In the Matter of the Involuntary Termination of the Parent-Child Relationship of: K.T. (Minor Child) M.T. Mother v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jan 22 2020, 6:39 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Curtis T. Hill, Jr.
Anderson, Indiana Attorney General
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary January 22, 2020
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: K.T. (Minor 19A-JT-2352
Child) Appeal from the Floyd Circuit
M.T. (Mother), Court
The Honorable J. Terrence Cody,
Appellant,
Judge
v. Trial Court Cause No.
22C01-1712-JT-918
Indiana Department of Child
Services,
Appellee.
Brown, Judge.
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[1] M.T. (“Mother”) appeals the involuntary termination of her parental rights to
her child, K.T. We affirm.
Facts and Procedural History
[2] K.T. was born in December 2006. Mother agreed to an informal adjustment in
September 2015 to address educational neglect. Mother tested positive for
methamphetamine during the adjustment period. In March 2016, the Indiana
Department of Child Services (“DCS” ) filed a petition alleging that K.T. was a
child in need of services (“CHINS”), and the court found K.T. was a CHINS.
In June 2016, the court issued an emergency custody order stating that Mother
continued to use methamphetamine and ordering that K.T. be removed from
the home environment. In July 2016, the court entered a dispositional order
requiring that Mother complete certain services, keep all appointments,
maintain suitable housing, not use illegal substances, complete a substance
abuse assessment and follow all recommendations, submit to random drug
screens, and attend all scheduled visitations.
[3] In December 2017, DCS filed a petition to terminate the parent-child
relationship of Mother and K.T. In July 2018, the court held a hearing. Family
Case Manager Amanda Green (“FCM Green”) testified that she worked with
Mother and K.T. from September 2015 until May 2017, that Mother had
periods of homelessness and lived in a hotel for a time, preventing K.T. from
attending school, and that K.T. attended sixty-two days of school one year. She
testified that Mother continued to use drugs, refused drug screens, and stated
that she would test positive. She testified there were also concerns regarding
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Mother’s mental health, Mother had a family history of mental health issues,
DCS tried to provide services and treatment, Mother did not follow through
with service providers, DCS went through several providers because Mother did
not meet with them or would threaten their workers at times, and Mother went
through almost every provider available for case management and therapy
services. She indicated that she attempted to provide Mother with drug
treatment services and offered to take her to facilities, that many times Mother
would refuse, and that Mother participated in three days of a five-day detox
program with Harbor Lights but left because she had an argument with a nurse
about her medications. She indicated that Mother received disability benefits
and was referred for home-based case management to assist with budgeting,
parenting skills, therapy and drug treatment, and supervised visitations after
removal. She testified that Mother’s participation in visitation was very
sporadic and that she would participate for three or four weeks but then fail to
show up or cancel. She indicated there were also issues with Mother
threatening providers and that the providers would refuse to pick up Mother.
[4] FCM Green testified that Mother had been unable to address her drug use and
mental health issues. She indicated that Mother threatened to hurt service
providers because things did not go her way, that she started to show up
randomly at one provider’s office and the provider locked its doors during
business hours, and that Mother would curse and make a scene in the office.
She indicated the police had been contacted in response to Mother’s behaviors,
that Mother would say that she “hope[s] you die” and “I’m going to kill myself
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and it would be all your fault,” and that she would bring others such as family
members into the threats. Transcript Volume II at 37. She testified that Mother
was upset because she was not permitted to have unsupervised visitation,
waited for her outside the office at the end of the day, and “got mad and started
threatening, saying that she hoped I died and she hoped my kids were taken,
my kids were removed, and that . . . something happened to my kids.” Id. at
38. FCM Green indicated that, if Mother had complied with all of the
requested drug screens, she would have submitted to about 200 drug screens
from September 2015 through May 2017. She indicated that, during her
involvement in the case, Mother did not participate in any kind of mental
health services and that there were a few times that Mother contacted her
saying that she had been sent to Clark Memorial or checked herself into
Wellstone for psychotic breakdowns. She indicated that the service providers
bent over backwards for Mother, the efforts had not been successful, and she
believed the only way to achieve stability and permanency was to terminate
Mother’s parental rights.
[5] Alexa Hesen, a home-based family case manager with Family Ark, testified that
Mother attended five of twenty scheduled appointments with her between
December 2017 and April 2018 and did not attend three scheduled group
meetings. She indicated there were a couple of times that Mother admitted that
she had been using drugs days before and that she knew she would test positive.
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[6] Mother testified that she fought for and protected K.T. and that she was not an
unfit mother. She testified that the last time she used methamphetamine was
approximately three days earlier.
[7] Family Case Manager Nicole Hasenour (“FCM Hasenour”) testified that, when
she was assigned the case in May 2017, Mother was very verbally aggressive
with her and thus a supervisor was always present during their interactions, that
the police were called on multiple occasions, that certain service providers
would not work with Mother, that she offered transportation to treatment with
Volunteers of America but Mother refused to go, stating that she needed to get
everything out of her storage unit, and that multiple treatments were offered but
Mother refused every time. She testified that Mother was homeless for a time
and refused multiple offers to stay at homeless facilities. She testified that in
December 2017 Mother asked for and DCS provided a referral for a suboxone
treatment program, Mother was discharged from the program because she did
not have suboxone in her system, and later she completed three to five days of
treatment at Our Lady of Peace. She testified that Mother had engaged off and
on in a multitude of services, that she had not fully completed anything, that
she went to inpatient treatment at Harbor Lights but left the treatment fairly
early on and did not complete detox, that she went to the Turning Point
treatment facility and was only there for a number of hours, and that she was
offered Groups Recover Together suboxone treatment and was there for about
three months but did not complete the treatment and was discharged.
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[8] FCM Hasenour testified that Mother was also offered outpatient treatment
programs through ACP, that her ACP provider discharged her due to her verbal
aggressiveness, that she was offered casework through Home of the Innocents,
Family Ark, and ACP, two of which discharged her for verbal aggressiveness
and one of which discharged her for noncompliance, and that she had been
offered supervised visitation through Family Ark which had been successful
throughout 2017 until the hearing. She testified that Mother had submitted to
approximately thirty-one drug screens and that about fifteen of them had been
positive. She testified that Mother would have been required to submit to two
screens a week, that it was very difficult to obtain drug screens from Mother,
and that, when she asked Mother for a drug screen, she would scream, storm
out of the office, and slam things. She testified that Mother has refused drug
screens on numerous occasions and stated many times that she knew DCS
would want to use the screens against her. She testified that Mother informed
her in September 2017 that she had overdosed over the weekend.
[9] FCM Hasenour further testified that Mother has mental health issues and
exhibits paranoia. She indicated that she received a phone call from Mother
about two weeks earlier during which Mother stated that a gang was after her,
the gang had been watching her and installed video cameras in her shower, and
when she wakes up in the morning she feels she had been sexually violated.
She indicated that Mother has stated that someone has replaced her mother’s
ashes with beach sand and that the gang stole her car, placed drugs in her food,
and made her cat drink Coca-Cola. She indicated that Mother was referred to
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medication management at Family Ark, went to two of the meetings, did not
show up for the rest of the meetings, and had multiple therapists who refused to
work with her because of her verbal and physical aggression. She indicated
Mother had not done anything during the duration of the CHINS matter to
address her substance abuse issues and instability, that Mother currently had an
eviction notice and she had known her to be homeless, that she did not believe
the conditions which existed at the time of removal have changed or were likely
to change anytime in the near future, and that termination of Mother’s parental
rights was in K.T.’s best interests.
[10] Court Appointed Special Advocate Lorie Edwards (“CASA Edwards”) testified
that she believed K.T. had been traumatized, that from what she had seen she
did not have reason to believe the issues that led to K.T.’s removal were likely
to change, that termination of Mother’s parental rights is in K.T.’s best interest,
and that K.T. had told her that she wants to be adopted.
[11] In August 2018, the trial court issued a one-page termination order. On appeal,
this Court issued a memorandum decision stating that the findings of the trial
court were sparse and remanding for the entry of proper findings and
conclusions. See In Re: The Termination of the Parent-Child Relationship of K.T.,
No. 18A-JT-2228 (Ind. Ct. App. April 30, 2019). On September 6, 2019, the
trial court issued an amended order which included findings of fact and
provides in part:
12. Mother has failed to substantially comply with the dispositional order
and specifically, Mother:
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a. Failed to complete a drug abuse assessment and failure to
participate in and complete a substance abuse program despite
having multiple opportunities to do so;
b. Failed to gain sobriety and continued to abuse methamphetamine
during the life of this case with Mother admitting during the July 11,
2018 hearing to using methamphetamine several days before the
hearing;
c. Failed to obtain and/or maintain suitable housing and was
homeless for a significant amount of time during the pendency of this
matter;
d. Failed to obtain and/or maintain employment and remained
largely unemployed throughout the pendency of this matter;
e. Failed to submit to random drug testing as requested and only
submitted to a total of thirty-one (31) drug screens between October
8, 2015 – March 15, 2018, all of which were positive for
Amphetamine and Methamphetamine;[1]
f. Failed to seek and maintain treatment for significant mental and
emotional issues which created a barrier to reunification;
g. Failed to participate in all scheduled visitations and did not
conduct herself in a suitable manner in a substantial number of
visitations that Mother did attend.
h. Failed to follow up on service referrals and participate in services
despite multiple opportunities to do so that would have assisted
Mother in achieving the original permanency plan of reunification.
13. Mother’s continued substance abuse poses a danger to the health, safety
and well-being of the Child.
*****
1
FCM Hasenour testified that Mother had submitted to roughly thirty-one drug screens, about fifteen of
which had been positive.
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15. CASA filed a report and provided testimony in support of the
termination of parental rights in this instance.
Appellant’s Appendix Volume II at 87-88. The court concluded there is a
reasonable probability that the conditions that resulted in the child’s removal
from and continued placement outside the home will not be remedied or the
continuation of the parent-child relationship poses a threat to the child’s well-
being, termination of parental rights is in the child’s best interests, and there is a
satisfactory plan for the care and treatment of the child.
Discussion
[12] Mother claims that the trial court’s findings do not support its conclusions that
the reasons for removal will not be remedied or that termination is in the child’s
best interests. She argues there is no evidence that K.T. was endangered by her
drug use and the court’s judgment was a punishment for historical failures and
not an evaluation of her fitness to parent at the time of the termination hearing.
She asserts “there is simply no evidence that the Child was ever neglected . . . ,
only evidence that she failed to overcome her drug addiction and that she did
not participate in services.” Appellant’s Brief at 24. DCS responds that Mother
was an active methamphetamine user who last used the drug three days before
the termination hearing, Mother did not participate in most of the services
referred to help her stop using methamphetamine, and the court did not clearly
err in terminating her parental rights.
[13] In order to terminate a parent-child relationship, DCS is required to allege and
prove, among other things:
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(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). If the court finds that the allegations in a petition
described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[14] A finding in a proceeding to terminate parental rights must be based upon
“clear and convincing evidence.” Ind. Code § 31-37-14-2. This is “a
heightened burden of proof reflecting termination’s serious social
consequences.” In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (citation and internal
quotation marks omitted). We do not reweigh the evidence or determine the
credibility of witnesses, but consider only the evidence that supports the
judgment and the reasonable inferences to be drawn from the evidence. Id. We
confine our review to two steps: whether the evidence clearly and convincingly
supports the findings, and then whether the findings clearly and convincingly
support the judgment. Id. Reviewing whether the evidence clearly and
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convincingly supports the findings, or the findings clearly and convincingly
support the judgment, is not a license to reweigh the evidence. Id. Our review
must give due regard to the trial court’s opportunity to judge the credibility of
the witnesses firsthand, and not set aside its findings or judgment unless clearly
erroneous.’” Id. (citation omitted). “Because a case that seems close on a ‘dry
record’ may have been much more clear-cut in person, we must be careful not
to substitute our judgment for the trial court when reviewing the sufficiency of
the evidence.” Id. at 640.
[15] The involuntary termination statute is written in the disjunctive and requires
proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B).
In determining whether the conditions that resulted in a child’s removal will not
be remedied, we engage in a two-step analysis. See E.M., 4 N.E.3d at 642-643.
First, we identify the conditions that led to removal, and second, we determine
whether there is a reasonable probability that those conditions will not be
remedied. Id. at 643. In the second step, the trial court must judge a parent’s
fitness as of the time of the termination proceeding, taking into consideration
evidence of changed conditions, balancing a parent’s recent improvements
against habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. We entrust that delicate
balance to the trial court, which has discretion to weigh a parent’s prior history
more heavily than efforts made only shortly before termination. Id. Requiring
trial courts to give due regard to changed conditions does not preclude them
from finding that a parent’s past behavior is the best predictor of future
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behavior. Id. The statute does not simply focus on the initial basis for a child’s
removal for purposes of determining whether a parent’s rights should be
terminated, but also those bases resulting in the continued placement outside
the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013). A court may
consider evidence of a parent’s prior criminal history, history of neglect, failure
to provide support, lack of adequate housing and employment, and the services
offered by DCS and the parent’s response to those services. Id. Where there
are only temporary improvements and the pattern of conduct shows no overall
progress, the court might reasonably find that under the circumstances the
problematic situation will not improve. Id.
[16] The trial court found that Mother failed to participate in and complete a
substance abuse program despite having multiple opportunities to do so,
continued to abuse methamphetamine including several days before the
hearing, failed to maintain suitable housing, failed to submit to random drug
testing as requested and only submitted to thirty-one drug screens, failed to seek
and maintain treatment for significant mental and emotional issues which
created a barrier to reunification, and failed to participate in services despite
multiple opportunities to do so which would have assisted her in achieving the
original plan of reunification. The testimony and evidence admitted at the
hearing as set forth above and in the record support these findings. We
conclude that clear and convincing evidence supports the trial court’s
determinations that there is a reasonable probability that the conditions which
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resulted in K.T.’s placement outside the home will not be remedied and that the
continuation of the parent-child relationship poses a threat to K.T.’s well-being.
[17] In determining the best interests of a child, the trial court is required to look
beyond the factors identified by DCS and to the totality of the evidence.
McBride v. Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct.
App. 2003). The court must subordinate the interests of the parent to those of
the child. Id. The recommendation of the case manager and child advocate to
terminate parental rights, in addition to evidence that the conditions resulting in
removal will not be remedied, is sufficient to show by clear and convincing
evidence that termination is in the child’s best interests. A.D.S. v. Ind. Dep’t of
Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind. Ct. App. 2013), trans. denied.
FCM Hasenour and CASA Edwards testified that termination of the parent-
child relationship is in K.T.’s best interests. Based on the totality of the
evidence, we conclude that the trial court’s determination that termination is in
K.T.’s best interests is supported by clear and convincing evidence.
[18] For the foregoing reasons, we affirm the trial court’s judgment.
[19] Affirmed.
Baker, J., and Riley, J., concur.
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