In the Matter of the Termination of the Parent-Child Relationship of J.E.J.P. (Minor Child) and A.W. (Mother) & J.P. (Father) v. The 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 Dec 03 2019, 8:56 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 APPELLANTS ATTORNEYS FOR APPELLEE
Justin R. Wall Curtis T. Hill, Jr.
Wall Legal Services Attorney General of Indiana
Huntington, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 3, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of J.E.J.P. (Minor Child) and 19A-JT-1470
A.W. (Mother) & J.P. (Father); Appeal from the Wabash Circuit
A.W. (Mother) & J.P. (Father), Court
The Honorable Robert R.
Appellant-Respondents,
McCallen, III, Judge
v. Trial Court Cause No.
85C01-1811-JT-16
The Indiana Department of
Child Services,
Appellee-Petitioner
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May, Judge.
[1] A.W. (“Mother”) and J.P. (“Father”) (collectively, “Parents”) appeal the
involuntary termination of their parental rights to J.E.J.P. (“Child”). Parents
argue the trial court’s findings do not support its conclusions that the conditions
under which Child was removed from Mother’s care would not be remedied,
that the continuation of the parent-child relationship posed a threat to Child’s
well-being, and that termination of Parents’ rights to Child was in Child’s best
interests. Mother 1 also challenges the trial court’s conclusion that there was a
satisfactory plan for Child’s care following termination. We affirm.
Facts and Procedural History
[2] Mother and Father are parents of Child, born March 30, 2004. Parents were
not married, though paternity had been established and custody awarded to
Mother in a previous legal proceeding. On November 25, 2016, Mother and
her then-boyfriend, T.W., took Child to the Lighthouse Mission so that Father
could sell heroin to T.W. T.W. and Father began to argue about the quality of
the heroin, and T.W. stabbed Father. Child, who was fourteen years old at the
time, was present during the incident. Father was taken to the hospital, and
officers arrested Mother and T.W. Child was removed from Mother’s care.
1
The trial court’s order found: “[Father] supports the DCS’ current plan for adoption. He fully realizes the
implications for him.” (App. Vol. II at 49 n.12.) Father does not challenge that finding on appeal and,
accordingly, does not challenge the court’s conclusion as to the plan for Child’s care being satisfactory.
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[3] On November 29, 2016, the Department of Child Services (“DCS”) filed a
petition alleging Child 2 was a Child in Need of Services (“CHINS”) based on
Parents’ drug use and the incident on November 25. On December 30, 2016,
Mother admitted Child was a CHINS. On January 13, 2017, the trial court
held a dispositional hearing and entered its dispositional decree as to Mother on
January 19, 2017. As part of the dispositional decree, Mother was required to
refrain from drug use and disallow drug use in Child’s presence; participate in a
mental health assessment, a substance abuse evaluation, and a parenting
assessment; submit to random and scheduled drug screens; complete an
assessment for family drug court; participate in counseling services; and attend
supervised visits with Child.
[4] On January 24, 2017, Father appeared for a CHINS fact finding hearing and
admitted Child was a CHINS. Based on Parents’ admissions, the trial court
adjudicated Child a CHINS. On February 3, 2017, the trial court held a
dispositional hearing and issued a dispositional decree ordering Father to
refrain from drug use; participate in a mental health assessment and substance
abuse evaluation; submit to random and scheduled drug screens; participate in
counseling services; and attend supervised visits with Child.
2
Mother’s other two children, J.D. and T.H., were also subject to CHINS proceedings but are not a part of
this termination proceeding. During the proceedings herein, J.D. and T.H. were returned to Mother’s care
but it is unclear under what circumstances they were reunified with Mother.
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[5] On March 18, 2017, Mother married T.W., who had stabbed Father in the
altercation that prompted DCS intervention. On May 19, 2017, the trial court
held a review hearing. DCS presented evidence Mother completed her mental
health and substance abuse assessments, but she had not engaged in the services
recommended by those assessments. Mother had participated in supervised
visitation with Child, but she had missed several drug screens. At some point
after the dispositional hearing in February 2017, Father was incarcerated 3 and
did not participate in services.
[6] On November 3, 2017, the trial court held a review hearing. Mother was
engaged in family therapy and supervised visitation with Child. Mother had
submitted drug screens for a portion of the reporting period, she stopped doing
so in September and the first half of October 2017, and she reengaged with drug
screens just prior to the review hearing. Mother attended twelve individual
therapy sessions but cancelled or failed to attend twenty therapy sessions.
[7] On April 13, 2018, the trial court held a review hearing. Mother did not attend
and had stopped participating in services because “she didn’t believe services
were necessary.” (Tr. Vol. II at 133.) Mother had “gone months” without
visiting with Child. (Id.) At some point between the review hearing in
November and the review hearing in April, Father was released from
incarceration but chose not to engage in services.
3
The reason for Father’s incarceration is unclear from the record.
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[8] On November 2, 2018, the trial court held a review hearing. In July 2018,
Mother was arrested for dealing in a narcotic, dealing in a controlled substance,
and trafficking with an inmate, who was alleged to be T.W. Mother pled guilty
to dealing in a narcotic and was sentenced to four years of probation. From
February to October 2018, Mother refused to engage in services, but shortly
before the November 2 hearing, Mother contacted DCS and expressed an
interest in reengaging with services. Father was arrested in June 2018, was
incarcerated, and had not engaged in services.
[9] On November 8, 2018, DCS filed its petition for involuntary termination of
parental rights. DCS attempted to engage Mother in services, but she was
uncooperative. On May 22, 2019, the trial court held a fact-finding hearing on
DCS’s termination petition. Mother and Father both attended. In response to
DCS’s repeated concerns regarding Mother’s relationship with T.W., Mother
testified that she had divorced T.W., but she could not recall the county in
which her dissolution decree was issued. The trial court ordered Mother to
submit her dissolution decree within ten days of the termination hearing; she
did not do so, and the trial court noted its disbelief that such a decree existed.
On June 6, 2019, the trial court issued its order terminating Parents’ rights to
Child.
Discussion and Decision
[10] We review termination of parental rights with great deference. In re K.S., 750
N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
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credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. 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).
[11] “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 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 parental
responsibilities. Id. at 836.
[12] 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.
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(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.
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.
[13] When, as here, a judgment contains specific findings of fact and conclusions
thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine whether the
evidence supports the findings and 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.
[14] Parents do not challenge the trial court’s findings, and thus we accept them as
true. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem
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does not challenge the findings of the trial court, they must be accepted as
correct.”). Parents challenge the trial court’s conclusions that the conditions
under which Child was removed were not likely to be remedied, that
continuation of the parent-child relationship posed a threat to Child’s well-
being, and that termination is in Child’s best interests. Mother alone challenges
the trial court’s conclusion that a satisfactory plan existed for Child after
termination.
Reasonable Probability Conditions Would Not Be Remedied
[15] The trial court must judge a parent’s fitness to care for her child 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 conditions will not change. Lang v. Starke
Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied. Child was
removed from Parents’ care due to their drug use and Child’s exposure to
criminal activity, including Mother’s then-boyfriend and subsequent husband
stabbing Father in a failed drug deal.
[16] Regarding the reasonable probability the conditions under which Child was
removed from Parents’ care would not be remedied, the trial court found that
Father was incarcerated for a majority of the proceedings and never engaged in
services; that Mother engaged in services, but was sporadically compliant; and
that both parents were still involved in drug use. The trial court found:
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“[Mother] has been dishonest throughout these proceedings. She has no
credibility and cannot be believed or trusted.” (App. Vol. II at 46.)
[17] Mother argues she has demonstrated the conditions under which Child was
removed had been remedied because her two younger children had been
returned to her care. While the record of the proceedings confirms Mother’s
two younger children were returned to her care, the record is unclear about the
circumstances of that reunification. DCS presented evidence that Mother was
not compliant with services as they were ordered in the CHINS adjudication of
Child. The trial court found in its order that “[Mother’s] recollection of events
is not very good, unless they are of benefit to her.” (Id. at 48.) Mother’s
argument is an invitation for us to reweigh the evidence or judge the credibility
of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court does not reweigh evidence or judge the credibility of witnesses).
[18] Mother also contends DCS did not provide her adequate services and visitation
to facilitate reunification with Child. A challenge to the services offered during
the CHINS proceedings cannot be used to overturn the termination of parental
rights. See In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009) (“failure to
provide services does not serve as a basis on which to directly attack a
termination order as contrary to law”). Additionally, DCS presented evidence
it provided Mother with multiple referrals to substance abuse treatment and
individual therapy, but Mother inconsistently participated. DCS reengaged
with Mother twice after she stopped participating in services, and DCS offered
her opportunities to comply with drug screening requirements even after
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Mother moved to another county. The trial court noted in its order that
Mother’s “expressed desire to re-engage in services was half-hearted.” (App.
Vol. II at 48.)
[19] Father argues his incarceration has made it difficult to participate in services
and, if given a chance, he would be interested in resuming services upon his
release from incarceration. However, as the trial court noted, Father was
released from incarceration for a period during the CHINS proceeding and did
not take affirmative steps to engage in services during that time. Father’s
argument is an invitation for us to reweigh the evidence or judge the credibility
of witnesses, which we cannot do. See In re D.D., 804 N.E.2d at 265 (appellate
court does not reweigh evidence or judge the credibility of witnesses).
[20] Despite any progress Mother made in regard to her other children, she has not
been compliant with services as ordered in the dispositional order regarding
Child. She is also unable to attack the termination of her parental rights by
claiming DCS failed to provide her services. Father did not engage in services
when he was able. Based thereon, the evidence before the court supported the
court’s unchallenged findings, which support the court’s conclusion the
circumstances would not be remedied.4 See In re K.T.K., 989 N.E.2d 1225,1234
4
Because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, we need decide only if the
evidence and findings support the trial court’s conclusion as to one of these two requirements. See In re L.S.,
717 N.E.2d at 209 (because statute written in disjunctive, court needs find only one requirement to terminate
parental rights). Because the trial court’s findings supported its conclusion that the conditions under which
Child was removed from Parents’ care would be not be remedied, we need not consider Parents’ argument
regarding whether the continuation of the Parent-Child relationship poses a risk to Child’s well-being.
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(Ind. 2013) (mother’s recent sobriety outweighed by her history of substance
abuse and neglect of her children).
Child’s Best Interests
[21] In determining what is in Child’s best interests, a trial 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 Child’s best interests. In re J.S., 906
N.E.2d 226, 236 (Ind. Ct. App. 2009).
[22] Regarding Child’s best interests, the trial court found that while Mother was
awarded custody of Child as part of a paternity proceeding, she “acknowledged,
due to her long time use of heroin, that [Child] was essentially in the care and
custody of his paternal grandparents[.]” (App. Vol. II at 44.) Child was present
at the altercation between Father and T.W., and it was undisputed that Child
“was traumatized by the events he witnessed[.]” (Id. at 45.) While Mother
purported to love Child, the trial court found her “relationship with [T.W.] is
much more important than her relationship with [Child]” based on the fact that
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she lied about being divorced from T.W., has a child with T.W., and continues
to have a relationship with T.W. despite the harm Child suffered because of
T.W.’s stabbing of Father. (Id. at 47.) Finally, the trial court found: “[Child] is
doing well in his current placement. He is active in sports and making good
grades. He is adamant that he does not want to return to [Mother].” (Id. at 48.)
[23] Mother argues that despite her non-compliance with services, she has the
“means to provide adequate drug-free housing, stability, safety and supervision
for Child” just as she has done for her two younger children that were placed
back in her care. (Br. of Appellants at 27.) However, in addition to the trial
court’s findings regarding Child’s best interests, the family case manager
testified termination was in Child’s best interests because
[Child] deserves permanency. He deserves to not be concerned
about needing leave the home he’s comfortable in. He, um, he
deserves a home that’s going to be free of drug use, um, where he
doesn’t have to be concerned about, um, his parents being
incarcerated, um, and where he’s going to go, um, if that were to
happen.
(Tr. Vol. II at 106.) Mother’s argument is an invitation for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See In re
D.D., 804 N.E.2d at 265 (appellate court does not reweigh evidence or judge the
credibility of witnesses). 5 Based on the trial court’s findings regarding Child’s
5
Father does not make an argument regarding this element of termination of parental rights, except to say he
does not think termination of his parental rights is in Child’s best interests.
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best interests, the family case manager’s testimony, and our holding supra that
the trial court’s findings supported its conclusion that there was a reasonable
possibility the conditions under which Child was removed would not be
remedied, we conclude the trial court’s findings support its conclusion that
termination of Parents’ rights was in Child’s best interests. See In re A.I., 825
N.E.2d 798, 811 (Ind. Ct. App. 2005) (termination in child’s best interests based
on totality of the evidence, including parents’ substance abuse and non-
compliance with ordered services), trans. denied.
Satisfactory Plan
[24] Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be
terminated unless DCS provides sufficient evidence of a satisfactory plan for the
care and treatment of the child following termination. The trial court found
Child’s relative placement sought to adopt him upon the termination of Parents’
rights. Mother6 argues that “maintaining the status quo, i.e. Child remaining in
relative placement care while Mother or Father implements services is a very
satisfactory plan for the care and treatment of Child.” (Br. of Appellants at 28.)
In light of the fact that this family has been involved with DCS for over two
years with very little progress toward reunification, we cannot agree. See In re
6
The trial court found Father consented to Child’s adoption by relative placement. Father does not
challenge that finding.
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S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008) (adoption is satisfactory
plan for child’s care and treatment after termination).
Conclusion
[25] The trial court’s findings support its conclusions that the conditions under
which Child was removed from Parents’ care would not be remedied, that
termination of parental rights was in Child’s best interests, and that there was a
satisfactory plan for Child’s care following termination of Parents’ rights.
Accordingly, we affirm the involuntary termination of Parents’ rights to Child.
[26] Affirmed.
Najam, J., and Bailey, J., concur.
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