In re the Termination of the Parent-Child Relationship of E v. (Minor Child) and T.N. (Mother) v. Indiana Department of Child Services (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Jun 10 2020, 9:22 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
Leanna Weissmann Monika Prekopa Talbot
Lawrenceburg, Indiana Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the June 10, 2020
Parent-Child Relationship of Court of Appeals Case No.
E.V. (Minor Child) and 19A-JT-2753
T.N. (Mother), Appeal from the Decatur Circuit
Court
Appellant-Respondent,
The Honorable Timothy B. Day,
v. Judge
Trial Court Cause No.
Indiana Department of Child 16C01-1904-JT-153
Services,
Appellee-Petitioner.
Mathias, Judge.
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[1] T.N. (“Mother”) appeals the Decatur Circuit Court’s order terminating her
parental rights to E.V., her minor child. Mother argues that the trial court’s
order involuntarily terminating her parental rights is not supported by clear and
convincing evidence.
[2] We affirm.
Facts and Procedural History
[3] E.V. was born to Mother and S.V. (“Father”) in February 2013. In January
2017, police officers were called to Mother’s hotel room due to a domestic
violence incident. While responding to the incident, law enforcement learned
that there was an active warrant for Mother’s arrest, and she was taken into
custody. Father could not be located. The Indiana Department of Child
Services (“DCS”) removed E.V. from Mother’s care.
[4] DCS filed a Child in Need of Services (“CHINS”) petition shortly after E.V.
was removed from Mother’s care. E.V. was adjudicated a CHINS on January
31, 2017.
[5] During the CHINS proceedings, Mother did not have a stable home or stable
employment. She tested positive for methamphetamine. Mother sporadically
participated in home-based services and supervised visitation with E.V. Family
case managers found it difficult to maintain contact with Mother. And Mother
never allowed case managers into her home.
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[6] Because Mother missed a significant number of visits with E.V., visitation
ceased in March 2018. Family case managers attempted to communicate with
Mother via telephone calls and text message with the goal of assisting Mother
with her participation in services. The family case manager texted Mother
“multiple times” in an attempt to reestablish visitation between Mother and
E.V. Mother did not reply to the text messages. Tr. p. 16.
[7] DCS filed a petition to terminate Mother’s parental rights in May 2019. Mother
did not appear at the initial hearing.
[8] Mother also failed to appear at the termination fact-finding hearing held on
October 24, 2019.1 Mother had actual notice of the hearing. Tr. p. 10. Family
case manager Rani Judd testified that there is no bond between Mother and
E.V. Tr. p. 16. Family case manager Kimberly Miller visited with Mother in
July 2019. She discussed the termination proceedings with Mother. Mother told
Miller that she did not plan to attend the fact-finding hearing, but she also
refused to voluntarily terminate her parental rights to E.V. Tr. p. 18. Miller
offered Mother services and visitation with E.V. Mother declined Miller’s offer.
E.V.’s guardian ad litem testified that termination of Mother’s parental rights
was in E.V.’s best interest. Tr. p. 23. She stated that E.V. is excelling in his pre-
adoptive placement. Id.
1
Father did not appear at the fact-finding hearing, his parental rights were also terminated, and he does not
participate in this appeal.
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[9] On October 24, 2019, the trial court issued an order terminating Mother’s
parental rights to E.V. The trial court found in pertinent part:
There is a reasonable probability that the conditions that resulted
in the child’s removal or the reasons for the placement outside
the parent’s home will not be remedied in that: . . . Mother . . .
[has] failed to engaged with the Child or the Department with
regard to services, visitation, or parenting in general and [has]
failed to make any efforts to improve [her] situation[] or avail
[herself] of any resources provided in order to do so.
There is a reasonable probability that continuation of the parent-
child relationship poses a threat to the well-being of the child in
that: the Child has been placed with his current placement for
such a lengthy period that he has developed an extremely strong
familial bond with them, . . . Mother . . . [has] no bond with the
Child whatsoever, and that disrupting the established bond
between the Child and his current caregivers would severely
traumatize the Child and deny him the permanency he needs to
thrive.
Termination is in the child’s best interests . . . in that: the Child
has a strong familial bond with his current foster placement,
regarding them as his mother and father, has no bond with either
biological parent whatsoever, and the Child would best achieve
the permanency, stability, and support he needs and is receiving
from his placement following the termination of his biological
parents’ parental rights.
Appellant’s App. p. 27. Mother now appeals.
Standard of Review
[10] Indiana appellate courts have long had a highly deferential standard of review
in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867,
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871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness
credibility. Id. We consider only the evidence and reasonable inferences
favorable to the trial court’s judgment. Id. In deference to the trial 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. Id. Clear error is that
which leaves us with a definite and firm conviction that a mistake has been
made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.
App. 2004), trans. denied.
[11] Mother does not challenge any of the trial court’s factual findings as being
clearly erroneous. We therefore accept the trial court’s findings as true and
determine only whether these unchallenged findings are sufficient to support
the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.
denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.
App. 2012) (holding that when the trial court's unchallenged findings support
termination, there is no error), trans. denied.
Discussion and Decision
[12] Mother claims that the trial court’s order involuntarily terminating her parental
rights is not supported by clear and convincing evidence. Indiana Code section
31-35-2-4(b)(2) provides that 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.
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(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.
[13] DCS must prove each element by clear and convincing evidence. Ind. Code §
31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana
Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is
required to find that only one prong of subsection 4(b)(2)(B) has been
established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220
(Ind. Ct. App. 2010).
[14] Clear and convincing evidence need not establish that the continued custody of
the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.
Off. of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient
to show by clear and convincing evidence that the child’s emotional and
physical development are put at risk by the parent’s custody. Id. If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. Ind. Code § 31-35-2-8(a).
[15] The purpose of terminating parental rights is not to punish parents but instead
to protect the child. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).
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Although parental rights have a constitutional dimension, the law allows for
their termination when the parties are unable or unwilling to meet their
responsibilities as parents. Id. Indeed, parental interests must be subordinated to
the child’s interests in determining the proper disposition of a petition to
terminate parental rights. In re G.Y., 904 N.E.2d at 1259.
[16] Mother argues that the trial court clearly erred by concluding that there was a
reasonable probability that the conditions that resulted in the child’s removal
from her care, or the reasons for his continued placement outside her home,
would not be remedied. When considering whether DCS has proven this factor
by clear and convincing evidence, the trial court must determine a parent's
fitness to care for the child at the time of the termination hearing while also
taking into consideration evidence of changed circumstances. A.D.S. v. Ind.
Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.
denied.
[17] Mother contends that DCS failed to prove that there was a reasonable
probability that the reasons for E.V.’s continued placement outside her home
would not be remedied because DCS failed to present evidence of the services it
offered to Mother. The family case manager testified that Mother was offered
home-based services, a substance abuse assessment, drug screens, and visitation
with E.V. Tr. p. 15. We agree with Mother that the family case manager’s
testimony regarding services and Mother’s participation was cursory.
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[18] However, the family case manager was not able to offer detailed testimony
because of Mother’s lack of participation in services and minimal visitation
with E.V. Mother did not maintain communication with the DCS service
providers, did not keep them informed of her address, refused to allow them
inside her home, and has not had any contact with E.V. since March 2018. And
prior to March 2018, Mother’s participation in services and visitation was
sporadic. Tr. pp. 15–16.
[19] After he was removed from Mother’s care, E.V. continued to be placed outside
of Mother’s home because her participation in services was inconsistent.
Importantly, Mother refused to participate in any services or visitation after
March 2018 even though her family case managers offered services and
visitation to her. Mother abandoned E.V. and continued to show her lack of
commitment to the child when she failed to appear for the termination fact-
finding hearing.
[20] For all of these reasons, we conclude that clear and convincing evidence
supports the trial court’s finding that there is a reasonable probability that the
conditions that resulted in the child’s removal from Mother’s care, or the
reasons for his continued placement outside her home, would not be remedied.2
2
Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, we decline to address
Mother’s additional claim that DCS failed to prove that continuation of the parent-child relationship
threatens the children’s well-being. In re A.K., 924 N.E.2d at 220. And Mother does not challenge the trial
court’s finding that termination of her parental rights is in E.V.’s best interests.
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Conclusion
[21] Clear and convincing evidence supports the trial court’s order involuntarily
terminating Mother’s parental rights to her child.
[22] Affirmed.
Riley, J., and Tavitas, J., concur.
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