In the Matter of the Termination of the Parent-Child Relationship of A.F. (Minor Child) and J.B. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2019 )

MEMORANDUM DECISION FILED
Apr 02 2019, 10:21 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination April 2, 2019
of the Parent-Child Relationship Court of Appeals Case No.
of A.F. (Minor Child) and J.B. 18A-JT-1647
(Mother); Appeal from the Montgomery
Circuit Court
J.B. (Mother), The Honorable Harry A. Siamas,
Judge
Appellant-Respondent,
Trial Court Cause No.
v. 54C01-1712-JT-340
Indiana Department of Child
Services,
Appellee-Petitioner
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May, Judge.
[1] J.B. (“Mother”) appeals the termination of her parental rights to A.F.
(“Child”). Mother argues termination is not in Child’s best interests. We
affirm.
Facts and Procedural History
[2] Child was born to Mother and J.A. (“Father”) 1 on July 20, 2016. At the time of
Child’s birth, the Department of Child Services (“DCS”) received a report that
Mother tested positive for opiates when Child was born. On July 27, 2016,
DCS removed Child from Mother’s care because Father overdosed on heroin
and Mother would not tell DCS where the family lived. DCS placed Child with
Child’s maternal grandparents. On July 29, 2016, DCS filed a petition to
declare Child a Child in Need of Services (“CHINS”) based on Mother’s drug
use, the fact she would not tell DCS where the family lived, and the voluntary
termination of her parental rights to another child in 2013.
[3] On August 11, 2016, Mother admitted Child was a CHINS and the trial court
adjudicated Child as such on September 22, 2016. The trial court also held a
dispositional hearing on September 22, 2016, and ordered Mother to complete
the following services: substance abuse assessment, random drug screens,
1
J.A., Child’s father, consented to the termination of his parental rights and does not participate in this
appeal.
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counseling, and supervised visitation with Child. Mother was never in
compliance with services.
[4] Between August 2016 and March 2017, Mother tested positive for marijuana
eleven times. Mother tested positive for methamphetamine on June 5, 2017,
July 3, 2017, and July 7, 2017. Mother tested positive for opiates on June 16,
2017, and June 29, 2017. Mother refused to take a drug screen multiple times
despite being ordered to do so by the court.
[5] Between August 2016 and October 2017, Mother was offered fifty-nine
appointments for substance abuse and mental health counseling. She attended
only forty of those appointments. Mother last visited with Child on July 3,
2017. On August 6, 2017, Mother was arrested for violating her probation on
an earlier conviction by committing another crime, Level 6 felony possession of
a narcotic drug. On November 27, 2017, Mother was convicted of Level 6
felony possession of a narcotic drug and sentenced to 728 days probation. She
was then admitted to Amethyst House, an in-patient drug rehabilitation center.
Mother was unsuccessfully discharged from the program on January 22, 2018,
for violation of the center’s zero fraternization policy. Mother relapsed into
drug use shortly thereafter. Mother went to another drug rehabilitation center,
Harbor Lights, after she left Amethyst House, but left after one day.
[6] On December 4, 2017, DCS filed a petition to involuntarily terminate Mother’s
parental rights to Child. On February 14, 2018, Mother was admitted to the
Seeds of Hope drug recovery facility, where she was actively engaged in
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treatment at the time of the fact-finding hearings. The trial court held fact-
finding hearings on DCS’s termination petition on March 2, 2018, and June 1,
2018. On July 10, 2018, the trial court entered an order involuntarily
terminating Mother’s parental rights to Child.
Discussion and Decision
[7] We review termination of parental rights with great deference. In re K.S., D.S.,
& B.G., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh
evidence or judge 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’s rights only if it is clearly erroneous. In re L.S.,
717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh’g denied, 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 trial court must
subordinate the interests of the parents to those of the children, 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 children should not be terminated solely
because there is a better home available for the children, id., but parental rights
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may be terminated when a parent is unable or unwilling to meet parental
responsibilities. Id. at 836.
[9] To terminate a parent-child relationship, the State must allege and prove:
(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). The State 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. If the court finds the allegations in the petition are true, it must
terminate the parent-child relationship. Ind. Code § 31-35-2-8.
[10] 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
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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.” 2 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 argues the
involuntary termination of her parental rights is not in Child’s best interests.
[11] In determining what is in Child’s best interests, the juvenile court is required to
look beyond the factors identified by DCS and consider the totality of the
evidence. See 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 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, 900 (Ind. Ct. App. 2002). The recommendations of a DCS case manager
and court-appointed advocate to terminate parental rights, in addition to
evidence that conditions resulting in removal will not be remedied, are
sufficient to show by clear and convincing evidence that termination is in
Child’s best interests. In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009).
[12] In its order, the trial court concluded:
2
Herein, Mother does not challenge the trial court’s findings, and thus we accept them as true. See Madlem v.
Arko, 592 N.E.2d 686, 687 (Ind. 1992) (“Because Madlem does not challenge the findings of the trial court,
they must be accepted as correct.”).
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40. The DCS has proved by clear and convincing evidence that
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. The child was
removed from her parents on July 27, 2016. The DCS has
offered reunification services to both parents but neither parent
was able to participate in these services in order to overcome
their parenting deficits. Father consented to termination of his
parental rights. Mother failed to take advantage of reunification
services offered to her. She continued an unstable lifestyle. She
continued to abuse drugs. At the time of the termination hearing
it is true that mother was doing well in her rehab treatment at
Seeds for Hope and she should be commended for maintaining
her sobriety and employment. However, she has not had the
responsibility to care for Child since Child was five weeks old.
Mother has not seen the child since July 3, 2017. Mother’s
absence from Child’s life is due to her inability to maintain a
stable, sober life. She has had frequent drug abuse interventions
in the past and she relapsed every time. Hopefully this time will
be different. Unfortunately, Child cannot wait. Child has been
cared for and nurtured by others for the past two years. Child
would not recognize mother as her parent.
41. The DCS has proven by clear and convincing evidence that
termination is in the best interests of the child. Neither parent is
in any better position to provide the child with appropriate care,
supervision or a safe, nurturing and stable home than they were
at the beginning of DCS’ involvement with the family. Neither
parent can meet the child’s needs. Both the DCS case manager
and the CASA believe that termination is in the bet interest of the
child.
(App. Vol. II at 11) (errors in original). Mother argues, based on her recent
progress with substance abuse treatment at Seeds of Hope and current
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employment, that termination of her parental rights is not in Child’s best
interests.
[13] However, as the trial court noted, Child cannot be left in a state of parental
instability indefinitely. See In re G.Y., 904 NE.2d 1257, 1265 (Ind. 2009),
(“Permanency is a central consideration in determining the best interests of a
child.”), reh’g denied. Additionally, termination being the Child’s best interests
is supported by the testimony of the Court Appointed Special Advocate
(“CASA”) who said Child was “clean, healthy, happy and very well cared for
and loved” by maternal grandparents, with whom she had been placed since
she was removed from Mother’s care. (Tr. Vol. II at 90.) See A.F. v. Marion Cty.
Office of Family & Children, 762 NE.2d 1244, 1253 (Ind. Ct. App. 2002)
(termination in child’s best interests in part because child was thriving in foster
placement), trans. denied. Mother’s arguments are invitations for us to reweigh
the evidence, 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).
Conclusion
[14] DCS presented evidence to support the trial court’s findings, which support the
trial court’s conclusion that the involuntary termination of Mother’s parental
rights was in Child’s best interests. Accordingly, we affirm.
[15] Affirmed.
Mathias, J., and Brown, J., concur.
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