Opinion
24A-JT-1482
12-16-2024
C.A., Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT Marcus L. Rogers Fort Wayne, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Allen Superior Court The Honorable Lori K. Morgan, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause Nos. 02D08-2309-JT-236, 02D08-2309-JT-237, 02D08-2309-JT-238, 02D08-2309-JT-239
ATTORNEY FOR APPELLANT Marcus L. Rogers Fort Wayne, 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] C.A. (Mother) appeals the termination of her parental rights to her minor children M.V., D.V., J.V., and I.V. (collectively, the Children), claiming that the trial court's termination order was clearly erroneous. Mother argues that the Indiana Department of Child Services (DCS) failed to prove that there is a reasonable probability that the conditions that resulted in the Children's removal would not be remedied.
M.V. was born on October 20, 2016.
D.V. was born on December 2, 2017.
J.V. was born on December 3, 2018.
I.V. was born on December 4, 2019.
[¶2] We affirm.
Father's parental rights were also terminated as to the Children, but he does not participate in this appeal. We therefore set forth the relevant facts that focus primarily on Mother.
[¶3] DCS first became involved with the family in November 2021, because Mother and D.V. (Father) (collectively, Parents) were abusing illegal substances including fentanyl and THC. Parents were also "struggling" to maintain adequate and stable housing. Exhibit Vol. I at 57. In light of these circumstances, DCS filed a Child in Need of Services (CHINS) petition on November 16, alleging, among other things, that the Children's physical and mental health conditions were seriously impaired or endangered and that court intervention was necessary. The Children were immediately removed from Parents' Fort Wayne residence and placed with their current foster family.
[¶4] Following a dispositional hearing on December 16, 2021, the Children were adjudicated CHINS, and Parents were ordered to obtain and maintain clean and safe housing, and to participate in various DCS services and programs including substance abuse assessment and treatment, random drug screenings, and parenting classes. Although Mother regularly attended appointments and participated in services, her ability to fully focus during casework sessions was hindered by her alcohol use. Mother also did not follow through with her caseworker's recommendations, including finding employment and obtaining stable housing.
[¶5] During the pendency of the CHINS proceedings, Mother had several drug relapses, arrests, convictions, and probation revocations. More specifically, Mother was convicted of operating a vehicle while intoxicated (OWI) on April 18, 2022, and received a one-year suspended sentence to probation. While on work release, Mother relapsed on fentanyl. Thereafter, Mother was arrested and convicted of carrying a handgun without a license and was again convicted of OWI. Mother's probation was revoked for using alcohol in April 2023 while participating in a halfway house program, and she underwent two inpatient hospitalizations for substance abuse treatment in 2022 and 2023.
[¶6] On September 19, 2023, DCS petitioned for termination of Parents' parental rights. During factfinding hearings conducted in February and March 2024, a DCS family case manager (FCM) and the Court Appointed Special Advocate (CASA) each testified that they believed termination of Mother's parental rights and adoptive placement was in the Children's best interests. The FCM testified that Mother has not demonstrated an ability to provide for the Children's basic needs. The CASA believed that Mother made only "minimal progress" in her parenting capabilities and skills throughout the CHINS case. Transcript at 118. The Children's foster mother testified that she wanted to adopt the Children, who love her and call her "mom." Id. at 61.
[¶7] The evidence established that Mother had been diagnosed with depression and substance use disorder. While Mother participated in treatment for these conditions, her therapist opined that Mother "benefited . . . moderately" from treatment, and the "diagnosis did not change." Transcript at 40. Mother was unemployed from February 2022 until March 2024, and she was incarcerated from October 11, 2023, until January 31, 2024. Mother had not seen the Children since October 2023, and she resumed visitation just prior to the first day of the termination hearing. Mother moved in with her mother upon her release from jail, and by the final day of the termination hearing, Mother was still on probation and had not secured her own housing.
[¶8] Following the hearing, the trial court determined that DCS presented clear and convincing evidence that, among other things, there was a reasonable probability that the reasons that brought about the Children's removal and the reasons for their continued placement outside the home would not be remedied. The trial court based this finding on Mother's continued substance abuse during the CHINS proceedings that led to incarceration, along with her failure to sufficiently engage in DCS services to provide a home for the Children "free from substance abuse." Appellant's Appendix Vol. II at 35. The trial court further found that "Mother was associating with peers that were not supportive of her recovery" and "she has yet to develop coping skills and change her decision making and peer associations to support her recovery." Id. Finally, the trial court noted that Mother was not able to see the Children or provide supervision for them in light of her convictions and "multiple incarcerations." Id. at 36.
[¶9] Mother now appeals.
Standard of Review
[¶10] We 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, 123031 (Ind.Ct.App. 2019), trans. denied. We neither reweigh evidence nor assess the credibility of witnesses. K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We consider only the evidence and any reasonable inferences that support the trial court's judgment. Id. We will set aside the trial court's judgment terminating a parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App. 1999), trans. denied. We confine our review to two steps: whether the evidence clearly and convincingly supports the findings, and then whether the findings clearly and convincingly support the judgment. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). Additionally, 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. Id. (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 and Decision
[¶11] The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cnty. Off. of Fam. and Child., 839 N.E.2d 143, 147 (Ind. 2005). A parent's interest in the care, custody, and control of his or her children is "perhaps the oldest of the fundamental liberty interests." Id. However, parental rights "are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights." Id. If parents are "unable or unwilling to meet their parental responsibilities," termination of parental rights is appropriate. Id. We recognize that the termination of a parent-child relationship is "an extreme measure and should only be utilized as a last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed." K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641, 646 (Ind. 2015).
[¶12] Under the statutory authority applicable at the time of the termination proceedings, DCS was required to allege and prove by clear and convincing evidence that, among other things, one 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 [CHINS.]Ind. Code § 31-35-2-4(b)(2)(B) ; Ind. Code § 31-34-12-2. Here, the trial court found that DCS had satisfied the requirements of I.C. § 31-35-2-4(b)(2)(B)(i).
Our legislature made significant changes to this statute in 2024. DCS filed its petition under the prior version of the statute, and neither party contends that the amended version applies in this case.
[¶13] The sole argument that Mother presents on appeal is that the evidence is insufficient to support the trial court's conclusion that there was a reasonable probability that the conditions that led to the Children's removal from her care would not be remedied. Mother attacks the termination order because the evidence established that she "was engaged in services prior to incarceration and re-engaged her services immediately upon release." Appellant's Brief at 5.
Because this is the only argument that Mother raises on appeal, she has waived any challenge to the trial court's findings and remaining conclusions. See In re S.S., 120 N.E.3d 605, 608 n.2 (Ind.Ct.App. 2019). And unchallenged findings of fact are accepted as true. Id.
[¶14] In determining whether there is a reasonable probability that the conditions that led to a child's removal will not be remedied, we engage in a two-step analysis. See K.T.K., 989 N.E.2d at 1231. First, we examine the conditions that led to the Children's initial removal and continued placement in foster care, and second, whether there is a reasonable probability that those conditions will not be remedied. Id.
[¶15] In the second step, the trial court must judge a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions and balancing a parent's recent improvements against "habitual pattern[s] of conduct to determine whether there is a substantial probability of future neglect or deprivation." E.M., 4 N.E.3d at 643. In judging fitness, the trial court may properly consider a parent's lack of adequate housing and employment, failure to provide support, and prior criminal history. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). Parents who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children. K. T.K, 989 N.E.2d at 1235-36.
[¶16] A pattern of unwillingness to deal with parenting problems and to cooperate with those providing social services, in conjunction with unchanged conditions, support a finding that there exists no reasonable probability that the conditions will change. Lang v. Starke Cnty. Off. of Fam. &Child., 861 N.E.2d 366, 372 (Ind.Ct.App. 2007), trans. denied. Moreover, receiving services alone is not sufficient evidence to show that conditions have been remedied if the services do not result in the needed change. See In re J.S. 906 N.E.2d 226, 234 (Ind.Ct.App. 2009) ("simply going through the motions of receiving services alone is not sufficient if the services do not result in the needed change, or only result in temporary change"); see also In re A.H., 832 N.E.2d 563, 570 (Ind.Ct.App. 2005) (observing that where there are only temporary improvements and the pattern of conduct shows no overall progress, the court can reasonably conclude that the problematic situation will not improve). Finally, a parent's past behavior is the best predictor of future behavior, and the trial court has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. See In re E.M., 4 N.E.3d at 642-43.
[¶17] In this case, the evidence established that the Children were removed from Mother's care because of her drug use and inability to provide them with a safe and stable environment. During the pendency of the case, Mother did not cease her drug and alcohol use, engage in sufficient services to treat her addiction, or participate in DCS services and programs sufficient to improve her ability to parent. In fact, Mother showed very little progress in the parenting programs and counseling sessions because of her continued drug and alcohol use. Mother often relapsed, was hospitalized on two occasions for her drug abuse, and chose to continue to associate with others who were not supportive of her recovery from addiction.
[¶18] Mother also continued to commit criminal offenses during the pendency of the proceedings, including OWI that led to a period of incarceration. Mother reinitiated individual therapy only shortly after her release from incarceration in January 2024, and she did not participate in recommended group therapy. A therapist testified that Mother had not developed adequate coping skills and required additional mental health services.
[¶19] Mother had nearly two years prior to her October 2023 incarceration to remedy the conditions that led to the Children's removal, but she failed to do so. And while Mother showed some improvement just prior to the termination hearing, the trial court properly considered Mother's past behavior as the best predictor of her future behavior. Id. In short, Mother failed to demonstrate that she can stop using illegal substances, obtain steady employment, and provide stable housing for the Children. Thus, the trial court did not clearly err in concluding that Mother was unlikely to remedy the conditions that led to the Children's removal, and we decline to set aside the termination order.
[¶20] Judgment affirmed.
Vaidik, J. and Crone, Sr.J., concur.