In Re the Termination of the Parent-Child Relationship of: J.C. and G.P. (Minor Children) and A.P. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 20 2020, 8:34 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
Valerie K. Boots Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the October 20, 2020
Parent-Child Relationship of: Court of Appeals Case No.
20A-JT-901
J.C. and G.P. (Minor Children),
Appeal from the Marion Superior
and Court Juvenile Division
A.P. (Mother), The Honorable Mark A. Jones,
Appellant-Respondent, Judge
The Honorable Ryan Gardner,
v. Magistrate
Trial Court Cause Nos.
Indiana Department of Child 49D15-1908-JT-740 and 49D15-
Services, 1908-JT-741
Appellee-Petitioner,
and
Court of Appeals of Indiana | Memorandum Decision 20A-JT-901 | October 20, 2020 Page 1 of 15
Child Advocates, Inc.,
Appellee-Guardian ad Litem.
Altice, Judge.
Case Summary
[1] A.P. (Mother) appeals from the involuntary termination of her parental rights
to two of her minor children. She challenges the sufficiency of the evidence
supporting the termination.
[2] We affirm.
Facts & Procedural History
[3] Mother suffers from an opioid addiction, which has left her homeless and
unemployed. She has not had custody of her four minor children since they
were removed from her care in March 2018. This termination case involves her
two youngest children, J.C. (born in April 2010) and G.P. (born in October
2015). Her older children are in the care and custody of their father.
[4] On March 9, 2018, the Indiana Department of Child Services (DCS) took all
four children into emergency custody. In the CHINS petition filed a few days
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later, DCS alleged, among other things, that: (1) Mother had failed to provide
her children with a safe, stable, and appropriate living environment with
necessary supervision; (2) she was using illegal drugs that seriously hindered her
ability to care for the children; (3) she has a history of substance abuse and was
previously found in the backyard of her home where she overdosed; (4) on or
about March 9, 2018, the children were getting ready for school and found
Mother overdosed on the bedroom floor; and, (5) Mother tested positive for
cocaine and benzodiazepines following this recent incident. The children were
all placed in the care of their maternal great grandmother.
[5] At a fact finding hearing on May 31, 2018, Mother admitted that the children
were CHINS and that she “would benefit from services to obtain and maintain
sobriety.” Exhibits at 20. By agreement of the parties, the trial court entered a
dispositional order that same day. The court ordered Mother to engage in
home-based case management and therapy, complete a substance abuse
assessment and follow all treatment recommendations, and submit to random
drug screens.
[6] By the CHINS review hearing in September 2018, Mother had completed a
substance abuse assessment in June and was scheduled to start outpatient
treatment after the hearing. Mother was struggling with services but partially
engaged. J.C. and G.P. remained in their maternal great grandmother’s home,
and the older children had been placed on a trial home visit with their father.
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[7] Mother was unsuccessfully discharged from her outpatient drug treatment
program on December 1, 2018 due to sporadic attendance and positive drug
screens. At that time, her addictions counselor recommended that she be
referred for detox and residential treatment. Mother, however, did not believe
she needed in-patient treatment for her addiction issues.
[8] Between May and December 2018, Mother inconsistently engaged in services
with her home-based caseworker, Regna Yates, and made no progress toward
her goals. According to Yates, “[Mother] would be clean, and then she
wouldn’t be clean.” Transcript at 108. Mother started going to a clinic to legally
obtain suboxone, an opiate blocker, but then stopped due to lack of funds and
insurance. Mother was unemployed and had no income. Yates delayed closing
out services for some time in an attempt to “fight for [Mother] and encourage
her to do what she needed to do,” but she ultimately had to close services in
December 2018 due to Mother’s continued noncompliance. Id. at 110. Yates
encouraged Mother to enter a detox program, but Mother refused.
[9] Sydney Staten, the family case manager (FCM) since October 2018,
experienced inconsistent contact, and often no contact, with Mother over the
course of the CHINS case. Mother had a pattern of contacting FCM Staten to
discuss or reinstate services, and then FCM Staten would not hear from Mother
again and Mother would not engage with the referred service providers. This
pattern resulted in FCM Staten having to re-refer services for Mother at least
three times in 2019 (January, May, and December). The inability to keep
service providers on the case also made holding child and family team meetings
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nearly impossible. Over the course of the CHINS proceedings, Mother
submitted to no drug screens for FCM Staten and successfully completed no
services. Additionally, Mother attended none of the CHINS hearings in 2019.
[10] At the CHINS permanency hearing on July 11, 2019, the court changed the
permanency plan to adoption for J.C. and G.P. 1 The court noted that the case
had been open since March 2018 and that Mother was not participating in
services and had not addressed her substance issues. Shortly thereafter, J.C.
and G.P. were placed with their respective paternal grandmothers, where they
have each remained. These are preadoptive placements.
[11] On August 26, 2019, DCS filed petitions for the involuntary termination of the
parent-child relationship between Mother and J.C. and G.P., as well as between
the children and their respective fathers. Mother had no engagement with
services after the plan changed to adoption, and she did not exercise supervised
visitation through a DCS provider after July 5, 2019. 2
[12] Mother contacted FCM Staten at the end of 2019 and acknowledged that she
was struggling with sobriety. FCM Staten looked into inpatient treatment for
1
By this time, custody of the two older children had been granted to their father, and the CHINS case had
been closed with respect to them.
2
Alexis White provided Mother with homebased services and supervised visits starting on April 25, 2019.
The services went well for about two months until Mother informed White on July 5, 2019, that she had a
warrant out for her arrest for violating home detention. In fact, the warrant had been issued on May 14,
2019, and Mother was arrested on August 13, 2019. Mother never responded to White again, nor did
Mother respond to a subsequent provider referred for supervised visits in November 2019. The criminal case,
to which Mother pled guilty in February 2019, was for Level 6 felony obtaining a controlled substance
(Percocet) by fraud or deceit. She completed her sentence on community corrections in October 2019.
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Mother at VOA but there were no available beds. Mother informed FCM
Staten that she now had insurance, so FCM Staten encouraged her to seek
treatment on her own outside of this unavailable DCS provider.
[13] The factfinding hearing in the termination case was held on January 15 and
February 19, 2020. Mother testified on both days. On the first day, she
acknowledged that she had a history of daily drug use and that she had illegally
used prescription drugs as recently as two weeks earlier. She also testified that
she was not engaged with services through DCS, had no home of her own, and
was unemployed. Mother claimed, however, that she was starting a job at KFC
the next day and that she had just completed a detox program two days before
the hearing. The inpatient detox treatment at Valle Vista, for which Mother
provided no documentation, was from January 9 to January 13, and, according
to Mother, she was scheduled to start therapy and obtain more suboxone on
January 24. Mother claimed that this time was different and stated:
I am tired. I am just ready to get my life together, get a job and
get my kids, that is all I want is a second chance. I know this
case has been going on for almost two years. I mean nobody is
perfect. I have been going through a lot.
Id. at 68-69.
[14] On the second day of the hearing, Mother testified that she completed a
substance abuse assessment with Journey Road on January 24 and attended an
individual therapy session in February, though she could not recall that date or
when her next appointment was scheduled. Mother provided no verification to
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DCS or the court regarding these services or her claimed sobriety. Regarding
employment, Mother indicated that she had quit her job with KFC in January
after about a week and that she was scheduled to start orientation at the Finish
Line warehouse the day after this hearing. Mother had no details regarding her
hourly pay. Additionally, Mother indicated that she had moved again (now
living with a family member) since the last hearing date.
[15] FCM Staten, several service providers, and the GAL also testified in this case.
In addition to Mother’s noncompliance with services, as set out in detail above,
FCM Staten testified that there was no reason to believe that Mother’s recent
amenability to treatment would not end the same way as it has in the past. She
noted that over the history of this case Mother has never been able to follow
through in the long run. FCM Staten opined that termination of parental rights
was in J.C. and G.P.’s best interests. The plan following termination was for
J.C. and G.P. to be adopted by their respective paternal grandparents, with
whom they had been living for about eight months and thriving.
[16] Similarly, the GAL, who had been on the case since March 2018, testified that
in his opinion, termination was in the children’s best interests. The GAL
noted, specifically, Mother’s inability to provide permanency for the children
after nearly two years, her failure to engage in services, and her inability to
maintain sobriety. The children were doing well in their respective preadoptive,
relative placements, and the GAL and FCM Staten did not believe that giving
Mother additional time would result in reunification with her. Additionally,
J.C.’s home-based therapist, Elizabeth Saterlee, opined that permanency was
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particularly important for J.C. and that J.C. would suffer additional trauma if
she were to be taken from her current preadoptive home with her paternal
grandmother.
[17] On March 20, 2020, the trial court entered its order terminating Mother’s
parental rights with respect to J.C. and G.P. The parental rights of the
children’s fathers had already been terminated, J.C.’s by default and G.P.’s by
consent. Mother now appeals. Additional information will be provided below
as needed.
Discussion & Decision
[18] 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 whether the findings clearly and
convincingly support the judgment. In re R.S., 56 N.E.3d at 628.
[19] 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
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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.
[20] 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, that one 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); Ind. Code § 31-37-14-2. DCS must also prove
by clear and convincing evidence that termination is in the best interests of the
child and that there is a satisfactory plan for the care and treatment of the child.
I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.
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[21] On appeal, Mother initially challenges the trial court’s conclusions with respect
to I.C. § 31-35-2-4(b)(2)(B)(i) and (ii). We observe that I.C. § 31-35-2-4(b)(2)(B)
is written in the disjunctive and, thus, requires the trial court to find only one of
the three requirements of the subsection by clear and convincing evidence. See
In re L.S., 717 N.E.2d at 209. Though the trial court found two of the
requirements satisfied in this case, we will focus our review on the trial court’s
determination that there is a reasonable probability that the conditions that
resulted in the children’s removal and/or continued placement outside
Mother’s home will not be remedied.
[22] In making such a determination, the trial court is tasked with judging a parent’s
fitness to care for their child at the time of the termination hearing, taking into
consideration evidence of changed circumstances. In re N.Q., 996 N.E.2d 385,
392 (Ind. Ct. App. 2013).
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. The statute does not simply focus on the initial basis for a
child’s removal for purposes of determining whether a parent’s
rights should be terminated, “but also those bases resulting in the
continued placement outside the home.” In re A.I., 825 N.E.2d
798, 806 (Ind. Ct. App. 2005), trans. denied. A court may
properly 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.
Moreover, a trial court “can reasonably consider the services
offered by the [DCS] to the parent and the parent’s response to
those services.” [McBride v. Monroe Cnty. Office of Family &
Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003)]. In addition,
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“[w]here there are only temporary improvements and the pattern
of conduct shows no overall progress, the court might reasonably
find that under the circumstances, the problematic situation will
not improve.” In re A.H., 832 N.E.2d 563, 570 (Ind. Ct. App.
2005).
Id. (some citations omitted).
[23] Here, trial court made the following findings and conclusions in this regard:
f. The conditions that led to the Children’s removal or placement
and retention outside the home of Mother are her continued
failure to demonstrate the ability and willingness to meet her
parental responsibilities and provide for the Children’s short-term
and long-term needs due to failure to address her substance use,
and her failure to show that she has stable, appropriate housing
or employment.
g. These conditions have not been remedied.
h. It is highly probable that these conditions will not be
remedied, even if Mother is given additional time to remedy the
conditions. The Children’s CHINS case has been open two
years. Although Mother testified that she completed detox and
that she started treatment at Journey Road, she did not begin
detox or treatment until nearly two years after the CHINS matter
began. Mother has not verified her involvement or progress in
treatment. Mother has previously said that she intends to engage
in services only to fail to follow through and become difficult to
reach. Mother has not signed releases so that DCS can obtain
information regarding her treatment and progress.
i. Mother lives in a two-bedroom home with a family member,
and had not started her employment with Finish Line at the time
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of the TPR trial. She is unaware of what her hourly rate would
be.
j. Mother has maintained contact with the Children, but has not
demonstrated an ability to parent them throughout the pendency
of the CHINS case. The Children have been in relative care for
the entirety of the CHINS matter, and have never been returned
to Mother’s care. Mother has also never progressed to
unsupervised parenting time.
k. Mother demonstrated a lack of commitment to remedy the
conditions and she is responsible for her failure to engage with
the service providers. Mother failed to successfully complete
services despite FCM making several referrals for court-ordered
services.
l. There is a substantial probability that future neglect or
deprivation will occur because of Mother’s failure to remedy the
conditions.
m. The Court finds that DCS has shown by clear and convincing
evidence that there is a reasonable probability that the conditions
that resulted in the Children’s removal or the reasons for
placement outside the home of Mother will not be remedied….
Appendix at 28-29.
[24] The evidence overwhelmingly shows that at the time of the final hearing
Mother was not in any position to care for her children. She did not have
adequate housing or stable employment and, at most, had been sober for less
than two months. Further, she engaged in the recent treatment only on the eve
of trial and provided no documentation or drug screens to show her progress.
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Under the circumstances, the trial court acted within its discretion in weighing
more heavily Mother’s pattern of conduct during the almost two years leading
up to the termination hearing. Contrary to her assertions on appeal, it is not
evident that Mother had finally “turned a crucial corner” after four days of in-
patient treatment and a couple therapy sessions. Appellant’s Brief at 19. Mother
had claimed to be clean and had sought services in the past, only to disengage
shortly thereafter and return to using drugs. While we hope, for her own sake,
that Mother is now adequately addressing her substance abuse issues, which
have clearly devastated her life, we cannot say that the trial court’s conclusion
that she will not remedy these conditions is clearly erroneous.
[25] Finally, Mother challenges the trial court’s determination that termination of
parental rights is 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, 798 N.E.2d at 199.
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
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termination is in the child’s best interests.” In re. J.S., 906 N.E.2d 226, 236
(Ind. Ct. App. 2009).
[26] The trial court made the following findings in support of its best-interests
determination:
e. Permanency is in the Children’s best interests.
f. Mother has not demonstrated the ability or willingness to
parent the Children, to provide the Children with a permanent,
safe and stable home environment free from substance abuse, or
to provide for the Children’s long-term and short-term needs.
g. The Children have been in relative care for the entirety of the
CHINS matter, and they have both been placed with their
paternal grandmothers for more than eight months. The
Children have support and stability, and they are thriving in their
respective relative care placements.
h. Mother was unsuccessfully discharged from her court-ordered
services on several occasions despite multiple referrals and
opportunities. Several providers also ignored their respective
agency policies requiring discharge in order to attempt to assist
Mother with meeting her goals. Mother did not begin services on
her own until nearly two years after the inception of the CHINS
matter, and approximately five months after the TPR petition
was filed.
i. Both the FCM and the GAL believe that termination of the
parent-child relationship between Mother and the Children, and
the adoption of the Children by their relative caregivers, is in the
Children’s best interest.
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Appendix at 30-31.
[27] Mother correctly observes that her constitutional right to raise her children may
not be terminated solely because there is a better home available for them and
that termination should be a last resort, available only when all other
reasonable efforts have failed. See In re V.A., 51 N.E.3d 1140, 1151-52 (Ind.
2016). In this case, DCS referred and re-referred services for Mother time and
again, and Mother regularly rebuffed service providers, who bent rules in order
to try to help her. She barely ever engaged in services, and she made no
progress for nearly two years. In other words, the record establishes that all
reasonable efforts had failed and termination was in the best interests of the
children.
[28] Judgment affirmed.
Riley, J. and May, J., concur.
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