Opinion
21A-JT-2029
04-11-2022
In re the Termination of the Parent-Child Relationship of: A.Q., I.Q., and V.J., Jr. (Children), P.M. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monikia Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Allen Superior Court The Honorable Lori K. Morgan, Judge Trial Court Cause No. 02D08-2012-JT-354 02D08-2012-JT-355 02D08-2012-JT-356
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Monikia Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Mathias, Judge.
[¶1] P.M. ("Mother") appeals the trial court's termination of her parental rights over her minor children A.Q., I.Q., and V.J. ("the Children"). Mother raises a single issue for our review, which we restate as the following three issues:
I. Whether the Indiana Department of Child Services ("DCS") presented sufficient evidence to support the trial court's conclusion that the conditions that resulted in the removal of the Children from Mother's care will not be remedied.
II. Whether DCS presented sufficient evidence to support the trial court's conclusion that termination of Mother's parental rights is in the Children's best interests.
III. Whether DCS presented sufficient evidence to show that it has a satisfactory plan for the care and treatment of the Children.
[¶2] We affirm.
Facts and Procedural History
[¶3] In June 2017, DCS filed an amended petition alleging the Children to be Children in Need of Services ("CHINS"). DCS's petition alleged that the Children were CHINS due in relevant part to Mother's drug use, her educational neglect of the Children, and inappropriate conditions in Mother's home. The trial court adjudicated the Children to be CHINS and ordered Mother to participate in services, including participating in drug tests and assessments, ensuring that the Children attend school, maintaining a safe and appropriate home, and attending visitation with the Children.
[¶4] Throughout the ensuing CHINS proceedings, Mother regularly failed to comply with the court-ordered services. Her supervised visits with the Children were suspended three times due to her noncompliance with visitation. Mother did not visit the Children at all between May 2019 and April 2021.
[¶5] In January 2018, DCS referred Mother to addiction therapist Jennifer Nuce. Following an initial substance-abuse assessment with Mother, Nuce recommended that Mother participate in a substance-abuse outpatient group called 12-Step Meeting Recovery Skills. Nuce also recommended that Mother meet with a care coordinator to help Mother with her housing. Mother did not participate in either service.
[¶6] DCS later referred Mother to the Genesis House substance-abuse program. Mother initially participated in services offered by Genesis House, but eventually she became "upset" and "didn't finish the program." Tr. Vol. 2 p. 131.
[¶7] DCS then referred Mother to the Bowen Center for substance-abuse counseling. Counselor Amanda Bickel requested Mother to participate in weekly individual sessions starting in October 2020. However, between October 2020 and May 2021, Mother participated in just six sessions-with the first session she attended being in February 2021. DCS also referred Mother to the Bowen Center for group substance-abuse counseling, but Mother never enrolled in or participated in any of those sessions.
[¶8] At the initiation of the CHINS proceedings, Mother lacked stable housing. There is no dispute that she had periods of homelessness throughout the proceedings. At Genesis House, she would have been eligible for housing upon completion of the program, but Mother did not complete the program. After leaving Genesis House, DCS was unaware of Mother's whereabouts for more than one year.
[¶9] In December 2020, DCS filed its petitions to terminate Mother's parental rights over the Children. The trial court held fact-finding hearings on DCS's petition in May 2021. At those hearings, Mother testified that she "smoked synthetic marijuana . . . [e]very day" since the CHINS proceedings and had ceased smoking it only after DCS had filed its termination petitions. Id. at 150. She further admitted that she left the Genesis House after using cocaine. She also acknowledged that, during the CHINS proceedings, she "went a year without seeing my kids . . . [bec]ause I was on drugs." Id. at 151. And she testified that she did not believe "drug classes would have helped" her because "[s]itting around at a class talking about drugs makes people do drugs." Id. at 150.
[¶10] Also at the fact-finding hearings, Family Case Manager ("FCM") Ashley Johnson testified that the Children are in preadoptive placements, and DCS would consent to their adoptions. Thomas Allen, the Children's Guardian ad Litem, also testified and added that it was his recommendation that Mother's parental rights over the Children be terminated and the Children be adopted. Specifically, Allen stated that that termination of Mother's rights "is in the [C]hildren's best interest[s]," Tr. Vol. 3 p. 3, "based on the drug use or lack of stable housing we've now had . . . going on for four years," Tr. Vol. 2 p. 250. He added that Mother "hasn't completed any of the treatment . . . [or] any of the services . . . in four years . . . ." Tr. Vol. 3 p. 2. And he testified that the two oldest Children "are enthusiastic about wanting to be adopted." Id. at 3. Allen "didn't ask" the other child "because he's only five," but Allen did report that he had no concerns about that child's preadoptive placement. Id. at 3-4.
[¶11] In August, the trial court entered a detailed order terminating Mother's parental rights over the Children. This appeal ensued.
Standard of Review
[¶12] Indiana appellate courts have long adhered to a highly deferential standard of review in cases involving the termination of parental rights. In re S.K., 124 N.E.3d 1225, 1230-31 (Ind.Ct.App. 2019). In analyzing the trial court's decision, we neither reweigh the evidence nor assess witness credibility. Id. We consider only the evidence and reasonable inferences favorable to the 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.
[¶13] To determine whether a termination decision is clearly erroneous, we apply a two-tiered standard of review to the trial court's findings of facts and conclusions of law. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings; and second, we determine 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." In re A.D.S., 987 N.E.2d 1150, 1156 (Ind.Ct.App. 2013), trans. denied. If the evidence and inferences support the court's termination decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App. 1999), trans. denied. Finally, we must accept unchallenged findings as true. See In re S.S., 120 N.E.3d 605, 614 n.2 (Ind.Ct.App. 2019).
Discussion and Decision
[¶14] It is well-settled that the parent-child relationship is one of society's most cherished relationships. See, e.g., In re A.G., 45 N.E.3d 471, 475 (Ind.Ct.App. 2015), trans. denied. Indiana law thus sets a high bar to sever that relationship by requiring DCS to prove the required elements by clear and convincing evidence. Ind. Code § 31-35-2-4(b)(2) (2021). Three of those elements are at issue here: (1) whether there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside Mother's home will not be remedied; (2) whether termination of Mother's parental rights is in the Children's best interests; and (3) whether DCS established that it has a satisfactory plan for the care and treatment of the Children. I.C. § 31-35-2-4(b)(2)(B)(i), (C).
[¶15] Clear and convincing evidence need not establish that the continued custody of the parent is wholly inadequate for the Children's very survival. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient to show that the Children's emotional and physical development are put at risk by Mother's custody. Id. If the court finds the allegations in a petition are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a).
I. Clear and convincing evidence supports the trial court's conclusion that the conditions that resulted in the Children's removal or reasons for placement outside Mother's home will not be remedied.
[¶16] We begin with Mother's argument that DCS failed to present clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the Children's removal or reasons for placement outside of Mother's home will not be remedied. When we review whether there is a reasonable probability that the conditions that resulted in the Children's removal or reasons for placement outside Mother's home will not be remedied, our courts engage in a two-step analysis. See In re K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013). First, "we must ascertain what conditions led to [the Children's] placement and retention in foster care." Id. Second, we "determine whether there is a reasonable probability that those conditions will not be remedied." Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)).
[¶17] In making the latter determination, "the trial court should judge a parent's fitness to care for [her] children at the time of the termination hearing, taking into consideration evidence of changed conditions." In re J.T., 742 N.E.2d 509, 512 (Ind.Ct.App. 2001), trans. denied. However, because of the permanent effect of termination, "the trial court also must evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child." Id. The trial court may consider the services offered by DCS and the parent's response to those services. Id. "A court need not wait until a child is irreversibly harmed" before terminating the parent-child relationship. Id.
[¶18] The Children were removed from Mother's care in relevant part due to neglect resulting from Mother's drug use and unstable housing. At the fact-finding hearing on the termination petition, Mother admitted to daily drug use during the underlying CHINS proceedings and that her drug use stopped only after DCS had filed its petitions to terminate her parental rights. She further admitted that she did not think substance-abuse counseling was worthwhile. And the evidence demonstrated that Mother lacked stable housing throughout the CHINS proceedings, was at times homeless, and had unknown whereabouts for at least one year.
[¶19] Nonetheless, Mother asserts on appeal that that evidence is insufficient because she "had been clean and sober" for about five months leading up to the fact-finding hearings on the termination petitions. Appellant's Br. at 18. She further asserts that she was living with a friend at the time of those hearings and had been for the preceding three months. Thus, Mother continues, DCS failed to show that the conditions that resulted in the Children's removal had not been or were not likely to soon be remedied.
[¶20] Mother's argument simply asks this Court to reweigh the evidence, which we will not do. Specifically, she asks that we give greater weight to evidence of changes she made to her lifestyle after DCS filed its termination petitions than to the evidence of her habitual patterns of conduct and response to DCS's offered services throughout the multi-year CHIINS proceedings. The trial court had the discretion to give greater weight to the well-established history of Mother's drug use, unstable housing, and failure to complete services, and we are in no position to reassess the weight the trial court gave to that evidence. See In re J.T., 742 N.E.2d at 512. Thus, we hold that the trial court's conclusion that the reasons for the Children's removal or reasons for placement outside Mother's home will not be remedied is supported by clear and convincing evidence.
II. Clear and convincing evidence supports the trial court's conclusion that termination of parental rights is in the Children's best interests.
[¶21] Next, we turn to Mother's argument that DCS did not prove that termination of her parental rights was in the Children's best interests. A court's consideration of whether termination of parental rights is in a child's best interests is "[p]erhaps the most difficult determination" a trial court must make in a termination proceeding. In re E.M., 4 N.E.3d 636, 647 (Ind. 2014). When making this decision, the court must look beyond the factors identified by DCS and examine the totality of the evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate the interests of the parent to those of the child. Id. at 1155. Central among these interests is a child's need for permanency. In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009). Indeed, "children cannot wait indefinitely for their parents to work toward preservation or reunification." E.M., 4 N.E.3d at 648. "[W]e have previously held that the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the child's best interests." A.D.S., 987 N.E.2d at 1158-59.
[¶22] Here, again, the evidence demonstrates that the conditions that resulted in the Children's removal from Mother's care will not be remedied. In addition to that evidence, FCM Johnson testified that the Children are in preadoptive placements, and DCS would consent to their adoptions. And Allen, the Children's Guardian ad Litem, testified that termination of Mother's parental rights was in the Children's best interests. Specifically, Allen testified that two of the Children were "enthusiastic" about the opportunity to be adopted, and while the third child was too young to ask, Allen had no concerns about that child's preadoptive placement. Tr. Vol. 3 pp. 3-4.
[¶23] Still, Mother suggests that two of the Children are too old to be adopted, and she suggests that having the youngest placed in a different family than the older two is not in the Children's best interests. But Mother cites no evidence in the record that supports her assertions. Neither does she cite legal authority to show how the trial court's judgment here might have been contrary to law. Accordingly, we cannot say that the trial court's conclusion that termination of Mother's parental rights was in the Children's best interests is clearly erroneous.
III. Clear and convincing evidence supports the trial court's conclusion that DCS has a satisfactory plan for the care and treatment of the Children.
[¶24] Finally, we turn to Mother's argument that DCS did not prove that it had a satisfactory plan for the care and treatment of the Children. We have explained before that the plan for the care and treatment of a child need not be detailed, so long as it offers a general sense of the direction in which the children will be going after the parent-child relationship is terminated. In re C.D., 141 N.E.3d 845, 854 (Ind.Ct.App. 2020), trans. denied. "A DCS plan is satisfactory if the plan is to attempt to find suitable parents to adopt the children." Id. (quotation marks omitted). That is, "there need not be a guarantee that a suitable adoption will take place, only that DCS will attempt to find a suitable adoptive parent." Id. (quotation marks omitted).
[¶25] Here, the trial court found that the plan for the care and treatment of the
Children is adoption. FCM Johnson testified that the Children were in preadoptive placements, and that DCS was willing to consent to their adoptions upon the termination of Mother's parental rights. Mother's argument on appeal is that it was insufficient for DCS to simply "have someone say 'we have a plan' to satisfy this statutory requirement." Appellant's Br. at 22. But Mother's argument is contrary to our case law, and DCS's evidence is sufficient as a matter of law to demonstrate a satisfactory plan. See id. We therefore affirm the trial court's conclusion that DCS has a satisfactory plan for the care and treatment of the Children.
Conclusion
[¶26] For all of these reasons, we affirm the trial court's termination of Mother's parental rights over the Children.
[¶27] Affirmed.
Bailey, J., and Altice, J., concur.