In re the Termination of the Parent-Child Relationship of A.D. (Minor Child) and J.H. (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 Dec 09 2020, 8:22 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
Alexander W. Robbins Curtis T. Hill, Jr.
Bedford, Indiana Attorney General of Indiana
Abigail R. Recker
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the December 9, 2020
Parent-Child Relationship of Court of Appeals Case No.
A.D. (Minor Child) and 20A-JT-1378
J.H. (Mother), Appeal from the Morgan Circuit
Court
Appellant-Respondent,
The Honorable Matthew G.
v. Hanson, Judge
Trial Court Cause No.
Indiana Department of Child 55C01-2001-JT-32
Services,
Appellee-Petitioner.
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1378 | December 9, 2020 Page 1 of 10
[1] J.H. (“Mother”) appeals the Morgan Circuit Court’s order involuntarily
terminating her parental rights to her minor child, A.D. Mother argues that
termination of her parental rights is not supported by clear and convincing
evidence.
[2] We affirm.
Facts and Procedural History
[3] A.D. was born on April 24, 2019, and at birth, he tested positive for marijuana,
methamphetamine, and amphetamine. Therefore, when A.D. was five days
old, the Department of Child Services (“DCS”) removed A.D. from Mother’s
care. A.D. was placed with his paternal grandmother.
[4] A petition alleging that A.D. was a Child in Need of Services (“CHINS”) was
filed on April 30, 2019.1 Mother failed to appear for the initial hearing, which
was also held on April 30. A.D. was adjudicated a CHINS pursuant to Indiana
Code sections 31-34-1-1 and -10.
[5] Mother appeared at the dispositional hearing held on May 23, 2019. The trial
court ordered Mother to participate in services including a substance-abuse
1
During these proceedings, A.D.’s biological father had an active warrant for his arrest and was hiding from
law enforcement. He did not appear for any hearings in this case and was served by publication because he
could not be located. His parental rights to A.D. were terminated by default, and he does not participate in
this appeal.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1378 | December 9, 2020 Page 2 of 10
assessment, comply with all treatment recommendations, submit to random
drug screens, and maintain stable and adequate housing.
[6] Mother completed a substance-abuse evaluation through Centerstone. She also
began working with a family support specialist and a recovery coach. Mother
failed to make significant progress, did not attend all required group sessions,
and missed meetings with her recovery coach. She was therefore discharged
from Centerstone in August 2019.
[7] Next, DCS referred Mother to Life Recovery Center. Mother’s participation in
treatment through that referral was “hit or miss.” Tr. p. 77. Mother was
discharged unsuccessfully after she tested positive for methamphetamine and
THC. Her treatment providers recommended inpatient treatment. Mother
denied using methamphetamine and refused to seek inpatient treatment.
[8] In November and December of 2019, Mother failed to maintain
communication with her DCS service providers. And Mother failed to appear
at the November 21, 2019 permanency hearing. Because Mother was not in
compliance with the case plan, had not made progress in her treatment goals,
and was not participating in visitation with the child, on January 27, 2020, DCS
filed a petition to terminate Mother’s parental rights. Mother did not appear for
the February 3, 2020 initial hearing on the termination petition.
[9] In January 2020, a family case manager was able to speak to Mother, and she
was re-referred to Centerstone. On April 27, 2020, Mother finally completed a
substance abuse evaluation at Centerstone. Mother was “guarded” during her
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assessment and minimized her substance-abuse issues. Tr. p. 44. The therapist
at Centerstone recommended intensive outpatient therapy and individual
therapy.
[10] In May 2020, Mother resumed therapy and began to participate in intensive
outpatient therapy three days per week. Mother missed five scheduled group
sessions. She met with her therapist regularly until June 4, 2020. Mother
admitted that she used methamphetamine in mid-May 2020 and continues to
smoke marijuana. She tested positive for THC numerous times throughout
these proceedings.
[11] Mother initially participated in supervised visitation with A.D. However, she
failed to participate in visitation with the child from November 2019 to May
2020. Mother also has not made any progress towards obtaining stable
employment or income and transportation.
[12] On May 28, 2020 and June 12, 2020, the trial court held hearings on DCS’s
petition to terminate Mother’s parental rights. Mother did not appear at the
June 12 hearing, but her counsel represented her. Mother failed to respond to
counsel’s attempts to communicate with her between the two hearing dates.
Mother also did not respond to counsel’s text message on the morning of the
June 12 hearing.
[13] Both the family case manager and the Court Appointed Special Advocate
testified that termination of Mother’s parental rights was in the child’s best
interests. Tr. pp. 62–63, 91. DCS maintained A.D.’s placement with paternal
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1378 | December 9, 2020 Page 4 of 10
grandmother throughout these proceedings, and grandmother is willing to
adopt the child.
[14] On June 23, 2020, the trial court issued an order terminating Mother’s parental
rights to A.D. The trial court concluded that Mother refuses to acknowledge her
substance-abuse issues and has not taken significant steps towards addressing
those issues during these proceedings. Appellant’s App. p. 28. The court noted
that Mother has a “lengthy and continuing drug abuse history” and has two
prior “DCS cases where her children have been taken from her by both consent
and termination.” Id. Those prior cases arose due to Mother’s drug and stability
issues providing “further evidence that [M]other essentially has no
understanding of how her drug use has destroyed her life and the lives of her
children.” Id. For these reasons, the trial court concluded that DCS proved both
that the conditions that resulted in the child’s removal or reasons for continued
placement outside Mother’s home will not be remedied and that continuation
of the parent–child relationship poses a threat to A.D.’s well-being.
[15] Mother now appeals the termination of her parental rights to A.D.
Standard of Review
[16] Indiana appellate courts have long had 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 and reasonable inferences
favorable to the trial court’s judgment. Id. In deference to the trial court’s
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unique position to assess the evidence, we will set aside a judgment terminating
a parent-child relationship only if it is clearly erroneous. Id. Clear error is that
which leaves us with a definite and firm conviction that a mistake has been
made. J.M. v. Marion Cnty. Off. of Fam. & Child., 802 N.E.2d 40, 44 (Ind. Ct.
App. 2004), trans. denied.
[17] Here, the trial court’s judgment contains special findings and conclusions;
therefore, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of
Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether
the evidence supports the findings, and second, we determine whether the
findings support the judgment. Id. “Findings are clearly erroneous only when
the record contains no facts to support them either directly or by inference.”
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and inferences
support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d 204,
208 (Ind. Ct. App. 1999), trans. denied. Moreover, we accept unchallenged
findings as true and determine only whether the unchallenged findings are
sufficient to support the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct.
App. 2019), trans. denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d
104, 110 (Ind. Ct. App. 2012) (holding that when the trial court’s unchallenged
findings support termination, there is no error), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 20A-JT-1378 | December 9, 2020 Page 6 of 10
Discussion and Decision
[18] Mother claims that the trial court’s order involuntarily terminating her parental
rights is not supported by clear and convincing evidence. Indiana Code section
31-35-2-4(b)(2) provides that a petition to terminate parental rights 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.
[19] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana
Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is
required to find that only one prong of subsection 2(B) has been established by
clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App.
2010).
[20] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester, 839 N.E.2d
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at 148. It is instead sufficient to show by clear and convincing evidence that the
child’s emotional and physical development are put at risk by the parent’s
custody. Id. If the court finds the allegations in a petition are true, the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[21] The purpose of terminating parental rights is not to punish parents but instead
to protect children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. Indeed, parental interests must be subordinated to
the child’s interests in determining the proper disposition of a petition to
terminate parental rights. G.Y., 904 N.E.2d at 1259.
[22] Mother argues that “the root of [her] problems with participating in services
was a lack of transportation.” Appellant’s Br. at 8. She claims that she engaged
in services “when transportation was no longer an issue due to services being
provided virtually due to the COVID-19 pandemic[.]” Id.
[23] Mother may have had difficulty participating in some services due to her lack of
transportation. However, Mother’s continued drug use, refusal to acknowledge
her significant substance-abuse issues, and failure to maintain communication
with her DCS service providers had nothing to do with her alleged lack of
transportation. Her failure to appear for the fact-finding hearing on June 12,
2020, via a Zoom call or to communicate with her counsel was not caused by
her lack of transportation, either.
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[24] At birth, A.D. tested positive for marijuana, methamphetamine, and
amphetamine. Mother engaged in behavior that endangered A.D.’s life well
before he was born. Yet, as the trial court found, Mother “essentially has no
understanding of how her drug use has destroyed her life and the lives of her
children.” Appellant’s App. p. 28. Mother continues to deny methamphetamine
use, despite the fact that A.D. tested positive for that substance at birth and she
tested positive in May 2020. And Mother refused to participate in inpatient
treatment as recommended by service providers.
[25] A.D. was removed from Mother at birth and has never been placed in her care.
The trial court’s finding that the “[p]rior history of this mother with her other
children suggests an instability and an inability to ever wish to properly provide
any sort of safe or sober homelife for this child” is unchallenged and supported
by the evidence. Id. at 29. Also, Mother “has shown no intent of ever getting
clean in order to do what she needs to do for the best interests of” A.D. Id.
Mother’s failure to appear for the fact-finding hearing in this case further
demonstrates her lack of commitment to A.D. and that she is unwilling to take
the steps necessary to provide a stable life for the child.
[26] In sum, clear and convincing evidence supports the trial court’s findings that
DCS proved the factors enumerated in Indiana Code section 31-35-2-4(b)(2).
Mother’s argument to the contrary is merely a request to reweigh the evidence
and credibility of the witnesses, which our court will not do.
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Conclusion
[27] DCS presented clear and convincing evidence that the conditions that resulted
in A.D.’s removal or reasons for continued placement outside Mother’s home
will not be remedied and that continuation of the parent-child relationship
poses a threat to A.D.’s well-being. And Mother does not appeal the trial
court’s finding that termination of her parent rights is in A.D.’s best interests.
For all of these reasons, we affirm the trial court’s order involuntarily
terminating Mother’s parental rights.
[28] Affirmed.
Altice, J., and Weissmann, J., concur.
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