In the Matter of the Termination of the Parent-Child Relationship of M.W. (Child) and E.W. (Mother) E.W. (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 Jun 09 2017, 9:24 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
Daniel L. Askren Curtis T. Hill, Jr.
O’Connor and Askren Law Office Attorney General of Indiana
Attica, Indiana
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination June 9, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of M.W. (Child) and E.W. 23A04-1611-JT-2517
(Mother); Appeal from the Fountain Circuit
Court
E.W. (Mother), The Honorable Susan Orr
Appellant-Respondent, Henderson, Judge
Trial Court Cause No.
v. 23C01-1607-JT-125
The Indiana Department of
Child Services,
Appellee-Petitioner
May, Judge.
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[1] E.W. (“Mother”) appeals the termination of her parental rights to M.W.
(“Child”). She argues the evidence was insufficient to support termination. We
affirm.
Facts and Procedural History
[2] Child was born to Mother 1 on April 4, 2015. On April 5, 2015, the Department
of Child Services (“DCS”) received a report Child was a victim of abuse and
neglect. Specifically, the report alleged Child exhibited symptoms of drug
withdrawal after birth and Mother admitted using hydrocodone during her
pregnancy.
[3] On April 11, 2015, Mother admitted to hospital staff that she also used heroin
during her pregnancy. On April 14, 2015, DCS Family Case Manager
(“FCM”) Linda Essman visited Mother and Child at the St. Elizabeth Hospital
in Lafayette, Indiana. Hospital staff told FCM Essman that Child began
exhibiting symptoms of drug withdrawal roughly twelve hours after birth and
was transferred to the NICU, where she subsequently tested positively for
opiates. FCM Essman met with Mother that same day at the Warren County
DCS office. Mother admitted to FCM Essman that she had used heroin for six
weeks prior to Child’s birth. She further indicated she lived with her boyfriend,
1
Child’s biological father is unknown.
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J.T. (“Boyfriend”), at his sister’s house in Attica, Indiana. Mother reported she
used heroin when she gets depressed.
[4] For most of April, Child remained in the hospital under the care of doctors so
that her condition could be monitored and treated. Doctors initially used
codeine and morphine to treat Child’s drug withdrawal, but eventually weaned
Child off the drugs. However, Child continued to have problems breathing as
she was born with underdeveloped lungs because of Mother’s heroin use during
pregnancy.
[5] On April 17, 2015, FCM Essman met with Mother and Boyfriend. Mother
agreed to start intensive homebased services to assist her with substance abuse,
parenting skills, education, and preparation for a newborn in the home.
Boyfriend, who had used heroin with Mother in the past, agreed to participate
in services with Mother. On April 24, 2015, FCM Essman received drug screen
results for Mother and Boyfriend indicating they both tested negative for any
illegal substances.
[6] Child was released from the hospital on April 28, 2015. That day, DCS filed a
petition alleging Child was a CHINS. DCS classified the case as an “In-Home”
CHINS case, (Ex. Vol. 1 at 44), 2 allowing Child to return to Mother’s care as
2
The trial court clerk’s failure to number the pages of the Exhibit volumes greatly hindered our review of the
record. We cite the page numbers as they appear consecutively in the PDF format of the Electronic Record.
See Ind. Appellate Rule 29(A) (requiring the Exhibits be filed in accordance with Appendix A(2)(a), which
provides: “Each volume of the Transcript shall be independently and consecutively numbered at the bottom.
Each volume shall begin with numeral one on its front page.”).
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long as Child’s medical conditions allowed her to remain home and Mother
and Boyfriend remained drug-free and consistently underwent drug screenings.
[7] On June 9, 2015, the court held a fact-finding hearing at which Mother
admitted Child was a CHINS. On June 10, 2015, the court adjudicated Child a
CHINS and entered a dispositional order requiring Mother to participate in
“Homebuilders,” Intensive Outpatient Treatment (“IOT”), random drug
screens, medication management, and case management. (Id. at 14.) The court
scheduled a hearing to review Mother’s progress on September 15, 2015.
[8] Mother and Boyfriend initially complied with the court’s requirements. Within
a month of Mother and Child returning home from the hospital, Boyfriend
obtained a job and an apartment, and Mother and Child moved in with
Boyfriend. Mother was participating in home-based management through
Bauer Family Resources. However, on July 31, 2015, Mother and Boyfriend
underwent random drug screenings and tested positive for amphetamine and
methamphetamine.
[9] Because of Mother’s drug use, DCS removed Child from Mother’s care on
August 3, 2015 and placed Child in foster care. The court held a detention
hearing that same day. Mother appeared at the hearing. Mother admitted she
was unable to care for Child while under the influence of illegal substances and
did not object to the court placing Child in foster care. Boyfriend was also fired
from his job in late July, and, as a result, lost his apartment in August 2015.
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Mother and Boyfriend began staying with Boyfriend’s various family members,
moving from home to home.
[10] On September 21, 2015, the court held a review hearing on Mother’s progress.
The court noted Mother had remained mostly compliant with her case plan, but
had been unable to maintain housing and had tested positive for amphetamine
and methamphetamine on two occasions. At the time of the hearing, Child
was in foster care placement, but the court authorized DCS to transfer Child to
relative placement with Mother’s cousin. The court ordered the permanency
plan remain reunification and scheduled a review hearing for January 12, 2016.
[11] Mother started case management services with Stephanie Greer of Bauer
Family Resources in September 2015. Greer worked with Mother and DCS to
establish goals for Mother of finding housing, getting a vehicle, maintaining a
stable job, and staying drug and alcohol free. Greer also began facilitating
supervised visits with Mother and Child in December 2015. Mother was very
consistent in attending the visits initially. The visits were “community visits,”
(Tr. at 13), which took place at public places such as the library or park.
However, Mother’s visits with Child never progressed to being unsupervised or
at-home visits. Additionally, during this period, Mother was able to obtain
employment, but she was never able to attain stable, long-term employment
lasting longer than “two to three months.” (Id. at 15.)
[12] The court held a permanency hearing on January 12, 2016. The court found
Mother had not been compliant in submitting drug tests, attending visits with
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Child, or attending services. The court also noted Mother recently tested
positive for heroin. The court modified its dispositional order, requiring
Mother to maintain weekly contact with DCS, allow DCS to make
unannounced visits to Mother’s home, complete an intensive family
preservation program, comply with all directives from services providers, attend
all appointments as scheduled, and submit drug and alcohol screenings within
one hour of DCS’s requesting her to do so.
[13] Mother made multiple attempts at rehabilitation, but failed to successfully
complete any rehabilitation program. On February 29, 2016, Mother was
admitted to Home with Hope for inpatient drug treatment. While participating
in the program, Mother continued to use drugs and tested positive for drugs.
[14] The court held a status hearing on March 15, 2016. The court noted Mother
had made “little to no progress” toward her case plan. (Ex. Vol. 1 at 30). The
court changed the permanency plan from reunification to adoption. Mother
was discharged from Home with Hope on March 24, 2016, for “leaving against
staff advice and insubordination.” (Ex. Vol. 2 at 4.)
[15] The court held a permanency hearing on May 18, 2016. The court found
Mother had made insufficient progress toward reunification with Child and
DCS had exhausted its services available to Mother. The court approved
DCS’s proposed permanency plan for termination of Mother’s parental rights.
On July 19, 2016, DCS filed its petition to terminate Mother’s parental rights.
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[16] On October 5, 2016, the court held a hearing on DCS’s termination petition.
After hearing evidence, the court terminated Mother’s parental rights in an
order that provided, in pertinent part:
[17] c. Mother and [Boyfriend] initially engaged in services from
Home Builders and made some progress in: 1. Safe and stable
housing; 2. Sustainable source of income and 3. Maintaining
sobriety. The dispositional decree entered June 9, 2013 [sic]
ordered the [sic] Mother to participate in services. Mother was
ordered to participate in Home Builders, Intensive Outpatient
Treatment for substance abuse, random drug screens, medication
management, case management, supervised visits, and individual
therapy. [Boyfriend] was not ordered to participate in services,
but in order to remain active in the child’s life, was required to
submit random drug screens and engage in services to assist to
[sic] ensure the goal of reunification.
[18] d. Mother maintained periods of sobriety, but was unable to
sustain long term abstinence. She relapsed several times during
the pendency of the CHINS case. [Boyfriend] also relapsed and
has not been active in this case since he tested positive in
December 2015. Mother suffers from depression and has been
addressing her illness with medication (Prozac). Mother
attempts to manage her opiate addiction with Suboxen [sic], for
which she has a valid prescription. Mother does not always take
her medications as prescribed. At the time of the hearing herein,
she presented in court in a disheveled state—her hair and
clothing looked as if she had just gotten out of bed; her affect was
flat and her testimony was difficult to follow.
[19] e. Mother sought treatment at Home With Hope in Lafayette as
a treatment option in Feb. 2016. She relapsed and was removed
from that program. She was offered the chance to go to Harbor
Lights in patient [sic] program, but determined she’d rather
manage her addiction with Suboxen [sic] and did not want to get
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completely clean and sober for fear it would not be possible to
sustain.
[20] f. Mother has continued to reside with [Boyfriend] throughout
this case. They have moved from their apartment in Attica,
Indiana, in August 2015 and has since lived [sic]: 1. Attica, with
[Boyfriend’s] sister; 2. Attica, with [Boyfriend’s] mother; 3.
Williamsport, with [Boyfriend’s] other sister; [4]. Attica, with
[Boyfriend’s] sister; [5]. Attica, back with [Boyfriend’s] mother.
At times, Mother and [Boyfriend] sleep in Mother’s car. She has
been unsuccessful in obtaining safe and stable housing.
[21] g. [Boyfriend] has been a barrier for reunification for Mother.
She has been made aware of this barrier by every service
provider; by her case manager; by CASA and by the Court. She
is unwilling or unable to terminate her relationship with
[Boyfriend] and he is unwilling or unable to engage in services in
order for reunification to occur.
[22] h. Mother has exercised nearly all of her supervised visits. Visits
remain at fully supervised as Mother has no stable housing
suitable for the visits to transition to her home. Mother loves
[Child]. The only service provided by the DCS that Mother
regularly and consistently participated in is supervised visitation.
[23] i. Child suffers from respiratory issues as a result of Mother’s
drug use while pregnant and cannot be around cigarette smoke.
Mother, [Boyfriend], and others in their household smoke
cigarettes.
[24] j. Mother suffers from depression and anxiety. She was ordered
to participate in individual counseling. She failed to consistently
attend her sessions and the individual service was closed due to
lack of participation.
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[25] K. Mother suffers from drug addiction. She was ordered to
participate in IOP. She was offered assistance to attend an in-
patient treatment center and declined. Mother chooses to remain
on Suboxen [sic] to control her addiction, but has relapsed even
when on Suboxen [sic].
[26] l. Mother has worked a variety of jobs during the pendency of
the CHINS case, however, has failed to maintain longevity or
permanency with any employment. Mother cannot provide
adequate support for [Child].
[27] m. Despite initial compliance and efforts to cooperate and
participate in services, Mother has been unable to sustain
progress to effectuate reunification. Intensive services at the
commencement of the case to allow the child to remain in the
home failed. Extensive services offered to Mother after removal
have had no significant impact on Mother’s long-term stability
and ability to care for [Child]. Additional services would not
benefit this family.
*****
[28] n. . . . Mother has been unable to sustain employment, suitable
housing, or a drug free lifestyle. These are ongoing problems and
do not appear [sic] that any improvement their circumstances
will be happening in the near future. The child has been in [and]
out of home placement for fourteen months and needs a
permanent and stable home[.]
[29] o. CASA recommended that termination would be in [Child’s]
best interest.
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[30] p. The child has supportive and loving relative placement. She is
bonded to the family, her needs are being met and [she] is well
taken care of.
(App. Vol. 2 at 8-11) (internal citations omitted). The court concluded, based
on the above findings, termination was in Child’s best interest.
Discussion and Decision
[31] “The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children.” In re
G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009), reh’g denied. To terminate a parent’s
rights, the State must file a petition in accordance with Indiana Code Section
31-35-2-4 and then prove the allegations therein by clear and convincing
evidence. Id. at 1260-61. If the court finds the allegations in the petition are
true, it must terminate the parent-child relationship. Ind. Code § 31-35-2-8; In
re N.G., 51 N.E.3d 1167, 1170 (Ind. 2016).
[32] A petition to terminate the parent-child relationship must allege:
(A) that one (1) of the following is true:
(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.
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(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
(D) that there is a satisfactory plan for the care and treatment of the
child.
Ind. Code § 31-35-2-4(b)(2). The trial court must enter findings of fact to
support each of its conclusions as to those allegations. Ind. Code § 31-35-2-8(c).
[33] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 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. We apply a two-
tiered standard of review: we determine first whether the evidence clearly and
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convincingly supports the findings, and second whether the findings clearly and
convincingly support the conclusions. In re E.M., 4 N.E.3d 636, 642 (Ind.
2014). However, where a party challenges the judgment but does not challenge
the findings of fact as unsupported by the evidence, we look only to the findings
to determine whether they support the judgment. Smith v. Miller Builders, Inc.,
741 N.E.2d 731, 734 (Ind. Ct. App. 2000). 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).
[34] Mother challenges the court’s conclusion under subsection (B) that there was a
reasonable probability the conditions that lead to Child’s removal and
placement outside the home will not be remedied. The conditions that lead to
DCS’s involvement in this case, and, ultimately, to Child’s removal from
Mother’s care is Mother’s drug use.
[35] The trial court made numerous findings supporting its conclusion there was a
reasonable probability Mother’s drug addiction was not being remedied. As the
trial court found, Mother made many attempts at drug rehabilitation, but she
failed to successfully follow through with any of her drug rehabilitation
programs. Furthermore, Mother’s continued relationship with Boyfriend posed
a great barrier to Mother’s ability to fight her drug addiction, as Mother would
use drugs with Boyfriend. At the time of the termination hearing, Mother was
“bouncing from home to home,” (Tr. at 25), and was believed to be staying
with Boyfriend at Boyfriend’s sister’s home. Greer, who was Mother’s home-
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based counselor for much of the case, indicated while Boyfriend had indeed
been present throughout the entire case, Boyfriend had not visited Child since
December 2015. The court noted these findings in its termination order. DCS
and service providers discussed with Mother the hindering effect Mother’s
relationship with Boyfriend caused on her ability to reunify with Child.
However, Mother was unwilling or unable to end her relationship with
Boyfriend.
[36] Mother states she had “employment, housing, transportation, a valid driver’s
license, and was visiting the child, with [whom] she is bonded.” (Appellant’s
Br. at 17.) She claims, in light of her “continued participation in visitations and
desire to get treatment,” (id.), there was a lack of sufficient evidence to
terminate her parental rights.
[37] Mother’s assertions lack merit and are an invitation for us to reweigh evidence.
See In re D.D., 804 N.E.2d at 265 (“when reviewing a termination of parental
rights, we will not reweigh the evidence or judge the credibility of the
witnesses”). The trial court concluded Mother was unable to sustain
employment, suitable housing, or a drug-free household. The trial court’s
conclusions are supported by its findings that “despite initial compliance and
efforts to cooperate and participate in services, Mother [was] unable to sustain
progress to effectuate reunification.” (App. Vol. 2 at 10.) Mother relapsed
multiple times. The trial court noted intensive home-based services were
offered to Mother at the outset of the case, followed by extensive services after
Child was removed from Mother’s care in August 2015, but that no services
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have had any significant impact on Mother’s long term ability to care for Child.
In light of Mother’s inability to adequately address her substance abuse issues,
we cannot say the trial court erred in concluding there was a reasonable
probability the conditions leading to Child’s removal would not be remedied.
See In re D.W., 969 N.E.2d 89, 97 (Ind. Ct. App. 2012) (trial court’s finding
parent failed to take advantage of services and failed to stay drug-free supported
its conclusion the conditions causing children’s removal from parent’s home
would not be remedied).
Conclusion
[38] The court’s unchallenged findings support its judgment terminating Mother’s
parental rights. Accordingly, we affirm the termination of Mother’s parental
rights.
[39] Affirmed.
Brown, J., and Pyle, J., concur.
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