In Re: The Termination of the Parent-Child Relationship of B.M. (Minor Child) B.Z. (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 27 2020, 6:28 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
Christopher Sturgeon Curtis T. Hill, Jr.
Clark County Public Defender’s Office Attorney General of Indiana
Jeffersonville, Indiana
Thomas J. Flynn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Termination of the February 27, 2020
Parent-Child Relationship of Court of Appeals Case No.
B.M. (Minor Child); 19A-JT-1730
B.Z. (Mother), Appeal from the Clark Circuit
Court
Appellant-Defendant,
The Honorable Joni Grayson,
v. Magistrate
The Honorable Vicki L.
The Indiana Department of Carmichael, Judge
Child Services, Trial Court Cause No.
10C04-1901-JT-1
Appellee-Plaintiff.
Pyle, Judge.
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Statement of the Case
[1] B.Z. (“Mother”) appeals the termination of the parent-child relationship with
her daughter (“B.M.”), claiming that there is insufficient evidence to support
the termination because the Department of Child Services (“DCS”) failed to
prove by clear and convincing evidence that the conditions that resulted in
B.M.’s removal will not be remedied and that a continuation of the parent-child
relationship poses a threat to B.M.’s well-being. 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] Mother is the parent of B.M., who was born in November 2005. In 2007,
Mother was arrested for manufacturing methamphetamine, and B.M., who
smelled like ammonia, was placed with Father. In 2010, DCS substantiated a
claim against Father for the physical abuse of B.M., and B.M. was placed in
foster care. B.M. was adjudicated to be a Child in Need of Services (“CHINS”)
1
Father is not a party to this appeal.
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in January 2011. The case was closed in May 2013 when B.M. was reunified
with Mother.
[4] In June 2017, then eleven-year-old B.M. disclosed that Mother’s husband
(“Stepfather”) had been sexually abusing her for two years. When Mother,
who did not believe B.M., took no action to protect her daughter, DCS
removed B.M. from Mother’s home and placed her in foster care. In September
2017, Mother was charged with theft. In November 2017, Mother was charged
with four counts of dealing methamphetamine, four counts of possession of
methamphetamine, and four counts of maintaining a common nuisance.
[5] B.M. was adjudicated to be a CHINS in December 2017. In the January 2018
CHINS dispositional order, the trial court ordered Mother to: (1) complete a
parenting assessment and successfully complete all recommendations; (2)
complete a substance abuse assessment and successfully complete all
recommendations; (3) complete a psychological evaluation and successfully
complete all recommendations; (4) attend scheduled visitations with B.M.; (5)
provide B.M. with a safe, secure, and nurturing environment that is free from
abuse; (6) obey the law; (7) abstain from the use of illegal controlled substances;
(8) maintain suitable, safe, and stable housing; and (9) secure and maintain a
legal and stable source of income.
[6] Because Mother continued to use drugs and only partially complied with the
terms of the dispositional order, DCS filed a petition to terminate her parental
rights in November 2018. Testimony at the May 2019 termination hearing
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revealed that between February 2018 and May 2019, Mother had tested positive
for methamphetamine in twelve of fourteen drug screens. Psychologist David
Winsch, (“Dr. Winsch”), who assessed Mother in April 2018, testified that
Mother had been treated for mental health issues since she was eight years old.
Dr. Winsch further testified that Mother suffered from bipolar disorder,
ADHD, and substance abuse issues. According to Dr. Winsch, Mother “was
not safe to care for [B.M.] if she [was] abusing substances.” (Tr. Vol 2 at 17-
18). Dr. Winsch’s prognosis for Mother was “guarded.” (Tr. Vol. 2 at 18). He
opined that it was “less likely that [Mother] would be able to make a change to
be able to provide [a] stable and safe home.” (Tr. Vol. 2 at 18). He
recommended that Mother attend individual therapy, a substance abuse
program, and parenting classes. Mother did not successfully complete any of
these programs.
[7] The testimony further revealed that in February 2018, Mother was charged with
criminal mischief, battery, and battery resulting in bodily injury. All of
Mother’s legal charges, including those filed before the termination petition had
been filed, were pending at the time of the termination hearing. Mother and
B.M. attended two family therapy sessions in August and September 2018.
During the second session, when B.M. attempted to discuss the sexual abuse,
Mother defended Stepfather. Shortly thereafter, Mother appears to have been
incarcerated for a probation violation in November 2019 after she admitted to
her probation officer that she would test positive for an illegal substance. She
has not participated in any services since her January 2019 release from jail.
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[8] Further, when Stepfather was released from jail in early 2019, Mother allowed
him to return to her home. When B.M. learned that Stepfather had returned to
Mother’s home, B.M. told her therapist that she no longer wanted to see
Mother because she did not trust Mother to keep her safe. B.M.’s last visit with
Mother was in October 2018 before Mother was incarcerated.
[9] Also at the hearing, when asked about her status with Stepfather, Mother
responded that she was married to him and that he lived at her house. She
further testified that she did not want to call B.M. a liar, but she had seen no
evidence that Stepfather had sexually abused B.M. She further testified that
B.M. had the “propensity to exaggerate.” (Tr. Vol. 2 at 102). Mother also
admitted that she “had to stay off drugs.” (Tr. Vol. 2 at 104).
[10] Lastly, CASA Wendy Shepard (“CASA Shepard”) testified that when B.M.
learned that Stepfather had been released from jail in early 2019, B.M.
“expressed great fear” that Stepfather would find her. (Tr. Vol. 2 at 129). The
trial court suspended visitation between Mother and B.M. in April 2019. In
addition, according to CASA Shepard, B.M. “was crushed because [Mother]
took [Stepfather] back in[.] She really believed that [Mother] had believed her.”
(Tr. Vol. 2 at 129). CASA Shepard further testified that B.M. wanted only a
family to trust and protect her. According to the CASA, B.M. deserved that.
CASA Shepard recommended that Mother’s parental rights be terminated and
that B.M. be placed for adoption.
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[11] Following the hearing, the trial court issued a termination order, which
concluded that DCS had met its burden of proving that there was a reasonable
probability that the conditions that resulted in B.M.’s removal would not be
remedied. Specifically, the trial court stated that “[b]ased upon [Mother’s]
longstanding pattern of abusive and neglectful behavior and lack of progress in
the current CHINS case, it is unlikely that the reasons for [B.M.’s] removal will
be remedied.” (Termination Order at 6). Mother now appeals the termination.
Decision
[12] 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.
[13] When reviewing the termination of parental rights, we will not reweigh 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
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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.
[14] A petition to terminate parental rights must allege:
(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.
[15] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show both that there is a reasonable probability that the
conditions that resulted in B.M.’s removal or the reasons for placement outside
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the parent’s home will not be remedied and a continuation of the parent-child
relationship poses a threat to B.M.’s well-being.
[16] However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in B.M.’s removal or
the reasons for her placement outside Mother’s home will not be remedied.
[17] 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, 642-43 (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. at 643. The second step requires trial courts to judge a
parent’s fitness at the time of the 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. DCS need not
rule out all possibilities of change. In re Kay. L., 867 N.E.2d 236, 242 (Ind. Ct.
App. 2007). Rather, DCS need establish only that there is a reasonable
probability that the parent’s behavior will not change. Id.
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[18] Here, our review of the evidence reveals that B.M. was removed from Mother
after B.M. disclosed that Stepfather had been sexually abusing her for two
years, and Mother took no action to protect her daughter. At the time of the
termination hearing, Mother, who still did not believe her daughter, had
allowed Stepfather to move back into her house following his release from
incarceration. In addition, Mother had not successfully completed any of the
court-ordered programs. She had also continued to use methamphetamine
during the pendency of the CHINS proceeding and had violated her probation.
In addition, at the time of the termination hearing, Mother had not seen B.M.
for seven months. This evidence supports the trial court’s conclusion that there
was a reasonable probability that the conditions that resulted in B.M.’s removal
would not be remedied. There is sufficient evidence to support the termination
of Mother’s parental rights.
[19] Affirmed.
May, J., and Crone, J., concur.
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