Termination: KC v. Indiana Department of Child Services , 71 N.E.3d 898 ( 2017 )

FILED
Mar 13 2017, 10:13 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT, ATTORNEYS FOR APPELLEE
FATHER Curtis T. Hill, Jr.
Kimberly A. Jackson Attorney General of Indiana
Indianapolis, Indiana
Robert J. Henke
ATTORNEY FOR APPELLANT, MOTHER David E. Corey
Cara Schaefer Wieneke Deputy Attorneys General
Special Asst. to the State Public Defender Indianapolis, Indiana
Wieneke Law Office, LLC
Brooklyn, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination March 13, 2017
of the Parent-Child Relationship Court of Appeals Case No.
of G.M. (Child) and M.M. 35A02-1609-JT-2096
(Mother) & K.C. (Father); Appeal from the Huntington
Circuit Court
M.M. (Mother), and The Honorable Thomas Hakes,
K.C. (Father), Judge
Appellants-Respondents, Juvenile Court Cause No.
35C01-1603-JT-13
v.
The Indiana Department of
Child Services,
Appellee-Petitioner
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 1 of 20
May, Judge.
[1] M.M. (“Mother”) and K.C. (“Father”) (collectively, “Parents”) appeal the
involuntary termination of their parental rights to G.M. (“Child”). Mother
challenges a number of the juvenile court’s findings and argues the Department
of Child Services (“DCS”) did not present sufficient evidence the conditions
under which Child was removed would not be remedied and termination was in
the best interests of Child. Father makes similar arguments, but we find
dispositive his argument the juvenile court could not terminate his rights when
it had never issued a dispositional decree as to Father. We affirm in part,
reverse in part, and remand.
Facts and Procedural History
[2] Child was born to Mother on December 10, 2014. Child was born with a heart
condition requiring specialized care. On December 12, 2014, DCS removed
Child under the juvenile court’s emergency order because Mother admitted
using unprescribed painkillers and heroin during pregnancy. Father 1 refused a
drug screen and reported to DCS he was unable to care for Child because “he is
on probation for rape and is not permitted to be around children unsupervised.”
(DCS Ex. 3.) On December 16, 2014, DCS filed a petition alleging Child was a
1
Father’s paternity was established on January 20, 2015.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 2 of 20
Child in Need of Services (CHINS) based on Mother’s drug use, Child’s drug
withdrawal at birth, and Father’s inability to care for Child.
[3] Father was incarcerated all but a three-month period during these proceedings.
He was arrested shortly after Child’s birth for an alleged probation violation
based on his testing positive for morphine and Percocet. In March 2015, the
State filed another petition to revoke his probation, alleging Father tested
positive for morphine. Father’s probation was revoked in May 2015, and he
was ordered to serve the remainder of his suspended sentence for rape and
burglary.
[4] The juvenile court held an initial hearing on the CHINS petition on August 4,
2015, and Father admitted Child was a CHINS. After Father’s admission, the
juvenile court held a fact finding hearing as to the allegations involving Mother
and ultimately adjudicated Child a CHINS. The juvenile court held a
disposition hearing on September 4, 2015, and ordered:
2. Mother shall participate in a substance abuse evaluation, as
well as ongoing substance abuse treatment.
3. Mother shall attend visitation with the child as long as she
maintains clean drug screens.
4. Mother shall submit to random drug screens.
5. Mother shall participate in home based services.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 3 of 20
6. Mother and [sic] shall comply with all recommendations of
DCS as outlined in paragraph IV of DCS’ Predispositional
Report filed September 1, 2015.
7. Father may participate in services as he is able while
incarcerated. Father’s dispositional hearing will not occur until
his release from incarceration.
(DCS Ex. 11.)
[5] Mother did not participate in services or visit with Child consistently. She
tested positive for illegal substances four times during the pendency of these
proceedings. She did not attend Child’s medical appointments, despite being
advised of when they were. Mother was incarcerated at the time of the final
termination hearing. Father participated in some parenting-related services
while incarcerated.
[6] On December 17, 2015, the juvenile court, on DCS request, changed Child’s
permanency plan from reunification to adoption based on Mother’s
noncompliance with services and positive drug screens. On March 7, 2016,
DCS filed a petition to terminate Parents’ rights to Child. On July 14, 2016, the
juvenile court held a hearing on the matter and entered an order terminating
Parents’ rights to Child on August 12, 2016.
Discussion and Decision
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 4 of 20
[7] 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
the 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 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-child relationship only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied 534 U.S.
1161 (2002).
[8] “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 juvenile court
must subordinate the interests of the parents to those of the child, 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 child should not be terminated
solely because there is a better home available for the child, id., but parental
rights may be terminated when a parent is unable or unwilling to meet his or
her parental responsibilities. Id. at 836.
[9] To terminate a parent-child relationship in Indiana, DCS must allege and
prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 5 of 20
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a
description of the court’s finding, the date of the
finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and
has been under the supervision of a county office of
family and children or probation department for at
least fifteen (15) months of the most recent twenty-
two (22) months, beginning with the date the child
is removed from the home as a result of the child
being alleged to be a child in need of services or a
delinquent child;
(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 provide clear and convincing proof of
these allegations. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied.
“[I]f the State fails to prove any one of these statutory elements, then it is not
entitled to a judgment terminating parental rights.” Id. at 1261. Because
parents have a constitutionally protected right to establish a home and raise
their children, the State “must strictly comply with the statute terminating
parental rights.” Platz v. Elkhart Cnty. Dep’t of Public Welfare, 631 N.E.2d 16, 18
(Ind. Ct. App. 1994).
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 6 of 20
I. Father’s Argument
[10] In its September 4, 2015, Dispositional Decree, the juvenile court ordered
Mother to complete certain services, and stated regarding Father: “Father may
participate in services as he is able while incarcerated. Father’s dispositional
hearing will not occur until his release from incarceration.” (DCS Ex. 11.) As
part of its order on December 3, 2015, approving the change in Child’s
permanency plan from reunification to adoption, the juvenile court noted,
“Father is incarcerated and is not under disposition.” (DCS Ex. 12.) Based
thereon, Father argues DCS has not proven Child had been removed from his
care under a dispositional decree for at least six months as required by Indiana
Code Section 31-35-2-4(b)(2)(A)(i).
[11] As an initial matter, we note waiver of this issue would normally apply, as
generally a party is not permitted to raise an issue for the first time on appeal.
See Troxel v. Troxel, 737 N.E.2d 745, 752 (Ind. 2000) (“A party may not raise an
issue for the first time in a motion to correct error or on appeal.”), reh’g denied.
However, we have held, concerning the requirement a child be removed under
a dispositional decree for at least six months before a court can terminate a
parent’s rights, the “constitutionally protected right of parents to establish a
home and raise their children mandates that the failure of a juvenile court to
require compliance with any condition precedent to the termination of this right
constitutes fundamental error which this court must address sua sponte.” Parent-
Child Relationship of L.B. and S.B. v. Morgan Cty. Dept. of Public Welfare, 616
N.E.2d 406, 407 (Ind. Ct. App. 1993), trans. denied.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 7 of 20
[12] The juvenile court stated in its December 3, 2015, order, “Father is incarcerated
and is not under disposition.” (DCS Ex. 12.) “An involuntary termination
petition must allege, and the State must prove by clear and convincing
evidence, that the child was removed from the parents for at least six months
under a dispositional decree at the time the involuntary termination petition
was filed.” In re D.D., 962 N.E.2d at 74. As stated in the court’s order, Father
was not “under disposition” on December 3, 2015, and thus when DCS filed
the petition to terminate his parental rights three months later in March 2016,
Child had not been removed as to Father for at least six months.2 The juvenile
court erred when it terminated Father’s parental rights to Child, and we must
reverse the judgment as to Father.
II. Mother’s Arguments 3
[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
2
This issue is dispositive as to Father because DCS was required to prove Child had been removed from his
care for at least six months or Child had been removed from his care for fifteen of the last twenty-two months
as required by Indiana Code Section 31-35-2-4(b)(2)(A)(iii), and the juvenile court concluded DCS did both.
However, in its brief, DCS conceded it did not meet the fifteen month criteria, as it filed its petition to
terminate Parents’ rights when Child had been removed for one year, two months, and twenty-four days. As
the statute is written in the disjunctive, DCS is required to prove only one of the three parts of Indiana Code
Section 31-35-2-4(b)(2)(A). See In re B.J., 879 N.E.2d 7, 20 (Ind. Ct. App. 2008) (Indiana Code Section 31-35-
2-4(b)(2)(A) written in the disjunctive and thus DCS need only prove one of the enumerated elements
therein), trans. denied.
3
In its brief, DCS noted the juvenile court signed the dispositional order in this case on September 4, 2015,
but the order was not entered in the Chronological Case Summary until October 7, 2015. DCS argued,
“[u]sing the date the court signed the order, DCS met the ‘6 months under a dispositional [order]’
requirement. However, using the date the order was entered into the CCS, i.e., Oct. 7, 2015, this is only
about five months before DCS filed its termination [petition] on March 7, 2016.” (Br. of Appellee at 8, n.5)
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 8 of 20
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. Mother challenges
nine of the juvenile court’s findings, arguing the findings are not supported by
the evidence.
A. Findings Regarding Visitation and Services
[14] Mother challenges two of the juvenile court’s findings regarding visitation with
Child and Mother’s participation in services:
13. After removal of the child on or about December 12, 2014,
the child was never returned to parents’ care and custody as a
result of Mother’s absence from the child’s life and services, non-
compliance with services, Mother’s positive drug screens,
It is well-established the State’s noncompliance with the six-month statutory requirement as set forth in
Indiana Code Section 31-35-2-4(b)(2)(A)(i) is fatal to an involuntary termination of parental rights. See, e.g.,
In re D.D., 962 N.E.2d 70, 76 (Ind. Ct. App. 2011) (termination of mother’s parental rights reversed because
DCS filed petition to termination mother’s rights less than six months after juvenile court entered its
dispositional decree). Here, the CCS of Child’s CHINS case indicates on October 7, 2015, “COURT
ENTERS DISPOSITIONAL ORDER (Hearing held September 4, 2015) (RJO). COPY OF ORDER TO DCS,
ATTORNEY JUSTIN WALL & ATTORNEY CASEY MORGAN.” (DCS Ex. 2) (emphasis in original).
The entry indicated “Order Signed: 09/04/2015[.]” (Id.) An entry from September 4, 2015, states,
“Disposition hearing held. Court approves DCS recommendations and enters Order on same.” (Id.) (emphasis in
original). The order was signed on September 4, 2015. Based thereon, we conclude DCS met the six-month
statutory requirement set forth in Indiana Code Section 31-35-2-4(b)(2)(A)(i) because the time frame between
September 4, 2015, and March 7, 2016, is at least six months.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 9 of 20
Mother’s failure to visit the child through a majority of the child’s
life, [and] Mother’s current incarceration[.]
*****
34. Prior to Mother’s recent incarceration, she did not engage in
her court-ordered services regularly.
(Mother’s App. at 98, 100.)
[15] Mother argues, regarding the juvenile court’s findings 13 and 34, that she
regularly visited with Child until Father was incarcerated in March 2015,
because without him she did not have transportation to the visitations. The
evidence indicates she visited with Child for eight one-hour sessions from
January 2015 until March 2015. She cancelled seven visitations, and fifteen
visitations were cancelled “due to [Child’s] condition or medical
appointments.” (Id. at 101.) Mother claims DCS did not attempt to find a new
service provider for visitation until August 2015 and Mother was never
approved to begin supervised visits after taking the required intake assessment.
DCS Services Manager Daniel Borne testified Mother was not allowed
supervised visitation with Child after her intake assessment because “she
needed to complete the drug screen to be able to start the visits and have regular
interaction with [the Family Case Manager].” (Tr. at 94.) Mother’s final visit
with Child was in October 2015 when she “visited, uh, late one, uh, evening,
and she spent approximately an hour with [Child]” while Child was in the
hospital for heart surgery. (Id. at 132.)
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 10 of 20
[16] Regarding services, Mother “does not dispute that she did not complete all the
required services under the dispositional order.” (Br. of Mother at 15.)
However, she complains she “was given only a few short months to comply
with services” and her long work hours and lack of transportation “made
complying with services more difficult than usual.” (Id.) Borne testified he
received referrals for services including “psychological tests, uh, substance
abuse treatment, substance abuse evaluation, and uh, drug screens” for Mother
on February 21, 2015. (Tr. at 87.) Borne testified he “got another referral for
home base[d] family center case work” in August 2015. (Id. at 88.) Borne
stated Mother completed her initial intake clinical interview on August 20,
2015, but never completed an initial substance abuse assessment and did not
meet with a substance abuse counselor. This evidence is sufficient to support
the juvenile court’s relevant findings.
[17] Mother’s arguments 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 cannot reweigh evidence or judge the credibility of witnesses).
Further, her contentions involve the adequacy of services provided as part of
her CHINS case, which is unavailable for our review during an appeal
following termination of parental rights. See In re H.L., 915 N.E.2d 145, 148 n.3
(Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on
which to directly attack a termination order as contrary to law”).
B. Findings Regarding Mother’s Drug Screens
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 11 of 20
[18] Mother takes issue with two of the juvenile court’s findings regarding her
positive drug screens. The juvenile court found:
36. After March 2015, Mother’s only drug screen was
administered in December 2015 by DCS.
*****
52. Before Mother stopped reporting for drug screens, Mother
tested positive for drugs on the following dates:
a. December 11, 2014: positive for oxycodone without a
prescription[;]
b. February 16, 2015: positive [for] methadone without a
prescription;
c. February 26, 2015: positive for opiates (hydrocodone)
without a prescription[.]
(Mother’s App. at 100-01.) Mother also claims the part of Finding 13
indicating she had “positive drug screens,” (id. at 98), is incorrect because she
had only one positive drug screen from the time she was ordered to complete
services in September 2015 until the termination petition was filed in March
2016.
[19] Mother argues the juvenile court should not have considered her three other
positive drug screens because they were prior to the CHINS adjudication. She
also argues, regarding the first positive drug screen for oxycodone without a
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 12 of 20
prescription, which was taken at the hospital following Child’s birth, “[i]t seems
probable that Mother was given an epidural during labor and a pain reliever
after delivery in the hospital, which would have shown up on the drug screen.”
(Br. of Mother at 15-16.) However, Mother did not present any evidence to
support that speculation. Moreover, in its order following the initial hearing on
DCS’s petition to declare Child a CHINS on December 16, 2014, the court
stated, “Court Orders Mother to have no drugs in her system when visiting the
child. Court advises mother of contempt and that she can be held in contempt
and incarcerated if she disregards the Order of the Court to have no drugs in her
system while she is visiting child.” (DCS Ex. 6.) Thus, Mother knew she was
not to take drugs prior to the dispositional order stating she should not do so.
[20] The record contains evidence that supports the findings; DCS presented
multiple exhibits containing the results of Mother’s drug screens and Borne
testified DCS referred Mother for a “substance abuse evaluation, and uh, drug
screens” on February 21, 2015. (Tr. at 87.) Her arguments 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 cannot reweigh
evidence or judge the credibility of witnesses).
C. Finding Regarding Mother’s Behavior during Visitation
[21] The juvenile court found regarding Mother’s interaction with Child during
supervised visitation: “During visits, service provider Ira Bencun observed
Mother would hold the child but would not initiate conversation to learn more
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 13 of 20
about the child’s condition and required care.” (Mother’s App. at 101.)
Mother argues this finding is “basically correct, [but] it does not reflect the
entirety of the evidence presented on the issue.” (Br. of Mother at 17.) Mother
directs us to Bencun’s testimony Child “would be asleep most of the visit just
because of his age” and Mother “was appropriate in holding him and handling
him in that one hour that she would [inaudible] him each visit.” (Tr. at 105.)
Bencun also testified that while Mother did not initiate conversations regarding
Child’s condition and required care, she received that information from Child’s
foster mother.
[22] Bencun’s testimony supports the juvenile court’s findings. Mother’s arguments
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 cannot reweigh evidence or judge the credibility of witnesses).
D. Findings Regarding Mother’s Interaction with the GAL
[23] Regarding Mother’s interaction with the GAL, the juvenile court found:
107. The GAL testified that she was never able to meet either
the parents in person prior to July 14, 2015 [sic] at the trial on
DCS [sic] petition to involuntarily terminate parental rights.
*****
113. The GAL testified that Mother has always had other
priorities, such as her job, that, while important, seemed to take
priority over her own child.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 14 of 20
(Mother’s App. at 105.) Mother’s argument regarding this issue is a litany of
excuses regarding why she was unable to meet with the GAL such as “Mother
was unable to respond to GAL’s letter . . . because she had no funds for
envelopes and postage” and had the GAL “met Mother in person . . . she
would have learned that Mother’s place of employment was short-staffed at the
time; that Mother was required to work extra hours to keep her job; and that
her employer has now hired additional staff, which will allow Mother to work
fewer hours each week.” (Br. of Mother at 18.) Her excuses 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 cannot reweigh
evidence or judge the credibility of witnesses). The record contains evidence
that supports the findings.
E. Finding Regarding Child’s Relationship with Foster Parents
[24] The juvenile court found, “[Child] has progressed well in his foster family, and
he views his foster parents as his true parents.” (Mother’s App. at 106.)
Mother contends she does not dispute that the foster family has cared for Child
while the CHINS and termination cases proceeded, but “the juvenile court’s
finding that [Child], a non-speaking toddler, views his foster parents as his ‘true
parents’ is speculation at best and certainly not supported by the evidence.”
(Br. of Mother at 19.) We agree the juvenile court’s determination Child feels
foster parents are his “true parents” is unsupported by the evidence, as such a
sentiment is hardly capable of determination under these facts. However, as the
juvenile court made appropriate findings regarding Mother’s drug use, lack of
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 15 of 20
frequency in visitation with Child, and noncompliance with services, the
finding by itself does not warrant reversal. See Roser v. Silvers, 698 N.E.2d 860,
863 (Ind. Ct. App. 1998) (“Where juvenile court findings on one legal theory
are adequate, findings on another legal theory amount to mere surplusage and
cannot constitute the basis for reversal even if erroneous.”).
F. Reasonable Probability Conditions Resulting in Child’s Removal Would
Not Be Remedied
[25] The juvenile court must judge a parent’s fitness to care for her children at the
time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App.
2010). Evidence of a parent’s pattern of unwillingness or lack of commitment
to address parenting issues and to cooperate with services “demonstrates the
requisite reasonable probability” that the conditions will not change. Lang v.
Starke Cty. OFC, 861 N.E.2d 366, 372 (Ind. Ct. App. 2007), trans. denied.
[26] In terminating Mother’s parental rights, the juvenile court concluded there was
a reasonable probability the conditions that resulted in Child’s removal from
Mother’s care would not be remedied. Mother argues this conclusion is not
supported by the findings because she had steady employment, reliable
transportation, and a place for her and Child to live. She also reported at the
termination hearing she was aware of Child’s special needs and felt her training
as a certified nursing assistant would help her learn the specific requirements of
his medical care quickly. She also testified she would be released from
incarceration in November 2016. She argues she no longer has a problem with
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 16 of 20
drugs and at the termination hearing stated she “was more than willing to
complete any services requested and believed that due to a change in her work
schedule and the fact that she had obtained reliable transportation, she would
have the ability to meet with service providers and complete those services.”
(Br. of Mother at 20-1.)
[27] The evidence suggests otherwise. Mother did not complete services, and the
time for completion of those services had long passed. As noted in our
discussion of Mother’s challenged findings, she did not complete services
offered by DCS, even after ordered by the court to do so; she did not regularly
visit with Child and did not seek to understand his condition and how to treat
it; and she had multiple positive drug screens, the last of which resulted in her
arrest and subsequent incarceration for violation of probation. Mother’s
arguments are requests 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 cannot reweigh evidence or judge the credibility of witnesses). The
juvenile court did not err when it concluded there was no reasonable probability
Mother would remedy the conditions that led to Child’s removal from her care.
G. Best Interests of the Child
[28] In determining what is in the child’s best interests, the 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
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 17 of 20
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).
[29] Mother argues she was not given ample time to complete services to assist her
in reunification with Child and thus termination is not in the best interests of
Child. However, the adequacy of the services provided to her as part of Child’s
CHINS case is unavailable for our review during an appeal following
termination of parental rights. See In re H.L., 915 N.E.2d at 148 n.3 (“failure to
provide services does not serve as a basis on which to directly attack a
termination order as contrary to law”).
[30] Further, DCS presented sufficient evidence termination was in Child’s best
interests. Family Case Manager John Lane testified termination was in Child’s
best interests because
[Child is] established in a home in which he’s in and has been
provided, umm, appropriate care during that time, in fact all of
his life since being discharged from the hospital, and he has no
bond with his parents and they’ve not provided, uh, any care for
him even or bonded with him at this point.
(Tr. at 140.) Additionally, Kathryn Garrett, Child’s Guardian ad Litem
testified termination was in Child’s best interests because:
Uh, well, with regard to mother, umm, it seemed to me that
significant, uh, strides had not been made, uh, to repair the
conditions that initiated the removal particularly with regard to
her participation [in] service[s] or addressing her substance abuse
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 18 of 20
issues. Uh, and, also her non-attendance, I guess, at medical
appointments that she was able to go to, umm, the drug
screening and also any supervised visitation. Umm, it was my
understanding that there was [sic] several months that she was
not incarcerated that she did not participate. . . . Umm, and I
don’t believe either parent has, I guess, learned about the medical
condition or what would involve going forward if the child were
to be reunited with them.
(Id. at 160.) The juvenile court did not err when it concluded termination was
in Child’s best interests and terminated Mother’s parental rights because there
existed sufficient evidence to support that conclusion. We accordingly affirm
the termination of Mother’s parental rights.
Conclusion
[31] The juvenile court erred when it terminated Father’s parental rights to Child
because Child had not been removed from Father under a dispositional decree
for at least six months as required by Indiana Code Section 31-35-2-
4(b)(2)(A)(i). However, DCS presented sufficient evidence to support the
juvenile court’s findings regarding Mother, including the juvenile court’s
conclusions the circumstances under which Child was removed would not be
remedied and termination was in Child’s best interests. Therefore, we reverse
the termination of Father’s parental rights to Child, affirm the termination of
Mother’s parental rights to Child, and remand to the juvenile court for
proceedings consistent with this opinion.
[32] Affirmed in part, reversed in part, and remanded.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 19 of 20
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Opinion 35A02-1609-JT-2096 | March 13, 2017 Page 20 of 20