In the Termination of the Parent-Child Relationship of: S.S. (Minor Child) and L.M. (Mother) and Sa.S. (Father) v. The Indiana Department of Child Services , 120 N.E.3d 605 ( 2019 )

FILED
Mar 06 2019, 9:21 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
L.M. (MOTHER) Curtis T. Hill, Jr.
Benjamin J. Church Attorney General of Indiana
Church Law Office Natalie F. Weiss
Monticello, Indiana Deputy Attorney General
ATTORNEY FOR APPELLANT Indianapolis, Indiana
SA.S. (FATHER)
Christopher P. Phillips
Phillips Law Office, P.C.
Monticello, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- March 6, 2019
Child Relationship of: Court of Appeals Case No.
18A-JT-2370
S.S. (Minor Child)
Appeal from the White Circuit
and Court
L.M. (Mother) and Sa.S. (Father), The Honorable Robert W.
Appellants-Respondents, Thacker, Judge
Trial Court Cause No.
v. 91C01-1712-JT-30
The Indiana Department of
Child Services,
Appellee-Petitioner.
Robb, Judge.
Court of Appeals of Indiana | Opinion 18A-JT-2370 | March 6, 2019 Page 1 of 15
Case Summary and Issue
[1] L.M. (“Mother”) and Sa.S. (“Father”) (collectively “Parents”) separately
appeal the juvenile court’s judgment terminating their parental rights to S.S.
(“Child”). Parents present several issues for our review which we consolidate
and restate as: whether the juvenile court erred in terminating their parental
rights. Concluding the juvenile court did not err in terminating either Mother’s
or Father’s parental rights, we affirm.
Facts and Procedural History
[2] Mother and Father are the biological parents of Child who was born on June
30, 2013.1 Child tested positive for THC at birth and the Indiana Department
of Child Services (“DCS”) conducted an informal adjustment and then a child
in need of services (“CHINS”) case before reunifying Child with Father.
[3] On May 16, 2016, DCS received a report that Parents were neglecting Child
and using illegal drugs in his presence. After Parents were contacted by DCS,
Mother refused a drug screen and Father tested positive for methamphetamine,
amphetamine, and THC. Parents fled with Child to Florida, but Father
eventually returned with Child on May 27 and Child was removed from his
1
Paternity was established in a prior legal action.
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care. Child was placed in relative care with paternal grandfather where Child
remained throughout the duration of this case.
[4] DCS filed its CHINS petition on June 1, 2016 based on Parents’ drug use in the
presence of the Child, Mother’s refusal to take a drug screen, Father’s positive
drug test, Parents’ decision to flee to Florida, and Parents’ prior involvement
with DCS. The juvenile court conducted a detention hearing on June 2 at
which only Father appeared and the juvenile court authorized Child’s
continued removal and placement in relative care. Due to Father being on
probation when he fled to Florida, he was incarcerated from June to August
2016 for violating the terms of his probation.
[5] Following a factfinding hearing, the juvenile court adjudicated Child to be
CHINS on September 28, 2016. The juvenile court ordered Parents to, among
other things: maintain contact with DCS; maintain suitable, safe, and stable
housing; maintain a stable source of income; not use, consume, trade or sell any
illegal controlled substances; obey the law; submit to random drug screens;
attend all scheduled visitations with the Child; engage in home based case
management; and complete a substance abuse assessment and all treatment
recommendations therefrom. Appellant’s [Mother’s] Appendix, Volume II 19-
23.
[6] After Parents failed to comply with many of the terms ordered by the juvenile
court, DCS filed a verified petition for the termination of the parent-child
relationship (“TPR”) between Father, Mother, and Child on December 28,
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2017. Following a TPR hearing on June 13 and June 18, 2018, the juvenile
court issued its termination order on September 4, which included 160 findings
of fact2 and concluding DCS had met the statutory requirements for terminating
the parent-child relationships. See id. at 65-66. Father and Mother now
separately appeal. Additional facts will be supplied as necessary.
Discussion and Decision
I. Standard of Review
[7] We begin, as we often do, by emphasizing that the right of parents to establish a
home and raise their children is protected by the Fourteenth Amendment to the
United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App.
2004), trans. denied. The law provides for the termination of these
constitutionally protected rights, however, 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). We subordinate the interests of the parents to those
2
While we commend the juvenile court for its extensive findings and thorough order, we note that many of
the juvenile court’s findings are merely recitations of the evidence. See Appellant’s App., Vol. II at 45-65. “A
court or an administrative agency does not find something to be a fact by merely reciting that a witness
testified to X, Y, or Z.” S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013).
Instead, “a finding of fact must indicate not what someone said is true but what is determined to be true, for
that is the trier of fact’s duty.” Id. “The trier of fact must adopt the testimony of the witness before the
‘finding’ may be considered a finding of fact.” Id. Because neither Father nor Mother has challenged these
findings on appeal, however, any such argument has been waived. McMaster v. McMaster, 681 N.E.2d 744,
747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court findings were accepted as true).
Regardless, we take this opportunity to remind trial courts that they must adopt evidence or testimony if the
court wishes to make such a finding.
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of the child when evaluating the circumstances surrounding a termination. In re
K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).
[8] We do not reweigh the evidence or judge the credibility of witnesses when
reviewing the termination of parental rights. In re D.D., 804 N.E.2d at 265.
Rather, we consider only the evidence and reasonable inferences most favorable
to the judgment. Id. Furthermore, in deference to the juvenile court’s unique
position to assess the evidence, we only set aside its judgment terminating a
parent-child relationship when 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).
[9] Where, as here, the juvenile court enters 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 must first determine
whether the evidence supports the findings, then we must determine whether
the findings support the judgment. Id. Findings will only be set aside if they are
clearly erroneous and findings are only clearly erroneous “when the record
contains no facts to support them either directly or by inference.” Yanoff v.
Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).
II. Termination Order
[10] Our supreme court has described the involuntary termination of parental rights
as “an extreme measure that is designed to be used as a last resort when all
other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.
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2011). In order for the State to terminate parental rights, Indiana Code section
31-35-2-4(b)(2) provides the State must prove, in relevant part:
(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.
***
(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.
[11] Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written
in the disjunctive, and thus the State need only prove one of those statutory
elements, In re L.S., 717 N.E.2d at 209, but must do so by clear and convincing
evidence, Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind.
2009). If a juvenile court determines the allegations of the petition are true,
then the court shall terminate the parent-child relationship. Ind. Code § 31-35-
2-8(a).
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[12] We also note that “[i]t is common practice for our trial courts to conduct
termination hearings as well as the CHINS proceedings underlying them
involving multiple children and/or multiple parents in a single proceeding.” In
re V.A., 51 N.E.3d 1140, 1146 (Ind. 2016). However, we must weigh the
evidence as it pertains to each Parent. See id.A. Remedy of Conditions
[13] Both Mother and Father contend DCS failed to prove by clear and convincing
evidence that the circumstances leading to removal would not be remedied.
We engage in a two-step analysis to determine whether such conditions will be
remedied: “First, we must ascertain what conditions led to [Child’s] placement
and retention in foster care. Second, we determine whether there is a
reasonable probability that those conditions will not be remedied.” In re K.T.K.,
989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted).
[14] Child was removed from Parents due to ongoing substance abuse issues and
their use of illegal drugs in front of Child. The juvenile court made 136 findings
“relating to continued removal and reasonable probability reasons for removal
not remedied.” Appellant’s App., Vol. II at 49. And, because neither Father
nor Mother has challenged these findings on appeal, we must accept these
findings as true. McMaster, 681 N.E.2d at 747.
[15] A juvenile court assesses whether a reasonable probability exists that the
conditions justifying a child’s removal or continued placement outside his
parent’s care will not be remedied by judging the parent’s fitness to care for the
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child at the time of the termination hearing, taking into consideration evidence
of changed conditions. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Habitual
conduct may include criminal history, drug and alcohol abuse, history of
neglect, failure to provide support, and lack of adequate housing and
employment, but the services offered to the parent and the parent’s response to
those services can also be evidence demonstrating that conditions will be
remedied. A.D.S v. Indiana Dept. of Child Services, 987 N.E.2d 1150, 1157 (Ind.
Ct. App. 2013), trans. denied.
1. Mother
[16] We begin our review with Mother. The record reveals that the Child tested
positive for THC at birth and Mother has never had primary custody of the
Child or acted as the Child’s primary caregiver. Mother resided in Florida from
May 2016 until December 2017 and during that time Mother only had
visitation with the Child once every three months. Mother’s oral drug screens
were consistently positive for THC and she refused to take hair drug screens on
multiple occasions. DCS recommended a drug treatment facility in Florida but
Mother failed to complete the program or attend the required sessions. Mother
moved back to Indiana in December 2017 after she became pregnant with a
child fathered by her new boyfriend. Since her return, Mother’s visitation with
the Child has increased to once a week and she produced several negative drug
tests during her pregnancy. Mother requested additional visitation with the
Child a month before the TPR hearing and completed a substance abuse
assessment a week before the TPR hearing.
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[17] On appeal, Mother’s sole argument is that the juvenile court erred by
disregarding her recent progress. However, since Mother failed to specifically
challenge any of the juvenile court’s findings, we need only consider whether
the findings support the juvenile court’s conclusion. Bester, 839 N.E.2d at 147.
We conclude that they do.
[18] Substance abuse is the underlying issue in this case and Mother has failed to
complete a substance abuse program despite being counseled to participate in
such a program for over a year and a half. Accounting for the fact that the
Child tested positive for THC at birth in 2013, Mother has failed to complete a
substance abuse program for over five years and the record is also absent of any
voluntary efforts Mother has made with the aim of improving her substance
abuse issues.
[19] Mother’s efforts are similarly unimpressive with regard to her relationship with
the Child. Family Case Manager (“FCM”) Brooke Brown testified that Mother
lacks a strong bond with the Child and that Mother disregarded her suggestions
for improvement. Likewise, the guardian ad litem testified that Mother’s
relationship with the Child more closely resembles a friendship than that of a
parent and child. We have often noted that 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. Such is the case here.
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[20] To the extent Mother highlights her recent progress and completion of a
substance abuse assessment one week before the TPR hearing, the juvenile
court was well within its discretion to “disregard the efforts Mother made only
shortly before termination and to weigh more heavily Mother’s history of
conduct prior to those efforts.” In re K.T.K., 989 N.E.2d at 1234. For these
reasons, we conclude the juvenile court’s findings supported its conclusion. See,
e.g., In re E.M., 4 N.E.3d at 644 (findings regarding a parent’s continued non-
compliance with services supported juvenile court’s conclusion the conditions
under which children were removed from the parent’s care would not be
remedied).
2. Father
[21] Unlike Mother, Father’s efforts were initially quite promising. After the Child’s
removal and Father’s release from incarceration for violating his probation,
Father engaged in home based case management and cooperated with DCS. In
return, Father was provided additional responsibility which included picking
the Child up from preschool and having unsupervised time with the Child
before daycare. Father eventually began arriving late and then failed to pick the
Child up at all. Thereafter, Father’s behavior worsened, and his cooperation
declined.
[22] Father repeatedly tested positive for cocaine, methamphetamine, amphetamine,
and/or THC since the inception of this case. DCS employees observed Father
under the influence on multiple occasions during which his behavior was
irrational and he would appear aggressive and threatening. Father completed
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only seven days of a 60-to-90-day inpatient treatment program and was
eventually arrested on charges of possession of a syringe, methamphetamine,
and marijuana in September 2017.
[23] Like Mother, Father emphasizes his recent efforts and argues the juvenile court
erred in concluding the relevant conditions were unlikely to be remedied
because of his recent cooperation, the fact that he has not missed any visits with
the Child since the beginning of 2018, his current employment, and that he was
“capable of progress with his substance abuse, but needs to work on following
through with the program.” Appellant’s Brief on Behalf of Father at 13. In so
arguing, Father contends his case is akin to In re J.M., where DCS sought to
terminate the parental rights of both the mother and father of a child after both
were incarcerated on drug-related charges. 908 N.E.2d 191 (Ind. 2009).
[24] In J.M., the juvenile court refused to terminate the parental rights after receiving
testimony that both parents could be released early from prison for completing
certain degrees, that both parents had completed a number of self-improvement
programs while incarcerated, and that the father had secured employment and
housing upon his release from prison. Our supreme court agreed with the
juvenile court’s refusal to terminate because the parents’ ability to establish a
proper household for the child could be determined within a relatively short
period of time without threatening the child’s need for permanency.
[25] Contrary to Father’s assertion, however, almost none of the factors considered
by our supreme court in J.M. are applicable here. First, to the extent Father
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contends he was employed at the time of the TPR hearing, the juvenile court
found that he was not. See Appellant’s App., Vol. II at 60, ¶ 99. Indeed,
Father’s own testimony at the TPR hearing established that he was
unemployed. See Transcript, Volume 2 at 120. Second, despite the similarity
between Father’s two arrests and the arrests of the parents in J.M., both of
which were after their children’s birth, Father has consistently refused help with
his substance abuse issues and has failed to take any significant steps to obtain
sobriety—unlike the number of self-improvement programs completed in J.M.
[26] Finally, as with Mother, the juvenile court was free to disregard Father’s
attendance at five narcotics anonymous meetings and his month-long sobriety
prior to the TPR hearing in favor of his long-running pattern of behavior. In re
K.T.K., 989 N.E.2d at 1234. In short, we agree with the juvenile court that the
evidence establishes a reasonable probability that the conditions that resulted in
the Child’s removal and continued placement outside the home will not be
remedied.3
B. Best Interests
[27] Both Father and Mother also contend DCS failed to prove termination of their
parental rights was in the Child’s best interest. In determining the best interests
3
Father also argues the juvenile court erred in finding that the continuation of the parent-child relationship
poses a threat to the Child’s well-being. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires only one element be proven to terminate Father’s parental rights. See
In re L.S., 717 N.E.2d at 209. Having concluded the evidence is sufficient to show a reasonable probability
the conditions resulting in the Child’s removal will not be remedied, we need not consider whether the
parent-child relationship poses a threat to the Child’s well-being.
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of a child, the juvenile court must “look beyond the factors identified by the
DCS and look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149
(Ind. Ct. App. 2009). And the juvenile court “need not wait until the child is
irreversibly harmed such that the child’s physical, mental and social
development is permanently impaired before terminating the parent-child
relationship.” In re K.T.K., 989 N.E.2d at 1235.
[28] Once again, neither Father nor Mother has challenged any of the juvenile
court’s findings of fact and therefore, we need only determine whether those
findings support the juvenile court’s conclusion. Bester, 839 N.E.2d at 147. In
this regard, the juvenile court found:
1. [FCM] Brown testified that the termination was in the
[C]hild’s best interest in that the Father continues to
struggle with housing and income stability, poor decision
making, illegal substance use which produces erratic,
irrational behavior, and that Mother chose to live in
Florida instead of Indiana to build a bond with [the Child],
that throughout the case Mother only visited [the Child]
when she was home for Court, and consistently tested
positive for THC until she became pregnant while home
for Court. Since Mother’s return [to Indiana] in December
of 2017 she did not request additional visitation until May
of 2018.
2. [FCM] Brown testified that the relationship between the
[C]hild and Mother was more of a friend relationship than
a Mother-[child] relationship. This relationship has been
only minimally enhanced since Mother’s return in
December.
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3. [FCM] Brown testified that the [C]hild needs consistency
in her everyday life, and permanency and had been placed
with her grandfather a majority of her life.
4. [The guardian ad litem] testified that the [C]hild needs
stable parents and consistency.
5. [The guardian ad litem] testified that the [C]hild has been
with [the same] placement for over half her life and
bonded with paternal grandfather and his significant other.
Appellant’s App., Vol. II at 64.
[29] We conclude that the juvenile court’s findings support its judgment. As
discussed above, DCS produced ample evidence that the conditions resulting in
removal will not be remedied. This, combined with FCM Brown’s testimony
that termination was in the Child’s best interest, is sufficient to show
termination is in the child’s best interest by clear and convincing evidence. See,
e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (holding
recommendations of the case manager, court-appointed advocate, and evidence
tending to show that the conditions resulting in removal will not be remedied is
enough to show termination is in the child’s best interests by clear and
convincing evidence), trans. denied. Neither parent has demonstrated an ability
to effectively use the services provided to them, see In re T.F., 743 N.E.2d 766,
776 (Ind. Ct. App. 2001), trans. denied, and it is uncontested that Child is doing
well in foster placement with her paternal grandfather. Accordingly, the
juvenile court did not err in its determination of the Child’s best interests.
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Conclusion
[30] We reverse a termination of parental rights “only upon a showing of ‘clear
error’—that which leaves us with a definite and firm conviction that a mistake
has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,
1235 (Ind. 1992). Finding no such error here, we affirm the juvenile court.
[31] Affirmed.
Riley, J., and Kirsch, J., concur.
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