In the Matter of the Termination of the Parent-Child Relationship of D.G., J.G., and H.G. (Minor Children) and Je.G. (Mother) Je.G. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2016 )


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  •                                                                     FILED
    MEMORANDUM DECISION
    Jun 29 2016, 9:20 am
    Pursuant to Ind. Appellate Rule 65(D),                              CLERK
    Indiana Supreme Court
    this Memorandum Decision shall not be                              Court of Appeals
    and Tax Court
    regarded as precedent or cited before any
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Cathy M. Brownson                                         Gregory F. Zoeller
    Coots, Henke, & Wheeler, P.C.                             Attorney General of Indiana
    Carmel, Indiana
    Robert J. Henke
    Abigail R. Recker
    Deputy Attorneys General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Termination                          June 29, 2016
    of the Parent-Child Relationship                          Court of Appeals Case No.
    of D.G., J.G., and H.G. (Minor                            29A02-1512-JT-2202
    Children) and Je.G. (Mother);                             Appeal from the Hamilton Circuit
    Court
    Je.G. (Mother),                                           The Honorable Paul Felix, Judge
    Appellant-Respondent,                                     The Honorable Todd Ruetz,
    Magistrate
    v.                                                Trial Court Cause No.
    29C01-1504-JT-605
    The Indiana Department of                                 29C01-1504-JT-603
    Child Services,                                           29C01-1504-JT-606
    Appellee-Petitioner.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016    Page 1 of 12
    May, Judge.
    [1]   Je.G. (“Mother”) 1 appeals the involuntary termination of her parental rights to
    H.G., D.G., and J.G. (collectively, “Children”). She argues the Department of
    Child Services (“DCS”) did not present sufficient evidence the conditions under
    which Children were removed from her care would not be remedied and
    termination of her parental rights was in the best interests of Children. We
    affirm.
    Facts and Procedural History
    [2]   Mother gave birth to H.G. on July 13, 2011, and to twins D.G. and J.G. on
    October 30, 2013. At birth, D.G. and J.G. tested positive for Hydrocodone, 2
    THC, and methamphetamine. Based thereon, Mother agreed to an Informal
    Adjustment (“IA”) with DCS, which offered her services including homebased
    case management, homebased therapy, drug and alcohol assessment and
    treatment, and random drug screens. Mother was not required to complete
    drug and alcohol treatment unless she tested positive for illegal substances.
    Mother tested positive for illegal substances multiple times during the IA but
    did not complete drug and alcohol treatment. She was incarcerated for
    unrelated charges on February 24, 2014.
    1
    Children’s respective fathers consented to adoption and do not participate in this appeal.
    2
    Mother had a valid prescription for Hydrocodone.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016             Page 2 of 12
    [3]   On March 27, 2014, Mother tested positive for cocaine. On April 4, 2014, DCS
    alleged Children were Child(ren) in Need of Services (“CHINS”) and on April
    7, the trial court authorized DCS to remove Children from Mother’s care
    because Mother violated the terms of the IA. On September 3, 2014, the trial
    court adjudicated Children as CHINS based on Mother’s drug use and lack of
    participation in services offered as part of the IA.
    [4]   On December 1, 2014, the trial court ordered Mother to complete a substance
    abuse assessment and follow all recommendations, complete a psychological
    assessment and follow all recommendations, complete a parenting assessment
    and follow all recommendations, visit regularly with Children, and submit to
    random drug and alcohol screenings. Mother was not compliant and on May
    4, 2015, the trial court changed Children’s permanency plan from reunification
    to adoption.
    [5]   On June 4, 2015, DCS filed petitions to terminate Mother’s parental rights to
    Children. On October 15, 2015, the trial court held a fact-finding hearing on
    the termination petitions. On November 17, 2015, the trial court issued orders
    terminating Mother’s parental rights to Children.
    Discussion and Decision
    [6]   We review termination of parental rights with great deference. In re K.S., D.S.,
    & B.G., 
    750 N.E.2d 832
    , 836 (Ind. Ct. App. 2001). We will not reweigh
    evidence or judge credibility of witnesses. In re D.D., 
    804 N.E.2d 258
    , 265 (Ind.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 3 of 12
    Ct. App. 2004), trans. denied. Instead, we consider only the evidence and
    reasonable inferences most favorable to the judgment. 
    Id.
     In deference to the
    juvenile court’s unique position to assess the evidence, we will set aside a
    judgment terminating a parent’s rights only if it is clearly erroneous. In re L.S.,
    
    717 N.E.2d 204
    , 208 (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied
    
    534 U.S. 1161
     (2002).
    [7]   When, as here, a judgment contains findings of fact and conclusions thereon,
    we apply a two-tiered review. Bester v. Lake Cnty. Office of Family & Children, 
    839 N.E.2d 143
    , 147 (Ind. 2005). We determine first whether the evidence supports
    the findings and second 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 juvenile court’s
    decision, we must affirm. In re L.S., 
    717 N.E.2d at 208
    .
    [8]   “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. A trial court must
    subordinate the interests of the parents to those of the children, however, when
    evaluating the circumstances surrounding a termination. In re K.S., 
    750 N.E.2d at 837
    . The right to raise one’s own children should not be terminated solely
    because there is a better home available for the children, 
    id.,
     but parental rights
    may be terminated when a parent is unable or unwilling to meet her parental
    responsibilities. 
    Id. at 836
    .
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 4 of 12
    [9]    To terminate a parent-child relationship, the State must allege and 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.
    (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.
    [10]   
    Ind. Code § 31-35-2-4
    (b)(2). The State must provide clear and convincing proof
    of these allegations. In re G.Y., 
    904 N.E.2d 1257
    , 1260-61 (Ind. 2009), reh’g
    denied. If the court finds the allegations in the petition are true, it must
    terminate the parent-child relationship. 
    Ind. Code § 31-35-2-8
    .
    [11]   Mother challenges the court’s conclusions that the conditions under which
    Children were removed would not be remedied, the continuation of the parent-
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 5 of 12
    child relationship posed a risk to Children, and termination was in the best
    interests of Children. 3
    Reasonable Probability Conditions Would Not Be Remedied
    [12]   The trial court must judge a parent’s fitness to care for her children at the time
    of the termination hearing. In re A.B., 
    924 N.E.2d 666
    , 670 (Ind. Ct. App.
    2010). Evidence of a parent’s pattern of unwillingness or lack of commitment
    to address parenting issues and to cooperate with services “demonstrates the
    requisite reasonable probability” that the conditions will not change. Lang v.
    Starke County OFC, 
    861 N.E.2d 366
    , 372 (Ind. Ct. App. 2007).
    [13]   Children were removed from Mother’s home because Mother repeatedly tested
    positive for drugs. The trial court found: 4
    4. On or about October 30, 2015, [D.G. and J.G. were] born
    with a controlled substance in [their bodies]. As a result, Mother
    entered into a program of Informal Adjustment [IA] with the
    DCS on November 26, 2013.
    3
    The trial court found the conditions under which Children were removed would not be remedied and the
    continuation of the parent-child relationship posed a threat to Children. DCS does not have to prove both.
    The statute is written in the disjunctive, and DCS must prove either by clear and convincing evidence. 
    Ind. Code § 31-35-2-4
    . Because the evidence supports the conclusion there was a reasonable probability that the
    conditions leading to Children’s removal would not be remedied, we need not address whether the
    continuation of the parent-child relationship posed a threat to Children’s well-being.
    4
    The trial court entered a separate order for each child; however, the findings were virtually identical and
    thus we quote only the order concerning D.G.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016                Page 6 of 12
    5. A requirement of the IA was to discontinue use of illegal
    substances;
    6. Mother was offered home based casework, counseling, a
    substance abuse assessment, and random drug screens
    throughout the IA;
    7. Mother continued to test positive for illegal substances
    throughout the IA;
    *****
    9. Mother tested positive for cocaine after a drug screen on
    March 27, 2014;
    *****
    18. During the CHINS proceeding,
    a. Mother was ordered to participate in a substance abuse
    assessment and a psychological evaluation;
    b. Mother completed a substance abuse assessment on
    March 9, 2015. The assessment recommended that
    Mother participate in Intensive Outpatient Treatment
    (IOP);
    c. Mother never followed through with the continued
    substance abuse treatment recommended in the
    assessment. Mother was to begin IOP on March 10, 2015
    and failed to begin.
    *****
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 7 of 12
    21. Mother has failed to complete a drug treatment program;
    22. In the last right [sic] (8) months, Mother has been charged
    five (5) times with new criminal charges relating to substance
    abuse[.]
    (App. at 16, 17, 20, 23.)
    [14]   In addition, failure to visit one’s children “demonstrates a lack of commitment
    to complete the actions necessary to preserve the parent-child relationship.” In
    re A.L.H., 
    774 N.E.2d 896
    , 900 (Ind. Ct. App. 2002). The trial court found
    Mother was ordered to participate in supervised visitation with Children, but:
    h. Mother often appeared late for visits and was inappropriate
    when the visits were held at the placement’s 5 home. Mother
    argued with the placement in front of the Child[ren] during
    visitation;
    i. Mother came to visits under the influence of alcohol or drugs;
    j. Visitation was suspended by order of the Court effective
    October 31, 2014 and a hearing was set;
    k. The Court ordered Mother on January 26, 2015 to participate
    in a substance abuse assessment and a psychological evaluation
    and comply with all recommendations of that assessment,
    comply with all drug screen requests, demonstrate a minimum
    period of sixty (60) days of strict compliance with the Court’s
    5
    “The placement” appears to be a reference to the Children’s respective paternal grandparents, with whom
    the Children were placed after they were removed from Mother’s care.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016           Page 8 of 12
    terms, both as to attending screens and having those screens
    return with negative results prior to visitation being reinitiated
    with the Child[ren].
    (App. at 21) (footnote added). Mother’s last visit with Children was October
    24, 2014.
    [15]   Mother argues DCS did not present sufficient evidence the conditions under
    which Children were removed would not be remedied because “Mother had
    been clean and sober for two months at the time of the termination hearing in
    October 2015.” (Br. of Appellant at 15.) However, Mother was incarcerated
    for the time prior to the October 2015 hearing; thus it would seem her access to
    illegal substances was momentarily curtailed. Her temporary sobriety does not
    require us to overlook her conduct throughout the proceedings. See In re
    K.T.K., 
    989 N.E.2d 1225
    , 1234 (Ind. 2013) (trial court is within its discretion to
    “disregard the efforts Mother made only shortly before termination and to
    weigh more heavily Mother’s history of conduct prior to those efforts”); and see
    Prince v. Allen County DCS, 
    861 N.E.2d 1223
    , 1230-31 (Ind. Ct. App. 2007)
    (termination of parental rights appropriate when mother “has not demonstrated
    she will remain sober without the constant threat of imprisonment”). Mother’s
    argument is an invitation for us to reweigh the evidence, which we cannot do.
    See In re D.D., 
    804 N.E.2d at 265
     (appellate court cannot reweigh evidence or
    judge the credibility of witnesses).
    Children’s Best Interests
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 9 of 12
    [16]   In determining what is in the children’s best interests, the juvenile court is
    required to look beyond the factors identified by DCS and consider the totality
    of the evidence. In re A.K., 
    924 N.E.2d 212
    , 223 (Ind. Ct. App. 2010), trans.
    dismissed. A parent’s historical inability to provide a suitable environment along
    with the parent’s current inability to do so supports finding termination of
    parental rights is in the best interests of the child. In re A.L.H., 
    774 N.E.2d 896
    ,
    990 (Ind. Ct. App. 2002). The recommendations of a DCS case manager and
    court-appointed advocate to terminate parental rights, in addition to evidence
    that conditions resulting in removal will not be remedied, are sufficient to show
    by clear and convincing evidence that termination is in the children’s best
    interests. In re J.S., 
    906 N.E.2d 226
    , 236 (Ind. Ct. App. 2009).
    [17]   In addition to the trial court’s findings regarding Mother’s substance abuse and
    lack of visitation with Children, DCS presented testimony from the Guardian
    ad litem, who had concerns about Mother’s mental health based on Mother’s
    “erratic behavior” during conversations with her. (App. at 23.) At the time of
    the termination hearing, Mother was incarcerated and was not employed.
    Finally, the trial court found the Children were doing well in their current
    placement with their paternal grandparents, with whom they had lived since
    September 29, 2014.
    [18]   Mother argues termination was not in the best interests of the Children because
    she was working towards reunification with Children by participating in
    services while she was incarcerated. Mother testified she had been accepted
    into Drug Court, which would allow her to participate in substance abuse
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 10 of 12
    services in an effort to avoid further jail time. Finally, Mother contends
    Children were young and thus additional time in relative care would not
    adversely affect them.
    [19]   In support of her argument, Mother cites In Re G.Y., 
    904 N.E.2d 1257
    , 1265
    (Ind. 2009), reh’g denied, where termination was not in the best interests of G.Y.
    because his mother, who was incarcerated for a crime committed prior to
    G.Y.’s conception, had completed services and maintained contact with G.Y.
    while she was incarcerated. In addition, her release from incarceration was
    imminent.
    [20]   Such is not the case here. Mother was arrested multiple times during the
    CHINS and TPR proceedings, had consistently tested positive for illegal
    substances, had not completed services, and had not visited with Children for
    approximately a year before her parental rights were terminated. Mother’s
    arguments are invitations for us to reweigh the evidence, which we cannot do.
    See In re D.D., 
    804 N.E.2d at 265
     (appellate court cannot reweigh evidence or
    judge the credibility of witnesses).
    Conclusion
    [21]   DCS provided sufficient evidence the circumstances under which Children were
    removed from Mother’s home would not be remedied and termination was in
    Children’s best interests. Accordingly, we affirm the termination of Mother’s
    parental rights to Children.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 11 of 12
    [22]   Affirmed.
    Baker, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 29A02-1512-JT-2202 | June 29, 2016   Page 12 of 12