In Re: The Termination of the Parent/Child Relationship of Mak.B and Mar.B D.C. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Mar 16 2018, 9:04 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy A. McCaslin Curtis T. Hill, Jr.
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re: The Termination of the March 16, 2018
Parent/Child Relationship of Court of Appeals Case No.
Mak.B and Mar.B; 20A04-1709-JT-2154
Appeal from the Elkhart Circuit
Court
D.C. (Mother),
The Honorable Michael A.
Appellant-Defendant, Christofeno, Judge
v. The Honorable Deborah A.
Domine, Magistrate
Trial Court Cause Nos.
Indiana Department of Child
20C01-1701-JT-1
Services, 20C01-1701-JT-2
Appellee-Plaintiff.
Pyle, Judge.
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Statement of the Case
[1] D.C. (“Mother”) appeals the termination of the parent-child relationship with
her children, Mak.B. (“Mak.B.”) and Mar.B. (“Mar.B.”) (collectively “the
children”), claiming that the Department of Child Services (“DCS”) failed to
prove by clear and convincing evidence that: (1) there is a reasonable
probability that the conditions that resulted in the children’s removal or the
reasons for placement outside Mother’s home will not be remedied; (2) a
continuation of the parent-child relationship poses a threat to the children’s
well-being; and (3) termination of the parent-child relationship is in the
children’s best interests. Concluding that there is sufficient evidence to support
the trial court’s decision to terminate the parent-child relationship, we affirm
the trial court’s judgment.1
[2] We affirm.
Issue
Whether there is sufficient evidence to support the involuntary
termination of Mother’s parental rights.
Facts
[3] Mother is the parent of two daughters, Mak.B., who was born in January 2010,
and Mar.B., who was born in January 2011. In August 2015, Mother and her
1
The children’s father voluntarily relinquished his parental rights and is not a party to this appeal.
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boyfriend became involved in a physical altercation as they were driving. The
children were in the back seat. A police officer who happened to be driving
behind their car saw the fight and was getting ready to pull them over when
their car crashed into another vehicle. The officer approached the car and
noticed methamphetamine pipes within the children’s reach as well as coffee
filters with methamphetamine residue and oxycodone pills. Mother was
arrested for domestic battery in the presence of a child, and the children were
placed in foster care.
[4] The children were adjudicated to be CHINS in September 2015, and Mother
was court-ordered to: (1) complete a domestic violence assessment and follow
all recommendations; (2) attend supervised visits with the children; (3)
complete a drug and alcohol assessment and follow all recommendations; (4)
remain drug fee and submit random urine drug screens; (5) complete a
psychological assessment; and (6) obtain and maintain stable employment and
housing. DCS also offered Mother home-based case management services,
individual therapy, and a medication evaluation.
[5] When Mother failed to comply with the court’s orders, DCS filed a petition to
terminate her parental rights in January 2017. Testimony at the May 2017
termination hearing revealed that Mother had completed a domestic violence
assessment but had failed to follow recommendations. Mother had also
completed a drug and alcohol assessment and intensive outpatient program but
had failed to complete the aftercare program. Her visits with her children had
been inconsistent, and she had attended only twenty of fifty-five scheduled
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visits. She had failed more than half of her urine drug screens and was arrested
for the possession and use of drugs. She had been twice incarcerated in 2016.
During the pendency of the CHINS proceedings, Mother had given birth in
February 2016 to a son that had multiple drugs, including methamphetamine,
in his system. At the time of the hearing Mother was pregnant with her fourth
child. She had been “on the run” avoiding arrest from October 2016 until
January 2017 when she turned herself in and was incarcerated. (Tr. 134).
Mother had never obtained stable housing or employment.
[6] When asked whether the conditions that had resulted in the children’s removal
had been remedied, DCS Family Case Manager Laura Stapleton (“Case
Manager Stapleton”) responded:
No. . . . Because it’s been the history that [Mother] is
incarcerated, then she gets out, and she does well for a month or
two. And then she tests positive again and she breaks probation
and then she’s on the run, and the - - it’s just been up and down
with the kids, and I don’t foresee that stopping.
(Tr. 134). Case Manager Stapleton further explained that the children, who
were then six and seven years old, were in foster care with relatives that
planned to adopt them and that the children had “made it clear that they [did
not] want to see [Mother] again. They’re happy where they’re at; they call the
foster parents Mom and Dad . . . .” (Tr. 138). According to Case Manager
Stapleton, termination was in the children’s best interests.
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[7] The children’s therapist, Kami Brenneman, testified that the children were
“extremely happy” and were “in a very stable situation.” (Tr. 183). CASA
Jean Rupp (“CASA Rupp”) testified that the children were “doing absolutely
fantastic.” (Tr. 194). They were extremely happy and excelling in school.
According to CASA Rupp, termination was in the children’s best interests
because “they deserve the life that they have right now, and I can see great
things for these children in . . . the future. I think if this adoption were to fall
through, it would put these kids over the edge.” (Tr. 197).
[8] At the end of the hearing, the trial court noted that the children had “been in
limbo waiting for about a third of their lives . . . .” (Tr. 217). Two days after
the hearing, the trial court issued a detailed order terminating Mother’s parental
rights. Mother now appeals the termination.
Decision
[9] Mother argues that there is insufficient evidence to support the termination of
her parental rights. The Fourteenth Amendment to the United States
Constitution protects the traditional right of parents to establish a home and
raise their children. In re K.T.K., 989 N.E.2d 1225, 1230 (Ind. 2013). However,
the law provides for termination of that right when parents are unwilling or
unable to meet their parental responsibilities. In re Bester, 839 N.E.2d 143, 147
(Ind. 2005). The purpose of terminating parental rights is not to punish the
parents but to protect their children. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct.
App. 1999), trans. denied.
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[10] When reviewing the termination of parental rights, we will not weigh the
evidence or judge the credibility of the witnesses. K.T.K., 989 N.E.2d at 1229.
Rather, we consider only the evidence and reasonable inferences that support
the judgment. Id. Where a trial court has entered findings of fact and
conclusions thereon, we will not set aside the trial court’s findings or judgment
unless clearly erroneous. Id. (citing Ind. Trial Rule 52(A)). In determining
whether the court’s decision to terminate the parent-child relationship is clearly
erroneous, we review the trial court’s judgment to determine whether the
evidence clearly and convincingly supports the findings and the findings clearly
and convincingly support the judgment. Id. at 1229-30.
[11] A petition to terminate parental rights must allege:
(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
(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). DCS must prove the alleged circumstances by
clear and convincing evidence. K.T.K., 989 N.E.2d at 1231.
[12] Here, Mother argues that there is insufficient evidence to support the
termination of her parental rights. Specifically, she contends that the evidence
is insufficient to show that there is a reasonable probability that: (1) the
conditions that resulted in the children’s removal or the reasons for placement
outside Mother’s home will not be remedied; and (2) a continuation of the
parent-child relationship poses a threat to the children’s well-being.
[13] At the outset, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the
disjunctive. Therefore, DCS is required to establish by clear and convincing
evidence only one of the three requirements of subsection (B). In re A.K., 924
N.E.3d 212, 220 (Ind. Ct. App. 2010). We therefore discuss only whether there
is a reasonable probability that the conditions that resulted in the children’s
removal or the reasons for their placement outside Mother’s home will not be
remedied.
[14] In determining whether the conditions that resulted in a child’s removal or
placement outside the home will not be remedied, we engage in a two-step
analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the
conditions that led to removal or placement outside the home and then
determine whether there is a reasonable probability that those conditions will
not be remedied. Id. The second step requires trial courts to judge a parent’s
fitness at the time of the termination proceeding, taking into consideration
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evidence of changed conditions and balancing any recent improvements against
habitual patterns of conduct to determine whether there is a substantial
probability of future neglect or deprivation. Id. Habitual conduct may include
parents’ prior criminal history, drug and alcohol abuse, history of neglect,
failure to provide support, and a lack of adequate housing and employment.
A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013).
The trial court may also consider services offered to the parent by DCS and the
parent’s response to those services as evidence of whether conditions will be
remedied. Id. Requiring trial courts to give due regard to changed conditions
does not preclude them from finding that a parent’s past behavior is the best
predictor of her future behavior. E.M., 4 N.E.3d at 643.
[15] Here, the children were removed from Mother’s home because of domestic
violence and Mother’s drug use. Our review of the evidence reveals that at the
time of the termination hearing, Mother had not followed the recommendations
of either the domestic violence or drug and alcohol assessments. Rather, during
the pendency of the CHINS proceeding, Mother had continued to use drugs,
including methamphetamine, and had been incarcerated more than once. She
had also given birth to a third child that had drugs in his system. This evidence
supports the trial court’s conclusion that there was a reasonable probability that
the conditions that resulted in the children’s removal would not be remedied.
We find no error.
[16] Mother also argues that there is insufficient evidence that the termination was
in the children’s best interests. In determining whether termination of parental
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rights is in the best interests of a child, the trial court is required to look at the
totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),
trans. denied. In so doing, the court must subordinate the interests of the parents
to those of the child involved. Id. Termination of the parent-child relationship
is proper where the child’s emotional and physical development is threatened.
In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s
historical inability to provide adequate housing, stability and supervision
coupled with a current inability to provide the same will support a finding that
continuation of the parent-child relationship is contrary to the child’s best
interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting
Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.
denied, superseded by rule on other grounds). Further, the testimony of the service
providers may support a finding that termination is in the child’s best interests.
McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 203 (Ind.
Ct. App. 2003).
[17] Here, our review of the evidence reveals that Mother has historically been
unable to provide stability and supervision for her children and was unable to
provide the same at the time of the termination hearing. In addition, Case
Manager Stapleton and CASA Rupp testified that termination was in the
children’s best interests. The testimony of these service providers, as well as the
other evidence previously discussed, supports the trial court’s conclusion that
termination was in the children’s best interests. There is sufficient evidence to
support the terminations.
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[18] Affirmed.
Kirsch, J., and Bailey, J., concur.
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