Opinion
24A-JT-504
08-27-2024
ATTORNEY FOR APPELLANT Dorothy Ferguson Anderson, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Monika Prekopa Talbot 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or LAW of the case.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 Madison Circuit Court The Honorable T. Grey Chandler, Magistrate Trial Court Cause No. 48C02-2308-JT-195
ATTORNEY FOR APPELLANT Dorothy Ferguson Anderson, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
BROWN, JUDGE
[¶1] A.A. ("Mother") appeals the involuntary termination of her parental rights to her minor child, K.A. ("Child"). We affirm.
Facts and Procedural History
[¶2] Child was born to Mother and B.D. ("Father") on January 7, 2021. When Child was just fifteen days old, the Department of Child Services ("DCS") filed a petition for emergency removal of Child from Mother's care alleging that Child was born exposed to marijuana and methamphetamine, and Mother failed to provide her with food, shelter, and supervision. Child was removed from Mother's care, and DCS filed a petition alleging Child was a child in need of services ("CHINS") due to Mother's methamphetamine abuse and the lack of a sober caregiver. On March 25, 2021, upon Mother's admission, the trial court adjudicated Child a CHINS. Following an April 2021 dispositional hearing, the court entered a dispositional decree ordering Mother to: stay in weekly contact with DCS; notify DCS of changes in contact information; keep all appointments with service providers; maintain suitable, safe, and stable housing; not consume any illegal controlled substances; complete a substance abuse assessment and follow all treatment recommendations; and engage in individual counseling.
Father was not yet named when Child was initially removed from Mother's care. He is currently incarcerated with an earliest release date of February 2028. His parental rights were also terminated but he does not participate in this appeal.
The record reveals that umbilical cord blood test results were positive for marijuana and methamphetamine. Mother subsequently tested positive for methamphetamine on three separate occasions during a DCS assessment. The only alleged sober live-in caregiver for Child was her maternal grandmother, who also tested positive for methamphetamine.
[¶3] Over the ensuing two and one-half years, Mother failed to comply with the dispositional order. Although Mother completed her substance abuse assessment, she failed to complete the recommended outpatient drug rehabilitation program and was discharged from home-based case management due to noncompliance. Mother did not maintain contact with DCS and failed to confirm visits with Child resulting in numerous cancellations. Mother failed to appear for some scheduled drug screens, and between October and December 2022, Mother consistently tested positive for marijuana and methamphetamine. Between June 3, 2021, and September 5, 2023, Mother tested positive twenty-nine times for various illegal substances including amphetamine, methamphetamine, THC, and fentanyl. The court discontinued Mother's visitation with Child in January 2022 due to Mother's noncompliance with services and continued drug abuse. On January 20, 2023, the court added a concurrent plan of termination and adoption. On February 28, 2023, the court held Mother in contempt for failing to comply with court orders.
[¶4] DCS filed a petition to terminate Mother's parental rights on August 3, 2023. Mother completed a drug screen on August 10, which was positive for methamphetamine and marijuana. The court held a termination fact-finding hearing on October 23 and November 6, 2023. DCS presented the testimony of Family Case Manager Jennifer Burton ("FCM Burton"), Court-Appointed Special Advocate Kaydee Tipton ("CASA Tipton"), and Child's preadoptive mother. Mother testified on her own behalf.
[¶5] On February 2, 2024, the court entered a detailed order finding that there was a reasonable probability that the conditions that resulted in Child's removal and continued placement outside the home would not be remedied; continuation of the parent-child relationship between Mother and Child posed a threat to Child's well-being; termination of Mother's parental rights was in Child's best interests; and there was a satisfactory plan for the care and treatment of Child, that being adoption.
Discussion
[¶6] Mother challenges the sufficiency of the evidence to support the trial court's termination of her parental rights. Specifically, she challenges the court's conclusion that she is unlikely to remedy the reasons for Child's removal because the "only evidence DCS put forth in regards to the removal of [Child] was that [she] tested positive for methamphetamines" and DCS "failed to show how positive drug screens is a valid basis for termination of parental rights." Appellant's Brief at 9. Mother also challenges the court's conclusion that termination of her parental rights is in Child's best interests.
[¶7] In order to terminate a parent-child relationship, 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 well-being 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). If the court finds that the allegations in a petition described in Ind. Code § 31-35-2-4 are true, the court shall terminate the parentchild relationship. Ind. Code § 31-35-2-8(a).
Ind. Code § 31-35-2-4 was amended, effective March 11, 2024.
[¶8] 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. "Because a case that seems close on a 'dry record' may have been much more clear-cut in person, we must be careful not to substitute our judgment for the trial court when reviewing the sufficiency of the evidence." Id. at 640.
[¶9] 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 for purposes of determining whether a parent's rights should be terminated, 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.
[¶10] We note that 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. The trial court's detailed termination order emphasizes the evidence presented by DCS regarding Mother's noncompliance with services and her continued failure to remedy the reasons for Child's removal and continued placement outside her care. As observed by the court, the evidence indicates that Child was initially removed due to Mother's methamphetamine abuse. Mother continued to test positive for methamphetamine and other illegal controlled substances throughout the pendency of this case, with her last positive screen being shortly after the termination petition was filed. When asked during the termination hearing the date she last used an illegal substance, Mother invoked "her fifth amendment rights" and refused to answer. Transcript Volume II at 138. The trial court drew "a negative inference" from Mother's refusal. Appellant's Appendix Volume II at 9. The trial court observed that during Mother's testimony, her "limbs began to visibly shake," she spoke in "a sleepy, breathless tone," her "eyes were half-opened," and "she appeared to be nodding off." Id. DCS presented further evidence that Mother has not maintained stable employment or housing, with her admitting that she floats between places to live. We conclude that clear and convincing evidence supports the trial court's determination that there is a reasonable probability that the conditions resulting in the Child's removal and the reasons for placement outside Mother's care will not be remedied.
The Indiana Supreme Court has observed that, "in CHINS and TPR proceedings, a court may not compel a parent's admission to a crime-if the admission could be used against him or her in a subsequent criminal proceeding-under the threat of losing parental rights." Matter of Ma.H., 134 N.E.3d 41, 46-47 (Ind. 2019). However, it also held: "Yet, in civil proceedings, a court can draw a negative inference from a claim of the Fifth Amendment privilege against self-incrimination." Id. at 47.
DCS specifically requested the trial court to observe Mother's appearance and behavior during the termination hearing.
Although Mother also challenges the trial court's finding that continuation of the parent-child relationship posed a threat to Child's well-being, we need not address that argument as 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).
[¶11] In determining the best interests of a child, 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 child. 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 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. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-1159 (Ind.Ct.App. 2013), trans. denied.
[¶12] FCM Burton testified that it was her recommendation that Mother's parental rights be terminated. She opined that termination of Mother's parental rights was in Child's best interests so that Child "can have permanency." Transcript Volume II at 69. She testified that throughout this case, Mother has demonstrated a "lack of consistency with working with providers[,]" and her continued drug abuse and unstable housing prevents her from being able to safely parent Child. Id. at 68. She stated that Child, who was then almost three years old, had been in her current placement since she was "fifteen days old," and her preadoptive family is "all that she knows." Id. Similarly, CASA Tipton opined that termination of Mother's rights was in Child's best interests. She noted that Child "has been in the system for almost three years," she is "very well bonded" with her foster family, and "she "deserves permanency at this point." Id. at 91. Based on the totality of the evidence, we conclude the trial court's finding that termination of Mother's parental rights is in Child's best interests is supported by clear and convincing evidence.
[¶13] For the foregoing reasons, we affirm the trial court.
[¶14] Affirmed.
May, J., and Pyle, J., concur.