In Re: Termination of the Parent-Child Relationship of: B.C. (Minor Child) And C.C. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 08 2018, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Julianne L. Fox Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: Termination of the March 8, 2018
Parent-Child Relationship of: Court of Appeals Case No.
82A04-1710-JT-2431
B.C. (Minor Child),
Appeal from the Vanderburgh
And Superior Court
C.C. (Mother), The Honorable P. J. Pierson,
Appellant-Respondent, Special Judge
Trial Court Cause No.
v. 82D04-1704-JT-748
The Indiana Department of Child
Services,
Appellee-Petitioner.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, C.C. (Mother), appeals the trial court’s termination of
her parental rights to her minor child, B.C. (Child).
[2] We affirm.
ISSUE
[3] Mother raises one issue on appeal, which we restate as: Whether the Indiana
Department of Child Services (DCS) presented clear and convincing evidence
to support the termination of her parental rights.
FACTS AND PROCEDURAL HISTORY 1
[4] Mother is the biological parent of the Child, born on November 25, 2012. T.E.
is the Child’s alleged father. 2 On September 27, 2015, the Vanderburgh County
office of DCS received a report alleging that the two-year-old Child was a
victim of abuse or neglect. Specifically, Mother, while at Wal-Mart with the
Child, had been discovered shoplifting and was arrested. With no one available
to care for the Child, DCS met Mother at Wal-Mart and took the Child into
1
Although the trial court took judicial notice of the file in this case, none of the filings have been submitted
to our court. This seems to be an increasing occurrence, and it is incredibly frustrating to our review.
Nevertheless, in this instance, we are able to resolve the arguments raised by Mother based on the record
before us.
2
The alleged father had no involvement throughout the case and is not a participant in this appeal.
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custody. During DCS’s assessment of Mother, she admitted to using “[p]ills”—
i.e., Klonopin and Lortab. (Tr. Vol. II, p. 13).
[5] On September 29, 2015, DCS filed a petition alleging the Child to be a Child in
Need of Services (CHINS). On October 7, 2015, Mother stipulated to the facts
alleged in the CHINS petition, and the trial court adjudicated the Child to be a
CHINS. On November 4, 2015, the trial court held a dispositional hearing and
ordered Mother to participate in various services, including a substance abuse
evaluation and treatment, as well as drug screens. The trial court also directed
Mother to remain free of drugs and alcohol and to engage in visits with the
Child. It appears that the formal dispositional order was issued on January 22,
2016.
[6] Mother’s subsequent engagement in reunification services was poor. Although
she refused to participate in DCS’s drug screens, she failed two drug screens for
the probation department in her criminal case (at least one of which was for
methamphetamine)—one in April of 2016 and the other in May of 2016.
Mother admitted that she was using drugs on a daily basis. For the probation
violations, Mother was incarcerated for thirty days and ninety days,
respectively. At some point, DCS discussed in-patient substance abuse
treatment with Mother, but Mother refused, indicating that “jail is what would
help.” (Tr. Vol. II, p. 136). When Mother was not incarcerated, she
participated in supervised visits with the Child.
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[7] In August of 2016, due to the stagnancy of the case, the permanency plan was
changed from reunification to adoption. Nevertheless, DCS continued to offer
services to Mother. Around that time, the reality of losing her Child set in, and
Mother indicated that she became motivated to participate. On September 14,
2016, Mother appeared for her first DCS drug screen. While Mother did not
have controlled substances in her system at that time, she tested positive for
alcohol use. Between September of 2016 and May of 2017, Mother appeared
for thirteen additional drug screens, none of which were positive for controlled
substances. However, five of those drug screens were diluted, which is
generally viewed as an attempt to conceal drug usage. Furthermore, Mother
was required to regularly call in order to determine whether she was scheduled
for a random drug screen, and by her own estimate, Mother should have
submitted to “seventy[ or] eighty” drug screens throughout the case. (Tr. Vol.
II, p. 25). In November of 2016, Mother attended an appointment for a
substance abuse evaluation, but she missed her follow-up appointment and
never re-scheduled.
[8] Despite Mother’s non-compliance with drug screens, her interactions with the
Child went well. That said, Mother regularly failed to comply with the
visitation service provider’s rules, and a few safety issues were noted during the
visits—such as the Child finding two loose pills (Ibuprofen and Vitamin E) in
his bedroom and having access to a BB gun. Mother also exhibited aggressive
behavior toward the visitation supervisor. Mother generally maintained some
form of employment throughout the case, and DCS did not have concerns
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about Mother’s ability to provide suitable housing and food for the Child.
Thus, in mid-December of 2016, the Child was returned to Mother for a trial
home visit. At the beginning of January, Mother and her boyfriend were
involved in a domestic dispute in front of the Child, which apparently resulted
in the arrest of Mother’s boyfriend, although no charges were pursued. Then,
at some point during the trial home visit, Mother stopped communicating with
DCS, and DCS became concerned that “something was wrong.” (Tr. Vol. II,
p. 133). On January 20, 2017, the DCS family case manager went to Mother’s
house and administered a drug screen. While waiting for the results, Mother
“was crying” and admitted that she had been drinking water to dilute the test
results because she knew it would return positive for methamphetamine and
marijuana. (Tr. Vol. II, p. 134). The test was positive for methamphetamine.
That day, the Child was removed and returned to foster care.
[9] On February 23, 2017, Mother enrolled herself in in-patient drug treatment at
Stepping Stone; however, she was terminated from the program the following
month. On April 25, 2017, DCS filed a petition to terminate Mother’s parental
rights. Even after the petition was filed, DCS continued to provide Mother
with visitation services. In May of 2017, Mother began out-patient drug
treatment at Counseling for Change. Mother does not have a driver’s license,
and she relies primarily on public transportation to get to work, counseling, and
visits with the Child.
[10] On August 11, 2017, the trial court conducted a hearing on DCS’s termination
petition. At the hearing, Mother claimed that, with the exception of a positive
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screen for marijuana, she had otherwise been sober for seven months and
remained in counseling. Mother was also engaging in weekly visits with the
Child. Mother argued that if DCS had assisted her with transportation, she
would have been able to regularly comply with drug screens and drug
counseling during the case. In turn, DCS presented evidence of Mother’s non-
compliance with her required services, as well as evidence that Mother had
never indicated a need for transportation assistance and had actually refused the
services of a parent aide. By the time of the termination hearing, the Child had
spent nearly half of his life in foster care, and both DCS and the Child’s court-
appointed special advocate (CASA) recommended termination of Mother’s
parental rights. On September 18, 2017, the trial court issued an Order on
Involuntary Termination of Parental Rights of Mother.
[11] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[12] Mother challenges the termination of her parental rights. 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 Cnty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). In fact, “[a] parent’s
interest in the care, custody, and control of his or her children is ‘perhaps the
oldest of the fundamental liberty interests.’” Id. (quoting Troxel v. Granville, 530
U.S. 57, 65 (2000)). Nevertheless, parental rights “are not absolute and must be
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subordinated to the child’s interests in determining the proper disposition of a
petition to terminate parental rights.” Id. When “parents are unable or
unwilling to meet their parental responsibilities,” termination of parental rights
is appropriate. Id. We recognize that the termination of a parent-child
relationship is “an ‘extreme measure’ and should only be utilized as a ‘last
resort when all other reasonable efforts to protect the integrity of the natural
relationship between parent and child have failed.’” K.E. v. Ind. Dep’t of Child
Servs., 39 N.E.3d 641, 646 (Ind. 2015).
[13] Indiana courts utilize a “deferential standard of review in cases concerning the
termination of parental rights” because of the trial court’s “unique position to
assess the evidence.” In re A.K., 924 N.E.2d 212, 219 (Ind. Ct. App. 2010),
trans. dismissed. On appeal, our court neither reweighs evidence nor assesses the
credibility of witnesses. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225,
1229 (Ind. 2013). We consider only the evidence and any reasonable inferences
that support the trial court’s judgment, giving deference to the trial court’s
“opportunity to judge the credibility of the witnesses firsthand.” Id. Where, as
in this case, the trial court enters special findings of fact and conclusions
thereon in accordance with Indiana Trial Rule 52(A), we evaluate whether the
trial court’s decision is clearly erroneous. Id. Under this standard, we must
determine “whether the evidence clearly and convincingly supports the findings
and the findings clearly and convincingly support the judgment.” Id. at 1230.
II. Termination of Parental Rights Statute
[14] In order to terminate a parent’s rights to her child, DCS must prove:
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(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6)
months under a dispositional decree.
****
(iii) The child has been removed from the parent and has been
under the supervision of a local office . . . for at least fifteen (15)
months of the most recent twenty-two (22) months, beginning
with the date the child is removed from the home as a result of
the child being alleged to be a [CHINS] . . . ;
(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 [CHINS];
(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). DCS must prove each of the foregoing elements by
clear and convincing evidence. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85,
92 (Ind. Ct. App. 2014). “[C]lear and convincing evidence requires the
existence of a fact to ‘be highly probable.’” Id. “Clear and convincing evidence
need not reveal that the continued custody of the parents is wholly inadequate
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for the child’s very survival. Rather, it is sufficient to show by clear and
convincing evidence that the child’s emotional and physical development are
threatened by the respondent parent’s custody.” K.T.K., 989 N.E.2d at 1230.
[15] In ordering the termination of Mother’s parental rights, the trial court
concluded that DCS had established each element of Indiana Code section 31-
35-2-4(b)(2). On appeal, Mother does not contest that the Child has been
removed from the home for the requisite period of time or that DCS has
established a satisfactory plan for the Child’s care and treatment. We address
the remaining elements in turn.
A. Remediation of the Conditions Resulting in the Child’s Removal 3
[16] In determining whether there is a reasonable probability that conditions will not
be remedied, we must identify what conditions led to the Child’s “placement
and retention” outside the home and subsequently determine whether there is a
reasonable probability that those conditions will not be remedied. Id. at 1231.
A 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 pattern[s] of
3
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, DCS is required to prove only
one of three listed elements. See In re A.K., 924 N.E.2d at 220-21. In this case, DCS did not allege that the
Child had twice been adjudicated a CHINS; therefore, the two relevant inquiries are whether there is a
reasonable probability that the conditions resulting in the Child’s removal and continued placement outside
of the home will not be remedied or whether there is a reasonable probability that the continuation of the
parent-child relationship poses a threat to the Child’s well-being. We elect to dispose of this issue by reliance
on the former element.
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conduct to determine whether there is a substantial probability of future neglect
or deprivation.’” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (citation omitted)
(quoting Bester, 839 N.E.2d at 152; K.T.K., 989 N.E.2d at 1231). “Habitual
conduct may include ‘criminal history, drug and alcohol abuse, history of
neglect, failure to provide support, and lack of adequate housing and
employment.’” K.E., 39 N.E.3d at 647. DCS need not “provide evidence
ruling out all possibilities of change; rather, it need only establish ‘that there is a
reasonable probability that the parent’s behavior will not change.’” A.D.S. v.
Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans.
denied.
[17] In this case, the Child was removed from Mother’s care when she was arrested
for shoplifting, leaving no other suitable caregiver. The Child then remained a
ward of DCS because of Mother’s ongoing substance abuse. The trial court
determined that
[o]verall, Mother has failed to remedy the situation that brought
about the removal of the [Child]. Based on the pattern of
behaviors and continuing pattern of substance abuse by Mother,
the [c]ourt finds that there is not a reasonable probability that the
situation which brought about the removal of the [C]hild is likely
to be remedied. The [c]ourt finds that Mother’s past behavior
and failure to address the issues are the best predictors of her
future behavior.
(Appellant’s App. Vol. II, p. 7).
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[18] Notwithstanding Mother’s “admitted pervasive history of substance abuse,” she
now claims that as of the termination hearing she
was doing well in her treatment at Stepping Stone. Mother
voluntarily sought out the Stepping Stone treatment program in a
desire for long-term sobriety because she loved her son. Mother
was employed at the time of trial despite having to quit her job in
order to make her scheduled visitation with the [C]hild.
Mother’s current status at the time of her termination trial was
stable and clean. The original conditions of her addictions were
in the process of being remedied at the time of termination.
(Appellant’s Br. p. 7) (internal citations omitted). Mother further argues that
“[n]o evidence was presented that the [C]hild would be harmed or
disadvantaged in any way by delaying termination”; thus, she should be
permitted to “continue on toward reunification.” (Appellant’s Br. pp. 7-8).
[19] We find that ample evidence supports the trial court’s determination. Mother
began taking illegal drugs when she was thirteen years old and has no support
system as most of her immediate family members—i.e., her father, sister, and
brother—also have long histories of substance abuse. Most of Mother’s
relationships have been with men involved in substance abuse, including the
Child’s alleged father. Mother declined to participate in either in-patient or out-
patient drug treatment until well after the Child’s permanency plan had been
changed to adoption. Even then, she was quickly terminated from Stepping
Stone’s in-patient program for violating rules, and she never submitted any
documentation to DCS regarding her participation in out-patient counseling at
Counseling for Change. As of the termination hearing, the Child had been
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removed from Mother’s care for two years, but Mother had yet to complete any
substance abuse program. Furthermore, Mother submitted to relatively few
drug screens for DCS, and five out of fourteen were diluted. Despite having
filed the petition to terminate Mother’s rights, DCS continued to offer services
up until the termination hearing and, at one point, attempted a trial home visit.
However, Mother could not even maintain sobriety for the thirty-five days that
the Child was home, and he had to return to foster care. Although Mother
claimed to have been sober for seven months at the termination hearing, with
the admitted exception of marijuana use at least once, her refusal to regularly
submit to DCS’s drug screens made this assertion impossible to verify.
[20] Ultimately, Mother’s history of relapse and refusal to meaningfully engage in
substance abuse treatment gives rise to valid concerns that she will continue
with her cycle of addiction. It is well established that “[a] pattern of
unwillingness to deal with parenting problems and to cooperate with those
providing social services, in conjunction with unchanged conditions, support a
finding that there exists no reasonable probability that the conditions will
change.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372
(Ind. Ct. App. 2007), trans. denied. Given that two years without her Child was
not enough to spur Mother into completing treatment, the trial court properly
concluded that there is a reasonable probability that the conditions resulting in
the Child’s removal and continued placement out of the home will not be
remedied.
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B. Best Interests of the Child
[21] At the end of her appellate brief, for the first time, Mother mentions the Child’s
best interests. More particularly, she simply asserts that the “lack of evidence”
that the Child would be harmed by delaying termination “goes towards the best
interests of the child.” (Appellant’s Br. p. 8). While Mother’s lack of a cogent
argument regarding this element would warrant a finding that she has waived
the issue for appeal, we will address the matter in light of the serious rights at
stake. See Ind. Appellate Rule 46(A)(8)(a).
[22] The parent-child relationship is undoubtedly “one of the most valued
relationships in our culture.” Bester, 839 N.E.2d at 147 (quoting Neal v. DeKalb
Cnty. Div of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Thus, the
purpose of terminating a parent-child relationship is to protect the child, not to
punish the parent. In re C.C., 788 N.E.2d 847, 855 (Ind. Ct. App. 2003), trans.
denied. When considering whether termination would be in a child’s best
interests, the trial court must “look beyond the factors identified by [DCS] and .
. . look to the totality of the evidence.” A.D.S., 987 N.E.2d at 1158. “The trial
court need not wait until the child is irreversibly harmed such that the child’s
physical, mental and social development is permanently impaired before
terminating the parent-child relationship.” K.T.K., 989 N.E.2d at 1235. It is
well established that “[p]ermanency is a central consideration in determining
the [child’s] best interests.” Id. (alterations in original) (quoting In re G.Y., 904
N.E.2d 1257, 1265 (Ind. 2009)).
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[23] The trial court determined that termination of Mother’s parental rights is in the
Child’s best interests based, in part, on the recommendation of DCS and the
Child’s CASA. See In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (“[T]he
recommendations of the case manager and court-appointed 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.”). The evidence
establishes that because of Mother’s substance abuse, the Child was removed
from her care on two occasions and, as of the termination hearing, had spent
nearly half of his life in foster care. Mother’s failure to engage in treatment for
her addiction renders her unable to provide a safe and permanent life for the
Child. In addition, Mother has already demonstrated that the Child has no
other caregiver in the event she is arrested again—a risk she takes by continuing
to use illegal substances. Accordingly, we agree with the trial court that the
evidence establishes that the Child’s best interests are served by termination of
Mother’s parental rights.
CONCLUSION
[24] Based on the foregoing, we conclude that DCS presented clear and convincing
evidence to support the termination of Mother’s parental rights.
[25] Affirmed.
[26] Baker, J. and Brown, J. concur
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