In the Termination of the Parent-Child Relationship of: E.L., S.L., L.L., & I.L., (Minor Children) and J.K. (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 Jan 17 2017, 7:25 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
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- January 17, 2017
Child Relationship of: E.L., S.L., Court of Appeals Case No.
L.L., & I.L., (Minor Children) 54A01-1609-JT-2158
Appeal from the Montgomery
and Circuit Court
The Honorable Harry A. Siamas,
J.K. (Mother), Judge
Appellant-Respondent, Trial Court Cause Nos.
54C01-1602-JT-44
v. 54C01-1602-JT-45
54C01-1602-JT-46
The Indiana Department of 54C01-1602-JT-47
Child Services,
Appellee-Petitioner.
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Bradford, Judge.
Case Summary
[1] Appellant-Respondent J.K. (“Mother”) appeals the juvenile court’s order
terminating her parental rights to L.L., E.L., I.L., and S.L. (collectively “the
Children”). On February 27, 2015, Appellee-Petitioner the Department of
Child Services (“DCS”) filed a petition alleging that the Children were children
in need of services (“CHINS”). The Children were adjudicated to be CHINS
on May 7, 2015. Mother was subsequently ordered to participate in certain
services. Mother, however, failed to consistently do so.
[2] DCS filed a petition seeking the termination of Mother’s parental rights to the
Children on January 27, 2016. Following an evidentiary hearing, the juvenile
court issued an order granting DCS’s petition. On appeal, Mother contends
that DCS did not provide sufficient evidence to support the termination of her
parental rights. We affirm.
Facts and Procedural History
[3] Mother and J.L. (“Father”) are the biological parents of L.L., born on May 2,
2003; E.L., born on January 19, 2006; I.L., born on October 29, 2007; and S.L.,
born on October 6, 2010.1 DCS initially became involved with the family in
1
The Children’s biological father is deceased.
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2006 when the Children were removed from Mother’s care after Mother was
arrested and tested positive for marijuana and cocaine. This initial case “was
closed mid to late 2007.” DCS Ex. 1, p. 15. DCS also became involved with
the family in June of 2013 after Father “passed away due to a heroin overdose.”
DCS Ex. 1 p. 16. At the time Mother tested positive for methamphetamine.
This case was subsequently closed after DCS confirmed that Mother had family
and community support in place.
[4] DCS again became involved with the family on February 25, 2015, after
receiving a report which alleged that the Children were the victims of abuse and
that the family’s home had no electricity, heat, or water. It was also alleged
that there may have been a methamphetamine lab present in the home. After
receiving the report, at approximately 9:40 p.m., DCS Family Case Manager
Itzyana Prieto (“FCM Prieto”) responded to the home with members of the
Crawfordsville Police Department and the Indiana State Police. Upon arriving
at the home, the individual who answered the door indicated that Mother was
not home but that he was watching the Children. The individual allowed FCM
Prieto and the law enforcement officers to enter the home. Three other adults
were also present in the home.
[5] FCM Prieto observed that while the home did have electricity and heat, there
was no running water in the home. FCM Prieto noted that the home “was
unfit and unsafe with clutter, lots of trash in the kitchen, piles of feces in the
toilet and a strong odor coming from the bathroom, and dirty dishes piled in the
sink.” DCS Ex. 1, p. 11. FCM Prieto observed that the Children were sleeping
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in a single bedroom with two of the children sleeping on the top bunk and the
other two sleeping on the floor. FCM Prieto noted that the Children “smelled
of a strong odor of urine.” DCS Ex. 1, p. 11. FCM Prieto and the law
enforcement officers subsequently discovered what appeared to be an active
methamphetamine lab in the basement of the home. Given the conditions of
the home together with the presence of the apparent methamphetamine lab, the
Children were taken into DCS custody and Mother was placed under arrest.2
[6] On February 27, 2015, DCS filed petitions alleging that the Children were
CHINS. On May 6, 2015, the juvenile court adjudicated the Children to be
CHINS. Following a hearing, the juvenile court issued a dispositional order on
June 8, 2015, in which it ordered that Mother shall (1) participate in a mental-
health and substance-abuse intake and follow all of the recommendations, and
(2) submit to random drug screens. The juvenile court instructed DCS to
facilitate visitation between Mother and the Children.
[7] On September 25, 2015, the juvenile court issued an order of participation in
which it found as follows:
[Mother] has not participated … fully in services to help her
reunify with her children. She has not consistently participated
in home-based case management services to help them establish a
home and employment. She continues to use illegal substances.
2
Mother was subsequently charged with felony drug charges, including manufacturing and
possession of methamphetamine; felony child neglect charges, and misdemeanor drug
charges, including possession of paraphernalia and synthetic marijuana.
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She has not participated in substance abuse treatment or engaged
in the individual therapy.
DCS Ex. 1, p. 38. In light of these findings, the juvenile court ordered Mother
to: (1) initiate and participate in a course of individual therapy; (2) attend
programs related to relapse prevention and any follow-up recommended
substance-abuse treatment; (3) cooperate with DCS and service providers; (4)
participate consistently in home-based case work and follow recommendations
of the home-based case manager; (5) provide drug screens when requested by
DCS or service providers; (6) participate in supervised visitation on a regular
basis; (7) refrain from using illegal drugs and prescription medications which
are not prescribed to her; (8) keep DCS and service providers informed as to her
on-going criminal case, current address, and contact information; and (9) sign
any necessary releases.
[8] Mother gave birth to another child on November 13, 2015. 3 DCS received a
report that the newborn child “was withdrawing from substances.” Tr. p. 31.
FCM Prieto met with Mother, who admitted to using heroin. Mother was
tested for drugs and her drug screen returned positive for both
methamphetamine and heroin. This newborn child was subsequently
adjudicated to be a CHINS.
3
This child is not involved in the instant termination proceedings.
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[9] On January 11, 2016, Mother was scheduled to appear for a sentencing hearing
in her criminal case that stemmed from February of 2015. Mother appeared
about two-and-a-half hours late for this hearing by which time the trial court
had issued a warrant for her arrest. Mother later testified during the
termination proceedings before the juvenile court that “[a]fter I got the warrant
put out I went and got high.” Tr. p. 115. On February 22, 2016, Mother was
sentenced to a term of five years on house arrest.
[10] Mother’s participation in services was inconsistent prior to being placed on
house arrest in February of 2016. Once being placed on house arrest, Mother
began participating in substance-abuse treatment and parenting classes in
connection with the newborn child’s CHINS case. Mother has since tested
clean on her drug screens.4 However, as of the date of the termination hearing,
DCS had not received any progress reports relating to substance-abuse
treatment or individual therapy from Mother’s treatment providers.
[11] Mother acknowledged that she has not visited with the Children since January
of 2016. The record provides no indication as to why Mother has, apparently,
not attempted to re-establish visitation with the Children since being released
from incarceration and placed on house arrest.
4
Mother indicated that she understood that she would face prison time if she did not comply
with the terms of her house arrest, and it is the opinion of DCS that Mother’s house arrest is
the reason why she has remained sober.
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[12] On February 19, 2016, DCS filed a petition seeking the termination of Mother’s
parental rights to the Children. The juvenile court conducted a two-day
evidentiary hearing on DCS’s petition on May 4 and July 13, 2016. The
juvenile court took the matter under advisement and, on August 26, 2016,
issued an order terminating Mother’s parental rights to the Children. This
appeal follows.
Discussion and Decision
[13] Mother contends that the evidence is insufficient to sustain the termination of
her parental rights to the Children. The Fourteenth Amendment to the United
States Constitution protects the traditional right of a parent to establish a home
and raise her children. Bester v. Lake Cnty. Office of Family & Children, 839
N.E.2d 143, 145 (Ind. 2005). Further, we acknowledge that the parent-child
relationship is “one of the most valued relationships of our culture.” Id.
However, although parental rights are of a constitutional dimension, the law
allows for the termination of those rights when a parent is unable or unwilling
to meet her responsibility as a parent. In re T.F., 743 N.E.2d 766, 773 (Ind. Ct.
App. 2001), trans. denied. Therefore, parental rights are not absolute and must
be subordinated to the children’s interests in determining the appropriate
disposition of a petition to terminate the parent-child relationship. Id.
[14] The purpose of terminating parental rights is not to punish the parent but to
protect the children. Id. Termination of parental rights is proper where the
children’s emotional and physical development is threatened. Id. The juvenile
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court need not wait until the children are irreversibly harmed such that their
physical, mental, and social development is permanently impaired before
terminating the parent-child relationship. Id.
[15] Mother contends that the evidence presented at the evidentiary hearing was
insufficient to support the juvenile court’s order terminating her parental rights.
In reviewing termination proceedings on appeal, this court will not reweigh the
evidence or assess the credibility of the witnesses. In re Involuntary Termination
of Parental Rights of S.P.H., 806 N.E.2d 874, 879 (Ind. Ct. App. 2004). We only
consider the evidence that supports the juvenile court’s decision and reasonable
inferences drawn therefrom. Id. Where, as here, the juvenile court includes
findings of fact and conclusions thereon in its order terminating parental rights,
our standard of review is two-tiered. Id. First, we must determine whether the
evidence supports the findings, and, second, whether the findings support the
legal conclusions. Id.
[16] In deference to the juvenile court’s unique position to assess the evidence, we
set aside the juvenile court’s findings and judgment terminating a parent-child
relationship only if they are clearly erroneous. Id. A finding of fact is clearly
erroneous when there are no facts or inferences drawn therefrom to support it.
Id. A judgment is clearly erroneous only if the legal conclusions made by the
juvenile court are not supported by its findings of fact, or the conclusions do not
support the judgment. Id.
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[17] In order to involuntarily terminate a parent’s parental rights, DCS must
establish by clear and convincing evidence that:
(A) one (1) of the following exists:
(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; or
(iii) the child has been removed from the
parent and has been under the supervision of a
county office of family and children 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) termination is in the best interests of the child; and
(D) there is a satisfactory plan for the care and treatment of the
child.
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Ind. Code § 31-35-2-4(b)(2). Mother does not dispute that DCS presented
sufficient evidence to support the first, second, and fourth elements set forth in
Indiana Code section 31-35-2-4(b). Mother, however, does claim that DCS
failed to establish that termination of Mother’s parental rights is in the best
interests of the children.
Best Interests of the Children
[18] We note that in claiming that the evidence was insufficient to support the
juvenile court’s order terminating her parental rights, Mother does not
challenge the sufficiency of the evidence to support any of the juvenile court’s
findings. As a result, Mother has waived any argument relating to whether
these unchallenged findings are clearly erroneous. See Madlem v. Arko, 592
N.E.2d 686, 687 (Ind. 1992) (providing that when an appealing party fails to
challenge the findings of the trial court, the findings must be accepted as
correct); In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007) (providing that
failure to challenges findings resulted in waiver of argument that findings were
clearly erroneous), trans. denied. We will therefore limit our review to whether
these unchallenged findings are sufficient to support the juvenile court’s
conclusion that termination of Mother’s parental rights is in the Children’s best
interests.
[19] We are mindful that in considering whether termination of one’s parental rights
is in the best interests of a child, the juvenile court is required to look beyond
the factors identified by DCS and look to the totality of the evidence. McBride,
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798 N.E.2d at 203. In doing so, the juvenile court must subordinate the
interests of the parent to those of the child involved. Id. Furthermore, this
court has previously determined that the testimony of the case worker and/or a
child advocate regarding the child’s need for permanency supports a finding
that termination is in the child’s best interests. Id.; see also Matter of M.B., 666
N.E.2d 73, 79 (Ind. Ct. App. 1996), trans. denied.
[20] Here, the juvenile court found that evidence established that the Children have
a need for permanency and stability and that the termination of Mother’s
parental rights would serve the Children’s best interests. In this regard, the
juvenile court made the following specific findings:
5. In June of 2013[,] the DCS investigated a report of a drug
overdose. The children’s father overdosed and died. The DCS
did not remove the children from Mother at that time.
6. On February 25, 2015[,] the DCS received a report that the
living conditions in Mother’s home were deplorable. DCS case
worker Itzyana Prieto investigated and found that Mother’s
home was in a “deplorable” condition. There was no running
water. The bathroom toilet was overflowing with feces.… There
were piles of dirty dishes in the kitchen. The children appeared
neglected. Two of the boys were sleeping on the floor with no
mattress. Two of the boys were sleeping in a bed with no sheets.
Prieto described the children as unclean and smelling of urine.
[S.L.] had bruises on his nose. At the time of her investigation of
the home Mother was at work. At the time five unrelated adults
were staying in the home besides Mother and her boyfriend. In
the basement of the home Prieto and the police officers whom
accompanied her found what appeared to be a
methamphetamine lab including Coleman Camp fuel, empty
bottles with tubing, hypodermic needles and a spoon with white
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powder. Mother denied knowing the existence of the meth lab.
The DCS transported the children to the hospital to be checked.
[S.L.] had a broken nose. The children were hungry. The
children were removed from their Mother and placed with their
maternal grandparents. Mother was arrested and charged with
manufacturing methamphetamine. The children have been
outside of the home of their mother since February 26, 2015.
****
9. On August 10, 2015[,] the Court held a review hearing.
Mother did not appear for the hearing. The Court found that
Mother was not participating in services as ordered at the
disposition[al] hearing. The DCS had referred Mother to
substance abuse treatment, individual therapy, [and] home based
case management services. Mother had visited with the children
on a regular basis but she had not attended substance abuse
treatment for several weeks and she had not gone for individual
therapy. The boys were defiant, angry and not listening to their
caregivers. The DCS had three of the boys in individual mental
health therapy.
10. On September 21, 2015[,] the Court held a hearing and
entered a parental participation order. Mother did not attend this
hearing. The Court ordered Mother to initiate and participate in
a course of individual therapy, attend IOP/AOP and Relapse
Prevention, participate in home based casework, provide drug
screens, participate in supervised visitation on a regular basis, not
use controlled substances, and stay in contact with the DCS and
service providers. However, Mother did not consistently
participate in services or visit with the children on a regular basis
during this period of time. The boys were angry and frustrated
with their Mother.
11. On November 13, 2015[,] Mother gave birth to another
child. When DCS visited Mother[,] she admitted that she had
been using heroin. The baby was in withdrawal from drugs in its
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system. In January[,] Mother began to visit with the newborn
but she was not visiting consistently with the boys. In November
2015[,] the police raided a home where Mother was staying and
found an old methamphetamine lab with scales and drug
paraphernalia in Mother’s bedroom.
12. On January 25, 2016[,] the Court held a permanency
hearing. The children’s grandparents were having difficulty
dealing with the behaviors of the children and had requested that
the DCS move the children from their home. The Court
approved the DCS’[s] placement of the children in a foster home.
The Court authorized the DCS to suspend visitation between
Mother and the children. The Court found that Mother had not
maintained her sobriety; she had not participated consistently in
services including home based case management, individual
therapy or substance abuse treatment; and that she was in jail
after having been arrested. The Court found that permanency
plan should be changed to adoption.
13. The children have significant mental health and behavioral
issues. The boys have experienced trauma as the result of losing
their father to a drug overdose and other issues. [E.L.] has a
diagnosis of Oppositional Defiant Disorder. He throws
tantrums; he does not respect authority and won’t listen to adult
care givers. [E.L.]’s behavior causes a lot of problems and chaos
in his home. In April 2016[,] [L.L.] was sent to HARSHA[5] for
treatment of depression issues. He had behavior problems in
school and in the foster home. He acted out, said inappropriate
things and drew sexual pictures. [L.L.] did improve somewhat
after his treatment at HARSHA. [I.L.] has a diagnosis of
Oppositional Defiant Disorder. He has a temper and intimidates
other children. [I.L.] was admitted to HARSHA for treatment.
5
It appears that HARSHA is a behavior center which offers both residential and outpatient
treatment for children and teenagers. See https://www.rehab.com/harsha-behavioral-
center/5069074-r (last visited January 5, 2017).
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[E.L.], [I.L.], and [L.L.] need intensive ongoing therapy. [S.L.]
is the calmest child and he seemed to adapt best to foster care.
****
15. At the time of the termination hearing[,] [S.L.] and [I.L.]
were living with their paternal grandmother. [E.L.] was moved
to Crosspoint Hospital in May 2016 and he also will live with his
paternal grandmother. The plan is to place all four children with
their paternal grandmother who had found a larger house and
planned to move into it in August 2016. Paternal grandmother
has offered to adopt all four children.
16. Mother pled guilty to three counts of possession of
methamphetamine and one count of neglect of a dependent. On
January 11, 2016[,] she no showed for sentencing and a warrant
was issued for her arrest. She got high when she learned of the
arrest warrant. Mother admitted that she did not participate in
reunification services in November and December 2015 and
reunification services and visitation was discontinued on January
25, 2016[,] by order of the CHINS court. Mother has been on
electronic monitored house arrest since February 22, 2016. She
is sentenced to five years electronic monitored home detention.
17. Mother has since made improvements in her
circumstances. She is receiving services from the DCS as the
result of the CHINS proceeding involving the child she gave birth
to in November 2015 (that child is not part of this termination
proceeding). She is participating in individual therapy and case
management services. She has restarted IOP and will finish her
IOP shortly after the termination hearing. Her substance abuse
counselor believes that Mother has made significant progress in
her sobriety. She has not missed any substance abuse therapy
sessions and her insight into her drug addiction is significantly
improved. She is attending parenting classes. She lives with her
grandparents who can help her with child care if the children are
returned to her. She has not failed a drug screen since January
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2016. She is employed at a restaurant and is saving money in
order to get a house.
18. The DCS case manager believes it is in the children’s best
interest to terminate the parent-child relationship.
Order. Again, Mother does not challenge the sufficiency of the evidence to
support these findings.
[21] While acknowledging Mother’s recent progress, the juvenile court concluded as
follows:
While Mother has made improvements in her sobriety since
January 2016 as she works toward reunification with her infant
child she has not had any contact with these children who
continue to experience significant behavior issues. These
children need stability, structure and nurturing that Mother
cannot currently give them and is unlikely ever to be in a position
to give them. The Court must judge whether the improvements
Mother has made in the last several months are only temporary
improvements and whether her conduct will not improve in the
long term. The Court finds that these children can wait no longer
for a safe, stable and permanent home and that given all the
considerations presented by this admittedly difficult case, there is
a reasonable probability that Mother cannot remedy the
conditions and her own deficits that caused the children to be
removed from her in the first place.
Order. The juvenile court also concluded that:
The DCS has proven by clear and convincing evidence that
termination is in the best interests of the children. The children
need a stable and nurturing home to meet their many needs. The
DCS case manager believes that termination is in the best interest
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of the children. As previously state these children need stability,
structure and nurturing that Mother cannot currently give them
and is unlikely to be in a position to give them in the long term.
Order.
[22] Review of the record reveals that FCM Kelly Mobley testified that she believed
that the termination of Mother’s parental rights was in the Child’s best interests.
When asked why she believed so, FCS Mobley testified that “these kids deserve
a chance. They don’t deserve to sit around and wait to see if mom’s going to
comply with house arrest. They deserve permanency, stability, not to be
hanging on by a threa[d]. They are like in dire need of permanency.” Tr. p.
140.
[23] In reaching its conclusion regarding the Children’s best interests, the juvenile
court acknowledged that while the DCS case manager testified that it is in the
children’s best interests to terminate Mother’s parental rights, the court
appointed special advocate (“CASA”), relying on the recent improvements
made by Mother since being placed on house arrest, testified to the contrary.
Mother relies on the testimony of the CASA in arguing that the evidence is
insufficient to sustain the juvenile court’s order. It is well-established, however,
that the juvenile court, acting as a trier of fact, was not required to believe or
assess the same weight to the CASA’s testimony as Mother. See Thompson v.
State, 804 N.E.2d 1146, 1149 (Ind. 2004); Marshall v. State, 621 N.E.2d 308, 320
(Ind. 1993); Nelson v. State, 525 N.E.2d 296, 297 (Ind. 1988); A.S.C. Corp. v. First
Nat’l Bank of Elwood, 241 Ind. 19, 25, 167 N.E.2d 460, 463 (1960); Haynes v.
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Brown, 120 Ind. App. 184, 189, 88 N.E.2d 795, 797 (1949), trans. denied. In fact,
while noting Mother’s progress and the CASA’s testimony, the juvenile court’s
order indicates that it shared DCS’s expressed concerns regarding whether
Mother’s progress would last long-term or whether it was due to the fact that
Mother could be sent to prison if she violated the terms of her house arrest more
so than a desire to be reunified with the Children.
[24] Again, the juvenile court did not have to wait until the Children were
irreversibly harmed such that their physical, mental, and social development
were permanently impaired before terminating Mother’s parental rights. See In
re C.M., 675 N.E.2d at 1140. As such, in light of the testimony of FCM
Mobley, considered with the fact that Mother has had no contact with the
Children since January of 2016, the juvenile court’s unchallenged factual
findings, and Mother’s failure to participate in or successfully complete the
court-ordered services when given the opportunity, we conclude that the
evidence is sufficient to satisfy DCS’s burden of proving that termination of
Mother’s parental rights is in the Children’s best interests. Mother’s claim to
the contrary merely amounts to an invitation for this court to reweigh the
evidence, which we will not do. See In re S.P.H., 806 N.E.2d at 879.
Conclusion
[25] Having concluded that the evidence is sufficient to support the juvenile court’s
order terminating Mother’s parental rights to the Children, we affirm the
judgment of the juvenile court.
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[26] The judgment of the juvenile court is affirmed.
Vaidik, C.J., and Brown, J., concur.
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