In the Matter of the Termination of the Parent-Child Relationship of A.G., Mother, and D.G. and D.N., Minor Children, A.G. 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 Apr 09 2020, 11:04 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 APPELLANT ATTORNEYS FOR APPELLEE
Katherine N. Worman Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
John R. Millikan
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 9, 2020
of the Parent-Child Relationship Court of Appeals Case No.
of A.G., Mother, and D.G and 19A-JT-2171
D.N, Minor Children, Appeal from the
A.G., Vanderburgh Superior Court
The Honorable
Appellant-Respondent,
Brett J. Niemeier, Judge
v.
The Honorable
Beverly K. Corn, Referee
Indiana Department of Child
Trial Court Cause Nos.
Services, 82D04-1902-JT-313
Appellee-Petitioner. 82D04-1902-JT-314
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Kirsch, Judge.
[1] A.G. (“Mother”) appeals the juvenile court’s termination of her parental rights
as to D.G and D.N. (collectively, “Children”) and raises three issues, which we
restate and consolidate as whether the juvenile court’s decision to terminate her
parental rights was clearly erroneous.
[2] We affirm.
Facts and Procedural History
[3] D.G. was born on October 21, 2005, and D.N. was born on August 10, 2007.1
Appellant’s App. Vol. II at 95, 142. On two separate occasions in 2015, Children
were adjudicated as CHINS. Ex. Vol. I at 15, 19, 23, 27. This most recent case
was initiated on February 27, 2018 when the Indiana Department of Child
Services (“DCS”) filed separate CHINS petitions for D.G. and D.N. based on
allegations that Mother had tested positive for drugs and that Children were
having attendance and behavior problems at school. Ex. Vol. I at 51, 62; Tr. Vol.
II at 31. That same day, the juvenile court adjudicated the Children as CHINS
based on Mother’s admissions. Ex. Vol. I at 51, 62. The juvenile court allowed
Children to stay in the home with Mother. Appellant’s App. Vol. II at 96, 151.
On March 9, 2018 -- less than two weeks after Children were adjudicated
1
The putative father of Children is deceased. Appellant’s App. Vol. II at 23, 40.
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CHINS -- Mother was arrested and charged with Dealing in a Synthetic Drug
as a Level 6 felony. Ex. Vol. I at 4, 11.
[4] At the March 28, 2018 CHINS dispositional hearing, the juvenile court ordered
Mother to remain drug and alcohol free, seek treatment, submit to random drug
screens, and attend two to three AA/NA meetings per week. Appellant’s App.
Vol. II at 23, 40. The juvenile court found that Mother had missed many such
appointments since the CHINS case had opened. Ex. Vol. I at 52, 63. Mother
tested positive for methamphetamine on March 28, 2018 and April 6, 2018, and
the Children were removed from the home on April 6, 2018. Appellant’s App.
Vol. II at 24, 41; Tr. Vol. II at 75-76. During a case review hearing on August 1,
2018, Mother admitted she relapsed “a couple of times.” Ex. Vol. I at 35, 66.
[5] During a permanency hearing on January 30, 2019, the juvenile court found
that Mother had not pursued substance abuse treatment, that she was living in a
home with no water and only a generator for electricity, and that DCS stated
that “nothing has been remedied.” Id. at 59, 69. The juvenile court changed
the permanency plan to adoption. Id.
[6] Mother was offered substance abuse treatment during the CHINS proceedings,
including treatment at the WARM Center, Lighthouse, SafeHaven, Stepping
Stone, and Brentwood. Tr. Vol. II at 77. Mother did not complete treatment in
any of those programs. Id. Mother missed three drug screens between March
2018 and April 2019. Id. at 78-79; Appellant’s App. Vol. II at 25, 42. While
transportation issues sometimes prevented Mother from submitting to drug
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screens, she stated that “sometimes it was because I was dirty, to be honest with
you . . . [tested] dirty for methamphetamine.” Tr. Vol. II at 37. Of the drug
screens to which Mother submitted, she tested positive for unprescribed or
illegal substances approximately nine times. Id. at 79; Appellant’s App. Vol. II at
25, 42. Mother “absolutely” considers herself an addict and considers
methamphetamine as her “drug of choice.” Tr. Vol. II at 28, 43. During the
CHINS proceedings, Mother also tested positive for benzodiazepines and
oxycodone. Id. at 79.
[7] On February 15, 2019, DCS filed petitions to terminate Mother’s parental rights
as to Children, and on May 8, 2019 and July 8, 2019, the juvenile court
conducted hearings on DCS’s petitions. Appellant’s App. Vol. II at 21, 38.
Mother acknowledged that Children “absolutely” should be adopted if she was
unable to “be stable.” Tr. Vol. II at 49. Mother then admitted that she has
“never known stability” due to her substance abuse and that the fear of losing
Children never kept her sober. Id. Mother admitted that she had “plenty of
time to . . . get solid ground underneath [her] feet” but could not curb her
substance abuse. Id. at 51.
[8] Mother also testified that she could not promise that she would not relapse
again. Id. She admitted that she had last used methamphetamine three days
before the second termination hearing, and despite her addictions, she was not
in treatment at the time of the hearings. Id. at 43. Also, at the time of the
second termination hearing, Mother was in custody on a petition to revoke her
bond in her criminal case because she had tested positive for methamphetamine
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and had failed to sign up for drug treatment programs. Id. at 27; Appellant’s
App. Vol. II at 26, 42-43.
[9] Family Case Manager Lauren Koehler (“FCM Koehler”) testified that after
several years of instability and substance abuse by Mother, it was in the best
interests of Children to have Mother’s parental rights terminated. Tr. Vol. II at
82, 84. Specifically, FCM Koehler testified that the last sixteen months have
left Children “angry and confused.” Id. at 84. FCM Koehler also observed that
Children have been subject to three CHINS adjudications in the past five years,
and she testified that Children needed stability. Id. at 85. FCM Koehler also
stated that the constant involvement by DCS has traumatized Children, who
need a consistent schedule to function daily. Id. at 84.
[10] Court Appointed Special Advocate Jean Karmire (“CASA Karmire”) testified
that D.G. needed to be able to “get up every day and know that this is what’s
gonna happen on that day and not be worried about his Mother using meth or
his Mother not being able to provide him food and shelter that he needs.” Id. at
95. CASA Karmire further testified that D.N. “needs to be in an environment
where she can have consistency, know that someone is there every day for her.”
Id. at 96. In a report filed a few days before the second hearing, CASA Karmire
stated that “[b]ased on [M]other’s recent positive methamphetamine screen
through the DAPS program and subsequent PTR; multiple positive screens
throughout the case; inconsistency with screening for DCS; and lack of
consistent, stable housing; CASA feels it is in the children’s best interest for
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mother’s rights to be terminated and the children to be made available for
adoption.” Appellant’s App. Vol. II at 86-87.
[11] On August 14, 2019, the juvenile court issued its termination orders. Id. at 88,
141. In those orders, the juvenile court concluded that Mother would not
remedy the reasons that Children were removed from the home for the
following reasons:
a. This is the third (3rd) CHINS matter filed since 2015 with all
based, in part, on substance abuse;
b. Mother has not completed substance abuse treatment since the
filing of the most recent CHINS, despite having been referred to
and entered into at least three (3) different programs since the
CHINS case opened in February 2018;
c. Mother continues to abuse methamphetamine and used it
within three (3) days of the termination fact finding trial;
d. Mother has not been able to maintain stable housing for more
than 30-90 days, having been in several locations from jail to a
shelter to a hotel to staying with friends and her own mother,
who is known to abuse drugs;
e. Mother was arrested for a drug related criminal matter, which
matter remained unresolved on the date of the termination fact
finding trial[.]
Id. at 30, 47. The juvenile court also found that Mother 1) was unable to
maintain sobriety and 2) was provided a stable housing program through
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SafeHaven, but she did not comply with the program’s rules and was asked to
leave. Id. at 26, 43.
[12] As to its conclusion that termination of Mother’s parental rights was in the best
interests of Children, the juvenile court found, as to D.G., that:
[[D.G.] has suffered with] anger management, intermittent
explosive disorder, and conduct disorder] for several years;
however, he is extremely angry with Mother, which has
exacerbated his aggressive behaviors;
....
[Mother is unable] to provide appropriate care and supervision
for [D.G.];
....
Mother’s continuing pattern of substance abuse, unemployment,
and housing instability in the past indicates that maintaining a
parent-child relationship with [D.G.] is not in the best interests of
[D.G.].
Id. at 44. As to D.N.’s best interests, the juvenile court also found that Mother
was unable to provide appropriate care and supervision and that Mother’s
ongoing substance abuse, unemployment, and housing instability indicated that
termination of the parent-child relationship was in D.N.’s best interests. Id. at
27. The juvenile court also found that termination of Mother’s parental rights
was in D.N.’s best interests because Mother could not provide the stability that
D.N. needed. Id. Mother now appeals.
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Discussion and Decision
[13] Mother argues DCS failed to present clear and convincing evidence to support
the termination of her parental rights under Indiana Code section 31-35-2-
4(b)(2)(B),(C) because 1) there was a reasonable probability that the conditions
that resulted in Children’s removal would be remedied and the continuation of
the parent-child relationship would not pose a threat to Children’s well-being,
and 2) termination was not in Children’s best interests. Mother concedes that
DCS presented clear and convincing evidence to satisfy its burden of proof
under subsection (b)(2)(A), concerning the period of removal from home and
efforts at reunification, and subsection (b)(2)(D), concerning whether there is a
satisfactory plan for the care and treatment of Children.
[14] As our Supreme Court has observed, “Decisions to terminate parental rights are
among the most difficult our trial courts are called upon to make. They are also
among the most fact-sensitive -- so we review them with great deference to the
trial courts[.]” E.M. v. Ind. Dep’t of Child Servs., 4 N.E.3d 636, 640-43 (Ind.
2014). We consider only the evidence and reasonable inferences that are most
favorable to the judgment. In re H.L., 915 N.E.2d 145, 149 (Ind. Ct. App.
2009). Therefore, we will set aside the court’s judgment terminating a parent-
child relationship only if it is clearly erroneous. Id. at 148-49.
[15] While the Fourteenth Amendment to the United States Constitution protects
the traditional right of a parent to establish a home and raise his or her child
and parental rights are of a constitutional dimension, the law allows for the
termination of those rights when a parent is unable or unwilling to meet his
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responsibility as a parent. Bester v. Lake Cty. Office of Family & Children, 839
N.E.2d 143, 145 (Ind. 2005); In re T.F., 743 N.E.2d 766, 773 (Ind. Ct. App.
2001), trans. denied. Termination of parental rights is proper where the child’s
emotional and physical development is threatened. Id.
[16] Where, as here, the juvenile court entered specific findings and conclusions, we
normally apply a two-tiered standard of review. In re B.J., 879 N.E.2d 7, 14
(Ind. Ct. App. 2008), trans. denied. First, we determine whether the evidence
supports the findings, and second, we determine whether the findings support
the judgment. Id. Here, because Mother does not claim that the findings are
not supported by the evidence in the record, we need only determine whether
the findings support the juvenile court’s legal conclusions. See Madlem v. Arko,
592 N.E.2d 686, 687 (Ind. 1992) (Unchallenged findings “must be accepted as
correct.”).
[17] On appeal, Mother claims that DCS failed to prove:
(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.
....
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(C) that termination is in the best interests of the child[.]
Ind. Code § 31-35-2-4(b)(2)(B),(C). The State’s burden of proof is clear and
convincing evidence. In re H.L., 915 N.E.2d at 149. If the juvenile 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).
[18] Because DCS’s burden of proof under subsection b(2)(B) of Indiana Code
section 31-35-2-4(b)(2)(B) is disjunctive, we confine our analysis to determine
whether the juvenile court committed clear error in concluding that the
conditions that led to removal of Children would likely not be remedied. To do
so, we first ascertain what conditions led to their removal and, second,
determine if the juvenile court’s findings support its conclusion that those
conditions would likely not be remedied. See K.T.K. v. Ind. Dep’t of Child Servs.,
989 N.E.2d 1225, 1231 (Ind. 2013). In the second step, the juvenile court must
judge a parent’s fitness at the time of the termination proceeding, considering
evidence of changed conditions and balancing a parent’s recent improvements
against “‘habitual pattern[s] of conduct to determine whether there is a
substantial probability of future neglect or deprivation.’” E.M., 4 N.E.3d at 643
(quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this rule, “trial courts have
properly considered evidence of a parent’s . . . criminal history, drug and
alcohol abuse, history of neglect, failure to provide support, and lack of
adequate housing and employment.” In re D.B., 942 N.E.2d 867, 873 (Ind. Ct.
App. 2011). When determining whether the conditions for the removal would
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be remedied, the juvenile court may consider the parent’s response to the offers
of help. Id.
[19] Here, a number of conditions led to the removal of Children, including
Mother’s relapses into drug use. Tr. Vol. II at 31. Children were removed from
Mother’s care on April 6, 2018 because she twice tested positive for
methamphetamine. Id. at 75-76; Appellant’s App. Vol. II at 24. Children were
removed also because Mother missed several appointments for drug screens.
Appellant’s App. Vol. II at 23, 26, 96, 151, 154.
[20] Mother contends DCS failed to show that there was a reasonable probability
that Mother would not remedy these conditions. While she states that she
attended “several” substance abuse programs, she does not contend that she
fully complied with these programs. Appellant’s Br. at 17. Mother also states
that she attended drug screens “occasionally,” and acknowledges that she
missed thirty drug screens and tested positive for drugs on nine occasions. Id. at
18. Mother also argues that her expressions of remorse about her drug use
relapses also illustrate DCS’s failure to show there is a reasonable probability
that Mother would not remedy the reasons for the removal of Children. In so
arguing, Mother asks us to reweigh the evidence, which our standard of review
does not allow. See E.M., 4 N.E.3d at 640-43; In re H.L., 915 N.E.2d at 149.
[21] We find that the juvenile court’s findings support its conclusion that there was a
reasonable probability that Mother would not remedy the conditions that led to
the removal of Children. Its findings about Mother’s drug use, addiction to
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methamphetamine, failed drug tests, pending criminal charges, and failure to
abide by rules of the housing programs were legally sufficient for the juvenile
court to conclude that it was not reasonably probable that Mother would
remedy the conditions that led to the removal of Children. See In re D.B., 942
N.E.2d at 873; see also R.W., Sr. v. Marion Cty. Dep't of Child Servs., 892 N.E.2d
239, 248 (Ind. Ct. App. 2008) (at the time of termination hearing,
approximately three years had passed since the children were removed from the
family home, yet Mother and Father still had not completed court-ordered
services and there was no significant overall improvement of the conditions
leading to removal).
[22] Mother also contends the evidence does not support the juvenile court’s finding
that termination of her parental rights is in the best interests of Children. In
support, she contends that she was compliant with the terms and requirements
for visitation and that she has a strong bond with Children. Once again,
Mother asks us to reweigh the evidence, which we may not do. See E.M., 4
N.E.3d at 640-43; In re H.L., 915 N.E.2d at 149.
[23] In determining the best interests of a child, the juvenile court is required to 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). The juvenile court must subordinate
the interests of the parent to those of the children. Id. The juvenile court need
not wait until the children are irreversibly harmed before terminating the
parent-child relationship. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150,
1158-59 (Ind. Ct. App. 2013), trans. denied. A parent’s drug abuse will support a
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trial court’s conclusion that terminating parental rights is in the best interest of a
child. In re D.L., 814 N.E.2d 1022, 1030 (Ind. Ct. App. 2004), trans. denied.
Likewise, the inability of a parent to provide a stable environment for a child
the supports the trial court’s conclusion that termination of parental rights is in
a child’s best interests. K.T.K., 989 N.E.2d at 1230. Here, the trial court made
findings about Mother’s drug use and inability to provide a stable environment
for Children, which provided adequate grounds for the trial court to conclude
that it was in the best interests of Children to terminate Mother’s parental
rights. See In re D.L., 814 N.E.2d at 1030; K.T.K., 989 N.E.2d at 1230 Finally,
we observe that the statements of FCM Koehler and CASA Carmine were also
clear and convincing evidence that termination of Mother’s parental rights was
in the best interests of Children, even though the trial court did not expressly
rely on those statements in its findings. See A.D.S., 987 N.E.2d at 1158–59
(recommendations by 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 child's best interests). Accordingly, the trial court’s decision to
terminate Mother’s parental rights was not clearly erroneous. See In re H.L., 915
N.E.2d at 148-49.
[24] Affirmed.
Bailey, J., and Mathias, J., concur.
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