Opinion
24A-JT-1280
11-18-2024
B.B., Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT R. Patrick Magrath Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General John R. Oosterhoff 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Scott Superior Court Trial Court Cause No. 72D01-2402-JT-1 The Honorable Marsha Owens Howser, Judge
ATTORNEY FOR APPELLANT R. Patrick Magrath Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General John R. Oosterhoff Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Altice, Chief Judge
Case Summary
[¶1] B.B. (Mother) appeals the involuntary termination of her parental rights to her minor daughter, T.B. (Child). Mother challenges the sufficiency of the evidence supporting the termination.
[¶2] We affirm.
Facts & Procedural History
[¶3] Born on November 12, 2020, Child spent the rest of the month in the neonatal intensive care unit. Child was born addicted to several drugs due to Mother's admitted daily use of methamphetamine and hydrocodone during her pregnancy, along with other controlled substances. At the time of Child's birth, the Indiana Department of Child Services (DCS) had been involved with the family since July 2019 due to a sibling (Sibling), who had also been born drug exposed.
Sibling was adjudicated a CHINS in October 2019. Sibling's CHINS case remained pending through March 2024, when Sibling was adopted.
[¶4] On November 17, 2020, DCS filed a petition alleging that Child was a child in need of services (CHINS). At a detention hearing that same day, the trial court authorized DCS's continued custody of Child and placement in foster care. Child was released from the hospital on November 30 to the care of her foster parents, with whom she has remained. Child was adjudicated a CHINS in June 2021 at a factfinding hearing that Mother did not attend. Mother also did not attend the dispositional hearing held the next month.
[¶5] Despite multiple DCS referrals for drug rehabilitation services after Child's birth, Mother continued to use illegal substances and to commit new felony drug offenses. She also violated probation. As a result, between May 2021 and February 2023, Mother spent a significant amount of time incarcerated at various facilities. The CHINS permanency plan for Child changed in August 2022 to reunification with a concurrent plan of adoption.
In Cause No. 69D01-2105-F6-91, Mother pled guilty in September 2021 to Level 6 felony attempted dealing in methamphetamine and admitted to being a habitual substance offender. Pursuant to the plea agreement, she was sentenced to 1460 days of incarceration. While she was serving this sentence, Mother was arrested on February 23, 2022, and charged with, among other things, Level 6 felony possession of heroin, under Cause No. 18C05-2203-F6-110, to which she pled guilty on April 16, 2024.
[¶6] After her release from incarceration in mid-February 2023, Mother began complying with the dispositional order and appearing at CHINS hearings. She participated in services, including drug treatment and supervised visitation, and submitted to random drug screens. Mother remained sober for about ten months and eventually obtained her own housing, which allowed visits to start occurring in her home around October 2023. While visits remained supervised, they were increasing in number.
[¶7] The orders from the permanency hearings in May and November 2023 reveal that Mother was complying with the case plan, engaging in services, and doing well. By the November hearing, she was testing negative for all illegal substances and visiting Child three times per week, with DCS looking to increase visits. Mother also agreed to participate in parent-child therapy to build her bond with Child.
[¶8] By mid-December 2023, however, Mother relapsed, testing positive three times that month with high levels of methamphetamine, along with other controlled substances. She then refused to submit to drug screens until March 2024 when she submitted to two screens that were positive for methamphetamine, amphetamine, oxycodone, and hydrocodone. One of these screens occurred during a visit between Mother and Child on March 25, 2024, when the visit supervisor requested the screen because Mother appeared to be under the influence. Mother did not have any negative screens in 2024, though she consistently denied using substances.
[¶9] Once Mother relapsed, supervised visits were moved from Mother's home back to an office setting. They were also reduced to once per week due to her continued substance use. Additionally, Mother became noncompliant with services during this time and did not maintain consistent contact with DCS.
[¶10] In February 2024, DCS petitioned to terminate Mother's parental rights to Child, and the court held a factfinding hearing on April 18, 2024. DCS family case manager (FCM) Kassandra Poellot testified that during the pendency of the CHINS case, well over three years, DCS made about twenty-two service referrals for Mother, yet Mother had been unable to maintain long-term sobriety. Noting that DCS had provided Mother with services since July 2019, when Sibling's CHINS proceedings began, FCM Poellot stated, "we've been involved for so long and her compliance and her sobriety have been very sporadic." Transcript at 34. That is, out of five years of involvement with DCS, Mother had "only been compliant for ten months" and then relapsed. Id. at 39. Further, FCM Poellot noted that Mother was not even willing to admit that she had relapsed or that she needed more services. FCM Poellot ultimately opined that termination of parental rights was in Child's best interests, that Mother was not currently able to be a sober or appropriate caregiver for Child, and that providing Mother with more time for services was unlikely to help her maintain long-term sobriety. DCS's plan following termination was for Child to be adopted by her foster parents, with whom she had lived her entire life. The CASA agreed that termination of parental rights followed by adoption by her foster parents was in Child's best interests.
[¶11] During her own testimony, Mother steadfastly denied relapsing in December 2023 or being under the influence during subsequent supervised visits with Child. Mother also claimed that she did not submit to a drug screen at the visit on March 25, 2024, and she denied having "a substance use problem" or testing positive on drug screens. Id. at 59.
[¶12] On April 30, 2024, the trial court issued its order terminating Mother's parental rights with respect to Child. The court determined, in relevant part, that Mother was unlikely to remedy the reasons for Child's removal and that termination of parental rights was in Child's best interests. As summarized, the trial court's specific findings included: Mother failed to maintain extended sobriety and stability despite five years of involvement with DCS; Mother failed to obey the law throughout the life of the CHINS case and committed crimes related to the possession of illegal substances; Mother had ample time to engage in services despite periods of incarceration; since her relapse in December 2023, Mother continued to test positive for illegal substances and/or refuse to submit to drug screens; Mother denied relapsing despite multiple positive drug screens; and Mother's most recent positive screen occurred during a visit with Child. The trial court found it "particularly concerning" that Mother did not remember being screened during the visit on March 25, 2024, raising "concerns for Mother's disregard of her level and degree of intoxication while in a caregiving role for Child." Appendix at 43. The trial court also found that at the time of the hearing, Mother was not in compliance with the CHINS dispositional order "in any way" and that she was not "engaged in any services, nor has she expressed any convincing willingness to engage in services, to address her illegal substance abuse since relapsing." Id.
[¶13] Mother now appeals. Additional information will be provided below as needed.
Standard of Review
[¶14] When reviewing the termination of parental rights, we cannot reweigh the evidence or judge the credibility of the witnesses, and thus we will consider only the evidence and reasonable inferences that support the trial court's judgment. Matter of Ma.H., 134 N.E.3d 41, 45 (Ind. 2019). In deference to the trial court's unique position to assess the evidence, we will set aside its judgment terminating a parent-child relationship only if it is clearly erroneous. In re S.K., 124 N.E.3d 1225, 1231 (Ind.Ct.App. 2019), trans. denied.
[¶15] Our review for clear error is confined to two steps: whether the evidence clearly and convincingly supports the trial court's findings of fact and whether the findings clearly and convincingly support the judgment. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). Further, reviewing whether the evidence "clearly and convincingly" supports the findings, or the findings "clearly and convincingly" support the judgment, is not a license to reweigh the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014) (observing that weighing the evidence under the clear and convincing evidence standard applicable to termination cases is the trial court's prerogative, not ours).
Discussion & Decision
[¶16] Although parental rights are of constitutional dimension, the law provides for the termination of these rights 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). In addition, a court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding the termination. In re J.W., Jr., 27 N.E.3d 1185, 1188 (Ind.Ct.App. 2015), trans. denied.
[¶17] Under the statutory authority applicable at the time of the underlying termination proceedings, DCS was required to allege and prove by clear and convincing evidence that, among other things, one of the following is true:
Our legislature has made extensive changes to Ind. Code § 31-35-2-4, which became effective March 11, 2024. DCS filed its petition in February 2024, under the prior version of the statute.
(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[.]
I.C. § 31-35-2-4(b)(2)(B); Ind. Code § 31-34-12-2. DCS was also required to prove by clear and convincing evidence that termination is in Child's best interests. I.C. § 31-35-2-4(b)(2)(C).
[¶18] Mother initially challenges the trial court's determination that the reason for Child's removal - Mother's ongoing illegal substance use - was unlikely to be remedied. In determining the probability that conditions will change,
the court must judge a parent's fitness to care for his or her child at the time of the termination hearing, taking into consideration evidence of changed conditions. Due to 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.... A court may properly consider evidence of a parent's prior criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment. Moreover, a trial court "can reasonably consider the services offered by the [DCS] to the parent and the parent's response to those services."In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013) (citations omitted).
[¶19] Without specifically challenging any of the trial court's findings of fact, Mother simply claims that she was in full compliance with the CHINS dispositional order upon her release from incarceration in February 2023 until her "claimed" relapse in December 2023. Appellant's Brief at 10. She argues that DCS pursued termination shortly after "the alleged positive drug screens" and that "a few weeks of noncompliance is not sufficient to demonstrate a lack of remedy[.]" Id. (emphasis supplied). Mother also suggests that DCS did not offer any services to her until after the dispositional hearing in July 2021, when she was already incarcerated. Thus, she claims that "for the vast majority of the CHINS action" she was either sober and in full compliance or unable to comply with the dispositional order due to incarceration. Id. at 14. We reject Mother's invitation to reweigh the evidence.
[¶20] Child was removed from Mother's care in November 2020 and has never been returned. Even before Child's birth, DCS had been involved with Mother for well over a year due to Sibling also being born drug exposed and adjudicated a CHINS. Despite DCS's involvement and provision of services since July 2019, Mother continued to use illicit drugs and commit new criminal offenses and violate probation. For example, in May 2021, six months after Child's removal from her care, Mother committed dealing in methamphetamine, which resulted in a long sentence. She also committed possession of heroin in February 2022. Thus, it was Mother's own actions that made participation with DCS services difficult.
[¶21] Further, while it is commendable that Mother was able for about ten months to maintain sobriety and comply with services, the record establishes that she was unable to remain sober. She relapsed in December 2023 - testing positive three times that month for high levels of methamphetamine, among other drugs -and thereafter was not compliant with the case plan. Between January and April 2024, Mother had no negative drug screens and refused or was a no show for ten screens. And only a few weeks before the termination hearing, she showed up for a visit with Child visibly impaired and tested positive for methamphetamine and opiates.
[¶22] Like the trial court, we find particularly troubling Mother's testimony in which she denied relapsing, denied being drug screened during the visit on March 25, and denied having a substance use problem. Mother's arguments on appeal seem to be a continuation of these denials despite overwhelming evidence to the contrary.
[¶23] At the time of the final hearing, Mother remained unfit to care for Child due to her continued and serious drug use. In the four months after relapsing in December 2023, Mother continued to use methamphetamine, among other drugs, and did not engage in any services or treatment to address her drug use. The trial court's determination that Mother was unlikely to remedy the reason for Child's removal from her care is clearly and convincingly supported by the record and the court's findings of fact.
[¶24] We now turn to Mother's brief argument that termination of parental rights was not in Child's best interests. When making a best-interests determination, a trial court must look at the totality of the evidence and, in doing so, subordinate the parents' interests to those of the child, with the child's need for permanency being a central consideration. See Matter of Ma.H., 134 N.E.3d at 49. We have held that "the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence 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." In re P.B., 199 N.E.3d 790, 799 (Ind.Ct.App. 2022), trans. denied.
[¶25] In support of her best-interest argument, Mother points to her ten-month period of sobriety when supervised visits were going well and were increasing. But she ignores the fact that this progress was halted when she relapsed. At that point, visits returned to an office setting and were reduced to once a week. Further, contrary to Mother's assertion that nothing suggested that she was inappropriate during visits, the record establishes that only a few weeks before the final hearing, Mother came to a visit under the influence of opiates and methamphetamine, fell asleep during the visit, and did not even recall being drug tested that day. The CASA also testified that Child experienced "physical and emotional problems" when she had to visit Mother. Transcript at 44. And both the CASA and FCM opined that termination of parental rights was in Child's best interests.
[¶26] At the time of the hearing, Child was nearly three and one-half years old and had lived her entire life with her foster family. She has thrived in that preadoptive placement. Meanwhile, due to Mother's illegal drug use and related criminal behavior, Child had exceedingly limited contact with Mother over the years. Although visits increased during Mother's brief period of sobriety, they never progressed to unsupervised visits and only took place for a few months in Mother's home before she relapsed.
[¶27] We agree with the trial court that Child deserves to have permanency, which Mother has been unable or unwilling to provide despite years of DCS involvement. The trial court's determination that termination of Mother's parental rights is in Child's best interests is not clearly erroneous.
[¶28] Judgment affirmed.
Vaidik, J. and Crone, Sr. J., concur.