In the Matter of the Termination of the Parent-Child Relationship of D.B., L.B., H.B. & S.B. (Minor Children) and D.J.B. (Father) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

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 2019, 5:43 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Christopher G. Walter, Attorney General of Indiana
P.C.
Nappanee, Indiana Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination September 19, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of D.B., L.B., H.B. & S.B. 19A-JT-542
(Minor Children) Appeal from the Starke Circuit
Court
and The Honorable Kimberly Hall,
Judge
D.J.B. (Father) and M.M.B.
(Mother), Trial Court Cause Nos.
Appellants-Respondents, 75C01-1808-JT-13
75C01-1808-JT-14
v. 75C01-1808-JT-15
75C01-1808-JT-16
Indiana Department of Child
Services,
Court of Appeals of Indiana | Memorandum Decision 19A-JT-542 | September 19, 2019 Page 1 of 13
Appellee-Petitioner.
Bradford, Judge.
Case Summary
[1] D.J.B. (“Father”) and M.M.B. (“Mother”) (collectively, “Parents”) are the
parents of D.B., L.B., H.B., and S.B. (collectively, “the Children”). The
Department of Child Services (“DCS”) became involved with the family after
receiving reports of poor home conditions and the Children having poor
hygiene. DCS initially left the Children in Parents’ care while DCS worked
with Parents to improve the condition of the family’s home. The Children were
determined to be children in need of services (“CHINS”) and Parents were
ordered to complete certain services. While the CHINS proceedings were
pending, the Children were removed from Parents’ care and placed in foster
care after the conditions in the family’s home continued to deteriorate and DCS
became aware of substance abuse by Parents. Parents failed to successfully
complete the ordered services leading DCS to file petitions to terminate their
parental rights to the Children. Following an evidentiary hearing, the juvenile
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court granted DCS’s petitions to terminate Parents’ parental rights to the
Children. On appeal, Parents contend that DCS failed to present sufficient
evidence to support the termination of their parental rights. We affirm.
Facts and Procedural History
[2] D.B. was born on February 2, 2004; L.B. was born on August 10, 2005; H.B.
was born on February 9, 2008; and S.B. was born on July 2, 2009. DCS filed
petitions alleging the Children to be CHINS in May of 2016, after observing
“the Children to have poor hygiene” and poor home conditions. Ex. Vol. III,
p. 7. As for the home conditions, on May 5, 2016, “DCS observed the family
home to be extremely cluttered and messy with piles of clothing throughout the
home. The home had a strong smell of animals.” Ex. Vol. III, p. 7. Mother
admitted that the home was dirty and that she and Father needed “assistance to
improve the conditions of the home.” Ex. Vol. II, p. 7. On June 14, 2016,
Parents admitted that the Children were CHINS. Following a dispositional
hearing, the juvenile court ordered Parents to: (1) maintain safe, sanitary,
suitable, and DCS approved housing; (2) obtain and/or maintain a legal source
of income sufficient to support all family members; (3) complete a parenting
assessment and follow all recommendations; (4) complete a substance use
assessment and follow all recommendations; (5) submit to random drug
screens; (6) complete a clinical assessment and follow all recommendations;
and (7) cooperate with DCS, the court-appointed special advocate (“CASA”),
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and all service providers. The juvenile court further ordered that the Children
were to remain placed in the family home with Parents.
[3] The Children were removed from Parents’ home on July 29, 2016, after the
conditions of the home deteriorated and DCS became aware of substance abuse
by Parents. Following a February 28, 2017 periodic case review hearing, the
juvenile court found that Parents “have partially complied” with the Children’s
case plans. Ex. Vol. III, p. 19. Specifically, the juvenile court found that while
Parents had visited the Children and cooperated with DCS,
The mother is making progress in her substance abuse treatment
but the progress is slow due to missed appointments, missed
group sessions, a positive screen for methadone, and using
prescription medication over the therapeutic level. The father is
not consistent with substance abuse treatment and has failed
approximately 7 drug screens for either marijuana, Xanax,
cocaine or morphine. The mother and father have not
participated in home based case work. The mother and father
were arrested during this reporting period for an incident
involving domestic violence between mother and father. A No
Contact Order was entered as a result of the incident.
Ex. Vol. III, p. 19. The juvenile court determined that Parents “have not
enhanced their ability to fulfill their parental obligations.” Ex. Vol. III, p. 19.
On June 27, 2017, the juvenile court found that (1) Parents were inconsistent in
their participation in individual therapy and substance abuse treatment and (2)
both had failed to maintain their sobriety and had tested positive for
methamphetamine. Parents continued to struggle with substance abuse and
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their participation in services remained inconsistent throughout the CHINS
proceedings.
[4] On August 23, 2018, DCS filed petitions seeking the termination of Parents’
parental rights to the Children. The juvenile court conducted an evidentiary
hearing on DCS’s petitions on January 7 and 9, 2019. During the evidentiary
hearing, DCS presented evidence indicating that Parents had been unable to
secure stable, acceptable housing and had continued to test positive for drugs.
DCS also presented evidence indicating that the Children required stability and
were doing well in their current placement. On February 8, 2019, the juvenile
court issued orders terminating Parents’ parental rights to the Children.
Discussion and Decision
[5] The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. Bester v.
Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Although
parental rights are of a constitutional dimension, the law allows for the
termination of those rights when parents are unable or unwilling to meet their
parental responsibilities. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App. 2001),
trans. denied. Parental rights, therefore, are not absolute and must be
subordinated to the best interests of the children. Id. Termination of parental
rights is proper where the children’s emotional and physical development is
threatened. Id. The juvenile court need not wait until the children are
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irreversibly harmed such that their physical, mental, and social development is
permanently impaired before terminating the parent–child relationship. Id.
[6] Parents contend that the evidence is insufficient to sustain the termination of
their parental rights to the Children. In reviewing termination proceedings on
appeal, this court will not reweigh the evidence or assess the credibility of the
witnesses. In re Involuntary Termination of Parental Rights of S.P.H., 806 N.E.2d
874, 879 (Ind. Ct. App. 2004). We only consider the evidence that supports the
juvenile court’s decision and reasonable inferences drawn therefrom. Id.
Where, as here, the juvenile court includes findings of fact and conclusions
thereon in its order terminating parental rights, our standard of review is two-
tiered. Id. First, we must determine whether the evidence supports the
findings, and, second, whether the findings support the legal conclusions. Id.
[7] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent–child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.
[8] Parents claim that DCS failed to present sufficient evidence to prove by clear
and convincing evidence:
(B) that one (1) of the following is true:
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(i) There is a reasonable probability that the
conditions that resulted in the child[ren]’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[ren].
(iii) The child[ren have], on two (2) separate
occasions, been adjudicated a child in need of
services;
(C) that termination is in the best interests of the child[ren.]
Ind. Code § 31-35-2-4(b)(2).
I. Indiana Code Section 31-35-2-4(b)(2)(B)
[9] It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written
in the disjunctive, the juvenile court need only find that one of the conditions
listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind. Ct. App.
2003), trans. denied. Therefore, where the juvenile court determines that one of
the above-mentioned factors has been proven and there is sufficient evidence in
the record supporting the juvenile court’s determination, it is not necessary for
DCS to prove, or for the juvenile court to find, either of the other factors listed
in Indiana Code section 31-34-2-4(b)(2)(B). See In re S.P.H., 806 N.E.2d at 882.
[10] DCS does not allege that the Children have been adjudicated CHINS on two
separate occasions. As such, DCS had to prove either that (1) the conditions
resulting in removal from or continued placement outside Parents’ home will
not be remedied or (2) the continuation of the parent-child relationship poses a
threat to the Children.
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[11] The Children were removed from Parents’ home for two reasons: home
conditions and substance abuse by Mother and Father. In concluding that the
conditions leading to the Children’s removal from Parents’ home were not
remedied, the juvenile court found that while Mother and Father presented
evidence that they believed demonstrated that they had addressed both issues,
the court did not believe that Parents had successfully addressed their substance
abuse issues or that Parents would maintain their allegedly improved home
conditions.
[12] At the time of removal, the conditions of Parents’ home were atrocious and
barely livable. Since removal, Mother has resided in eight different residences
and Father has resided in at least four different residences. Parents have been
evicted from at least two of these residences for failure to pay rent. At the time
of the evidentiary hearing, Parents presented pictures to show that their current
home conditions were appropriate. However, neither DCS Family Case
Manager (“FCM”) Kara Crippen nor the Children’s CASA have been able to
verify the conditions of the home. The juvenile court noted that while the
pictures presented by Mother appear to show appropriate living conditions, the
court was not convinced, given Parents’ history of instability, that Parents
would be able to maintain the conditions of the home.
[13] The evidence also establishes that Parents have a long history of substance
abuse. At the time of removal, Mother was abusing her prescription medication
and Father was taking certain unprescribed medications and cocaine. Mother
and Father completed random drug screens from May of 2016 through July of
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2018. During this period, Father tested positive, without having valid
prescriptions, eight times for amphetamine, eight times for methadone, four
times for morphine, and three times for benzodiazepine. Father also tested
positive four times for THC, four times for oxycodone, twice for
methamphetamine, and once for fentanyl. Each of Father’s positive tests for
oxycodone revealed fatal levels of the drug in Father’s system, leading the
toxicology lab to request a welfare check. Mother tested positive, without
having valid prescriptions, two times for hydrocodone, two times for
benzodiazepine, two times for suboxone, and one time for methadone. Mother
also tested positive five times for oxycodone and once for methamphetamine.
In addition, Mother failed to consistently take her prescription medication and
Parents each refused at least one drug screen despite claiming to be sober.
[14] Parents’ substance abuse assessments revealed a high probability that each was
suffering from a substance abuse disorder. The assessments indicated that
educational courses would not adequately address Parents’ issues and that
Parents would require addictions therapy and exposure to appropriate
community support groups. Mother’s assessment also noted that Mother
suffered from considerable emotional pain and found that Mother would need a
more comprehensive mental status evaluation. While Mother made some
progress in treatment, Father did not. During group sessions, Father was
combative, blamed DCS for everything, and did not take accountability for his
actions. Father also provided various excuses for his failure to consistently
attend treatment.
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[15] The juvenile court found that Parents suffer from both a physical and
psychological addition. Mother also suffers from mental illness, including
bipolar disorder, depression, and anxiety. She also suffers from social anxiety,
low self-esteem, and struggles without Father. Father, however, did not come
across as supportive of Mother. Rather, he would belittle and attempt to
control her. Mother does not have additional family support and, at the time of
the evidentiary hearing, was not attending therapy, NA/AA meetings, or
support groups. She was not seeing a doctor or taking any medication for her
mental health. Father was also not attending therapy, NA/AA meetings, or
support groups.
[16] The juvenile court found that Parents were not addressing their addiction or
mental health needs and that Parents are co-dependent and unable to succeed
without professional help. The juvenile court agreed with the service providers
that Parents were provided numerous services and multiple attempts at
reunification and there was nothing more that could have been provided.
[17] Parents do not challenge any of the juvenile court’s findings, all of which are
supported by the record. Instead, they argue that the juvenile court should not
have considered their substance abuse issues as that was not a reason for the
Children’s removal from their home. Contrary to Parents’ argument, however,
the record clearly indicates that the Children were removed from Parents’ home
due to concerns about both the conditions of the home and substance abuse by
Parents. Further, while Parents argue that they have made progress, they have
yet to progress to the point where service providers were confident that they
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could adequately care for the Children. Given the significant evidence
outlining Parents’ continued struggles with maintaining adequate housing and
substance abuse issues, we conclude that the evidence is sufficient to prove that
they are unlikely to remedy the conditions that led to the Children’s removal
from their home. Parents’ claim to the contrary amounts to an invitation for
this court to reweigh the evidence, which we will not do. See In re S.P.H., 806
N.E.2d at 879.
II. Indiana Code Section 31-35-2-4(B)(2)(C)
[18] We are mindful that in considering whether termination of parental rights is in
the best interests of a child, the juvenile court is required to look beyond the
factors identified by DCS and look to the totality of the evidence. McBride v.
Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.
2003). In doing so, the juvenile court must subordinate the interests of the
parents to those of the children involved. Id. “A parent’s historical inability to
provide a suitable environment along with the parent’s current inability to do
the same supports a finding that termination of parental rights is in the best
interests of the children.” Lang v. Starke Cty. Office of Family & Children, 861
N.E.2d 366, 373 (Ind. Ct. App. 2007). Furthermore, this court has previously
determined that the testimony of the case worker, guardian ad litem (“GAL”),
or a CASA regarding a child’s need for permanency supports a finding that
termination is in the child’s best interests. Id. at 374; see also Matter of M.B., 666
N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
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[19] With respect to the best interests of the Children, the juvenile court found as
follows:
The Court finds that DCS has shown by clear and convincing
evidence that termination of parental rights is in the best interest
of [the Children]. Mother and Father love their children;
however, this matter is about the best interest of the Child[ren],
not the parents. The Child[ren] have been out of the home for
nearly 30 months, which is an extremely long time in the
perspective of the Child[ren]. When the children were removed,
they were disrespectful, had boundary problems, and were rude
and violent to each other during visits.… The children were
argumentative and would not follow directions in the foster
home when they had visitation with Mother and Father.
Visitation was not consistent due to Mother and Father’s
inability to maintain sobriety. The back and forth with visitation
was hard on the children.…
The children have lived a life in limbo. The children need
stability and structure. They do not need any more uncertainty.
Mother and Father are unable to provide a home environment
that the Child[ren] require[] to thrive. [A service provided
testified that she] believes the children started thriving in the last
6 months, which correlates with no visitations with Mother and
Father. The children love Mother and Father, but they cannot
wait indefinitely for their parents to work toward reunification.
DCS, CASA and this Court believe that termination of parental
rights is in the best interest of [the Children].
Appellants’ App. Vol. II pp. 96–97.1
1
We quote the findings issued in the juvenile court’s order relating to D.B. The trial court’s findings relating
to the likelihood that the conditions would not be remedied are essentially the same for each of the Children.
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[20] The juvenile court’s findings are supported by the record. FCM Crippen
testified that she believed that termination of Parents’ parental rights was in the
best interests of the Children. In addition, Reverend Anthony Spanley, the
Children’s CASA, also testified that he believed that termination of Parents’
parental rights was in the best interests of the Children, adding that he had
“seen no stability in the parents … as far as being able to stay off drugs and
maintain housing.” Tr. p. 222. The testimony of FCM Crippen and Rev.
Spanley is sufficient to sustain the juvenile court’s findings regarding the best
interests of the Children.
[21] The judgment of the juvenile court is affirmed.
Vaidik, C.J., and Riley, J., concur.
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