In the Matter of the Termination of the Parent-Child Relationship of A.J. and J.R. (Minor Children) and T.W. (Mother) and D.J. (Father of A.J.) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Nov 27 2019, 10:53 am
regarded as precedent or cited before any
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 D.J. ATTORNEYS FOR APPELLEE
Christopher J. Evans Curtis T. Hill, Jr.
Dollard Evans Whalin LLP Attorney General
Noblesville, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT T.W. Deputy Attorney General
Indianapolis, Indiana
Anne Medlin Lowe
James A. Piatt
Riley Williams & Piatt, LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination November 27, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of A.J. and J.R. (Minor 19A-JT-1176
Children) and T.W. (Mother) Appeal from the
and D.J. (Father of A.J.) Hamilton Circuit Court
The Honorable
Paul A. Felix, Judge
T.W. (Mother of A.J. and J.R.)
The Honorable
and D.J. (Father of A.J.),
Todd L. Ruetz, Magistrate
Appellants-Respondents,
Trial Court Cause Nos.
29C01-1808-JT-1193
v.
29C01-1808-JT-1194
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Indiana Department of Child
Services,
Appellee-Petitioner
Vaidik, Chief Judge.
Case Summary
[1] T.W. (“Mother”) appeals the termination of her parental rights to her two
children, A.J. and J.R. (collectively, “Children”). D.J. (“Father”) separately
appeals the termination of his parental rights to his daughter, A.J. We affirm.
Facts and Procedural History
[2] The following facts are set forth in the trial court’s findings, none of which
Father or Mother (collectively, “Parents”) challenges on appeal.1 In 2011,
Mother pled guilty and was sentenced for committing numerous offenses: Class
D felony unlawful possession of a syringe and Class C misdemeanor operating
a vehicle while intoxicated (OWI) in March, see 29D06-1008-FD-7195; Class D
1
Because neither Mother nor Father challenge the trial court’s findings of fact, we accept them as true. See
Maldem v. Arko, 592 N.E.2d 686, 687 (Ind. 1992).
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felony unlawful possession of a syringe in May, see 29D06-1105-FC-10043; and
Class D felony possession of a controlled substance, see 29D06-1101-FD-953,
and Class A misdemeanor OWI endangering a person, see 29D06-1102-CM-
10522, in July. The sentences for these five offenses were to run consecutively.
In August, while Mother was waiting to be transferred to the Department of
Correction (DOC), she gave birth to A.J., who was born with special needs,
including club feet. After A.J. was born, Mother was sent to the DOC while
Father took care of A.J.
[3] In June 2012, Mother was released from the DOC to community corrections.
Then in December she was released to probation. After release, Mother was
given primary custody of A.J. Around that time, Parents’ relationship began to
deteriorate, and in September 2013 Father was charged with Class A
misdemeanor invasion of privacy for violating a protective order protecting
Mother. See Ex. 11; see also 29D03-1310-CM-8579. He later pled guilty and
was sentenced to 365 days, which were suspended to probation.
[4] In July 2014, J.R. was born to Mother and J.E.R.2 Six months later, the
Department of Child Services (DCS) became involved with Children because
there were concerns that Mother was abusing substances and that there was
instability in her home—evidenced by bruising all over her face likely caused by
domestic violence. There was also a concern that Mother was not adequately
2
J.E.R. voluntarily relinquished his parental rights to J.R. and does not participate in this appeal.
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tending to A.J.’s special needs. A.J. requires therapy and braces to help her
walk because of her club feet. DCS opened an Informal Adjustment (IA) to
provide services, but Mother did not engage in services and continued to miss
A.J.’s medical appointments. On December 24 and 26, Mother tested positive
for amphetamine and Oxycodone.
[5] In January 2015, Mother again tested positive for amphetamine. On January
20, DCS discovered that three-year-old A.J. had thirty-two absences during her
first semester of developmental preschool and thirty absences during the second
semester. This meant that A.J. was not receiving occupational, physical, and
speech therapy, which were all provided to her at the developmental preschool.
[6] Two months later, in March 2015, DCS learned that J.R. was physically
delayed two to four months. That is, eight-month-old J.R. could not roll over
and sit up on her own and did not know how to swallow solid food. Despite a
pediatrician’s referral, Mother did not take J.R. to be evaluated for poor muscle
tone and lack of development. Then on March 13, Mother contacted DCS and
told them that she was “homeless and living in her van” and “is struggling to
keep[] it all together.” Ex. 1. Three days later, Mother contacted DCS again
and said that “her girls have developmental needs that she has not been able to
stay on top of those responsibilities due to her living circumstances as well as all
of her court ordered responsibilities.” Id. Later that day, DCS removed
Children.
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[7] DCS then filed a petition alleging that Children were in need of services
(CHINS). The petition alleged that Mother failed to participate in the services
required by the IA to address Children’s medical and developmental needs and
that she was unable to maintain stable housing. See Ex. 1. The CHINS petition
also stated that Father did not have legal custody of A.J. Then on March 27,
Mother was charged with Level 6 felony OWI endangering a person, Level 6
felony OWI with a prior conviction, Class A misdemeanor OWI endangering a
person, and Class C misdemeanor OWI. See Ex. 4.
[8] A fact-finding hearing on the CHINS petition was held in August 2015. The
trial court found that Children were CHINS and ordered that Children continue
to be detained. In September, following a dispositional hearing, the court
ordered that Parents participate in services, including visitation, drug screens,
substance-abuse assessments, and any other referred services. The court also
ordered that Parents keep in contact with DCS, communicate any criminal
charges, and obtain and maintain a legal and stable source of income and
housing.
[9] Initially, Parents were somewhat engaged in services and had visits with
Children. However, Mother’s new OWI charges constituted a violation of her
probation. Her probation was revoked, and she was incarcerated from October
2015 to August 2016. While Mother was incarcerated, she pled guilty to Level
6 felony OWI endangering a person stemming from her March 2015 charges.
At the same time, Father continued to have visits with A.J. but did not attend
any of her medical appointments. After Mother was placed on work release in
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September 2016, she reengaged with services. Father also complied with
services during the fall of 2016. Parents’ compliance, however, was short lived.
[10] In February 2017, Father tested positive for illegal substances, including
methamphetamine, and failed to appear for four drug screens. At the same
time, Mother was participating in services but was “consistently late to her
appointments and returning to community corrections.” Father’s App. Vol. II
p. 12. By June, DCS requested that Mother’s visits be suspended because
Mother’s “continued instability and inconsistencies” caused Children to have
“anxiety prior to having a visit with [Mother] and [were] described as
‘dysregulated’ after the visits.” Id.; Ex. 2. At the December 2017 permanency
hearing, the trial court found that:
All services have been stopped for [M]other per court order,
Mother was incarcerated for most of the current report period.
She was released for 6 days before being arrested again and has
now been released again. Mother has failed to demonstrate any
progress in enhancing her ability to fulfill her parental obligations
through obtaining services on her own. Father continues to test
positive for illegal substances, including heroin, morphine,
methamphetamine, amphetamine, and THC.
Father’s App. Vol. II p. 13. The trial court also noted that on December 4,
Father was arrested and charged with Level 6 felony possession of
methamphetamine and Level 6 felony possession of a narcotic drug. See Ex. 10;
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see also 27C01-1807-F6-400.3 The court found, “Father cannot raise [A.J.] or
influence [A.J.] by seeing her once a week in a fully supervised setting and then
spending the rest of the week using illegal substances.” Id. At the March 2018
permanency hearing, the trial court suspended all reunification services,
including visitation for Father, and found that Mother had not visited Children
since July 2017.
[11] In April 2018, Mother was charged with Level 6 felony operating a vehicle as a
habitual traffic violator. See Ex. 3; see also 29D05-1804-F6-3029. In June, she
was denied acceptance into Community Corrections. At the permanency
hearing in July, the trial court found that “Mother continues to demonstrate
poor judgment and lack of stability which has been an ongoing issue
throughout the duration of the case. Father admits to recent use of heroin.”
Father’s App. Vol. II p. 14.
[12] In August 2018, DCS filed petitions to terminate Parents’ parental rights to A.J.
and to terminate Mother’s parental rights to J.R. A fact-finding hearing was
held in November. Father appeared but Mother did not, so the trial court
continued the fact-finding hearing to give Mother an opportunity to appear.
The fact-finding hearing resumed in January 2019. Father appeared with
counsel and Mother’s counsel appeared but, once again, Mother failed to
appear. Mother’s counsel requested a continuance, which the trial court
3
This case is currently pending with a jury trial set for January 2020.
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granted. In February, the fact-finding hearing resumed. Jane Privett, Mother’s
community-corrections case manager, testified that Mother continually violated
the conditions of her community-corrections placement. Privett said that she
believed Mother was “highly intelligent” and that her failure to adhere to
community corrections’ rules was a matter of “would not” as opposed to “could
not.” Tr. Vol. II pp. 44, 46. Family Case Manager (FCM) Morgan Loudermilk
testified that she worked with the family for about a year-and-a-half and that
during that time “[Father] consistently had positive drug screens for numerous
different substances,” including heroin and THC. Id. at 135. As for Mother,
FCM Loudermilk said that she would start services but never “successfully
completed the recommendations.” Id. at 126. FCM Loudermilk stated that she
believes that termination of Parents’ parental rights is in Children’s best
interests. See id. at 143. The family’s current FCM, Alicia Holcombe, testified
that she “do[es] not believe that [Mother] has proven her willingness or ability
to care for [Children] at this time due to lack of participation in court-ordered
services.” Id. at 177. Regarding Father, FCM Holcombe stated that she had to
do “an investigative referral” to find Father and that she is concerned that
Father is still using illegal substances. Id. at 181. FCM Holcombe said that she
is also concerned that Father has a pending charge for possession of
methamphetamine and that Mother was recently charged with operating a
vehicle as a habitual traffic offender. See id. at 179. FCM Holcombe stated that
she believes that termination of Parents’ parental rights is in Children’s best
interests. See id. at 183.
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[13] Guardian ad litem (GAL) Julie Kirby testified that Children “have ongoing
medical needs. There’s been lots of appointments that [Mother] was invited to
and could attend and didn’t. [Children] need a lot of care and we don’t have
evidence that that would be provided.” Id. at 89. As for Father, GAL Kirby
said that Father did not make any progress in services and continued to test
positive for drugs, such as meth and heroin. Id. at 90-91. GAL Kirby said that
she believes that termination of Parents’ parental rights is in the best interests of
Children. See id. at 96. A.J.’s therapist, Katy Shapiro, testified that her concern
is “Parents’ ability to maintain sobriety in order to take care of and meet
[Children’s] needs.” Id. at 73. Therapist Shapiro said that when her services
ended in July 2018, A.J. said that she wanted to live with her foster family. See
id. at 83. Children’s foster mother, S.C., testified that Children have lived with
her and her family for “about two and a half years.” Id. at 167. S.C. said that
her family wants to adopt Children and that she “can’t imagine a life without
them.” Id. at 172. In May 2019, the trial court issued its order terminating
Parents’ parental rights to A.J. and Mother’s parental rights to J.R.
[14] Father and Mother separately appeal.
Discussion and Decision
[15] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind.
2013). Rather, we consider only the evidence and reasonable inferences that
are most favorable to the judgment of the trial court. Id. When a trial court has
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entered findings of fact and conclusions, we will not set aside the trial court’s
findings or judgment unless clearly erroneous. Id. To determine whether a
judgment terminating parental rights is clearly erroneous, we review whether
the evidence supports the trial court’s findings and whether the findings support
the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[16] A petition to terminate parental rights must allege, 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
(D) that there is a satisfactory plan for the care and treatment of
the child.
Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231. If the court
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finds that the allegations in a petition are true, the court shall terminate the
parent-child relationship. Ind. Code § 31-35-2-8(a).
[17] Parents first argue that there is insufficient evidence to support the trial court’s
conclusion that the conditions resulting in Children’s removal will not be
remedied. In determining whether the conditions that resulted in a child’s
removal will not be remedied, the trial court engages in a two-step analysis.
First, the trial court must ascertain what conditions led to the child’s placement
and retention in foster care. In re K.T.K., 989 N.E.2d at 1231. Second, the trial
court determines whether there is a reasonable probability that those conditions
will not be remedied. Id. “The trial court must consider a parent’s habitual
pattern of conduct to determine whether there is a substantial probability of
future neglect or deprivation.” Id.
[18] Here, Parents failed to demonstrate that they were any closer to providing
Children a safe, stable home than they were at the beginning of the CHINS
case. The trial court’s unchallenged findings on this issue support its conclusion
that the conditions resulting in Children’s removal will not be remedied. See,
e.g., In re E.M., 4 N.E.3d 636, 644 (Ind. 2014) (findings regarding father’s non-
compliance with services support trial court’s conclusion that conditions
resulting in children’s removal from father’s care would not be remedied). That
is, the trial court found:
*****
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28. Throughout the duration of the CHINS matter, Mother
failed to follow through with any of the services that were in
place to attempt to assist Mother in safely reunifying with
[Children].
*****
29. Father has also failed to follow through with the services
that were in place in order to attempt to assist Father in safely
reunifying with [A.J.].
30. It has been four years since DCS and the Court became
involved with this family and neither Mother nor Father have
made any demonstrable progress in enhancing their ability to
safely and appropriately provide for the care and supervision
of [Children].
31. Due to Mother’s own decision to continue to engage in
criminal activity, the prognosis for any stability for any period
of time is poor at best[.]
****
42. Father admits to a continued struggle with substance
abuse and to testing positive for methamphetamine two
months ago, knowing that these proceedings were in progress
and that his parental rights were at stake.
Father’s App. Vol. II pp. 14-16. Accordingly, the trial court did not err when it
concluded that there is a reasonable probability that the conditions resulting in
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Children’s removal and continued placement outside the home will not be
remedied.4
[19] Parents next argue that the trial court erred in concluding that termination is in
Children’s best interests. To determine what is in the child’s best interests, the
trial court must look to the totality of the evidence. In re A.D.S., 987 N.E.2d
1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing so, the trial court must
subordinate the interests of the parents to those of the child. Id. The trial court
need not wait until the child is irreversibly harmed before terminating the
parent-child relationship. Id. Moreover, we have previously held that the
recommendation by both the case manager and child 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. Id. at 1158-59.
[20] Here, FCM Loudermilk, FCM Holcombe, and GAL Kirby all testified that
terminating Parents’ parental rights is in Children’s best interests. See Tr. pp.
96, 143, 183. Furthermore, the trial court found that Children have been out of
Parents’ care for most of their lives, including the most formative years. See
Mother’s App. Vol. II p. 32 (Finding 37); Father’s App. Vol. II p. 17 (Finding
4
Because we affirm the trial court’s conclusion that there is a reasonable probability that the conditions that
resulted in Children’s removal will not be remedied, we do not address its alternate conclusion that there is a
reasonable probability that the continuation of the parent-child relationships pose a threat to the well-being of
Children. See In re A.G., 45 N.E.3d 471, 478 (Ind. Ct. App. 2015) (Indiana Code section 31-35-4(b)(2) is
written in the disjunctive and requires the trial court to find only one of the two requirements of subsection
(b) has been established by clear and convincing evidence), trans. denied.
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49); see also In re K.T.K., 989 N.E.2d at 1230 (finding that “children have an
interest in terminating parental rights that prevent adoption and inhibit
establishing secure, stable, long-term, continuous relationships”). Finally, the
trial court concluded that Children’s “current foster home is well equipped to
meet [Children’s] needs and has demonstrated the ability to do so.” Mother’s
App. Vol. II p. 32 (Finding 38); Father’s App. Vol. II p. 17 (Finding 50); see also
In re S.P.H., 806 N.E.2d 874, 883 (Ind. Ct. App. 2004) (children’s needs are too
substantial to force them to wait while determining if their parents will be able
to parent them). As such, the trial court did not err when it determined that
termination is in Children’s best interests.
[21] Affirmed.
Riley, J., and Bradford, J., concur.
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