In the Matter of the Termination of Parent-Child Relationship of: C.S. (Minor Child) and K.S. (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
regarded as precedent or cited before any May 09 2019, 8:44 am
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
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Attorney General of Indiana
Christopher G. Walter, P.C.
Benjamin Shoptaw
Nappanee, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination May 9, 2019
of Parent-Child Relationship of: Court of Appeals Case No.
18A-JT-2967
C.S. (Minor Child)
Appeal from the Starke Circuit
and Court
K.S. (Mother), The Honorable Kim Hall, Judge
Appellant-Respondent, Trial Court Cause No.
75C01-1802-JT-1
v.
The Indiana Department of
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] K.S. (Mother) appeals the order terminating her parent-child relationship with
C.S. (Child). Mother argues that the evidence is insufficient. Finding the
evidence sufficient, we affirm.
Facts
[2] Child was born in November 2015. On August 25, 2016, Mother and Child’s
father1 were arrested in Starke County on drug charges;2 on that same day,
Mother submitted to a drug screen that returned positive for opiates. The
Department of Child Services (DCS) removed Child and placed him in foster
care.3
[3] On August 26, 2016, DCS filed a petition alleging that Child was a Child in
Need of Services (CHINS). On October 26, 2016, Mother admitted to the
allegations in the CHINS petition, including substance abuse and her inability
to care for Child, and the juvenile court found Child to be a CHINS. At the
December 13, 2016, dispositional hearing, the juvenile court ordered Mother to
participate with certain services, including completing a substance abuse
assessment and complying with any recommendations; submitting to random
1
Father is not involved in this appeal.
2
Specifically, Mother was charged with Level 5 felony dealing in methamphetamine, Level 6 felony neglect
of a dependent, Level 6 felony possession of precursors, Level 6 felony possession of a narcotic drug, and
Level 6 felony maintaining a common nuisance.
3
Two days later, Child was placed in relative care and has remained in that placement since that time.
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drug screens; completing a parenting assessment and complying with any
recommendations; and attending all scheduled visits with Child.
Mother’s Criminal Conduct
[4] On September 2, 2016, Mother was released from incarceration in Starke
County so that she could participate with substance abuse treatment at Life
Treatment Center. On October 11, 2016, a bench warrant was issued after
Mother admitted to heroin use, absconded from drug treatment, and did not
report back to the Starke County Justice Center. Four days later, she was
arrested in Porter County and charged with Level 6 felony possession or control
of a hypodermic needle. She remained incarcerated in Porter County and
pleaded guilty on January 6, 2017. While incarcerated in Porter County, she
completed an intensive outpatient drug treatment program. On March 3, 2017,
she was sentenced to time served and was transported from Porter County to
Starke County, where the charges were still pending from the August 2016
arrest.
[5] On May 19, 2017, Mother was released on her own recognizance on home
detention. She was arrested on July 28, 2017, for violating the terms of her
pretrial release after she missed two drug screens and tested positive for
suboxone with no valid prescription. On November 16, 2017, Mother pleaded
guilty to dealing in methamphetamine, neglect of a dependent, and possession
of a narcotic drug. After sentencing, her earliest possible release date from the
Department of Correction (DOC) is June 1, 2020.
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Mother’s Drug Use
[6] On August 25, 2016, Mother tested positive for opiates at the time of her Starke
County arrest. She was released on her own recognizance so that she could
enter drug treatment; after only three clean drug screens, she spent a weekend
away from the facility and upon returning, admitted to using heroin. She
refused to enter detox services and left the facility. A few days later, she was
arrested in Porter County on a new drug charge.
[7] Mother was released on her own recognizance from incarceration in Starke
County on May 19, 2017. She participated and provided clean drug screens
until she tested positive for THC on July 27, 2017. The next day, she was
placed back in Starke County Jail because she had failed to report for two drug
screens with community corrections and had tested positive for suboxone on
July 24, 2017. Mother is currently incarcerated in the DOC. On March 27,
2018, she was cited for use/possession of tobacco; and on March 28, 2018, she
was cited for use/possession of a controlled substance.
Mother’s Participation with Services and Visits
[8] Mother has been incarcerated for much of the underlying CHINS case. Her
only significant period of non-incarceration occurred between May 19, 2017,
and July 28, 2017. During that time, she attended only six intensive outpatient
sessions and cancelled four others. Moreover, while incarcerated, she has not
taken advantage of programs offered by the DOC.
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[9] Mother has also failed to consistently visit Child or take advantage of all
opportunities to maintain contact. Her first visit with Child was in June 2017,
and because it had been ten months since Mother and Child had had contact,
Child did not remember Mother and Mother became upset. Mother was
authorized to have phone calls, video calls, and supervised home visits, but
Mother did not take advantage of these opportunities because she was
uncomfortable that Child did not remember her. She frequently failed to attend
visits, cancelled visits, and ended visits early. She had five visits with Child in
June 2017 and five visits with Child in July 2017. During the visits, the
supervisor needed to prompt Mother to meet Child’s needs and had to step in to
assist for safety reasons on more than one occasion. The supervisor reported
that Mother tried to parent Child but did not know what to do or how to act.
Mother was arrested again in July 2017 and has had no form of contact with
Child since that time. Mother has made no attempt to maintain a relationship
with Child while incarcerated.
Termination Proceedings
[10] On March 6, 2018, DCS filed a petition to terminate the parent-child
relationship. The factfinding hearing occurred on June 20, 2018. At the
hearing, evidence was provided that there is no evidence of a bond between
Mother and Child. Child views his relative caregivers as his mother and father
and views their biological children as his siblings. The home is stable, loving,
and preadoptive, and Child is thriving. The Family Case Manager testified that
in her opinion, termination is in Child’s best interests. On November 14, 2018,
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the juvenile court issued an order terminating the parent-child relationship.
Mother now appeals.
Discussion and Decision
I. Standard of Review
[11] Our standard of review with respect to termination of parental rights
proceedings is well established. In considering whether termination was
appropriate, we neither reweigh the evidence nor assess witness credibility.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will
consider only the evidence and reasonable inferences that may be drawn
therefrom in support of the judgment, giving due regard to the trial court’s
opportunity to judge witness credibility firsthand. Id. Where, as here, the trial
court entered findings of fact and conclusions of law, we will not set aside the
findings or judgment unless clearly erroneous. Id. In making that
determination, we must consider whether the evidence clearly and convincingly
supports the findings, and the findings clearly and convincingly support the
judgment. Id. at 1229-30. 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.” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
[12] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate
parental rights for a CHINS must make the following allegations:
(A) that one (1) of the following is true:
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(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a
description of the court’s finding, the date of the
finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and
has been under the supervision of a local office or
probation department 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 child in need of services or a delinquent child;
(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.
DCS must prove the alleged circumstances by clear and convincing evidence.
K.T.K., 989 N.E.2d at 1230.
II. Sufficiency
A. Remedy of Conditions Resulting in Removal
[13] Mother first argues that there is not clear and convincing evidence that there is
a reasonable probability that the conditions resulting in Child’s removal will not
be remedied. The reasons that Child was initially removed from Mother’s care
and custody were Mother’s substance abuse and incarceration.
[14] Throughout the underlying CHINS case, Mother had periods of sobriety
(usually while incarcerated) followed by drug use. She has tested positive for
opiates, THC, and suboxone during these proceedings and has also admitted to
heroin use and pleaded guilty to possession of a hypodermic needle. Except for
her completion of an intensive outpatient program while incarcerated in Porter
County, she has failed to complete or participate consistently with substance
abuse treatment despite multiple opportunities to do so.
[15] Mother has also been incarcerated throughout much of the underlying CHINS
case and is now sentenced to the DOC, with an earliest possible release date of
June 2020. She has had multiple chances to reform her behavior while released
from incarceration, but each time she was re-arrested after violating the terms of
her release. In fact, even while incarcerated with the DOC, she has been cited
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more than once for use or possession of a substance she was not allowed to
have.
[16] Mother argues that her inconsistent participation with services and her multiple
clean screens suffice to show that there is a likelihood that the conditions
resulting in removal will be remedied. We cannot agree. Inconsistent
participation and multiple clean screens are not enough when they are
interspersed with drug use and incarceration. The simple fact is that Child was
removed because of Mother’s drug use and incarceration, and at the time of the
termination hearing, Mother was incarcerated with the DOC for drug charges
and, when last released on her own recognizance, had tested positive for THC
and suboxone. Under these circumstances, we find that the juvenile court did
not err by finding that DCS established by clear and convincing evidence that
the conditions resulting in Child’s removal are not likely to be remedied. 4
B. Best Interests
[17] Mother also argues that there is insufficient evidence supporting the juvenile
court’s conclusion that termination of the parent-child relationship is in Child’s
best interests. A parent’s “historical inability to provide a suitable environment
along with the parent’s current inability to do the same supports a finding that
4
Mother also argues that there is insufficient evidence supporting the juvenile court’s conclusion that
continuation of the parent-child relationship poses a threat to Child. As these statutory elements are phrased
in the disjunctive and we have found that sufficient evidence supports the element related to remedy of the
conditions resulting in Child’s removal, we need not and will not address this issue.
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termination of parental rights is in the best interests of the child[].” Lang v.
Starke Cty. Office of Family and Children, 861 N.E.2d 366, 373 (Ind. Ct. App.
2007).
[18] As noted above, throughout the underlying CHINS case, Mother has been
unable to maintain sobriety or to remain free from incarceration. She has also
failed to take advantage of all opportunities to maintain a relationship with
Child, both while incarcerated and while on pretrial release. Although
authorized to have phone calls, video calls, and home visits while on release,
Mother did not take advantage of these chances to build and maintain a
relationship. Mother and Child had no contact for the first ten months of the
CHINS case, and at the time of the termination hearing, Mother and Child had
had no contact for eight months. There is no bond between Mother and Child,
who views his relative care placement as his family. He is thriving in this
placement, which is preadoptive. Under these circumstances, we find sufficient
evidence supporting the juvenile court’s conclusion that termination is in
Child’s best interests.
[19] The judgment of the juvenile court is affirmed.
Najam, J., and Robb, J., concur.
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