In the Matter of the Termination of the Parent-Child Relationship of A.B., Mother, and H.M., Father, and J.B., K.B., and E.B., Children v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 12 2019, 8:02 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 APPELLANTS ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 12, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of A.B., Mother, and H.M, 18A-JT-2374
Father, and J.B., K.B., and E.B., Appeal from the
Children: Elkhart Circuit Court
A.B. and H.M., The Honorable
Michael A. Christofeno, Judge
Appellants-Respondents, The Honorable
Deborah Domine, Magistrate
v.
Trial Court Cause Nos.
20C01-1803-JT-23
Indiana Department of Child 20C01-1803-JT-24
Services, 20C01-1803-JT-25
Appellee-Petitioner.
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Kirsch, Judge.
[1] A.B. (“Mother”) and H.M. (“Father”) (together, “Parents”) appeal the juvenile
court’s order terminating their parental rights to their children J.B., K.B., and
E.B. (collectively, “the Children”). Parents contend that the juvenile court’s
judgment was not supported by clear and convincing evidence that termination
was in the best interests of the Children.
[2] We affirm.
Facts and Procedural History
[3] On October 6, 2016, Department of Child Services (“DCS”) received a report
that the Children were victims of neglect and were “often left unattended and
unsupervised.” Tr. Vol. I at 8. The source of the report also noted that Mother
and her boyfriend were “on meth real bad.” Id. At this time, Father was
incarcerated in the Elkhart County Correctional Facility. Id. at 9. Mother and
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her boyfriend submitted to drug screens, and both tested positive for THC,
methamphetamine, and amphetamines. Id. at 10. In November 2016, the
Children were tested. E.B.1 and J.B., who were five and nine years old
respectively, tested positive for methamphetamine and amphetamine. K.B.,
seven years old, tested negative. Id. at 11. On November 17, 2016, a hearing
was held, and the Parents admitted that the children were in need of services.
Id. at 15-26.
[4] On December 13, 2016, dispositional orders were entered. Tr. Vol. II at 97.
Mother was ordered to participate in home-based case management. The
Parents were ordered to participate in supervised visitation, to complete drug
screens, to complete Substance Abuse and Parenting Assessments, and to
participate in therapy services. Id. at 98-99.
[5] On April 18, 2017, DCS family case manager Theresa Dills (“FCM Dills”)
testified that due to her continued drug use Mother was not in compliance with
the case plan. Ex. Vol. I at 90. She stated that Mother failed to show up for her
random drug screens. Tr. Vol. I at 83. When Mother did submit to a random
drug screen on the day of the hearing, she tested positive for methamphetamine
and amphetamine. Id. Five days later, Mother was re-tested and again tested
positive for methamphetamine, amphetamine, and oxycodone. Id. FCM Dills
also testified that Father had not completed any of the dispositional orders and
1
E.B. was originally thought to be the child of Mother’s boyfriend, B.D. However, on April 24, 2017, it was
determined that H.M. was the father of E.B.
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continued to be incarcerated with a projected release of December 2020. Id. at
84. At the time of the hearing, the projected date for the completion of the
permanency plan was June 13, 2017. Id.
[6] FCM Dills submitted a report covering April 2017 to August 23, 2017 noting
that Mother had shown signs of improvement: her drug screens were testing
negative; she had progressed to unsupervised visits with the Children; and she
had obtained employment. Ex. Vol. I at 97. At that time, the permanency plan
was still reunification. Id. at 103.
[7] In January 2018, DCS reported that Mother had not been compliant with
services for the preceding four months. Id. at 123. Mother had failed to make
any appointments with her individual therapist and tested positive for
methamphetamines in October and December 2017. Id. DCS ordered that
Mother’s visits would again be fully supervised. Lifeline Youth and Family
Services, which provided home-based services, had to contact Mother four
times before Mother responded. Id. at 124. The foster home where the
Children were living reported that after many of these visits, E.B. or K.B. would
come home crying because of something Mother had said to them. Id. At this
time, the permanency plan was modified to be reunification concurrent with
adoption. Id.
• Father was convicted of dealing in methamphetamine in 2012 and sentenced to
twelve years in the Department of Correction (“DOC”) with six years suspended.
Ex. Vol. II at 243, 247. After being released, Father violated the terms of his
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probation in 2016 and pleaded guilty to new charges of possession of
methamphetamine and operating a vehicle with a controlled substance. Tr. Vol. III
at 12. Father was sentenced to serve his remaining six years in DOC. Id. at 250;
Tr. Vol. III at 6. At a hearing in February 2018, the juvenile court noted that
Mother had failed to keep appointments with her therapist and had tested positive
for methamphetamine in December 2017. Ex. Vol. I at 137, 166. A petition for the
involuntary termination of parental rights was filed on March 28, 2018. App. Vol.
IV at 59. In April 2018, DCS reported that Mother tested positive again for
methamphetamine and amphetamine on the same day as the initial hearing for
termination of parental rights. Ex. Vol. I at 166
[8] An evidentiary hearing on the Petition for Termination of Parental Rights was
held on August 31, 2018. During the hearing, FCM Dills testified to Mother’s
drug use, stating that out of fifty-eight drug screens, forty-five were positive. Id.
at 109. FCM Dills further testified that Mother had not established permanent
housing as ordered in the dispositional decree, had not met with her service
providers, and did not attend most child and family team meetings. Id. at 111-
112. FCM Dills testified that she was also concerned about Father’s role in
the Children’s lives. Father was convicted of methamphetamine dealing and
possession and has been in prison for significant portions of the Children’s lives.
[9] Mother and Father’s parental rights were terminated. Parents now appeal.
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Discussion and Decision
[10] Our Indiana Supreme Court has aptly observed that “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 (Ind. 2014). While the Fourteenth Amendment to the United States
Constitution protects the traditional right of a parent to establish a home and
raise her child, and thus 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 her 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. Parental rights are not absolute and
must be subordinated to the child’s interests in determining the appropriate
disposition of a petition to terminate the parent-child relationship. In re T.F.,
743 N.E.2d at 773. Termination of parental rights is proper where the child’s
emotional and physical development is threatened. Id. The juvenile court need
not wait until the child is irreversibly harmed such that his physical, mental,
and social development is permanently impaired before terminating the parent-
child relationship. Id.
[11] When reviewing a termination of parental rights case, we will not reweigh the
evidence or judge the credibility of the witnesses. In re H.L., 915 N.E.2d 145,
149 (Ind. Ct. App. 2009). Instead, we consider only the evidence and the
reasonable inferences that are most favorable to the judgment. Id. In deference
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to the trial court’s unique position to assess the evidence, we will set aside the
court’s judgment terminating a parent-child relationship only if it is clearly
erroneous. Id. at 148-149. A judgment is clearly erroneous only if the legal
conclusions made by the juvenile court are not supported by its findings of fact,
or the conclusions do not support the judgment. In re S.P.H., 806 N.E.2d 874,
879 (Ind. Ct. App. 2004).
[12] When the juvenile court has entered specific findings and conclusions, we apply
a two-tiered standard of review.. In re B.J., 879 N.E.2d 7, 14 (Ind. Ct. App.
2008), trans. denied. We first determine whether the findings support the
judgment. Id. A finding is clearly erroneous when the record contains no facts
or inferences drawn therefrom that support it. Id. If the evidence and
inferences support the trial court’s decision, we must affirm. A.D.S. v. Ind. Dep’t
of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied.
[13] Before an involuntary termination of parental rights may occur, the State is
required to allege and prove, among other things:
(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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(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.
Ind. Code § 31-35-2-4(b)(2). The State’s burden of proof for establishing these
allegations in termination cases “is one of ‘clear and convincing evidence.’” In
re H.L., 915 N.E.2d at 149. Moreover, if the juvenile court finds that the
allegations in a petition described in section 4 of this chapter are true, the court
shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
[14] Parents argue that the juvenile court erred in terminating their parental rights
because the evidence presented was not sufficient to prove that termination of
their parental rights was in the best interests of the Children. Appellant’s Br. at 9.
Specifically, they point to the testimony of the Children’s therapist who said
that K.B. struggles with the possibility of not seeing her parents again and that
parent contact with the Children would not be a problem if the Parents
complied with the court’s orders. Id. at 11. Mother argues that that she
successfully completed a sobriety program, was willing to go back to services,
and did not feel like the Children did not want to come home. Id. Father
contends that he has a relapse plan, maintained contact with the Children, and
was receiving job training for release from incarceration (currently pending for
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2020). Id. Both parents argue that these facts support the conclusion that
termination of parental rights was not in the best interests of the Children. Id.
[15] In determining what is in the best interests of the child, a trial court is required
to look at the totality of the evidence. In re A.K., 924 N.E.2d 212, 224 (Ind. Ct.
App. 2010) (citing In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App 2004), trans.
denied), trans. dismissed. In doing so, the trial court must subordinate the
interests of the parents to those of the child involved. Id. Termination of a
parent-child relationship is proper where the child’s emotional and physical
development is threatened. Id. (citing In re R.S., 774 N.E.2d 927, 930 (Ind. Ct.
App. 2002), trans. denied). A parent’s historical inability to provide a suitable,
stable home environment along with the parent’s current inability to do so
supports a finding that termination is in the best interests of the child. In re A.P.
981 N.E.2d 75, 82 (Ind. Ct. App. 2012). Testimony of the service providers, in
addition to evidence that the conditions resulting in removal will not be
remedied, are sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind.
Ct. App. 2014), trans. denied.
[16] A juvenile court need not wait until a child is irreversibly harmed such that his
or her physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. In re A.K., 922 N.E.2d at 224.
Additionally, a child’s need for permanency is an important consideration in
determining the best interests of a child. Id. (citing McBride v. Monroe Cty. Office
of Family and Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)). At the
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termination hearing, the Children’s therapist testified that the Children need
stability. Tr. Vol. II. at 182-82. She further testified that not terminating the
parental rights would keep the Children in limbo and could potentially
compromise their sense of permanency. Id. at 187-88. Therefore, termination
of the parental rights would be in support of the child’s need for permanency,
and, thus, in the Children’s best interests.
[17] Mother argues that she had completed a sobriety program. While this
achievement is notable, Mother did not seek aftercare as recommended to her
by her FCM Dills. Tr. Vol. II. at 211. Mother also admits to relapsing two to
three times after she completed her program. Id. at 207. She noted that she felt
a lot of pressure and stress and that the kids were “a lot to handle.” Id. at 201.
Mother states that she was willing to go back to services that DCS offered;
however, when offered appointments with the DCS therapist prior to
termination, Mother missed nine scheduled visits. Id. at 157-58. Mother
appeared at one of her other service appointments under the influence. Id. at
138. Further, the CASA testified that she believed Mother had not benefitted
from the few service appointments Mother attended because Mother was back
to using the same drugs that caused the Children to be removed. Id. at 149.
Lastly, Mother argues that she did not feel like the Children did not want to
come home. However, the CASA and the FCM Dills both testified that the
Children have said that they do not wish to be reunified and have “begged” to
not be returned to their parents. Id. at 118, 144. Based on the totality of the
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circumstances, it is clear that termination of Mother’s parental rights was in the
best interests of the Children.
[18] Father separately argues that he had a relapse plan and that he is on a wait list
to enter a substance abuse treatment program. Tr. Vol. I at 225. However,
Father was incarcerated on drug-related charges at the time of the termination
hearing with an expected release date of December 2020. He also admitted
being charged with additional drug-related charges after DCS had removed the
Children. Id. at 235. Father further testified at the termination hearing that he
has not received any addiction treatment. Id. at 229, 236. Father contends that
he has maintained contact with the Children while incarcerated. Although
Father has spoken with the Children through phone calls, he has not physically
visited with the Children since he was incarcerated in 2012. Although Father
has been in contact with the Children, his presence in their lives is very limited.
As previously stated, the Children do not wish to be reunified with their Father.
So, termination of Father’s parental rights was in the best interests of the
Children.
[19] Based on the totality of the circumstances, we conclude that the evidence
supported the juvenile court’s determination that termination of Mother’s
parental rights was in the Children’s best interests. Based on the record before
us, it was not clearly erroneous for the juvenile court to determine that the
Parents’ parental rights be terminated.
[20] Affirmed.
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Vaidik, C.J., and Altice, J., concur.
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