In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.B. (Minor Child) and C.L. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                        FILED
    this Memorandum Decision shall not be                                    Sep 18 2020, 9:01 am
    regarded as precedent or cited before any
    CLERK
    court except for the purpose of establishing                              Indiana Supreme Court
    Court of Appeals
    the defense of res judicata, collateral                                        and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    David W. Stone IV                                        Curtis T. Hill, Jr.
    Anderson, Indiana                                        Attorney General
    Monika Prekopa Talbot
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Involuntary                         September 18, 2020
    Termination of the Parent-Child                          Court of Appeals Case No.
    Relationship of A.B. (Minor                              20A-JT-401
    Child)                                                   Appeal from the Madison Circuit
    and                                                      Court
    The Honorable G. George Pancol,
    C.L. (Mother),                                           Judge
    Appellant-Respondent,                                    Trial Court Cause No.
    48C02-1904-JT-189
    v.
    Indiana Department of Child
    Services,
    Appellee-Petitioner
    Crone, Judge.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020                  Page 1 of 13
    Case Summary
    [1]   C.L. (Mother) appeals an order involuntarily terminating her parent-child
    relationship with A.B. (Child). She claims that several of the trial court’s
    findings are not proper findings. She also asserts that the trial court abused its
    discretion in admitting her drug screen results and challenges the sufficiency of
    the evidence to support the termination order. We affirm.
    Facts and Procedural History
    [2]   Child was born in April 2013 and is the son of Mother and M.B. (Father). 1 At
    birth, Child had drugs in his system and had to remain hospitalized for about a
    month. Upon Child’s discharge, the Indiana Department of Child Services
    (DCS) removed him from Mother and placed him with Father in the paternal
    grandmother’s home. DCS filed a petition to have Child adjudicated a child in
    need of services (CHINS). Mother was incarcerated at the time. Child was
    adjudicated a CHINS in May 2013. Father was arrested and incarcerated, and
    Child remained with his grandmother. After Mother’s release from
    incarceration, DCS released Child to her and dismissed the case.
    [3]   In August 2016, DCS received a report of Mother’s substance abuse issues and
    domestic violence in the home, removed Child from her care, and filed a
    CHINS petition. The trial court found Child to be a CHINS and ordered
    1
    Father is not participating in this appeal.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 2 of 13
    Mother to undergo a parenting assessment and follow all recommendations;
    participate in visitation with Child; formulate and implement a child protection
    plan; participate in home-based counseling; complete a substance abuse
    assessment and follow all recommendations; attend AA/NA regularly, provide
    written verification of her attendance, and secure a sponsor for it; refrain from
    alcohol consumption and from the consumption, manufacture, trade, sale, or
    possession of illegal substances; submit to random drug screens; obey the law;
    abide by travel restrictions for Child; secure and maintain stable and safe
    housing; and secure and maintain a stable and legal income.
    [4]   In 2018, DCS changed the permanency plan to include a concurrent plan of
    adoption by Child’s paternal grandmother, citing Mother’s noncompliance with
    services, failure to enhance parenting skills, and failure to consistently visit
    Child, as well as Mother’s positive drug screens and arrests. In April 2019,
    DCS filed a petition for termination of parental rights, citing Mother’s
    continued noncompliance with services, failure to remain in contact with DCS,
    continued drug use, noncooperation with drug screens or in-home visits, failure
    to maintain safe and suitable housing, failure to complete the parenting
    assessment or parenting classes, failure to provide documentation concerning
    any participation in AA/NA, and failure to follow the recommendations from
    the substance abuse assessment.
    [5]   The trial court conducted factfinding hearings in autumn 2019. Mother testified
    that she was bipolar type two with rapid cycling, that her “psych meds”
    included lithium, Prozac, and Xanax, and that she had become addicted to pain
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 3 of 13
    medicine. Tr. Vol. 2 at 64, 69. Between 2015 and the 2019 factfinding
    hearings, Mother was arrested six times in Madison County. Meanwhile, Child
    had spent thirty-seven months outside Mother’s care, had not had a visit with
    her in two years, and had been living with his paternal grandmother, who
    expressed her absolute willingness and ability to adopt Child.
    [6]   In February 2020, the trial court issued an order terminating Mother’s and
    Father’s parental relationships with Child. Mother now appeals. Additional
    facts will be provided as necessary.
    Discussion and Decision
    [7]   Mother contends that the trial court erred in terminating her parental
    relationship with Child. When reviewing a trial court’s findings of fact and
    conclusions thereon in a case involving the termination of parental rights, we
    first determine whether the evidence supports the findings and then whether the
    findings support the judgment. In re E.M., 
    4 N.E.3d 636
    , 642 (Ind. 2014). We
    will set aside the trial court’s judgment only if it is clearly erroneous. Bester v.
    Lake Cty. Office of Family & Children, 
    839 N.E.2d 143
    , 147 (Ind. 2005). “A
    judgment is clearly erroneous if the findings do not support the trial court’s
    conclusions or the conclusions do not support the judgment.” In re A.G., 
    45 N.E.3d 471
    , 476 (Ind. Ct. App. 2015), trans. denied (2016). Unchallenged
    findings stand as proven. T.B. v. Ind. Dep’t of Child Servs., 
    971 N.E.2d 104
    , 110
    (Ind. Ct. App. 2012), trans. denied. In conducting our review, we neither
    reweigh evidence nor judge witness credibility. E.M., 4 N.E.3d at 642. Rather,
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 4 of 13
    we consider only the evidence and inferences most favorable to the judgment.
    Id. “[I]t is not enough that the evidence might support some other conclusion,
    but it must positively require the conclusion contended for by the appellant
    before there is a basis for reversal.” Best v. Best, 
    941 N.E.2d 499
    , 503 (Ind. 2011)
    (citations omitted).
    Section 1 – The trial court’s findings are not improper.
    [8]   Mother asserts that several of the trial court’s findings are mere recitations of
    witness testimony. The mere recitation of testimony does not amount to a
    proper finding of fact; rather, the trial court must adopt the testimony of the
    witness. S.L. v. Ind. Dep’t of Child Servs., 
    997 N.E.2d 1114
    , 1121-22 (Ind. Ct.
    App. 2013). Here, however, when the court referenced the testimony of a given
    service provider, it specified, “The Court makes the following findings and
    reasonable inferences from this testimony.” See, e.g., Appealed Order at 7
    (finding 19 concerning family case manager’s testimony). The court adequately
    adopted the testimony and did not simply recite it.
    [9]   Mother also criticizes the trial court’s findings, claiming that the court simply
    adopted DCS’s proposed findings verbatim. We were unable to find a copy of
    the parties’ proposed findings in the record before us, so we have no way of
    even making such a comparison. That said, we note that a trial court’s
    verbatim adoption of a party’s proposed findings is not prohibited. Country
    Contractors, Inc. v. A Westside Storage of Indianapolis, Inc., 
    4 N.E.3d 677
    , 694 (Ind.
    Ct. App. 2014). “Although we by no means encourage the wholesale adoption
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 5 of 13
    of a party’s proposed findings and conclusions, the critical inquiry is whether
    such findings, as adopted by the court, are clearly erroneous.” 
    Id.
     Mother’s
    arguments concerning the impropriety of the findings lack merit.
    Section 2 – Mother failed to preserve her argument concerning
    the admissibility of her drug screen results.
    [10]   Mother challenges the admission of her drug screen results, which are detailed
    in finding 22(v). That finding comprises a list of ten drug screen results during
    the pendency of the CHINS proceedings, with each entry including the result
    (nine positive and one negative), the type of drug(s) for which Mother tested
    positive, and the concentration of the drug(s) found in her system. Appealed
    Order at 10.
    [11]   Mother asserts that the drug screen results were inadmissible hearsay. We
    review the trial court’s admission of evidence for an abuse of discretion, which
    occurs only when the trial court’s decision is against the logic and effect of the
    facts and circumstances before the court. Matter of A.F., 
    69 N.E.3d 932
    , 942
    (Ind. Ct. App. 2017), trans. denied. “Errors in admission of evidence are to be
    disregarded as harmless error unless they affect the substantial rights of a
    party.” 
    Id.
     (citation omitted). “Admission of hearsay evidence is not grounds
    for reversal where it is merely cumulative of other evidence admitted.” 
    Id.
    (citation omitted).
    [12]   DCS claims that Mother did not object on hearsay grounds below and therefore
    waived this argument for review. A party who objects on one basis below and a
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 6 of 13
    different basis on appeal waives the argument for appellate review. In re
    Paternity of K.H., 
    116 N.E.3d 504
    , 512 (Ind. Ct. App. 2018), trans. denied (2019).
    Likewise, a mere general objection is ineffective to preserve an issue for review.
    Raess v. Doescher, 
    883 N.E.2d 790
    , 797 (Ind. 2008). An objection must be
    contemporaneous and sufficiently specific to alert the trial court as to its
    grounds and thus fully apprise the court of the legal issue. 
    Id.
    [13]   At the factfinding, DCS introduced the certified CHINS record, which included
    the information to which Mother now objects. Mother herself responded, not
    in the form of an objection but by interrupting her counsel with an exclamation
    that was partially inaudible, largely incoherent, and did not address hearsay.
    Tr. Vol. 2 at 27. Moments later, when DCS again sought to introduce the
    CHINS record, Mother’s counsel indicated that Mother had no objection. Id.
    at 29. The closest Mother ever came to raising a hearsay objection occurred
    when DCS sought to introduce the laboratory results as a separate exhibit, and
    Mother’s counsel indicated a concern over authenticity and how the tests were
    conducted. Id. at 31. This simply does not amount to a clear and
    contemporaneous hearsay objection. As such, Mother has failed to preserve
    this allegation of error for review. Waiver notwithstanding, the record is replete
    with unchallenged testimony about Mother’s drug use. Therefore, the
    challenged evidence is cumulative, and Mother’s substantial rights were not
    prejudiced by the admission of the drug screen information that served as the
    basis for finding 22(v).
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 7 of 13
    Section 3 – Mother has failed to establish that the trial court
    clearly erred in terminating her parental relationship with
    Child.
    [14]   Mother asserts that the trial court clearly erred in terminating her parental
    rights. “Parents have a fundamental right to raise their children – but this right
    is not absolute. When parents are unwilling to meet their parental
    responsibilities, their parental rights may be terminated.” Matter of Ma.H., 
    134 N.E.3d 41
    , 45-46 (Ind. 2019) (citation omitted), cert. denied (2020). To obtain a
    termination of a parent-child relationship, DCS is required to establish in
    pertinent part:
    (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.
    ….
    (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;
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 8 of 13
    (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).
    [15]   In recognition of the seriousness with which we address parental termination
    cases, Indiana has adopted a clear and convincing evidence standard. 
    Ind. Code § 31-37-14-2
    ; Castro v. State Office of Family & Children, 
    842 N.E.2d 367
    ,
    377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need
    not reveal that the continued custody of the parents is wholly inadequate for the
    child’s survival. Rather, it is sufficient to show by clear and convincing
    evidence that the child’s emotional and physical development are threatened by
    the respondent parent’s custody.” In re K.T.K., 
    989 N.E.2d 1225
    , 1230 (Ind.
    2013) (citation omitted). “[I]f the court finds that the allegations in a
    [termination] petition … are true, the court shall terminate the parent-child
    relationship.” 
    Ind. Code § 31-35-2-8
    (a) (emphasis added).
    [16]   Mother focuses her argument solely on the trial court’s conclusion that a
    reasonable probability exists that the conditions that led to Child’s removal and
    continued placement outside the home will not be remedied.2 When assessing
    2
    Indiana Code Section 31-35-2-4(b)(2)(B) requires proof of only one of the three circumstances listed. The
    record shows that Child has twice been adjudicated a CHINS. 
    Ind. Code § 31-35-2-4
    (b)(2)(B)(iii). Here,
    however, Child’s two CHINS adjudications were neither alleged by DCS nor found by the trial court to be a
    basis for termination. As such, we analyze the merits of Mother’s argument concerning the reasonable
    probability of unremedied conditions.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020                Page 9 of 13
    whether there is a reasonable probability that conditions that led to a child’s
    removal will not be remedied, we must consider not only the initial basis for the
    child’s removal but also the bases for continued placement outside the home.
    In re A.I., 
    825 N.E.2d 798
    , 806 (Ind. Ct. App. 2005), trans. denied. Moreover,
    “the trial court should judge a parent’s fitness to care for his children at the time
    of the termination hearing, taking into consideration evidence of changed
    conditions.” In re J.T., 
    742 N.E.2d 509
    , 512 (Ind. Ct. App. 2001), trans. denied.
    “Requiring trial courts to give due regard to changed conditions does not
    preclude them from finding that parents’ past behavior is the best predictor of
    their future behavior.” E.M., 4 N.E.3d at 643. “Due to the permanent effect of
    termination, the trial court also must evaluate the parent’s habitual patterns of
    conduct to determine the probability of future neglect or deprivation of the
    child.” J.T., 
    742 N.E.2d at 512
    . In making its case, “DCS need not rule out all
    possibilities of change; rather, [it] need establish only that there is a reasonable
    probability that the parent’s behavior will not change.” In re Kay.L., 
    867 N.E.2d 236
    , 242 (Ind. Ct. App. 2007). The court may properly consider
    evidence of a parent’s substance abuse, criminal history, lack of employment or
    adequate housing, history of neglect, and failure to provide support. McBride v.
    Monroe Cty. Office of Family & Children, 
    798 N.E.2d 185
    , 199 (Ind. Ct. App.
    2003).
    [17]   Mother claims that the record is not entirely clear as to the conditions that led
    to Child’s initial removal. She characterizes as clearly erroneous findings 19(d)
    and 22(d), both of which reiterate DCS’s reasons for initial removal: drug use
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 10 of 13
    and domestic violence. She is correct that there is no evidence of domestic
    violence in the record. Nevertheless, it is understood that DCS makes its initial
    determinations based on reports received, that CHINS petitions include
    allegations based on those preliminary reports, and that DCS conducts follow-up
    investigations and presents those to the trial court. There may be a dearth of
    evidence of domestic violence, but there is overwhelming evidence to
    substantiate the allegation of Mother’s drug abuse, which has been pervasive
    and protracted. Mother admits that she became addicted to her pain
    medications and that she took various “psych meds,” such as lithium, Prozac,
    and Xanax to combat her post-traumatic stress disorder and bipolar type two
    rapid cycling disorder. Tr. Vol. 2 at 64, 69. The DCS family case manager
    testified that there was a period of two years during which Mother failed to
    submit to any of her required drug screens and her whereabouts were unknown.
    Id. at 33, 37. Despite this gap, Mother had a pattern of testing positive when
    she was screened.
    [18]   Finally, Mother asserts that DCS established no nexus between her drug use
    and her neglect of Child. We could not disagree more. The disturbing nexus
    predates the current CHINS proceedings and extends back to Mother’s
    pregnancy with Child, during which she tested positive for drugs three times.
    As a result, Child was born drug-addicted and had to remain hospitalized for
    his first month of life while withdrawing from those drugs. After his discharge,
    Child was removed from Mother and eventually adjudicated a CHINS.
    Meanwhile, Mother was in and out of jail and continued to use drugs. She was
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 11 of 13
    afforded a second chance to parent Child, but even then, she could not refrain
    from drug use or maintain a safe and suitable environment for him, so most
    often she left him with his paternal grandparents. This precipitated his removal
    and his second CHINS adjudication by age three. Again, Mother failed to
    comply with services, continued to test positive for drugs, and simply did not
    avail herself of the opportunity to show that she was earnest about getting clean
    and becoming a better mother. She was arrested six times in Madison County
    between 2015 and 2019, and her pattern of being in and out of jail is not
    conducive to providing a stable home for Child. The current proceedings have
    lasted more than three years, and, as of the time of the factfinding hearings,
    Mother had not visited Child in two years. This failure demonstrates her lack
    of commitment to complete the steps necessary to preserve her parental rights.
    See Lang, 861 N.E.2d at 372 (failure to exercise right to visit one’s children
    demonstrates lack of commitment to complete actions necessary to preserve
    parent-child relationship).
    [19]   Mother’s drug use has essentially defined Child’s life. Her failure to improve
    after the dismissal of the first CHINS case portends a similar outcome now.
    Her behavior during the factfinding hearings reflects an attitude of deflection
    and a stubborn refusal to take responsibility for her problems and get herself
    clean. In short, Child has endured more than six years of instability and
    uncertainty, and there is a reasonable probability that the drug use that led to
    his removal from and continued placement outside of Mother’s home will not
    be remedied. Based on the foregoing, we conclude that Mother has failed to
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 12 of 13
    establish clear error in the trial court’s decision to terminate her parental
    relationship with Child. Accordingly, we affirm.
    [20]   Affirmed.
    Robb, J., and Brown, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 20A-JT-401| September 18, 2020   Page 13 of 13