In Re the Matter of the Termination of the Parent-Child Relationship of R.P. S.P. (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 Feb 28 2019, 9:57 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Noah T. Williams Curtis T. Hill, Jr.
Monroe County Public Defender Attorney General of Indiana
Bloomington, Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Matter of the February 28, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of R.P.; 18A-JT-2152
S.P. (Mother), Appeal from the Monroe Circuit
Court
Appellant-Respondent,
The Honorable Frances G. Hill,
v. Judge
Trial Court Cause No.
The Indiana Department of 53C06-1710-JT-793
Child Services,
Appellee-Petitioner.
Pyle, Judge.
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Statement of the Case
[1] S.P. (“Mother”) appeals the termination of the parent-child relationship with
her son, R.P., (“R.P.”), claiming that the Department of Child Services
(“DCS”) failed to prove by clear and convincing evidence that: (1) there is a
reasonable probability that the conditions that resulted in R.P.’s removal will
not be remedied; and (2) termination of the parent-child relationship is in R.P.’s
best interests. Concluding that there is sufficient evidence to support the trial
court’s decision to terminate the parent-child relationship, we affirm the trial
court’s judgment.1
[2] We affirm.
Issue
Whether there is sufficient evidence to support the termination of
the parent-child relationship.
Facts
[3] The evidence and reasonable inferences that support the judgment reveal that
R.P. was born in December 2015. In July 2016, DCS filed a petition alleging
that R.P. was a Child in Need of Services (“CHINS”) because Mother was
addicted to methamphetamine and needed help to overcome her addiction.
The petition further alleged that Mother had tested positive for
1
The trial court also terminated J.G.’s (“Father”) parental relationship with R.P. Father is not a party to this
appeal.
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methamphetamine twice in June 2016. She had also tested positive for THC in
June and July 2016.
[4] In October 2016, the trial court adjudicated R.P. to be a CHINS. Specifically,
the trial court’s order, which allowed R.P. to remain in Mother’s home,
explained that given Mother’s “addiction and drug usage, the coercive
intervention of the court is clearly necessary to ensure the safety of [R.P.]” (Ex.
Vol. at 9). The following month, the trial court ordered Mother to: (1) provide
safe, suitable, and stable housing for her child; (2) allow DCS service providers
and/or the CASA to complete announced and unannounced visits to the home;
(3) abstain from alcohol and drug use and submit to random drug screens; (4)
maintain a legal source of income; (5) participate and follow the
recommendations of a substance abuse assessment; and (6) participate in home-
based case management services.
[5] In February 2017, DCS recommended placing R.P. with his maternal
grandmother (“Maternal Grandmother”). The trial court’s order authorizing
the placement stated that it was in R.P.’s best interest to be removed from
Mother’s home because he needed protection that could not be provided in the
home. An April 2017 review hearing order provided that Mother was not in
compliance with the CHINS dispositional order because she had continued to
use illegal substances and she and her new boyfriend had both tested positive
for methamphetamine. When asked to choose between caring for R.P. and
living without electricity with her boyfriend, Mother chose living with her
boyfriend.
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[6] Following an August 2017 review hearing, the trial court found that Mother
had not complied with the dispositional order and had not “resolved the
reasons for the removal of [R.P.] from her care.” (App. Vol. 2 at 9). The trial
court specifically noted that Mother had continued to test positive for
methamphetamines and THC. In addition, Mother had not been in compliance
with home-based case management services and had cancelled visitation with
R.P. The trial court also noted that the current conditions in Maternal
Grandmother’s house “create[d] an unacceptable safety risk to [R.P.]” (App.
Vol. 2 at 10). The trial court therefore ordered R.P.’s removal from Maternal
Grandmother and placement in foster care.
[7] DCS filed a petition to terminate Mother’s parental rights in October 2017.
Testimony at the May and July 2018 termination hearing revealed that Mother
had not completed any of the court-ordered programs. In addition, she did not
have stable housing or legal employment, and she continued to use drugs. She
specifically admitted that she had used marijuana less than a month before the
hearing and that she had also recently tested positive for methamphetamine.
Also at the hearing, Mother admitted that she was “not physically stable to
have [her] son in her home.” (Tr. 152). However, she testified that she
preferred R.P. to be placed with Maternal Grandmother.
[8] Salvation Army Harbor Lights Center Lead Assessment Counselor Whitney
Beasley (“Counselor Beasley”) testified that she had assessed Mother in
November 2017 and then again in February 2018. Following the most recent
assessment, Counselor Beasley had recommended that Mother attend an
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intensive outpatient program based upon Mother’s use of methamphetamine
and marijuana. Harbor Lights Center Counselor Tracey Jordan testified that
Mother had begun the intensive outpatient program in February 2018 but had
been discharged the following month “due to excessive no call, no shows.” (Tr.
94).
[9] Also at the hearing, DCS asked therapist Jennifer Zigler (“Therapist Zigler”), who
had been one of Mother’s therapists, whether Mother had been diagnosed with
any disorders. Therapist Zigler responded that Mother had four diagnoses in her
chart but that Therapist Zigler was not the therapist who had diagnosed Mother.
Mother’s counsel raised a hearsay objection because the therapist had not
diagnosed Mother; however, the trial court determined that the evidence was
admissible for “the basis for [the therapist’s] work, but not necessarily for the . . .
truth of whether that diagnosis was correct.” (Tr. 50). Therapist Zigler testified
that Mother had been diagnosed with amphetamine use, cannabis use, alcohol use
and anxiety disorders.
[10] DCS Case Manager Heidi Flynn (“Case Manager Flynn”) testified that Mother’s
substance abuse was the original reason for DCS involvement and that the reasons
for R.P.’s removal from his home had not been remedied because Mother had
failed to complete court-ordered services, including an intensive outpatient drug
treatment program. In addition, Case Manager Flynn testified that Mother had
unstable housing and employment and had made no progress with court-ordered
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services. Case Manager Flynn also testified that termination was in R.P.’s best
interests and that the permanency plan for R.P. was foster parent adoption.
[11] Lastly, CASA Roseanne Liggett (“CASA Liggett”) testified that termination was in
R.P.’s best interests because Mother was not able to provide a safe and stable
home for him. CASA Liggett further testified that R.P. was thriving in foster care.
[12] Following the hearing, the trial court issued a detailed fourteen-page order
terminating Mother’s parental relationship with R.P. The order concluded, in
relevant part, as follows:
The Child was adjudicated CHINS based on Mother’s admitted
use and addiction to methamphetamines. The Review and
Permanency Orders reflect Mother’s positive tests for
methamphetamines and marijuana through August 2017.
Mother tested positive for marijuana in 2018. Mother admitted
at this hearing to using marijuana in the last month. Although
Mother testified in this hearing that she had not used
methamphetamine since August 2017, Mother admitted that she
had a positive drug screen for methamphetamine during the next
to last hearing. The two substance abuse professionals assessing
and/or counseling Mother from Harbor Lights Drug Treatment
through April 2018 testified that Mother needs Intensive
Outpatient Treatment and Inpatient Transitional Housing. . . .
Mother did not complete the IOP or the recommended drug
treatment to ensure sobriety if the Child was returned to her care.
While marijuana use alone might not support a termination
conclusion, Mother’s long history of methamphetamine use
despite the availability of treatment programs, with an ongoing
recommendation for drug treatment, constitutes clear and
convincing evidence that Mother continues to have a drug
problem and that creates a danger to the Child that will not be
remedied.
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(App. at 18-19). Mother now appeals.
Decision
[13] 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
parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
[14] 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 1229-30.
[15] A petition to terminate parental rights must allege:
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(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
(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.
[16] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she first contends that the
evidence is insufficient to show that there is a reasonable probability that the
conditions that resulted in R.P.’s removal will not be remedied. 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
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termination proceeding, taking into consideration 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. Habitual conduct may include parents’ prior criminal
history, drug and alcohol abuse, history of neglect, failure to provide support,
and a lack of adequate housing and employment. A.D.S. v. Ind. Dep’t of Child
Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied. The trial court
may also consider services offered to the parent by DCS and the parent’s
response to those services as evidence of whether conditions will be remedied.
Id. Requiring trial courts to give due regard to changed conditions does not
preclude them from finding that a parent’s past behavior is the best predictor of
his future behavior. E.M., 4 N.E.3d at 643.
[17] Here, our review of the evidence reveals that R.P. was adjudicated to be a
CHINS in October 2016 because of Mother’s drug use. Nearly two years later,
Mother was still using drugs and had not completed any of the court-ordered
services. She also lacked stable housing and employment. Mother even
admitted at the termination hearing that she was not physically stable enough to
care for her son. This evidence supports the trial court’s conclusion that there
was a reasonable probability that the conditions that resulted in R.P.’s
placement outside the home would not be remedied. We find no error.
[18] Mother also argues that there is insufficient evidence that the termination was
in R.P.’s best interests. In determining whether termination of parental rights is
in the best interests of a child, the trial court is required to look at the totality of
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the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004), trans.
denied. In so doing, the court must subordinate the interests of the parents to
those of the child involved. Id. Termination of the parent-child relationship is
proper where the child’s emotional and physical development is threatened. In
re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s
historical inability to provide adequate housing, stability and supervision
coupled with a current inability to provide the same will support a finding that
continuation of the parent-child relationship is contrary to the child’s best
interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting
Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.
denied, superseded by rule on other grounds). Further, the testimony of the service
providers may support a finding that termination is in the child’s best interests.
McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.
Ct. App. 2003).
[19] Here, our review of the evidence reveals that Mother has historically been
unable to provide housing, stability, and supervision for R.P. and was unable to
provide the same at the time of the termination hearing. In addition, both Case
Manager Flynn and CASA Liggett testified that termination was in R.P.’s best
interests. The testimony of these service providers, as well as the other evidence
previously discussed, supports the trial court’s conclusion that termination was
in R.P.’s best interests. 2
2
[1] Mother also argues that the trial court abused its discretion in allowing Therapist Zigler to testify that Mother had
been diagnosed with amphetamine use, cannabis use, alcohol use and anxiety disorders. The admission and exclusion
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[20] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). We find no such error here and therefore affirm the trial
court.
[21] Affirmed.
Najam, J., and Altice, J., concur.
of evidence falls within the sound discretion of the trial court, and we review the admission of evidence only for an
abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when the trial
court’s decision is clearly against the logic and effect of the facts and circumstances before it. Conley v. State, 972
N.E.2d 864, 871 (Ind. 2012), reh’g denied. However, we need not determine whether the trial court abused its
discretion by admitting Mother’s diagnoses because even if it was erroneous to admit this evidence, any error was
harmless. “The improper admission of evidence is harmless error when the judgment is supported by substantial
independent evidence to satisfy the reviewing court that there is no substantial likelihood that the questioned evidence
contributed to the judgment.” In re E.T., 808 N.E.2d at 639, 645-46 (Ind. 2004). Here, there is overwhelming evidence
of Mother’s dependence on methamphetamine and marijuana. Further, the trial court’s conclusions of law in support
of its judgment terminating Mother’s parental rights do not refer to Mother’s alcohol use or anxiety. Moreover, we
have found substantial independent evidence to satisfy us that there is no substantial likelihood that the questioned
evidence contributed to the judgment. Any error in the admission of this evidence was therefore harmless.
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