Opinion
24A-JT-877
08-23-2024
In Re: The Termination of the Parent-Child Relationship of S.W., R.W., and S.H. (Minor Children); v. The Indiana Department of Child Services, Appellee-Petitioner A.H. (Mother), Appellant-Respondent
Attorney for Appellant Roberta L. Renbarger Fort Wayne, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Frances Barrow Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable Lori K. Morgan, Judge Trial Court Cause Nos. 02D08-2306-JT-149 02D08-2307-JT-150 02D08-2308-JT-233
Attorney for Appellant Roberta L. Renbarger Fort Wayne, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana
Frances Barrow Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
PYLE, JUDGE
Statement of the Case
[¶1] A.H. ("Mother") appeals the termination of the parent-child relationships with her three daughters, S.H. ("S.H."), S.W. ("S.W."), and R.W. ("R.W.") (collectively "the children"). Mother argues that there is insufficient evidence to support the terminations. Concluding that there is sufficient evidence to support the terminations, we affirm the trial court's judgment.
The trial court also terminated M.W.'s ("Father") parental relationships with S.W. and R.W. However, Father is not participating in this appeal. S.H.'s father voluntarily relinquished his parental rights.
[¶2] We affirm.
Issue
Whether there is sufficient evidence to support the termination of the parent-child relationships.
Facts
[¶3] The facts most favorable to the terminations reveal that twenty-seven-year-old Mother is the parent of S.H., who was born in January 2018, S.W., who was born in July 2019, and R.W., who was born in March 2021. In September 2021, DCS filed a petition alleging that the children were children in need of services ("CHINS"). The petition specifically alleged that: (1) Mother and Father's (collectively, "Parents") home was in a substandard condition and posed a health risk to the children; (2) Mother had ongoing substance abuse issues; (3) Mother had untreated mental health issues; and (4) R.W. had been born drug exposed, and DCS had substantiated a neglect allegation against Mother. The trial court adjudicated the children to be CHINS in October 2021.
[¶4] Also, in October 2021, the trial court entered a dispositional order that required Mother to: (1) refrain from criminal activity; (2) maintain stable housing; (3) submit to random drug screens; (4) submit to a diagnostic assessment at the Center for Applied Behavioral Studies ("the Center") and follow the assessor's recommendations; and (5) participate in family preservation services at Bowen Center ("Bowen Center"). The children initially remained in Parents' home. However, at some point Parents and the children moved in with Father's parents ("Paternal Grandparents").
[¶5] Mother attended intake assessments at the Center and at Bowen Center. The assessors recommended individual counseling and outpatient substance abuse treatment. Mother initially followed both recommendations and attended individual counseling and outpatient substance abuse treatment. However, she stopped attending individual counseling in February 2022 and substance abuse treatment in March 2022. Mother did not participate in any additional services during the pendency of the CHINS proceedings.
[¶6] Also, in March 2022, Mother became involved in an altercation with Paternal Grandfather at his home in LaGrange County. The altercation occurred in the presence of two of the children. The State charged Mother with Level 6 felony domestic battery and Class A misdemeanor resisting law enforcement ("the LaGrange County case").
[¶7] Following Mother's arrest, DCS removed the children from Parents and placed them with Paternal Grandparents. It appears that Parents were required to leave Paternal Grandparents' home. Mother spent one day at a halfway house and then spent the next few months staying with different family members and friends.
[¶8] In June 2022, Mother pleaded guilty to Class A misdemeanor domestic battery and Class A misdemeanor resisting law enforcement in the LaGrange County case. The trial court sentenced her to one year in the county jail for each of the two convictions and ordered the sentences to run concurrently with each other. In addition, the trial court suspended 355 days of each sentence and placed Mother on probation for one year.
[¶9] In October 2022, the State filed a petition to revoke Mother's probation in the LaGrange County case. The petition specifically alleged that Mother had failed to: (1) attend three scheduled appointments with her probation officer; (2) inform the probation officer of her address; and (3) show her probation officer evidence that she was employed.
[¶10] In December 2022, the State charged Mother with Class A misdemeanor domestic battery in Allen County ("the Allen County case"). One week later, Mother pleaded guilty in the Allen County case, and the trial court sentenced her to a one-year suspended sentence in the Allen County Jail. Also, in December 2022, the State filed a second petition to revoke Mother's probation in the LaGrange County case based upon Mother's arrest in the Allen County case.
The victim in the Allen County case was not the same victim in the LaGrange County case.
[¶11] In April 2023, the State charged Mother with Class A misdemeanor theft in Noble County ("the Noble County case") for exercising unauthorized control over Wal-Mart's merchandise. In June 2023, DCS filed petitions to terminate Mother's parental relationships with S.W. and R.W.
[¶12] The following month, in July 2023, the trial court in the probation revocation case in LaGrange County found that Mother had violated the terms and conditions of her probation. The trial court sentenced Mother to serve eleven months of her previously suspended sentence in the LaGrange County case. Mother was incarcerated in the county jail from July 2023 until October 2023. In September 2023, while Mother was incarcerated, DCS filed a petition to terminate her parental relationship with S.H.
[¶13] Following her release from the county jail in October 2023, Mother did not contact DCS to inquire about the children or to schedule visits with them. DCS family case manager Jeannie Stults ("FCM Stults") attempted to contact Mother several times but was unable to reach her.
[¶14] Also in October 2023, Mother pleaded guilty to Class A misdemeanor theft in the Noble County case. The trial court sentenced her to a one-year suspended sentence in the Noble County Jail and did not place Mother on probation.
[¶15] The trial court heard the facts as set forth above at a two-day termination hearing in December 2023. In addition, Mother testified that she had regularly used methamphetamine during the pendency of the CHINS proceedings and that she had last used methamphetamine the previous week. Further, Mother acknowledged that she had not seen her children for nearly a year. According to Mother, she had not seen her children "[b]ecause [she had been] on drugs and [she] didn't want to be around them[.]" (Tr. Vol. 2 at 52). Mother also acknowledged that she had not: (1) completed any of the services set forth in the CHINS dispositional decree; (2) had stable housing during the pendency of the CHINS proceedings; and (3) been employed since 2022. Mother further testified that she had "mental issues" and that she was not in a position to care for the children. (Tr. Vol. 2 at 46).
[¶16] Also, at the hearing, FCM Stults testified that during the course of the CHINS proceedings, the children had been moved from Paternal Grandparents' home to foster care and to the homes of other relatives. Specifically, R.W. had been placed with one of Mother's relatives, S.W. had been placed with another of Mother's relatives, and S.H. had been placed in foster care. The plan for the children was adoption by their current placements.
[¶17] Lastly, CASA Nicole Fischer ("CASA Fischer") testified that termination was in the children's best interests because:
. . . [M]other has, for the life of the case, essentially been non-compliant. She has been in and out of incarceration, she struggled with mental health issues, as well as substance use issues. She's had extremely unstable housing. She also hasn't had any visitation or contact with the children in close to a year at this point.(Tr. Vol. 2 at 111). In addition, CASA Fischer testified that the children were doing "exceptionally well" in their placements. (Tr. Vol. 2 at 112).
[¶18] In March 2024, the trial court issued a detailed thirty-one-page order terminating Mother's parental relationships with the children. That order provides, in relevant part, as follows:
32. The underlying CHINS proceedings started because the mother was unable to provide a safe, stable drug-free home for the child[ren]. In addition, she had mental health issues that were interfering with her ability to appropriately parent her children. At the time of the hearing on the Petition for Termination, the mother was not employed and had not been employed since 2022. She
did not have stable housing and had a history of moving from one home to another. She continued to use illegal drugs (methamphetamine) and has not completed any of the services that were offered and/or provided by the DCS that were designed to assist her with addressing her substance use disorder. At the hearing on the Petition for Termination, she admitted that she was not in a position to care for the children at that time. Over the course of the underlying CHINS proceedings, [Mother] had engaged in criminogenic activity and/or been incarcerated off and on. She had not visited the children since December of 2022. The children are in need of permanency now and should not be required to wait any longer to determine whether and when their parents will be in a position to care for them.
33. Accordingly, the Court finds by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the children's removal and/or the reasons for their continued placement outside of the home of the parents will not be remedied[.]
49. The Court finds that CASA was appointed to advocate on behalf of the children in the underlying CHINS proceedings. From the testimony of Nicole Fischer ("Fischer"), the Court finds that the children are doing well in their current placements. All of their needs are being met.... Fischer testified at trial that granting the Petition for Termination was in the children's best interests due to the mother's struggles with a lack of stable housing and with her mental health and with her general lack of stability in her life. Fischer expressed a concern about the lack of visitation between the mother and children. . . . From her testimony, the Court finds that the children
are flourishing in their current placements. Given the mother's lack of contact with the children, [Mother's] lack of participation in and/or benefit from services, [Mother's] unaddressed substance use and mental health issues as well as the children's need for stability and permanency, the Court finds that granting the Petition for Termination is in the children's best interests.(App. Vol. 2 at 52-53, 60-61).
[¶19] Mother now appeals.
Decision
[¶20] Mother argues that there is insufficient evidence to support the termination of her parental relationships with the children. The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind.Ct.App. 2015), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Id. at 1188. Termination of the parent-child relationship is proper where a child's emotional and physical development is threatened. Id. Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id.
[¶21] Before an involuntary termination of parental rights may occur, DCS is required to allege and prove, 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 wellbeing 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. K.T.K. v. Indiana Department of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013).
The Indiana General Assembly has significantly amended INDIANA CODE § 31-35-2-4. See Ind. Public Law 70-2024, SEC. 4 (eff. Mar. 11, 2024). The amendment alters the allegations that DCS must include in a petition to terminate a parent's parental rights. Here, because the amendment took effect after DCS filed the petition to terminate Mother's parental rights, the amendment does not apply to this case.
[¶22] When reviewing a termination of parental rights, this Court will not reweigh the evidence or judge the credibility of the witnesses. In re Involuntary Termination of Parent-Child Relationship of R.S., 56 N.E.3d 625, 628 (Ind. 2016). We consider only the evidence and any reasonable inferences to be drawn therefrom that support the judgment and give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. K.T.K., 989 N.E.2d at 1229.
[¶23] Where, as here, the trial court's order contains specific findings of fact and conclusions of law, we engage in a two-tiered review. In re A.G., 6 N.E.3d 952, 957 (Ind.Ct.App. 2014). First, we determine whether the evidence supports the findings, and then, we determine whether the findings support the judgment. Id. Findings are clearly erroneous when there are no facts or inferences to be drawn therefrom that support them. Id. A judgment is clearly erroneous if the findings do not support the juvenile court's conclusions or the conclusions do not support the resulting judgment. Id.
[¶24] In addition, as a general rule, appellate courts grant latitude and deference to trial courts in family law matters. Matter of D.P., 72 N.E.3d 976, 980 (Ind.Ct.App. 2017). "This deference recognizes a trial court's unique ability to see the witnesses, observe their demeanor, and scrutinize their testimony, as opposed to this court[] only being able to review a cold transcript of the record." Id.
[¶25] As a preliminary matter, we note that Mother does not challenge the trial court's findings. As a result, she has waived any argument relating to whether these unchallenged findings are clearly erroneous. See Moriarty v. Moriarty, 150 N.E.3d 616, 626 (Ind.Ct.App. 2020) (explaining that unchallenged trial court findings are accepted as true), trans. denied. We now turn to the substantive issue in this case.
[¶26] Mother first argues that there is insufficient evidence to support the terminations because DCS failed to prove by clear and convincing evidence that: (1) there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for their placement outside the home will not be remedied; and (2) a continuation of the parent-child relationship poses a threat to the children's well-being.
[¶27] However, we note that INDIANA CODE § 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, DCS is required to establish by clear and convincing evidence only one of the three requirements of subsection (B). In re A.K., 924 N.E.2d 212, 221 (Ind.Ct.App. 2010), trans. dismissed. We therefore discuss only whether there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for their placement outside the home will not be remedied.
[¶28] In determining whether the conditions that resulted in a child's removal or placement outside the home will not be remedied, we engage in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first identify the conditions that led to removal or placement outside the home and then determine whether there is a reasonable probability that those conditions will not be remedied. Id. The second step requires a trial court to judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. Habitual conduct may include a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and a lack of adequate housing and employment. A.D.S. v. Indiana Department of Child Services, 987 N.E.2d 1150, 1157 (Ind.Ct.App. 2013), trans. denied. The trial court may also consider services offered to the parent by DCS and the parent's response to those services as evidence of whether conditions will be remedied. Id. Requiring a trial court to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of his future behavior. E.M., 4 N.E.3d at 643.
[¶29] Here, our review of the evidence reveals that Mother became involved with DCS because of unsafe conditions in the home and because of her mental health and substance abuse issues. DCS removed the children from Mother following her arrest for Level 6 felony domestic battery in the presence of two of the children. During the two-year pendency of the CHINS proceedings, Mother failed to obtain stable housing and continued to use methamphetamine. Indeed, Mother testified at the termination hearing that her last use of methamphetamine had occurred just a week before the hearing. In addition, during the pendency of the CHINS proceedings, Mother was convicted of four offenses in three different counties. Further, at the time of the December 2023 termination hearing, Mother had not had contact with the children since December 2022. Mother explained that she had not had contact with the children because she was using drugs, specifically methamphetamine. This evidence supports the trial court's conclusion that there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for their placement outside the home will not be remedied.
[¶30] Mother also argues that there is insufficient evidence that the termination is in the children's best interests. In determining whether termination of parental rights is in the children's best interests, the trial court is required to look at the totality of the evidence. In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 267 (Ind.Ct.App. 2004), trans. denied. In so doing, the court must subordinate the interests of the parent to those of the children involved. Id. In addition, a child's need for permanency is a central consideration in determining that child's best interests. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).
[¶31] We further note that "[a] parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests." A.K., 924 N.E.2d at 221 (cleaned up). Lastly, the testimony of the service providers may support a finding that termination is in the child's best interests. McBride v. Monroe County Office of Family and Children, 798 N.E.2d 185, 203 (Ind.Ct.App. 2003).
[¶32] Here, our review of the evidence reveals that at the time of the December 2023 termination hearing, five-year-old S.H., four-year-old S.W., and two-year-old R.W. had been out of Mother's home for nearly two years and had not seen Mother in nearly one year. CASA Fischer testified that termination was in the children's best interests and that the children were doing exceptionally well in their respective placements. Further, Mother has been historically unable to provide adequate housing, stability, and supervision for the children, and she is currently unable to provide the same. The testimony of CASA Fischer, as well as the other evidence previously discussed, supports the trial court's conclusion that termination was in the children's best interests. There was sufficient evidence to support the termination of Mother's parental relationships with the children.
[¶33] Affirmed.
May, J., and Brown, J., concur.