In the Matter of the Involuntary Termination of the Parent-Child Relationship of: C.L. and N.L. (Minor Children) and T.N. (Mother) v. The Indiana Department of Child Services (mem. dec.) , 121 N.E.3d 132 ( 2019 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                                             FILED
    this Memorandum Decision shall not be                                         Jan 16 2019, 6:45 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
    Matthew W. Lutz                                           Curtis T. Hill, Jr.
    Evansville, Indiana                                       Attorney General of Indiana
    Abigail R. Recker
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Involuntary                          January 16, 2019
    Termination of the Parent-Child                           Court of Appeals Case No.
    Relationship of:                                          18A-JT-1790
    C.L. and N.L. (Minor Children)                            Appeal from the Vanderburgh
    Superior Court
    and
    The Honorable Brett J. Niemeier,
    T.N. (Mother),                                            judge
    Appellant-Respondent,                                     Trial Court Cause Nos.
    82D04-1802-JT-262, 82D04-1802-
    v.                                                JT-263
    The Indiana Department of
    Child Services,
    Appellee-Plaintiff
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019                  Page 1 of 13
    Altice, Judge.
    Case Summary
    [1]   T.N. (Mother) appeals the termination of her parental rights to her two minor
    children. She contends that the trial court’s termination order is not supported
    by sufficient evidence.
    [2]   We affirm.
    Facts & Procedural History
    [3]   Mother and K.L. (Father) have two children together – C.L. born in September
    2007 and N.L. born in November 2012.1 C.L. and N.L. (the Children) are
    involved in these proceedings. Mother also has given birth to five other
    children. Two are now adults, and three were adopted in 2007 after Mother
    voluntarily terminated her parental rights to them. Mother has a long history of
    involvement with the Indiana Department of Child Services (DCS), beginning
    around the year 2000. This history includes eight prior substantiations and
    three CHINS cases over the years. The prior cases involved drugs, neglect,
    and/or physical abuse.
    [4]   On February 13, 2017, DCS received a report alleging that Mother was
    exhibiting erratic behaviors indicative of drug use. Further, C.L. had been
    1
    Father’s parental rights were also terminated, but he does not participate in this appeal.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019                 Page 2 of 13
    absent from school since February 7. When school officials went to the home
    for a welfare check, they became concerned regarding Mother’s behavior.
    [5]   William Wargel, with DCS, visited the home on February 14, 2017, to assess
    the situation. Mother complained to Wargel that there were spider mites in her
    home crawling all over her, but Wargel observed no bugs. A pest control
    company later confirmed there were no such bugs in the home. Wargel
    observed red marks on Mother’s skin that appeared like “pick marks” indicative
    of methamphetamine use. Transcript at 52. He observed that Mother was
    “acting erratically, fidgety, and could not keep a straight thought.” 
    Id. Mother refused
    a drug screen. After this visit, Mother avoided DCS for about six days
    and still did not send C.L. back to school.
    [6]   In the meantime, on February 16, 2017, DCS filed petitions alleging C.L. and
    N.L. to be CHINS. Wargel located Mother and the Children on February 20,
    and the Children were removed from the home that day and placed in foster
    care. The Children were adjudicated CHINS on March 8, 2017, with Mother
    entering a stipulation.
    [7]   Following the dispositional hearing on April 19, 2017, the trial court ordered
    Mother to participate in a number of services. Of particular note, Mother was
    ordered to obtain substance abuse and mental health evaluations and follow
    any treatment recommendations, submit to random drug screens, attend
    supervised visitation, keep all appointments, and remain drug and alcohol free.
    Mother quickly fell out of compliance and by August was found in contempt.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 3 of 13
    [8]    A court-ordered facilitation meeting was held on February 1, 2018. At the
    time, Mother did not have a stable home or finances, had not visited with the
    Children for over a month, and had not completed mental health and substance
    abuse evaluations or treatment. Although Mother tested clean at the meeting,
    she had not submitted to drug testing for months leading up to the meeting.
    While Mother had made little to no effort at reunification, the Children were
    thriving in foster care. Ultimately, the court facilitator recommended that DCS
    seek termination of Mother’s parental rights.
    [9]    On February 8, 2018, DCS filed petitions to terminate Mother’s parental rights
    with respect to the Children. The trial court held a factfinding hearing on June
    15, 2018. At that hearing, DCS presented evidence regarding Mother’s nearly
    complete lack of effort in this case, as summarized below.
    [10]   Although initially compliant with supervised visits, Mother cancelled all visits
    in June and July 2017. After her Christmas Eve visit, Mother did not see the
    Children again until March 7, 2018. Thereafter, visits were suspended by the
    court due to the negative impact that the inconsistent visits were having on the
    Children. At the time of the final hearing, therefore, Mother had only seen the
    Children once in nearly six months.
    [11]   Between March 2017 and the end of May 2018, Mother was required to submit
    to 138 drug screens. She had 65 no shows, 59 positive screens, and only 14
    clean screens. Mother tested positive for methamphetamine on May 21, 2018,
    less than a month before the termination hearing.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 4 of 13
    [12]   Early in the CHINS case, Mother was ordered to complete substance abuse and
    mental health evaluations and treatment. More than a year after the Children
    had been removed from her home, Mother completed an initial evaluation at
    Stepping Stones on February 23, 2018, but she failed to attend three consecutive
    follow-up therapy sessions in March and was discharged from the program.
    Four days prior to the termination hearing, Mother went to Counseling for
    Change for an intake appointment. At the time of the hearing, Mother had yet
    to complete any recommended treatment.
    [13]   Throughout the CHINS proceedings, Mother failed to maintain stable housing
    or income. At the time of the termination hearing, Mother testified that she
    had been employed at McDonalds for just one month. She was living in a one-
    bedroom apartment with her fiancé, W.F., who had just been released from
    incarceration. W.F. has been convicted of drug dealing in Texas and domestic
    battery (not of Mother) in Indiana. Prior to his most-recent incarceration, law
    enforcement had responded to a number of domestic calls in 2016 involving
    Mother and W.F., eventually resulting in a protective order against W.F.
    Family case manager (FCM) Nathan Austin, as well as the CASA, expressed
    concern regarding Mother’s relationship with W.F.
    [14]   Finally, DCS presented evidence that the Children were thriving in foster
    placement. C.L. had struggled academically and behaviorally at school while
    in Mother’s care. The CASA testified that C.L. had made significant progress
    in foster care, going from a D/F student to a B student with “absolutely no
    behavior issues.” 
    Id. at 57.
    Both the CASA and FCM Austin opined that
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 5 of 13
    termination of Mother’s parental rights was in the best interests of the Children.
    Further, although the Children were not in a pre-adoptive foster home, FCM
    Austin testified that the plan for the Children was adoption through the SNAP
    program. He indicated that they would be adopted into the same home and
    that he foresaw “[n]o obstacle whatsoever” to them being adopted. 
    Id. at 78.
    [15]   On July 11, 2018, the trial court issued orders terminating Mother’s parental
    rights with respect to C.L. and N.L. Mother now appeals. Additional facts will
    be provided below as needed.
    Discussion & Decision
    [16]   When reviewing the termination of parental rights, we will not reweigh the
    evidence or judge the credibility of the witnesses. In re R.S., 
    56 N.E.3d 625
    , 628
    (Ind. 2016). Instead, we consider only the evidence and reasonable inferences
    most favorable to the judgment. In re D.D., 
    804 N.E.2d 258
    , 265 (Ind. Ct. App.
    2004), trans. denied. In deference to the trial court’s unique position to assess
    the evidence, we will set aside its 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. In light of the applicable clear and convincing
    evidence standard, we review to determine whether the evidence clearly and
    convincingly supports the findings and the findings clearly and convincingly
    support the judgment. In re 
    R.S., 56 N.E.3d at 628
    .
    [17]   We recognize that the traditional right of parents to “establish a home and raise
    their children is protected by the Fourteenth Amendment of the United States
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 6 of 13
    Constitution.” In re M.B., 
    666 N.E.2d 73
    , 76 (Ind. Ct. App. 1996), trans. denied.
    Although parental rights are of constitutional dimension, the law provides for
    the termination of these rights when parents are unable or unwilling to meet
    their parental responsibilities. In re R.H., 
    892 N.E.2d 144
    , 149 (Ind. Ct. App.
    2008). In addition, a court must subordinate the interests of the parents to those
    of the child when evaluating the circumstances surrounding the termination. In
    re K.S., 
    750 N.E.2d 832
    , 836 (Ind. Ct. App. 2001). The purpose of terminating
    parental rights is not to punish the parents, but to protect their children. 
    Id. [18] Before
    an involuntary termination of parental rights may occur in Indiana, DCS
    is required to allege and prove by clear and convincing evidence, 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[.]
    Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing
    evidence that termination is in the best interests of the child and that there is a
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 7 of 13
    satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-
    4(b)(2)(C), (D).
    [19]   On appeal, Mother asserts that there is insufficient clear and convincing
    evidence that the conditions resulting in the Children’s removal would not be
    remedied, that the continuation of the parent-child relationship poses a threat to
    the well-being of the Children, that termination is in the best interests of the
    Children, and that there is a satisfactory plan for the care and treatment of the
    Children following termination. In so arguing, Mother does not challenge any
    of the trial court’s specific findings as not supported by the evidence or claim
    that the judgment is not supported by the findings. She simply directs us to her
    own testimony that she had a job, an apartment, and sufficient income to
    provide for the Children, as well as that she had six clean screens in 2018 and
    had scheduled her first appointment at Counseling for Change.
    [20]   We reject Mother’s blatant invitation to reweigh the evidence. DSC presented
    ample evidence to establish by clear and convincing evidence that there is a
    reasonable probability that the conditions resulting in the Children’s removal or
    continued placement outside the home will not be remedied. 2 In making this
    determination, the trial court must judge a parent’s fitness to care for her
    children at the time of the termination hearing, taking into consideration
    2
    The trial court determined that DCS had proven both subsections (b)(2)(B)(i) and (b)(2)(B)(ii). Because
    DCS was required to establish only one of these by clear and convincing evidence, we focus our review on
    subsection (b)(2)(B)(i).
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019               Page 8 of 13
    evidence of changed conditions. In re J.T., 
    742 N.E.2d 509
    , 512 (Ind. Ct. App.
    2001), trans. denied. The court must also evaluate the parent’s habitual patterns
    of conduct to determine whether there is a substantial probability of future
    neglect or deprivation of the children. 
    Id. In conducting
    this inquiry, courts
    may consider evidence of a parent’s prior criminal history, drug and alcohol
    abuse, history of neglect, failure to provide support, and lack of adequate
    housing and employment. A.F. v. Marion Cnty. Office of Family & Children, 
    762 N.E.2d 1244
    , 1251 (Ind. Ct. App. 2002), trans. denied. Further, it is within the
    trial court’s discretion to disregard efforts made only shortly before termination
    and to weigh more heavily a parent’s history of conduct prior to those efforts.
    K.T.K. v. Ind. Dep’t of Child Servs., 
    989 N.E.2d 1225
    , 1234 (Ind. 2013). “A
    pattern of unwillingness to deal with parenting problems and to cooperate with
    those providing social services, in conjunction with unchanged conditions,
    support a finding that there exists no reasonable probability that the conditions
    will change.” In re 
    L.S., 717 N.E.2d at 210
    .
    [21]   Here, the evidence establishes that prior to commencement of the termination
    proceedings – a year into the CHINS case – Mother had done nothing to
    address her substance abuse or work toward reunification with the Children.
    She continued to use methamphetamine, sought no treatment, and went long
    periods without visiting the Children. This pattern continued even after being
    found in contempt for failing to comply with the dispositional order. After the
    termination petitions were filed in February 2018, Mother attended an initial
    evaluation for mental health and drug treatment at Stepping Stones but then she
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 9 of 13
    did not follow through with treatment and was discharged by the provider. It is
    telling that the written evaluation from Stepping Stones indicates that Mother
    reported to the evaluator that she did not have a problem with drugs and that
    she had never used methamphetamine. The trial court aptly observed:
    Mother’s pattern of prioritizing illegal substances over the best
    interest of her children encompasses the duration of the
    [Children’s] active CHINS cause and spans a period of nearly
    twenty (20) years, starting with her first DCS substantiation in
    the year 2000. Her actions illustrate a pattern of conduct that is
    unlikely to be remedied and provides the Court with the best
    predictor of her future behavior.
    Appellant’s Appendix at 29.
    [22]   In the month or two leading up to the final termination hearing, Mother made
    some steps forward. She obtained employment at McDonalds and moved into
    a one-bedroom apartment, and four days before the hearing, she attended an
    intake appointment at Counseling for Change and scheduled a therapy session.
    The trial court, however, acted within its discretion by rejecting these eleventh-
    hour efforts and focusing on Mother’s substantial history of drug use, DCS
    involvement, neglect, and lack of engagement in services. Commensurate with
    her history of poor choices and drug abuse, Mother tested positive for
    methamphetamine less than a month before the hearing (as well as fifty-eight
    other times), lived with a man previously convicted of drug dealing and
    domestic violence, and had only seen the Children once in nearly six months.
    The trial court’s determination that there is a reasonable probability that the
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 10 of 13
    conditions that resulted in the removal of the Children will not be remedied is
    supported by clear and convincing evidence.
    [23]   Mother also asserts, without any analysis, that the evidence was insufficient to
    support the trial court’s finding that termination was in the Children’s best
    interests. In making this best-interests determination, the trial court is required
    to look beyond the factors identified by DCS and consider the totality of the
    evidence. In re J.C., 
    994 N.E.2d 278
    , 290 (Ind. Ct. App. 2013). The court must
    subordinate the interest of the parent to those of the children and need not wait
    until a child is irreversibly harmed before terminating the parent-child
    relationship. McBride v. Monroe Cnty. Office of Family & Children, 
    798 N.E.2d 185
    , 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that
    “[p]ermanency is a central consideration in determining the best interests of a
    child.” In re G.Y., 
    904 N.E.2d 1257
    , 1265 (Ind. 2009). “Moreover, we have
    previously held that the recommendations of the case manager and court-
    appointed advocate to terminate parental rights, in addition to evidence that the
    conditions resulting in removal will not be remedied, is sufficient to show by
    clear and convincing evidence that termination is in the child’s best interests.”
    In re 
    J.S., 906 N.E.2d at 236
    .
    [24]   Here, both the CASA and FCM Austin opined that termination of Mother’s
    parental rights was in the best interests of the Children. The CASA noted
    Mother’s lack of compliance with the case plan and her history of CHINS
    cases, spanning nearly twenty years and including several of her children. The
    CASA then described how the Children, particularly C.L., have flourished in
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 11 of 13
    foster care, with caregivers who love them, care for them, and provide
    boundaries. FCM Austin testified that termination was in the Children’s best
    interests so that they can “move forward to find permanency in a home where
    they can thrive and live up to their full potential.” Transcript at 76. The
    evidence was sufficient to show by clear and convincing evidence that
    termination was in the Children’s best interests.
    [25]   Finally, Mother challenges whether there is sufficient evidence that DCS has a
    satisfactory plan for the care and treatment of the Children following
    termination. She notes that the Children are not in a pre-adoptive home and
    asserts that given her “compliance with treatment, 2 months of sobriety, and
    housing and employment situation, the children would not be harmed by
    allowing [her] additional time to prove her ability to be reunified”. Appellant’s
    Brief at 13.
    [26]   Mother has had ample opportunity to show her commitment to reunification
    but has rather turned to drugs time and again. The Children deserve
    permanency in their lives, which Mother has been unable or unwilling to
    provide them. Although they are not in a pre-adoptive home, their current
    foster parents are willing to continue to work with them when it comes time to
    transition to a new home. The plan is for the Children to be adopted together
    through the SNAP program, and FCM Austin does not expect any obstacles in
    this regard. This is a satisfactory plan for the care and treatment of the
    Children. See In re 
    D.D., 804 N.E.2d at 268
    (“[the] plan need not be detailed, so
    long as it offers a general sense of the direction in which the child will be going
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 12 of 13
    after the parent-child relationship is terminated”); see also In re A.S., 
    17 N.E.3d 994
    , 1007 (Ind. Ct. App. 2014) (“a plan is not unsatisfactory if DCS has not
    identified a specific family to adopt the children”), trans. denied.
    [27]   Judgment affirmed.
    Najam, J. and Pyle, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-1790 | January 16, 2019   Page 13 of 13