In the Matter of the Termination of the Parent-Child Relationship of M.N. (Child) and S.N. (Mother) v. The Indiana Department of Child Services (mem. dec.) ( 2018 )


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  • MEMORANDUM DECISION                                                   FILED
    Jun 07 2018, 8:05 am
    Pursuant to Ind. Appellate Rule 65(D),
    this Memorandum Decision shall not be                                 CLERK
    Indiana Supreme Court
    Court of Appeals
    regarded as precedent or cited before any                              and Tax Court
    court except for the purpose of establishing
    the defense of res judicata, collateral
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Justin R. Wall                                            Curtis T. Hill, Jr.
    Wall Legal Services                                       Attorney General of Indiana
    Huntington, Indiana
    Andrea E. Rahman
    Deputy Attorney General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Termination                          June 7, 2018
    of the Parent-Child Relationship                          Court of Appeals Case No.
    of M.N. (Child) and S.N.                                  18A-JT-405
    (Mother);                                                 Appeal from the Huntington
    Circuit Court
    The Honorable Thomas M. Hakes,
    S.N. (Mother),                                            Judge
    Appellant-Defendant,                                      Trial Court Cause No.
    35C01-1705-JT-7
    v.
    The Indiana Department of
    Child Services,
    Appellee-Plaintiff
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018               Page 1 of 14
    May, Judge.
    [1]   S.N. (“Mother”) appeals the involuntary termination of her parental rights to
    M.N. (“Child”). Mother argues the Department of Child Services (“DCS”) did
    not present sufficient evidence the conditions under which Child was removed
    from Mother’s care would not be remedied; Mother posed a threat to Child’s
    well-being; termination was in Child’s best interests; and there existed a
    satisfactory plan for Child after termination. We affirm.
    Facts and Procedural History                                    1
    [2]   Mother and J.N. (“Father”) 2 (collectively, “Parents”) are the biological parents
    of Child, who was born on April 15, 2015. On May 6, 2015, DCS investigated
    a report that Mother used heroin until the eighth month of her pregnancy, had
    used heroin since Child’s birth, and had given Child heroin “in order to make
    him go to sleep.” (App. Vol. II at 37.) Parents submitted to oral drug screens,
    and on May 11, the drug screens came back positive for heroin use.
    [3]   On May 12, 2015, DCS filed a petition alleging Child was a Child in Need of
    Services (“CHINS”); the trial court held a detention and initial hearing on the
    1
    Mother’s statement of the facts indicates only, “The salient facts of the present matter are found in
    STATEMENT OF CASE-II COURSE OF PROCEEDINGS.” (Br. of Appellant at 11) (emphasis and
    formatting in original). This statement does not comport with the Indiana Rule of Appellate Procedure. See
    Ind. App. R. 46(A)(6) (“Statement of Facts. This statement shall describe the facts relevant to the issues
    presented for review but need not repeat what is in the statement of the case.”)
    2
    Father’s parental rights were also terminated but he does not participate in this appeal.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                     Page 2 of 14
    CHINS petition; and Parents denied Child was a CHINS, despite the fact
    Parents “admitted in the hearing that they would test positive for drugs if
    screened at the detention hearing.” (Id.) DCS removed Child from Parents’
    care on May 12 and placed him with a paternal step-cousin, L.S. Regarding
    visitation, the court ordered:
    Parent[s] shall not have any contact or visitation with the [C]hild
    until the levels of heroin in their systems test lower than they did
    at the time they were screened on May 7, 2015, at which point,
    the parents may immediately have supervised visitation with the
    [C]hild. If at any point, the parents’ heroin levels test higher
    tha[n] the immediately preceding drug screen results, supervised
    visitation with the [C]hild shall be immediately suspended
    without further court order.
    (Id. at 38.)
    [4]   Mother passed a drug test so that she could visit with Child. In the time before
    the next trial court hearing on May 28, Mother had four opportunities to visit
    with Child. Mother attended the first visit with no incident, but she slept
    through the next visit and was late to the two final visits. The trial court then
    suspended Mother’s visitation because her drug screen violated the terms of its
    May 12 order regarding visitation. At the May 28 hearing, Parents admitted
    they did not have a permanent address. DCS scheduled Mother for substance
    abuse assessments twice in June 2015, but she did not complete them.
    [5]   On June 8, 2015, DCS filed an amended petition alleging Child was a CHINS.
    On June 16, the trial court held an initial hearing on the amended petition and
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 3 of 14
    ordered visits between Parents and Child remain suspended due to Parents’
    drug use. On July 29, 2015, police arrested Mother, and the State charged
    Mother with Level 5 felony dealing in cocaine or a narcotic drug 3 and Level 5
    felony neglect of a dependent resulting in bodily injury 4 for Mother’s actions
    against Child, including giving Child heroin. At the same time, police also
    arrested Father on other charges.
    [6]   On August 19, and September 30, 2015, the trial court continued its fact-finding
    hearing on DCS’s CHINS petition to a later date due to Parents’ incarceration.
    Mother pled guilty to the charges against her and was sentenced on October 13,
    2015. As part of Mother’s sentence, the trial court entered a no-contact order
    between Mother and Child based on the neglect conviction. The no-contact
    order extends through Mother’s four years of probation following her release
    from incarceration. Mother’s earliest release date is October 13, 2019.
    [7]   On December 23, 2015, DCS again amended the CHINS petition. On March
    24, 2016, Parents admitted Child was a CHINS, and the trial court adjudicated
    him as such. On April 21, 2016, the trial court entered dispositional and
    parental participation orders, which ordered Mother to participate in certain
    services. However, because of her incarceration, the trial court ordered Mother,
    upon her release from incarceration, to contact DCS and “finalize the
    3
    
    Ind. Code § 35-48-4-1
    (a) (2014).
    4
    
    Ind. Code § 35-46-1-4
    (b)(1)(A) (2014).
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 4 of 14
    timeframe in which the herein-ordered services shall be completed.” (Id. at
    117.)
    [8]    In May 2016, Child’s placement changed to a different paternal step-cousin,
    S.O., and Child has remained in S.O.’s care for the pendency of the
    proceedings. On November 4, 2016, the trial court held a status hearing and
    noted Parents were not in compliance with the parental participation plan due
    to their incarceration. On May 4, 2017, the trial court held a permanency
    hearing and changed the plan for Child from reunification to adoption. On
    May 31, 2017, DCS filed a petition to terminate Parents’ parental rights to
    Child.
    [9]    On November 2, 2017, the trial court held a status hearing, and set a
    permanency hearing for May 3, 2018. On December 5, 2017, the Guardian ad
    Litem (“GAL”) filed her report recommending termination of parental rights.
    On December 14, 2017, the trial court held an evidentiary hearing on DCS’s
    petition for termination of parental rights and, on December 28, 2017, entered
    its order terminating Parents’ rights to Child.
    Discussion and Decision
    [10]   We review termination of parental rights with great deference. In re K.S., 
    750 N.E.2d 832
    , 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge
    credibility of witnesses. In re D.D., 
    804 N.E.2d 258
    , 265 (Ind. Ct. App. 2004),
    trans. denied. Instead, we consider only the evidence and reasonable inferences
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 5 of 14
    most favorable to the judgment. 
    Id.
     In deference to the juvenile court’s unique
    position to assess the evidence, we will set aside a judgment terminating a
    parent’s rights only if it is clearly erroneous. In re L.S., 
    717 N.E.2d 204
    , 208
    (Ind. Ct. App. 1999), reh’g denied, trans. denied, cert. denied 
    534 U.S. 1161
     (2002).
    [11]   “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. A trial court must
    subordinate the interests of the parents to those of the children, however, when
    evaluating the circumstances surrounding a termination. In re K.S., 
    750 N.E.2d at 837
    . The right to raise one’s own children should not be terminated solely
    because there is a better home available for the children, 
    id.,
     but parental rights
    may be terminated when a parent is unable or unwilling to meet parental
    responsibilities. 
    Id. at 836
    .
    [12]   To terminate a parent-child relationship, the State must allege and prove:
    (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.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018     Page 6 of 14
    (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). The State must provide clear and convincing proof
    of these allegations. In re G.Y., 
    904 N.E.2d 1257
    , 1260-61 (Ind. 2009), reh’g
    denied. If the court finds the allegations in the petition are true, it must
    terminate the parent-child relationship. 
    Ind. Code § 31-35-2-8
    .
    [13]   When, as here, a judgment contains specific findings of fact and conclusions
    thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of
    Family & Children, 
    839 N.E.2d 143
    , 147 (Ind. 2005). We determine whether the
    evidence supports the findings and whether the findings support the judgment.
    
    Id.
     “Findings are clearly 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 juvenile court’s
    decision, we must affirm. In re L.S., 
    717 N.E.2d at 208
    . 5
    5
    Mother does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v. Arko,
    
    592 N.E.2d 686
    , 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court, they
    must be accepted as correct.”).
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                      Page 7 of 14
    [14]   Mother challenges the trial court’s conclusions that the conditions under which
    Child was removed were not likely to be remedied and continuation of the
    parent-child relationship posed a threat to Child’s well-being. Mother also
    argues termination is not in Child’s best interests and there was not a
    satisfactory plan for Child after termination.
    Child’s Well-Being
    [15]   Termination of parental rights is proper where the child’s emotional and
    physical development is threatened. In re T.F., 
    743 N.E.2d 766
    , 773 (Ind. Ct.
    App. 2001), trans. denied. The court need not wait until the child is harmed
    irreversibly such that his physical, mental, and social development is
    permanently impaired. 
    Id.
     To support its finding that continuation of the
    parent-child relationship posed a threat to the well-being of Child, the trial court
    found Mother gave Child heroin during Child’s infancy to help Child sleep;
    Mother had not seen Child since Child was three weeks old; and there is
    currently a no-contact order between Mother and Child due to Mother’s
    conviction of neglect of a dependent.
    [16]   In addition, regarding Child’s developmental challenges due to his exposure to
    heroin before and after birth, the trial court found:
    29 f. For the first two and a half to three months that [Child]
    lived with [L.S.], [Child] experienced withdrawal symptoms.
    *****
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 8 of 14
    29 r. [Child] requires a set schedule and consistent ritual in order
    to function properly and to be able to sleep at night.
    *****
    30 e. [Child] is a special needs child and [GAL] is concerned
    about [Parents’] abilities to care for themselves let alone [Child].
    30 f. [Child] has been in placement far too long and waiting an
    additional five to six months for Father to be released and
    possibly begin building a relationship with [Child], let alone
    waiting for Mother to be released, would be detrimental to
    [Child].
    *****
    32 c. [Child] faces struggles that require constant vigilance
    including everything going in his mouth, his getting
    overstimulated easily, his need for ritual and routine, and his
    physical limitations[,] which include:
    i. Eczema
    ii. Circulation problems with his lower legs
    iii. Diaper rash
    iv. Constant sniffles
    v. Burning diarrhea in that if he has diarrhea and the
    diaper is not changed immediately his skin will blister and
    bleed.
    *****
    32 j. [S.O.] testified that she believed Mother and Father could
    learn to care for [Child], but it would be detrimental for [Child]
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018    Page 9 of 14
    to wait that long for [Parents] to be released from prison and for
    [Child] to be removed from his home.
    (App. Vol. II at 42-4.)
    [17]   Mother argues:
    [G]iven the improvement she made while incarcerated; 6 that
    afforded enough time after release to implement services; that
    with her release from incarceration being less than two years
    away; that she wanted to and planned to implement DCS
    services upon her release; that she had an employment and
    housing plan, that . . . the continuation of her relationship with
    Child would not be harmful to Child’s well-being.
    (Br. of Appellant at 23) (errors in original) (footnote added). We are
    unpersuaded by Mother’s arguments, which are invitations for us to reweigh
    the evidence and judge the credibility of witnesses, which we cannot do. See In
    re D.D., 
    804 N.E.2d at 265
     (appellate court will not reweigh evidence or judge
    the credibility of witnesses).
    [18]   Based on Mother’s treatment of Child prior to DCS’s involvement and the
    challenges Child has faced and will continue to face because of Mother’s
    actions, we conclude the trial court’s findings support its conclusion that
    continuation of the parent-child relationship poses a threat to the well-being of
    6
    Mother presented evidence she completed substance abuse treatment and maintained her sobriety while
    incarcerated.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                 Page 10 of 14
    Child. 7 See In re J.T., 
    742 N.E.2d 509
    , 512 (Ind. Ct. App. 2001) (affirming
    termination of parental rights based on findings that support the trial court’s
    conclusion that continuation of parent-child relationship posed a threat to well-
    being of child), trans. denied.
    Best Interests
    [19]   In determining what is in Child’s best interests, a juvenile court is required to
    look beyond the factors identified by DCS and consider the totality of the
    evidence. In re A.K., 
    924 N.E.2d 212
    , 223 (Ind. Ct. App. 2010), trans. dismissed.
    A parent’s historical inability to provide a suitable environment, along with the
    parent’s current inability to do so, supports finding termination of parental
    rights is in the best interests of the child. In re A.L.H., 
    774 N.E.2d 896
    , 990
    (Ind. Ct. App. 2002). The recommendations of a DCS case manager and court-
    appointed advocate to terminate parental rights, in addition to evidence that
    conditions resulting in removal will not be remedied, are sufficient to show by
    clear and convincing evidence that termination is in Child’s best interests. In re
    J.S., 
    906 N.E.2d 226
    , 236 (Ind. Ct. App. 2009).
    [20]   Regarding Child’s best interests, the trial court found Child was bonded with
    his current caregiver; Child viewed his relative placement as his family; Child
    7
    Indiana Code section 31-35-2-4(B)(2)(B) is written in the disjunctive, and we need only decide if the trial
    court’s conclusion supports one of these requirements. See In re L. S., 
    717 N.E.2d at 209
     (because statute
    written in disjunctive, court needs to find only one requirement to terminate parental rights). Because trial
    court’s findings supported its conclusion continuation posed a threat to the well-being of Child, we need not
    review whether the findings also supported its conclusion that the conditions under which Child was
    removed from Mother’s care would not be remedied.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                      Page 11 of 14
    has been in placement since he was three weeks old; Child has multiple physical
    and mental difficulties due to being given heroin by Mother when Child was an
    infant; and “[w]hile Mother and Father may have the ability to learn how to
    care for [Child], prolonging the wait for permanency and giving [Parents] a
    second chance would not be in [Child’s] best interest and would hurt [Child].”
    (App. Vol. II at 42.) Mother argues it is Child’s best interests that Mother “be
    afforded the ability to implement services with DCS and given time to
    demonstrate that he [sic] can be a parent to Child and that [sic] in a timely
    manner, be reunified with Child.” (Br. of Appellant at 24.)
    [21]   We cannot agree. Mother has not seen Child since Child was three weeks old,
    Mother cannot see Child due to a no-contact order stemming from her
    conviction for neglect of Child, and Mother’s actions caused Child’s current
    and future physical and mental challenges. 8 Mother’s argument is an invitation
    for us to reweigh the evidence and judge the credibility of witnesses, which we
    cannot do. See In re D.D., 
    804 N.E.2d at 265
     (appellate court will not reweigh
    evidence or judge the credibility of witnesses). Therefore, we conclude the trial
    court’s findings support its conclusion that termination is in Child’s best
    8
    Mother argues her case is factually similar to In re K.E., in which our Indiana Supreme Court reversed the
    termination of Father’s parental rights because, despite his incarceration, Father “made extensive efforts to
    better himself by learning parenting skills, addressing his problems with substance abuse, and establishing a
    bond with both of his children.” In re K.E., 
    39 N.E.3d 641
    , 643-4 (Ind. 2015). The only similarities between
    In re K.E. and Mother’s case is that both appellants were incarcerated and completed substance abuse
    treatment. In this case, Mother had not established a bond with Child due in part to the no-contact order in
    place to protect Child from Mother’s neglectful actions. Further, Mother has presented no evidence she
    attempted to engage in classes to assist her with parenting skills while incarcerated. Finally, the Father in In
    re K.E. had not inflicted the level of harm Mother inflicted on Child in this case. In re K.E. is inapposite.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018                        Page 12 of 14
    interests. See McBride v. Monroe Cty. Office of Family & Children, 798 NE.2d 185,
    203 (Ind. Ct. App. 2003) (holding findings regarding child’s need for
    permanency and bond to foster family sufficient to support conclusion that
    termination was in best interests of child).
    Satisfactory Plan for Care and Treatment
    [22]   Pursuant to Indiana Code section 31-35-2-4(b)(2)(D), parental rights cannot be
    terminated unless DCS provides sufficient evidence of a satisfactory plan for the
    care and treatment of the children following termination. We have held “[t]his
    plan need not be detailed, so long as it offers a general sense of the direction in
    which the child will be going after the parent-child relationship is terminated.”
    In re D.D., 
    804 N.E.2d at 268
    .
    [23]   The trial court found S.O. was willing to adopt Child and, based thereon,
    concluded there existed a satisfactory plan for Child’s care following
    termination, “that being adoption.” (App. Vol. II at 45.) Mother acknowledges
    there is no case law to support her argument that adoption is not a satisfactory
    plan for Child’s care, but still insists she should be given an opportunity to
    prove she can be a good parent after she is released from incarceration. We
    cannot agree. Mother’s argument is an invitation for us to reweigh the evidence
    and judge the credibility of witnesses, which we cannot do. See In re D.D., 
    804 N.E.2d at 265
     (appellate court will not reweigh evidence or judge the credibility
    of witnesses). Adoption was a satisfactory plan for Child’s care following the
    termination of Mother’s parental rights. See In re S.L.H.S., 
    885 N.E.2d 603
    , 618
    (Ind. Ct. App. 2008) (adoption is satisfactory post-termination plan).
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 13 of 14
    Conclusion
    [24]   The trial court’s findings supported its conclusions that the continuation of the
    parent-child relationship posed a threat to Child; that termination was in
    Child’s best interests; and that there existed a satisfactory plan for Child’s care
    following the termination of Mother’s parental rights. Accordingly, we affirm.
    [25]   Affirmed.
    Riley, J., and Mathias, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 18A-JT-405 | June 7, 2018   Page 14 of 14