In the Matter of the Termination of Parent-Child Relationship of J.C.G. (Minor Child), and L.A.M. (Mother) v. The Indiana Department of Child Services ( 2014 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any !
court except for the purpose of establishing ! Jun 12 2014, 10:34 am
the defense of res judicata, collateral !
estoppel, or the law of the case.
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
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DANIELLE L. FLORA GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
Indianapolis, Indiana
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ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana
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CHRISTINA D. PACE
Deputy Attorney General
Indianapolis, Indiana
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IN THE
COURT OF APPEALS OF INDIANA
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IN THE MATTER OF THE TERMINATION )
OF PARENT-CHILD RELATIONSHIP OF )
J.C.G. (Minor Child), )
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and )
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L.A.M. (Mother) )
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Appellant, ) No. 02A03-1312-JT-466
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vs. )
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THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
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Appellee. )
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APPEAL FROM THE ALLEN SUPERIOR COURT – FAMILY RELATIONS DIVISION
The Honorable Charles F. Pratt, Judge
The Honorable Lori K. Morgan, Magistrate
Cause No. 02D08-1212-JT-155
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June 12, 2014
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MEMORANDUM DECISION – NOT FOR PUBLICATION
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MATHIAS, Judge
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L.M’s (“Mother’s”) parental rights to J.G., one of her four children, were
terminated by the Allen Superior Court – Family Relations Division. Mother appeals,
arguing that the evidence was insufficient to support the trial court’s termination of her
parental rights.
We affirm.
Facts and Procedural History
Mother has four children, but only J.G., born March 12, 2010, is the subject of the
instant termination proceeding.1 On July 22, 2010, when J.G. was four months old,
police called the Department of Child Services (“DCS”) to take custody of J.G. after
Mother was arrested on charges of battery, a Class A misdemeanor, battery by bodily
waste, a Class D felony, and resisting law enforcement, a Class A misdemeanor. DCS
initiated the underlying Child in Need of Services (“CHINS”) proceedings and removed
1 One of her children is in the custody of her first husband, the other two are in the custody of her fiancé
and his aunt. J.G.’s biological father was personally served, but he stopped attending family planning
meetings on December 28, 2012, and stopped visiting J.G. during the same month. He did not attend the
termination hearing personally, but was represented by Attorney Timothy Stucky. J.G.'s biological father
does not participate in the present appeal.
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J.G., that same day, after determining the condition of Mother’s home to be inappropriate.
The CHINS allegations included Mother’s current unemployment and unstable housing,
her almost daily use of marijuana, dirty laundry throughout the house, dirty dishes in the
kitchen, trash strewn throughout the yard and dog feces in the basement, as well as the
allegations for which she was arrested.
On August 23, 2010, at the initial hearing, Mother admitted that she was currently
unemployed; that her residence was unkempt with dirty clothing scattered throughout the
house, with dirty dishes in the kitchen sink and trash scattered through the yard; that she
smoked marijuana five times per week and began using marijuana at age eleven; that she
engaged in a domestic dispute in front of her home, while J.G. was at the neighbor’s
house; that she was arrested for battery, battery by bodily waste and resisting law
enforcement; that since being incarcerated on July, 22, 2010, she had been unable to
provide necessary care and supervision to J.G.; that she could benefit from services she is
unlikely to receive without intervention of the court; and that prior to the preliminary
inquiry report, she did not have independent housing for J.G. See Ex. Vol., DCS Exs. 4
& 5. Due to Mother’s admissions, the trial court adjudicated J.G. a CHINS and ordered
Mother to participate in reunification services. Shortly thereafter, on September 13,
2010, Mother was convicted of battery and battery by bodily waste, and was sentenced to
one year of incarceration for each count, to run concurrently, but the trial court suspended
the sentences to active probation for one-and-a-half years.
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Four months later, by the review hearing on January 24, 2011, Mother had failed
to enroll in services and programs required by the disposal decree. In late January of
2011, Mother tested positive for cocaine, a violation of her probation, and on April 7,
2011 Mother was sentenced to serve one year and 183 days in county jail. After
approximately one month of incarceration, Mother was released to a community
corrections program and then six months of house arrest.
At the July 6, 2011 permanency hearing, the trial court found that Mother was
enrolled and participating in the required services and programs, but had not completed
them. The court ordered J.G. to remain in relative care with the permanency plan to
remain reunification, but ordered a concurrent permanency plan of adoption and
termination of paternal rights.
Four months later, on November 21, 2011, and after completing her prior sentence,
Mother was charged with disorderly conduct and public intoxication, both Class B
misdemeanors. By the December 12, 2011 permanency hearing, Mother had failed to
maintain contact with DCS, had engaged in criminal disorderly conduct, had tested
positive for synthetic marijuana and had not demonstrated an ability to benefit from
services. On April 2, 2012, Mother pleaded guilty to Class B misdemeanor disorderly
conduct and was sentenced to a 180-day sentence, which was suspended to probation.
At the May 14, 2012 review hearing, the trial court found that Mother was
participating in required services, consistently visiting with J.G. and had not recently
tested positive for illegal substances. The court maintained an interim plan of relative
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care because Mother had not completed required services, but she was allowed overnight
visitation. However, after Mother failed to appear for drug screenings and refused to
cooperate with an ongoing investigation, these overnight visitation rights were later
revoked.
On July 31, 2012, while still on probation for disorderly conduct, Mother, drove
while intoxicated, was involved in a car accident and fled the scene. On February 1,
2013, Mother pleaded guilty to four counts of failure to stop after an accident causing
injury or death, three counts as Class A misdemeanors and one count as a Class B felony;
and also pleaded guilty to one count of operating a vehicle while intoxicated causing
serious bodily harm, a Class D felony. She was sentenced to concurrent terms of one
year incarceration for each Class A Misdemeanor; sixteen years incarceration with eight
years suspended and four years probation for the Class B felony; and three years
incarceration for the Class D felony.
After all of these developments in Mother’s life, at the October 18, 2012
permanency hearing, the court ordered J.G. placed in licensed foster care and changed the
permanency plan to adoption and termination of parental rights. At the August, 2013
termination hearing, Mother had failed to take advantage of three years of intensive
services, had made her own, additional poor choices as to her personal conduct and still
had no stable employment or housing. Additionally, Mother claimed “addiction to
alcohol is not my issue.” Tr. p. 82. Mother’s latest incarceration had begun February 8,
2013. Her expected release date is January of 2017; however this release date could be as
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early as July 2015 if Mother takes advantage of educational opportunities in prison.
Guardian Ad Litem, Brian Vian, who had been appointed after the underlying 2010
battery incident, testified at the termination hearing, “I believe strongly that the
Department’s petition to terminate parental rights with a plan of adoption is in the best
interests of [J.G.]” Tr. p. 170.
After taking the matter under advisement, on November 1, 2013, the trial court
issued its order terminating Mother’s parental rights. Mother now appeals this order.
Discussion and Decision
When we review a termination of parental rights, we will not reweigh the evidence
or judge the credibility of the witnesses. In re P.P., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied. Instead, we consider only the evidence and reasonable inferences
that are most favorable to the judgment. Id. Moreover, in deference to the trial court’s
unique position to assess the evidence, we will set aside the court’s judgment terminating
a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208
(Ind. Ct. App. 1999), trans. denied.
Here, in terminating Mother’s parental rights, the trial court entered specific
factual findings and conclusions. When a trial court’s judgment contains specific
findings of fact and conclusions thereon, we apply a two-tiered standard of review.
Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).
First, we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. “Findings are clearly
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erroneous only when the record contains no facts to support them either directly or by
inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and
inferences support the trial court’s decision, we must affirm. L.S., 717 N.E.2d at 208.
“The traditional right of parents to establish a home and raise their children is
protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must
subordinate the interests of the parents to those of the child when evaluating the
circumstances surrounding a termination. In the Matter of Termination of the Parent
Child Relationship of K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a
parent-child relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s own child should not be terminated
solely because there is a better home available for the child, parental rights may be
terminated when a parent is unable or unwilling to meet his or her parental
responsibilities. Id. at 836.
Before parental rights may be involuntarily terminated in Indiana, the State is
required to allege and prove, among other things:
(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
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(D) that 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)(B)-(D).
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The State’s burden of proof for establishing these allegations in termination cases
“is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257, 1260–1261
(Ind. 2009) (quoting Ind. Code § 31–37–14–2 (2008)). Clear and convincing evidence
need not establish that the continued custody of the parents is wholly inadequate for the
child’s very survival. Bester, 839 N.E.2d at 148. Rather, it is sufficient to show by clear
and convincing evidence that the child’s emotional development and physical
development are put at risk by the parent’s custody. Id. Finally, “if the court finds that
the allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a).
Indiana Code § 31-35-2-4(b)(2)(B) requires the State to establish, by clear and
convincing evidence, only one of the three requirements of subsection (b)(2)(B). The
trial court found both that (i) there is a reasonable probability that the conditions that
resulted in the child’s removal and the reasons for the placement outside the parent’s
home will not be remedied, and (ii) that continuation of parent/child relationship poses a
threat to the well-being of the child. Appellant’s App. p. 8. On appeal, Mother only
argues that the DCS failed to present clear and convincing evidence that the conditions
that resulted in J.G.’s removal have not been remedied and fails to challenge the trial
court’s finding that the continuation of parent/child relationship poses a threat to the well-
being of J.G. “Generally, a party waives any issue raised on appeal where the party fails
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to develop a cogent argument or provide adequate citation to authority and portions of the
record.” State v. Smith, 822 N.E.2d 193 202-03 (Ind. Ct. App. 2005). Accordingly, on its
face, Mother’s appeal fails.
Moreover, we conclude that the record supports the trial court’s judgment that
there is a reasonable probability that the conditions that resulted in the J.G.’s removal or
the reasons for placement outside the home of the parents will not be remedied. It is true,
as Mother argues, that short-term incarceration should not be the only reason for a court
to terminate parental rights. See R.Y. v. Ind. Dep’t of Child Servs., 904 N.E.2d 1257
(2009). However, during Mother’s short-term incarceration periods, periods that
included probation, community corrections and house arrest, Mother failed to benefit
from any of the services she received. Despite substance abuse counseling, Mother
abused cocaine, synthetic marijuana and alcohol. Furthermore, Mother refused to
acknowledge her substance abuse issues. See tr. p. 82. And after all of the intensive,
corrective and rehabilitative services Mother received during this period, Mother
continued to show disrespect for the law and safety of others by operating a vehicle while
intoxicated and fleeing the scene of the accident rather than attempting to assist those she
had injured.
“Due to the permanent effect of termination, the trial court . . . must evaluate the
parent’s habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation of the child.” In re L.S., D.S. and A.S., 717
N.E.2d 204, 209 (Ind. Ct. App. 1999), trans. denied. “When making its determination,
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the trial court can reasonably consider the services offered . . . to the parent and the
parent’s response to those services.” In re A.A.C., 682 N.E.2d 542, 544 (Ind. Ct. App.
1997). Mother has had every chance to pull her life together over the past three years,
and at this point, aware of Mother’s habitual substance abuse and disrespect for the law,
the State must protect J.G.
Moreover, the record supports the trial court’s uncontested judgment that
continuation of parent/child relationship poses a threat to the well-being of J.G. In the
Spring of 2012, Mother had shown enough improvement for DCS to grant her overnight
visitation with J.G.; however this was short lived. Within months, Mother failed to
submit to three consecutive drug screenings, and failed to cooperate with an ongoing
investigation, which resulted in these overnight visits being placed on hold. Over the
course of three years, Mother has tested positive for drugs, has habitually failed to
provide a safe, stable home for her children and has not demonstrated any willingness to
live a law-abiding life. All of this evidence supports the trial court’s conclusion that
continuation of the parent/child relationship poses a threat to the well being of J.G.2
Conclusion
We will reverse a termination of parental rights only upon a showing of clear error,
that is, that which leave us with a definite and firm conviction that a mistake has been
made. See In re L.B., 889 N.E. 326, 342 (Ind. Ct. App. 2008). We find no such error in
2 Mother did not challenge the court’s finding that the termination of her parental rights was in J.G.'s best interest.
The evidence discussed above and the Guardian Ad Litem’s recommendation that termination is in the best interest
of the child is sufficient to support the court's termination of parental rights. See In re T.F., 743 N.E.2d 766, 776
(Ind. Ct. App. 2001); see also tr. p. 170.
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this case. Accordingly, we affirm the trial court’s judgment terminating Mother’s parental
rights to J.G.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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