and lengthy absences after the failed trial home visit
in late 2016. Regarding the Children’s best interests, FCM Hood testified:
I believe they need to know where they’re going to be and I think
if they’re with mom, they’re never going to know where they’re
going to be from day to day. That’s just been the pattern that I’ve
seen from the kids – talking to the kids about their past. You
know, that’s the life they have lived and they don’t – their [sic]
done with that.
Id. at 63. FCM testified that the permanency plan for the Children following
termination was adoption.
[13] At the conclusion of the hearing on January 22, 2018, the court terminated
Mother’s parental rights. The court entered a written termination order on
February 26, 2018, which provided in relevant part:
There is a reasonable probability that the conditions that resulted
in the [Children’s] removal or the reasons for the placement
outside the parent’s home will not be remedied in that: The case
has been open for two years. The mother still has no stable
housing. The mother has only one month of doing well in
rehabilitation. During the CHINS case, mother failed to do drug
evaluations and rehabilitation. The mother has not visited the
children in a year. The children have been subjected to domestic
violence. The mother had CPS history in other state[s]. The
mother does not have a consistent plan of action. The mother
has been inconsistent with children and the children’s history
shows inconsistency. The children need stability and want
stability. The mother has continued to test positive for illegal
substances throughout the life of the CHINS case.
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Appellant’s Appendix at 8. Upon finding that termination was in the best
interests of the Children, the court stated to Mother at the hearing: “I am glad
and I am proud that for the last month you have held it together and that you
have completed the in-patient treatment but your kids deserve a permanent
home and they want that”. Transcript at 71.
[14] Mother appeals the termination of her parental rights. Additional information
will be provided below as needed.
Discussion & Decision
[15] When reviewing the termination of parental rights, we will not reweigh the
evidence or judge the credibility of the 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 its
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. Thus, if the
evidence and inferences support the decision, we must affirm. Id.[16] We recognize that 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.
Although parental rights are of constitutional dimension, the law provides for
the termination of these rights when parents are unable or unwilling to meet
their parental responsibilities. In re R.H., 892 N.E.2d 144, 149 (Ind. Ct. App.
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2008). In addition, a court must subordinate the interests of the parents to those
of the child when evaluating the circumstances surrounding the termination. In
re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating
parental rights is not to punish the parents, but to protect their children. Id.[17] Before an involuntary termination of parental rights may occur in Indiana, DCS
is required to allege and prove by clear and convincing evidence, among other
things:
(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[.]
Ind. Code § 31-35-2-4(b)(2)(B). The trial court here determined that DCS had
proven both subsections (b)(2)(B)(i) and (b)(2)(B)(ii). Because DCS was
required to establish only one of these by clear and convincing evidence, we
focus our review on the requirements of subsection (b)(2)(B)(i).
[18] In determining whether there is a reasonable probability that the conditions
resulting in a child’s removal or continued placement outside the home will not
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be remedied, the 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 also evaluate the parent’s habitual patterns of
conduct to determine whether there is a substantial probability of future neglect
or deprivation of the child. Id. In conducting this inquiry, courts 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. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244,
1251 (Ind. Ct. App. 2002), trans. denied. Further, it is within the trial court’s
discretion to disregard efforts made only shortly before termination and to
weigh more heavily a parent’s history of conduct prior to those efforts. K.T.K.
v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1234 (Ind. 2013). The court may
also consider the parent’s response to the services offered through DCS. Lang v.
Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App.
2007), trans. denied.
[19] On appeal, Mother does not challenge the trial court’s specific findings of fact.
She argues only that the trial court clearly erred when it determined that there
was a reasonable probability that the conditions that resulted in the Children’s
removal or the reasons for the placement outside the parent’s home will not be
remedied. In this regard, Mother argues that she was actively involved in drug
rehabilitation at the time of the termination hearing and in 2016 had nearly
completed a successful trial home visit with the Children. Noting her progress
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during the first half of the CHINS proceedings and her recent progress after a
significant period of relapse, Mother asserts that she has been “either compliant
or actively helping herself for approximately sixteen (16) of twenty-eight (28)
months, or 57% of the total life of the CHINS case.” Appellant’s Brief at 8.
[20] Like the trial court, we applaud Mother for her recent efforts at rehabilitation
and wish the best for her. But forty-two days of treatment at the eleventh hour
is not enough considering the entire history of this case and Mother’s past
repeated failed attempts at maintaining a drug-free life. Mother’s progress
during the first year of the CHINS proceeding is well-documented, and she was
doing what was needed to regain custody of the Children. When life got
difficult during the trial home visit in December 2016, however, Mother’s life
quickly fell apart again, and she returned to using methamphetamine. Over the
next year, Mother continued using drugs and was not compliant with services.
For significant periods of time, service providers could not even find her. She
stopped attending visits with the Children, became homeless, and failed to
commence drug and mental health treatment as recommended by DCS. Not
until December 2017 did Mother seek treatment in an inpatient program. This
was a year after the failed trial home visit, at least nine months after she had last
seen the Children, and more than two years after the CHINS proceedings
commenced. At the time of the termination hearing, Mother was living in a
shelter, was jobless, had been clean for only about forty-two days, and had not
seen the Children for nearly a year.
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[21] In sum, the record establishes that Mother was not fit to care for the Children at
the time of the termination hearing.2 Moreover, her long history of drug abuse
and repeated relapses after treatment, as well as her inconsistent participation in
DCS services, indicate a substantial probability of future neglect or deprivation
of the Children. The Children have been in the system for well over two years
and need, want, and deserve to have permanency in their lives, which Mother
has been unable to provide for them. The trial court did not err in determining
that there was a reasonable probability that the conditions that resulted in the
Children’s removal or the reasons for the placement outside Mother’s home will
not be remedied.
[22] Judgment affirmed.
Brown, J. and Tavitas, J., concur.
2
Mother directs us to In re Ma.J., 972 N.E.2d 394 (Ind. Ct. App. 2012) in support of her argument for
reversal of the termination order. In Ma.J., we expressly noted, “this is not a case where the parent’s progress
has been inconsistent or last-minute.” Id. at 404. Rather, the mother in that case had “eight months of solid
progress in each area of concern”. Id. at 396. Further, at the time of the termination hearing, she had an
appropriate home, had been working, and had been visiting regularly with the children. In the case at hand,
Mother was not similarly situated at the time of the hearing and had not established the same degree of
progress.
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