In the Matter of the Termination of the Parent-Child Relationship of T.A.B., Jr., Z.B., C.L., and D.S.L. (Children) and A.L. (Mother) 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 23 2019, 5:57 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 APPELLANT ATTORNEYS FOR APPELLEE
Cynthia Phillips Smith Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith Attorney General of Indiana
Lafayette, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination December 23, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of T.A.B., Jr., Z.B., C.L., and 19A-JT-1419
D.S.L. (Children) and A.L. Appeal from the Tippecanoe
(Mother); Superior Court
A.L. (Mother), The Honorable Faith A. Graham,
Judge
Appellant-Respondent,
Trial Court Cause No.
v. 79D03-1809-JT-128
79D03-1809-JT-130
79D03-1809-JT-131
The Indiana Department of 79D03-1809-JT-132
Child Services,
Appellee-Petitioner
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May, Judge.
[1] A.L. (“Mother”) appeals the involuntary termination of her parental rights to
T.A.B. Jr.; Z.B.; C.L.; and D.S.L. (collectively, “Children”). She raises three
issues, and we address two of them: 1
1. Whether the trial court’s findings support its conclusion that
the conditions under which Children were removed from her
care would not be remedied; and
2. Whether the trial court’s findings support its conclusion that
termination of parental rights was in Children’s best interests.
We affirm.
Facts and Procedural History
[2] Mother gave birth to T.A.B. Jr. on June 12, 2011; Z.B. on July 24, 2012; C.L.
on February 10, 2015; and D.S.L. on May 29, 2016. 2 On May 31, 2016, the
Department of Child Services (“DCS”) received a report that Mother tested
positive for marijuana during delivery of D.S.L. and that D.S.L.’s umbilical
1
Mother also alleges the trial court’s findings do not support its conclusion that the continuation of the
Mother-Child relationships posed a threat to Children’s well-being. Because we hold the trial court’s findings
supported its conclusion that the conditions under which Children was removed from Mother’s care would
be not be remedied, we need not consider Mother’s argument regarding whether the continuation of the
parent-children relationship poses a risk to Children’s well-being. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct.
App. 1999) (because Indiana Code section 31-35-2-4(b)(2)(B) written in the disjunctive, court needs find only
one requirement to terminate parental rights), reh’g denied, trans. denied, cert. denied 534 U.S. 1161 (2002).
2
T.A.B. Sr. (“Father”) is the father of Children. His parental rights were also terminated, but he does not
participate in this appeal.
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cord tested positive for marijuana. Mother again tested positive for marijuana
on June 14, 2016. DCS attempted to engage the family in an Informal
Adjustment (“IA”), but the IA was unsuccessful because Mother and Father did
not engage in services and could not be contacted by DCS.
[3] On July 20, 2016, DCS visited the family home while Father was at work.
Mother reported she wanted to leave Father because he choked her and threw
her into a corner. Mother and Children relocated to a shelter, and DCS helped
Mother create a safety plan, in which Mother agreed to separate from Father,
not allow Father around Children, not have contact with Father, and not tell
Father where Mother and Children were staying. On July 22, 2016, DCS filed
a petition alleging Children were Children in Need of Services (CHINS).
Children remained in Mother’s care. At the detention hearing and initial
hearing held on July 22, 2016, the trial court ordered Father to vacate the
family home.
[4] On September 9, 2016, DCS filed a request to remove Children from Mother’s
care because Mother was not progressing in services, was not properly
supervising Children, was using drugs, and did not have employment or
housing. At a detention hearing on September 13, Mother agreed to the
removal of Children because she was unable to provide for their basic
necessities at that time. Children were placed in foster care. The trial court
adjudicated Children as CHINS on September 27, 2016.
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[5] The trial court entered its dispositional order as to Mother on October 18, 2016,
requiring Mother to participate in “home based case management, mental
health assessment, substance abuse assessment, random drug screens, and
parenting time.” (App. Vol. II at 41.) Children were returned to Mother’s care
on October 2, 2017, for a “trial home visit.” (Id.) Children remained with
Mother until May 29, 2018, when Mother relapsed into marijuana use and
Children tested positive for cocaine. During the trial home visit, Children’s
foster parents provided Mother and Father 3 with respite care because Mother
became “overwhelmed” by the situation. (Id. at 46.) Children were returned to
the care of their foster parents after removal from Mother’s care, where they
have remained for the pendency of this case.
[6] Mother’s compliance with services declined, she continued to use marijuana,
she did not have stable housing and employment, and she was often involved in
physical altercations with Father and other people. On October 17, 2018, DCS
filed a petition for the involuntary termination of Mother’s parental rights to
Children. The trial court held hearings on the matter on January 3, 2019, and
February 12, 2019. On May 17, 2019, the trial court entered its order
involuntarily terminating Mother’s parental rights to Children.
Discussion and Decision
3
At some point in time, Father returned to the family home. It is unclear from the record under what
circumstances this change in status occurred.
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[7] 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
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).
[8] “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.
[9] 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.
[10] 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.
[11] Mother does 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.”). Mother challenges the trial court’s conclusions that the conditions
under which Children were removed were not likely to be remedied and that
termination is in Children’s best interests.
1. Conditions Would Not Be Remedied
[12] A 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.
[13] Regarding the conditions under which Children were removed from Mother’s
care and whether there was a reasonable probability those conditions would not
be remedied, the trial court found:
2. [DCS] received a report on May 31, 2016 alleging that
[Mother] tested positive for marijuana when admitted to the
hospital after the birth of [D.S.L.] and that Mother had not
received prenatal care.
3. Investigation revealed that Mother tested positive for
marijuana on May 29, 2016 and that [D.S.L.] also tested positive
for marijuana at birth through umbilical cord blood testing.
Mother tested positive for marijuana again on June 14, 2016.
DCS attempted to implement a Program of Informal Adjustment
(“IA”) with the family to address these concerns. However, the
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IA was not successful. The parents did not begin services and
DCS was unable to contact the parents for several weeks.
4. On July 20, 2016, DCS visited the home while [Father] was at
work. Mother disclosed that Father choked her and threw her in
a corner. Mother indicated that she wanted to leave the
relationship as it was not safe for her or the children. Mother
and the children went to a shelter. Mother signed a safety plan
on July 21, 2016 that she would separate from Father, not allow
Father around the children, not have contact with Father, and
not allow Father to know where Mother was staying.
*****
6. On September 9, 2016, DCS filed a request to remove the
children from Mother’s care due to Mother’s lack of progress in
services, issues with supervision of the children, inability to
provide basic necessities, drug and alcohol use, and lack of
employment and housing. [D.S.L.] had been found face down
on a bed when Mother was not in the room. On a different
occasion, [M]other was unaware when the stroller with a child in
it rolled into the street. [D.S.L.] and [C.L.] tested positive for
marijuana on a hair screen collected August 31, 2016. Mother
and the children were staying at a shelter which Mother had to
exit by September 12, 2016. Mother had no plan for housing
thereafter and no plan to keep the children safe. . . .
*****
10. Mother completed a substance abuse assessment in October
of 2016. Mother denied smoking marijuana while the children
were present but admitted using while the children were sleeping.
Mother reported smoking marijuana about three (3) to four (4)
times a month to relax and escape. Mother denied such use
affected her ability to care for the children. Mother reported a
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history of domestic violence with Father and indicated that
domestic violence was the catalyst for wanting to escape. It was
recommended that Mother complete an Intensive Outpatient
Program (IOP), submit to random drug screens, and attend
support groups. Mother expressed an interest in treatment and
individual counseling to address trauma that might lead to
substance abuse.
11. Mother started substance abuse treatment through Living in
Balance (LIB), which is an Intensive Outpatient Program (IOP),
in January of 2017. Mother did not complete the three (3)
months of intensive sessions due to absences. Mother returned to
the LIB program in March of 2017 and completed the intensive
portion. Mother planned to start the aftercare program but did
not do so until September of 2017. Mother failed to attend
support groups before starting the aftercare program. After
relapsing, Mother was again referred to LIB in June of 2018 and
was provided a recovery coach to assist with her sobriety.
Mother attended one (1) session of LIB then did not return until
December of 2018. Mother has since failed to attend
consistently. Mother’s recovery coach terminated services for
lack of engagement.
12. Mother continued to test positive for marijuana on a
consistent basis from the beginning of the case until Spring of
2017. Mother maintained sobriety until April of 2018, shortly
before the trial home visit ended. Since that time, Mother has
not produced a clean drug screen and has failed to submit to
many drug screens.
13. Mother completed a mental health assessment in January of
2017. Mother was diagnosed with Major Depressive Disorder
and it was recommended that Mother participate in individual
therapy. Mother initially worked diligently in therapy and made
progress during sessions she attended. Mother failed to attend
any sessions in April, June and July of 2017. Service providers
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noted that Mother’s untreated depression often made motivation
difficult. Additionally, Mother was stressed and overwhelmed
during the trial home visit. Therapy was court ordered again
after continued domestic violence and a new referral was made in
August of 2018. Mother was discharged after she failed to
schedule any appointments. Another referral was placed in
November of 2018. Mother only attended one (1) session in late
January or early February of 2019. Mother does not believe
therapy is necessary and denies any mental health issues or
current struggles with depression.
14. In addition to case management, Mother was provided
Homebuilders intensive home-based services on two (2)
occasions. The first referral was on July 23, 2016 after Mother
left Father’s home and moved to a domestic violence shelter.
Homebuilders worked with [M]other over ten (10) hours per
week to assist with obtaining information and completing
applications for housing, applying for an order of protection
against Father, applying for employment, working towards her
GED, and working on coping skills. Homebuilders also assisted
[M]other with applying for WIC, food stamps, TANF, child care
vouchers, and Headstart. The second referral was on November
30, 2017 to assist with providing a safe environment for the
children, increasing parenting skills, finding stable housing,
childcare, safe sleep, employment, and co-parenting. [sic].
Mother had reported multiple incidents of domestic violence and
stated she could no longer live in the home with Father.
Homebuilders helped relocate Mother and the children to the
domestic violence shelter on December 4, 2017. Homebuilders
indicated that Mother was very motivated and recommended
step-down services to home-based case management.
15. Mother participated in home-based case management to
assist with housing, employment, parenting education, safe sleep
practices, and other issues. At times, Mother participated well
and was motivated to make progress. At other times, Mother
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failed to participate consistently and was discharged from
providers. The most recent referral was made in December of
2018, but Mother has only attended one (1) session. Mother was
not able to sustain any progress made during periods of
participation.
16. Despite services provided, Mother failed to establish a stable
means of providing for the children. Throughout most of the
CHINS case, Mother was unemployed. Whenever Mother did
obtain employment, she did not maintain any job for more than a
few months at a time and remained financially dependent upon
Father. At the time of the termination hearing, Mother had been
employed for approximately one (1) week.
17. Mother also failed to establish a safe and stable home for the
children. When the CHINS case began, Mother and Father were
residing together with the children and Father was supporting the
household. Due to domestic violence, Mother and the children
moved to a shelter in July of 2016 and remined there until
September of 2016. Mother was homeless for a while, then began
residing with Father again in January of 2017. Mother remained
in a home with Father until the children were placed back in the
home for a trial home visit in October of 2017. After a domestic
violence incident in December of 2017, Mother left Father and
again moved to a domestic violence shelter. Mother and the
children remained at the shelter until Mother obtained an
apartment on March 30, 2018. Mother left the apartment in
October of 2018 and has since been staying with various friends
and family.
18. Even when Mother had her own housing, it was not safe.
Father continued to cause issues, including holding Mother at
knife point. On September 6, 2018, police were called to the
home after Mother’s friend made sexual advances toward her
then got upset and punched her in the face. Mother required
stitches in her mouth as a result. On October 14, 2018, [M]other
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had an altercation at her home with two (2) people who
reportedly thought she had something in her house and it was a
“robbery gone bad.” Mother stated her house was destroyed and
they stole a gun she obtained after an earlier incident with
Father.
19. On June 14, 2017, Mother gave birth to her fifth child with
Father and the baby’s cord blood tested positive for alcohol. The
fifth child was not removed from parents until May of 2018 when
the other children tested positive for marijuana and cocaine
during the trial home visit. The fifth child is not a subject of this
termination proceeding.
20. Mother has generally done well during parenting time. It
was noted that Mother provided attention to each of the children
and she was prepared for the visits. There were no safety
concerns during Mother’s visits. In April of 2017, parenting time
was combined for Mother and Father since they had resumed
their relationship and were living together. It was noted that
there was tension between the parents and that Father would
leave during the visits. In May of 2017, parents’ visits moved
into the home, then in June of 2017, parents’ visits progressed to
semi-supervised. On October 2, 2017, a trial home visit started
with both parents. During drop ins, service providers noted
concerns with unsafe sleeping for the baby, lack of supervision,
lighters within reach of the children, food left around the house,
and deteriorating home conditions. Providers spoke with
[M]other and Father multiples times about these issues, but the
problems continued. It was also noted that Mother felt
overwhelmed because Father was not helping and there was
frequent fighting between the parents. Mother admitted she
physically attacked Father when she discovered that Father had a
girlfriend. Mother also indicated she did not feel the home was
safe for the children. Mother and the children moved to a
domestic violence shelter in early December of 2017. Mother
was overwhelmed as she and the five (5) children lived in one (1)
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room while at the shelter. Mother also left the children with
unapproved individuals at the shelter.
21. When Mother and the children moved into an apartment,
there continued to be issues of unapproved people in the home
with the children and Mother being overwhelmed with the care
of the children and lack of support. Despite domestic violence
issues, Father was often observed in the home. Mother indicated
that Father was causing her stress and she had difficulty getting
him to leave. On May 22, 2018, Mother called law enforcement
as Father refused to leave her home. Additionally, Mother
relapsed and tested positive for marijuana on April 9 and 17,
2018. Mother often failed to call the drug screen line and missed
drug screens on April 12, April 30, May 7, and May 15 of 2018.
The children were drug screened and all four children tested
positive for cocaine. [D.S.L.] and [C.L.] also tested positive for
marijuana. This was the second time for [C.L.] to test positive
for marijuana and the third time for [D.S.L.] to test positive.
Neither parent could explain why the children tested positive for
cocaine. Mother initially blamed father but later stated that this
was a lie. Mother now believes that children were exposed in the
shelter and testified that a woman who cared for the children had
a crack pipe. Mother fails to acknowledge that she was
responsible for making sure the children were safe and not
exposed to drugs. The children were removed from parents
again on May 29, 2018.
22. After the trial visit ended, Mother struggled to consistently
attend scheduled parenting time sessions. When Mother did
attend, she arrived on time, was prepared with supplies, and
engaged with the children. After a violent episode with Father
on August 24, 2018 during which Father took Mother’s phone,
Mother failed to attend visits for three (3) months. Mother
resumed parenting time in November 2018 but continued to miss
visits which remained fully supervised. Parenting education was
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recommended to help Mother understand the emotions and
trauma experienced by the children.
*****
37. Both parents love the children, but neither can provide the
children with a safe and stable home that is free of domestic
violence and substance abuse. Although services have been
offered since July of 2016, the parents continue to struggle with
the same issues that caused removal of the children:
homelessness, lack of steady employment, substance abuse and
domestic violence. Neither parent has produced a clean drug
screen since the trial home visit ended. Mother still believes
marijuana use is not an issue despite her children testing positive
for marijuana multiple times. Domestic violence continues
between the parents. Father held Mother at knife point as
recently as August of 2018. Although there were periods when
the parents would actively engage in services, neither was able to
sustain any progress made towards reunification due to the
unresolved issues of substance abuse and domestic violence.
(App. Vol. II at 40-6.)
[14] Mother contends the trial court’s findings do not support its conclusion that
there was a reasonable probability that the conditions under which Children
were removed from her care would not be remedied because she completed
most services offered to her and had improved her situation since Children were
removed from her care. While we acknowledge Mother’s periods of progress,
we cannot ignore her inconsistent compliance with services. Therefore, we
hold the findings do support the trial court’s conclusion that there was a
reasonable probability that the conditions under which the children were
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removed would not be remedied. See In re K.T.K., 989 N.E.2d 1225, 1234 (Ind.
2013) (mother’s recent sobriety outweighed by her history of substance abuse
and neglect of her children).
2. Children’s Best Interests
[15] In determining what is in Children’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 Children’s best interests. In
re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
[16] Regarding Children’s best interests, the trial court found:
34. Services have also been provided to [Children]. [T.B.] was
diagnosed with Generalized Anxiety Disorder and participated in
therapy. [T.B.] witnessed domestic violence, worried about
everything, reported difficulty sleeping, and displayed
aggressiveness during visits. [Z.B.] was diagnosed with
Adjustment Disorder with Anxiety and participated in therapy.
Witnessing domestic violence and substance abuse and living in a
shelter were very traumatic for [Z.B.] but she has stabilized.
[C.L.] received speech therapy but was discharged during the
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trial home visit due to missed appointments. [C.L.] has resumed
speech therapy. [D.L.] completed a First Steps evaluation and
receives services for speech delays and anger management.
35. [Children] are doing well in foster care. During the trial
home visit, the foster parents provided support to Mother and
Father by taking [Children] on occasion to provide respite for the
parents. When the trial home visit ended, [Children] returned to
the same foster parents who are willing adopt. [Children] are
otherwise adoptable.
36. CASA Staff Advocate, Leigh Ann Fricke, supports
termination of parental rights and adoption in the best interests of
[Children]. During the trial home visit, CASA was concerned
with the deteriorating conditions of the home, ongoing domestic
violence, and Mother being overwhelmed. After Mother left the
shelter and obtained an apartment, CASA was again concerned
about the events occurring the home as Mother was
overwhelmed and both parents relapsed into marijuana [use].
CASA notes the relationship between Mother and Father is not
stable. [Children] have now been in the system for over nine
hundred (900) days. CASA believes [Children] need and deserve
permanency.
(App. Vol. II at 46.)
[17] Mother argues these findings do not support the trial court’s conclusion that
termination of her parental rights is in Children’s best interests because they do
not take into account Mother’s bond with her Children. She contends “[t]o
terminate this bond based upon an alleged lack of housing, a one-time cocaine
positive test for children, and alleged sporadic marijuana use by Mother is not
in the children’s best interests.” (Br. of Appellant at 21-2.) However, the trial
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court’s findings note multiple instances of Mother’s drug use, her housing and
employment instability, and domestic violence in the home. The findings
demonstrate mother’s drug use and homelessness are persistent problems. Over
the three years this matter has been pending, Mother has not fully engaged in
services and has failed to participate in visitation with Children for extended
periods of time. Children are receiving consistent care with foster parents, who
also ensure Children’s trauma is properly treated. Thus, we hold the trial
court’s findings support its conclusion that termination of Mother’s parental
rights is in Children’s best interests. See In re A.P., 991 N.E.2d 75, 83 (Ind. Ct.
App. 2012) (despite mother’s bond with children, termination was in children’s
best interests based on mother’s continued drug use and noncompliance with
services).
Conclusion
[18] The trial court’s findings support its conclusions that the conditions under
which Children were removed from Mother’s care would not be remedied and
termination of Mother’s parental rights was in Children’s best interests.
Accordingly, we affirm the trial court’s decision.
[19] Affirmed.
Crone, J., and Pyle, J., concur.
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