In the Matter of the Term. of the Parent-Child Relationship of: R.H., C.H., and M.H., K.G. (Mother) v. Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 26 2016, 8:42 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael P. DeArmitt Gregory F. Zoeller
Columbus, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorney Generals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 26, 2016
of the Parent-Child Relationship Court of Appeals Case No.
of: R.H., C.H., and M.H. 03A01-1509-JT-1535
K.G. (Mother), Appeal from the Bartholomew
Circuit Court
Appellant-Respondent,
The Honorable Stephen R.
v. Heimann, Judge
The Honorable Heather M. Mollo,
Indiana Department of Child Magistrate
Services, Trial Court Cause Nos.
03C01-1409-JT-4030
Appellee-Petitioner.
03C01-1409-JT-4031
03C01-1409-JT-4032
Pyle, Judge.
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Statement of the Case
[1] K.G. (“Mother”) appeals the termination of the parent-child relationship with
her children, R.H., C.H., and M.H., claiming that the Department of Child
Services (“DCS”) failed to prove by clear and convincing evidence that there is
a reasonable probability that (1) the conditions that resulted in the children’s
removal or the reasons for placement outside the parent’s home will not be
remedied, and (2) that a continuation of the parent-child relationship poses a
threat to the children’s well-being. Concluding there is sufficient evidence to
support the trial court’s decision to terminate the parent-child relationship, we
affirm.
[2] We affirm.
Issue
Whether there is sufficient evident to support the termination of
the parent-child relationship.
Facts
[3] At approximately 8:00 p.m. on May 12, 2013, law enforcement officers were
dispatched to Mother’s home after receiving a report that her children, six-year-
old R.H., two-year-old C.H., and one-year-old M.H. were not being supervised.
When the officers arrived at the scene, they had to wake Mother, who told the
officers that she had taken two Klonopin tablets at 1:30 p.m. and had been
sleeping since that time. R.H. and C.H. were playing unsupervised, and M.H.
was crying in her crib. The officers noticed an empty prescription bottle of
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hydrocodone that had been filled the day before. Mother did not know where
the pills were but thought they could have been stolen. Mother was arrested
and charged with neglect of a dependent. Her drug screen was positive for
oxycodone, hydrocodone, and cocaine. Father was incarcerated at the time for
convictions related to sexual misconduct with a minor. Because Mother and
her children lived with Mother’s mother and stepfather, officers made
arrangements for the children to stay in the home with their grandparents.
[4] Two days later, DCS filed a petition alleging that R.H., C.H., and M.H. were
children in need of services (“CHINS”). In June 2013, Mother stipulated that
her children were CHINS and reached an agreement with DCS as to services.
The trial court’s dispositional order required Mother to (1) complete an
intensive outpatient drug program (“IOP”); (2) participate in home-based case
management services to address housing, employment, substance abuse, and
parenting, and follow all recommendations; (3) attend supervised visitation; (4)
participate in individual therapy to address depression; (5) participate in and
complete the Moving On program;1 (6) comply with the terms of probation; (7)
maintain suitable housing; (8) secure a legal and stable source of income; (9)
abstain from using drugs and controlled substances without a prescription; and
(10) submit to random urine drug screens.
1
Mother described the Moving On program as a “program to help women move on from bad situations,
circumstances, teach you coping skills to move past those.” (Tr.37).
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[5] When Mother failed to engage in services as ordered, DCS filed a petition to
terminate her parental rights in September 2014. A hearing on the petition was
held on February 6, 2015, and March 9, 2015. Evidence at the February
hearing revealed that Mother began an IOP program in May 2013 and was
diagnosed with multiple drug dependence and an opioid induced mood
disorder. She was discharged from the program in August 2013 because of
several positive drug screens. Mother was incarcerated in July and August 2013
and again from September to November 2013 for driving while suspended,
criminal trespass, and conversion. After her release in November, Mother
failed to follow procedures to be readmitted to the IOP program. DCS referred
Mother to another IOP program in April 2014. At the hearing, IOP substance
abuse counselor Craig Lubbe (“Lubbe”) testified that Mother began a second
IOP program in April 2014, but she did not complete it. Mother used alcohol
three times during the program, and Lubbe opined that Mother’s ability to stay
drug-free was at risk and that her ability to properly parent her children was a
concern.
[6] Mother’s home-based care service worker since May 2013, Ann Moore
(“Moore”), testified that the goals of the program were to provide Mother with
employment, community resourcing, housing and parenting skills. During the
fifteen months that Moore worked with Mother, Mother showed no
employment or housing stability. Moore testified that, based on what she had
seen from Mother over the previous year, she did not believe Mother had the
ability to accomplish the goal of stability in the foreseeable future.
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[7] Mother’s DCS case manager, Kate Penn, (“Penn”) testified regarding Mother’s
difficulties during supervised visitation. Specifically, Penn testified that in July
2014, there was a “drastic decline in visits all of the sudden [and Mother] was
losing her patience more often.” (Tr. 245). During one visit, Mother’s first
comment to M.H. was that she was going to “whoop her ass.” (Tr. 245). Penn
also testified that in the previous few months, Mother had been more interested
in her phone than her children. During one visit, R.H. had to yell at Mother
four times to get her attention. In addition, Penn testified that R.H. needs to
have stability as well as clear and concise expectations that Mother has never
been able to provide. Penn had also seen a drastic improvement in the behavior
of C.H. and M.H. with their foster parents. Penn recommended the
termination of Mother’s parental rights and adoption as a plan for all of the
children.
[8] CASA Jacki Mann (“Mann”) also recommended the termination of Mother’s
parental rights. Specifically, Mann testified that Mother had not met any of her
goals. She did not have stable employment or housing, and her parenting skills
were not to the level of adequately caring for her children.
[9] DCS case manager Amy Pawlus (“Pawlus”) testified regarding the impact of
Mother’s actions on R.H.’s well-being. Specifically, Pawlus testified that while
R.H. lived with Mother, he saw sexual activity, criminal activity, drug use, and
domestic violence. During that time, Mother had failed to provide sufficient
supervision and stability to R.H. because of her drug use. R.H. was cruel to
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animals, damaged property, set fires, and was suspended from school for
fighting and disrupting classes. He also threatened harm to himself and others.
[10] R.H.’s therapist, Christina Harmon (“Harmon”), diagnosed him with
oppositional defiant disorder, post-traumatic stress disorder, and attention
deficit hyperactive disorder. Harmon testified that the primary focus for R.H.
was to find stability for him as quickly as possible. According to Harmon,
R.H.’s placement in an unstable environment would only result in R.H.’s
continued anger and aggression towards others. With weekly therapy and a
structured foster home, R.H. became less angry and aggressive.
[11] At the time of their placement, C.H. and M.H. had unmet medical needs,
developmental delays, and behavioral issues. However, at the time of the
termination hearing, M.H. had spoken and allowed others to hold her. C.H.
had improved his ability to speak so that others were able to understand him,
and he had developed a large vocabulary. Moore testified that they were
“different child[ren],” (Tr. 226, 227), and attributed these positive changes to
the stability of their foster home.
[12] Mother also testified at the February hearing. She explained that she had left
the IOP program in April 2014 because she was upset with the facilitator and
that she had used marijuana since that time. She admitted that her longest
period of employment had lasted only three months, and that she was not
currently employed. She did not have stable housing because the house where
she lived did not have running water. She also admitted that she had not visited
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with all three children since October 2014 and that it was difficult to manage all
three children at the same time.
[13] One month later, at the March 9 hearing, Mother testified that she had
completed the Moving Up program and had a job interview scheduled. She also
testified that she had community resources, including AA and NA meetings
and an addictions counselor that she had been seeing for three months. She
further testified that she had a social support system, which included a friend
that she met when she worked at a hotel for four days. In addition, Mother
testified that she would be willing to enter an IOP program.
[14] Following the hearing, the trial court issued a detailed twelve-page order
terminating Mother’s parental rights.2 Mother appeals.
Decision
[15] Mother argues that there is insufficient evidence to support 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. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,
the law provides for termination of that right when parents are unwilling or
unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147
(Ind. 2005). The purpose of terminating parental rights is not to punish the
2
The trial court also terminated Father’s parental rights. Father has not filed an appellate brief in this case.
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parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[16] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-1230.
[17] 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
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(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 the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E .2d at 1231.
[18] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that: (1) the
conditions that resulted in her children’s removal or the reasons for placement
outside the parent’s home will not be remedied; and (2) a continuation of the
parent-child relationship poses a threat to her children’s well-being.
[19] At the outset, we note that INDIANA CODE section 31-35-2-4(b)(2)(B) is written
in the disjunctive. Therefore, DCS is required to establish by clear and
convincing evidence only one of the three requirements of subsection (B). We
therefore discuss only whether there is a reasonable probability that the
conditions that resulted in the children’s removal or the reasons for their
placement outside the parent’s home will not be remedied.
[20] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
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evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id.[21] Here, Mother argues that “given the improvements [she] made over the course
of her CHINS case with regard to substance abuse, and given the insight she
displayed regarding her addiction at the March 9, 2015 hearing, DCS did not
meet its burden of clearly and convincingly proving that the conditions that
resulted in the children’s removal would not be remedied.” (Mother’s Br. 15).
However, our review of the evidence reveals that at the time of the February 6,
2015 hearing, Mother had failed to complete two IOP programs, and her most
recent IOP counselor testified that Mother’s ability to stay drug-free was at risk.
In addition, Mother’s counselor was concerned about Mother’s ability to
properly parent her children, and Mother’s home-based care service worker did
not believe Mother had the ability to accomplish the goal of stability in the
foreseeable future. The DCS case worker and the CASA both recommended
termination of Mother’s parental rights because she had not met any of her
goals and her parenting skills were not to the level of adequately caring for her
three children, whose behavioral issues were improving because of the stability
of their foster homes. Even Mother admitted that: she (1) had never been
employed for longer than three months; (2) lacked stable housing because she
had no running water; and (3) found it difficult to manage all three children at
the same time.
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Mother, however, points to testimony from the second hearing. At that
hearing, Mother testified that she: (1) had completed one program; (2) had a
job interview scheduled; (3) was seeing an addictions counselor; (4) had a social
support system, which included a friend that she met when she worked at a
hotel for four days; and (5) would be willing to enter a third IOP program.
Mother’s reliance on this testimony is misplaced. Trial courts have discretion
to weigh a parent’s prior history more heavily than efforts made only shortly
before termination, and courts may find that a parent’s past behavior is the best
predictor of his or her future behavior. E.M., 4 N.E.3d at 643. DCS therefore
need not rule out all possibilities of change. In re Kay L., 867 N.E.2d 236, 242
(Ind. Ct. App. 2007). Rather, DCS need establish only that there is a
reasonable probability that the parent’s behavior will not change. Id. The trial
court’s conclusion that DCS met this burden is not clearly erroneous.
Affirmed.
Kirsch, J., and Riley, J., concur.
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