Opinion
24A-JT-1450
11-21-2024
In the Matter of the Involuntary Termination of the Parent-Child Relationship of: J.M. (Minor Child), and T.B. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner
ATTORNEY FOR APPELLANT Stuart K. Baggerly Monroe County Public Defender Bloomington, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Monroe Circuit Court The Honorable Holly M. Harvey, Judge Trial Court Cause No. 53C07-2402-JT-88
ATTORNEY FOR APPELLANT
Stuart K. Baggerly
Monroe County Public Defender
Bloomington, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Frances Barrow
Supervising Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge.
[¶1] T.B. ("Mother") appeals the involuntary termination of her parental rights to her minor child, J.M. ("Child"). We affirm.
Facts and Procedural History
[¶2] In January 2021, the Indiana Department of Child Services ("DCS") alleged that Child, who was born in January 2007, and Mother's other children D.M. and A.B., were children in need of services ("CHINS"). The trial court determined that Child and D.M. were CHINS. The court found that the children reported ongoing neglect, emotional abuse, and physical abuse by Mother including punching and hitting with a belt or hand; Child reported that she was dragged by her hair; the children reported observing domestic violence between Mother and her boyfriend; the children reported poor home conditions; the children reported observing drug use by Mother; in previous assessments the children reported that Mother forced the children to hide in the bathroom when DCS came to the door and threatened to kill them if they did not obey; and the court accepted the children's statements as true and accurate. In June 2021, the court entered a dispositional order. On January 20, 2023, the court issued a permanency plan order indicating that Child's father was deceased and that it found the permanency planning options most consistent with the best interest of Child and D.M. included the initiation of termination proceedings and adoption.
The court noted A.B. had been placed in the care of his father and did not find A.B. to be a CHINS.
[¶3] On February 13, 2024, DCS filed a petition to terminate Mother's parental rights as to Child. On April 25, 2024, the court held a termination hearing at which it heard testimony from Family Case Manager Elijah Knepper ("FCM Knepper") and Court Appointed Special Advocate Kenady Sullivan ("CASA Sullivan"). Mother did not appear, and the court noted that Mother had the opportunity to participate and chose not to do so. The court issued an order terminating Mother's parental rights, finding there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside Mother's care would not be remedied, there was a reasonable probability that continuation of the parent-child relationship posed a threat to Child's well-being, termination of Mother's parental rights was in Child's best interests, and DCS has a satisfactory plan for the care and treatment of Child, that being adoption.
Discussion
[¶4] Mother argues the trial court erred in concluding there was a reasonable probability that the reasons for the removal of Child would not be remedied. She asserts that, "[w]hile [she] may have not been consistent in her [drug] screens, having a negative screen more recently in the case shows that [she] was trying to comply with DCS." Appellant's Brief at 8. She further argues the court's conclusion that the continuation of the parent-child relationship posed a threat to Child's well-being was clearly erroneous, her ability to provide for Child was not an issue, she had a job cleaning houses, and there was no evidence that she lacked housing. She argues that a DCS caseworker stated that Child had been placed in at least twenty-one separate placements and that, "[w]hile [FCM Knepper] testified . . . that [Child] had shown a lot of improvement with therapy, it's also reasonable to consider that having stability in foster families could also play a factor in that emotional progress." Id. at 10. She asserts "[Child's] happiness with the current foster family should not speak to whether [her] parental rights should be terminated." Id. She maintains the court erred in finding that termination of the parent-child relationship was in Child's best interest.
Mother cites an Order on Admission of Child Hearsay dated April 12, 2021, which stated that caseworker Hannah Nunn "verified that the children had been placed in at least 21 separate placements in the past." Exhibits Volume I at 51.
[¶5] At the time of the petition, Ind. Code § 31-35-2-4(b)(2) required DCS 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.(Subsequently amended by Pub. L. No. 70-2024, § 4 (eff. March 11, 2024)). If the court finds that the allegations in a petition described in Ind. Code § 31-352-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
Although the trial court's termination order was entered on May 22, 2024, after the effective date of the amended statute, DCS filed the termination petition prior to the effective date. Mother cites the prior version of the statute set forth above. Ind. Code § 31-35-2-4 was amended March 11, 2024, to provide in part:
(c) A petition filed under subsection (a) must allege:
(1) the existence of one (1) or more of the circumstances described in subsection (d);
(2) that there is a satisfactory plan for care and treatment of the child; and
(3) that termination of the parent-child relationship is in the child's best interests.
(d) A petition filed under subsection (a) must allege the existence of one (1) or more of the following circumstances:
* * * * *
(3) That 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.
(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child....
[¶6] A finding in a proceeding to terminate parental rights must be based upon clear and convincing evidence. Ind. Code § 31-37-14-2. We do not reweigh the evidence or determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from the evidence. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). 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. Id. We give due regard to the trial court's opportunity to judge the credibility of the witnesses firsthand. Id.
[¶7] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. See id. at 642-643. First, we identify the conditions that led to removal, and second, we determine whether there is a reasonable probability that those conditions will not be remedied. Id. at 643. In the second step, the trial court must judge a parent's fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions, balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination. Id. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that a parent's past behavior is the best predictor of future behavior. Id. The statute does not simply focus on the initial basis for a child's removal, but also those bases resulting in the continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013). A court may consider evidence of a parent's prior criminal history, drug abuse, history of neglect, failure to provide support, lack of adequate housing and employment, and the services offered by DCS and the parent's response to those services. Id. Where there are only temporary improvements and the pattern of conduct shows no overall progress, the court might reasonably find that under the circumstances the problematic situation will not improve. Id.
[¶8] To the extent Mother does not challenge the court's findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007) (failure to challenge findings by the trial court resulted in waiver of the argument that the findings were clearly erroneous), trans. denied.
[¶9] The trial court found that Mother was ordered to complete a parenting assessment, a substance abuse assessment, random drug screens, and a domestic violence assessment and all recommendations. The court found that Mother completed an intake with Centerstone and that individual therapy was recommended but Mother did not participate. It found that Mother did not comply with the order to submit to drug screens, tested positive for methamphetamine in August 2021, tested positive for methamphetamine and amphetamine in September 2023, and tested negative in October 2023. It found that Mother did not complete a parenting assessment because she did not allow access to her home. It found that Mother did not complete the required domestic violence education, the first referral was closed due to nonengagement, she completed five sessions of a second referral before being removed for excessive absences, and the domestic violence education was critical to reunification.
[¶10] The court found that Mother was not granted visits with the children, a no contact order was issued, Mother violated the order in March 2021 by contacting Child on social media and asking her to recant her statements, a year following the no contact order Mother was still attempting to contact the children in violation of the order, and Mother had a pending invasion of privacy charge related to her attempts to contact the children. It found Mother did not participate in home-based casework, complete a psychological evaluation, or participate in substance abuse treatment or individual therapy. It found that Mother did not cooperate with DCS throughout the case. It found Mother had adequate time to complete services, at no point was she in compliance with dispositional orders, at all times she was determined to be an unsafe caregiver, and she did not make progress or engage in services at the level required to be safe for her children. The court also found that Mother was charged with neglect of a dependent in 2012; was charged under another cause number with battery resulting in bodily injury, neglect of a dependent, domestic battery, and criminal mischief; and had pending invasion of privacy charges under cause numbers 53C02-2203-CM-462 and 53C02-2207-F6-604, the latter of which stemmed from the violation of the no contact orders in this case.
[¶11] The court concluded:
[Child] was removed from [Mother's] care as a result of physical abuse against [Child] and her siblings. At no time during the course of the case did [Mother] acknowledge the reasons for the removal, and actively disputed the findings of physical and emotional abuse. [Mother] failed to complete services which were intended to resolve the issues of domestic violence and
inappropriate parenting. [Child] is not safe in [Mother's] care. Without participation in the parenting education and domestic violence services intended to address the physical abuse, there is a reasonable probability that [Mother] would not remedy the reasons that [Child] was removed.Appellant's Appendix Volume II at 12.
[¶12] FCM Knepper testified regarding Mother's failure to comply with offered substance abuse treatment and that she submitted to a drug screen in August 2023 which was positive for methamphetamine and amphetamine and in October 2023 which was negative for all substances. He indicated that DCS reached out to Mother on a weekly basis for drug screens and that she never indicated any kind of barrier to submitting to the screens. With respect to the children's statements, he indicated that Mother was essentially saying the children were lying. FCM Knepper testified regarding the referrals related to domestic violence services and Mother's failure to participate and comply with the programs. He testified Mother stated that she cleaned houses but never provided verification of income or employment. He testified regarding Mother's absence from the case, lack of progress, and failure to comply with services over several years. He testified that a no contact order was issued at the onset of the CHINS case, that a plan was in place for visitation to resume after four weeks of compliance with services and therapy, that Mother never engaged in therapy, that there had been an ongoing concern with Mother reaching out to the children despite the no contact order, and that an invasion of privacy charge was pending because Mother violated the no contact order. He indicated that he believed it is unlikely that the reasons that the children were removed will be remedied. In light of the unchallenged findings and the evidence set forth above and in the record, we cannot say the trial court clearly erred in finding a reasonable probability exists that the conditions resulting in Child's removal and the reasons for placement outside Mother's care will not be remedied.
[¶13] While the involuntary termination statute is written in the disjunctive and requires proof of only one of the circumstances listed in Ind. Code § 31-35-2-4(b)(2)(B), we note that the trial court also found that continuation of the parent-child relationship posed a threat to Child's well-being. Clear and convincing evidence need not reveal that the continued custody of the parents is wholly inadequate for the child's very survival. In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009). Rather, it is sufficient to show by clear and convincing evidence that the child's emotional and physical development are threatened by the respondent parent's custody. Id. Here, the court concluded:
[Child] was the victim of physical and emotional abuse by [Mother]. [Mother] has been charged with battery resulting in bodily injury, was convicted of neglect of a dependent, and has pending invasion of privacy charges resulting from her attempts to contact [Child] in violation of court order. [Mother] does not recognize or acknowledge her role in threatening [Child's] safety, and has no regard for court orders to preserve that safety. This pattern of conduct has continued over the course of ten years, since the neglect of a dependent conviction in 2012. It is highly probable that [Child's] well being, safety, and physical health will be seriously threatened if the parent child relationship continues.
Appellant's Appendix Volume II at 12-13. In light of the record, we conclude that clear and convincing evidence supports the trial court's determination that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the Child's well-being.
[¶14] In determining the best interests of children, the trial court is required to look to the totality of the evidence. McBride v. Monroe Cnty. Off. of Fam. &Child., 798 N.E.2d 185, 203 (Ind.Ct.App. 2003). The court must subordinate the interests of the parent to those of the children. Id. The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. Id. The recommendation of a 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 a child's best interests. A.D.S. v. Ind. Dep't of ChildServs., 987 N.E.2d 1150, 1158-1159 (Ind.Ct.App. 2013), trans. denied.
[¶15] FCM Knepper testified regarding Child's current placement, her participation in therapy and progress in addressing childhood trauma, the provider's overwhelmingly positive statements about Child, and Child's significant progress. He testified that Child understands what terminating parental rights means, she has been vocal about her desires, and he believes it is in her best interests to be adopted. CASA Sullivan testified regarding Child's significant progress since March 2021, her frequent discussions with Child about permanency and her desires, that Child has repeatedly told her that she wants to be adopted by her current placement, and that she believes that it is in Child's best interests to be adopted. Based on the totality of the evidence, we conclude the trial court's determination that termination of Mother's parental rights is in Child's best interests is supported by clear and convincing evidence.
[¶16] For the foregoing reasons, we affirm the trial court's termination order.
[¶17] Affirmed.
Mathias, J., and Kenworthy, J., concur.