Opinion
24A-JT-733
08-19-2024
In the Termination of the Parent-Child Relationship of: M.W.B., J.B., and G.G. (Minor Children), v. Indiana Department of Child Services, Appellee-Petitioner M.B. (Mother) Appellant-Respondent
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Katherine A. Cornelius 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Perry Circuit Court The Honorable Lucy M. Goffinet, Judge Trial Court Cause Nos. 62C01-2310-JT-226, 62C01-2310-JT-227, 62C01-2310-JT-228
ATTORNEY FOR APPELLANT
Lisa Johnson
Brownsburg, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Brown, Judge.
[¶1] M.B. ("Mother") appeals the involuntary termination of her parental rights with respect to her children, M.W.B., J.B., and G.G. (the "Children"). We affirm.
Facts and Procedural History
[¶2] Mother is the mother of M.W.B., who was born in April 2012, J.B., who was born in September 2013, and G.G., who was born in July 2016. On January 2, 2019, the Children were removed from Mother's care. On January 4, 2019, the Department of Child Services ("DCS") filed petitions alleging the Children were children in need of services ("CHINS"). DCS alleged that it received a report indicating that the Children "were living with their babysitter," M.W.B.'s "sibling had missed a significant amount of school," and Mother had been evicted from her home and was physically abusive to the children. Exhibits Volume I at 44. DCS alleged that the family case manager spoke with the babysitter who reported that she did not have a vehicle or a way to transport the Children to school, that Mother had stated that she struck the Children across the face, and that the Children have poor hygiene when they are with Mother. M.W.B. reported to the family case manager that Mother slapped and whipped him, he had been to HARSHA for behavioral issues, he had touched his sister inappropriately, and Mother had been "kicked out" of their last home. Id. DCS alleged that M.W.B. no longer had his needed prescription medication. DCS stated that Mother reported she had tried to refill the prescription but had not done so, that M.W.B. could not go to school due to not having his medication, and that she had been evicted and planned to relocate to Fort Branch, Indiana, with her boyfriend. DCS alleged that G.G. was observed to have a dirty shirt and a dirty face, M.W.B. had missed thirty-seven days of school, the majority of which were unexcused absences, and M.W.B. had significant adverse behaviors at school including being physical with staff, running away, cursing, and throwing items in the classroom.
M.W.B.'s father, C.G., died in October 2023. At the February 23, 2024 hearing, Mother testified that G.G.'s father, H.G., died five years earlier. When asked the identity of J.B.'s father, Mother answered: "On her birth certificate, it's [T.H.]." Transcript Volume II at 98. When asked if she had any idea where T.H. was, she answered: "No. Nine years ago, he was probably incarcerated in Kentucky." Id. Family Case Manager Kelly Fields testified that T.H. was recently released from incarceration in Kentucky and that T.H. stated he would be willing to voluntarily terminate his parental rights.
[¶3] On January 29, 2019, the court entered an order finding that Mother admitted she needed therapeutic services, parenting education, and assistance with services to work on achieving stability in housing and finances. The court found that Mother agreed that it was in the best interests of the Children to be determined to be CHINS and that services were necessary to facilitate reunification. The court found the Children to be CHINS. On April 2, 2019, the court entered a dispositional order which ordered Mother to keep all appointments with any service provider, ensure that the Children were properly supervised, not use or consume any illegal controlled substances, and submit to random drug screens.
[¶4] During a supervised visitation in January 2020, the Children went to Mother's residence and "kind of just barged in," Mother was sleeping and was not prepared for the visit, and G.G. "had gotten into some of [Mother's] medication and had to be taken to the emergency room." Transcript Volume II at 140. After this incident, service providers performed a walkthrough of Mother's home prior to the Children's entry.
[¶5] Beginning in April 2020, M.W.B. was placed on a trial home visit which ended due to Mother's noncompliance with drug screenings and testing positive for marijuana. Mother tested positive numerous times for THC in drug screens collected between January 2022 and September 2023.
[¶6] On September 25, 2023, Emilee Sosh, a family consultant, received a "standard supervised visit referral." Id. at 87. During a visit in November 2023, Sosh told Mother that they needed to go to the traffic light to cross the street safely but Mother did not listen and entered the street with the Children on two occasions in which vehicles had to stop for her and the Children. Due to safety concerns, visits in the community did not continue. Since Family Case Manager Kelly Fields ("FCM Fields") was assigned the case on September 28, 2023, DCS did not consider placing any of the Children on a trial home visit due to Mother's failure to comply with drug screens and some concerns with appropriate communication during visitations with the Children.
[¶7] On October 25, 2023, DCS filed petitions for the involuntary termination of the parent-child relationship between Mother and the Children. On January 23 and February 23, 2024, the court held a factfinding hearing. DCS presented the testimony of multiple witnesses including Caitlin Mendoza, a therapist who provided services including individual therapy for Mother between August 2022 and August 2023, Dr. Aaron Brown, the Scientific Director employed by Cordant Health Solutions, Mother, FCM Fields, Sosh, and Michelle Faulkner, a DCS family case manager supervisor. The court also heard from Court Appointed Special Advocate Amy Smith ("CASA Smith").
[¶8] On March 11, 2024, the court entered orders finding: there is a reasonable probability that the reasons for the Children's removal or continued placement outside the home would not be remedied; continuation of the parent-child relationship posed a threat to the well-being of the Children; and termination of the parent-child relationships was in the best interests of the Children.
Discussion
[¶9] Mother challenges a number of the trial court's findings and argues that she cooperated with DCS, benefited from services, was working on her issues in therapy, was well-prepared for visits, interacted with the Children appropriately, had stable employment, and could provide a stable home for the Children. She argues the termination of her parental rights is not in the best interests of the Children.
[¶10] At the time of the petitions and the hearing, 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 § 31-35 2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).
Effective March 11, 2024, the same date that the trial court entered its orders terminating Mother's parental rights, Ind. Code § 31-35-2-4 was amended 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....
[¶11] 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.
[¶12] 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.
[¶13] 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.
[¶14] Mendoza, the therapist who provided services including individual therapy for Mother between August 2022 and August 2023, testified that Mother was prescribed several medications and Mother told her that she does not always take the prescribed dose. When asked if Mother struggled to maintain healthy relationship and dynamics within her interpersonal relationships, she described a relationship that did not "seem healthy" for Mother and that Mother "was in a lot of distress as far as, like, feeling, I guess, controlled." Transcript Volume II at 49. She testified that she had concerns about Mother's THC use. She stated that M.W.B. would become very angry and upset, he had run out of the car and the home, he was mean to his sisters, and he had threatened to break J.B.'s wrist. She stated that Mother had a "really heated argument" with M.W.B. during one visit but she "typically did well during visitations as far as holding [M.W.B.] and helping him and soothing him." Id. at 55. She also detailed an incident in which G.G. was injured during a visit by ashes falling from Mother's cigarette.
[¶15] Sosh, the family consultant, testified that she received a homemaker referral on August 4, 2023, which was closed unsuccessfully in November 2023 due to noncompliance after Mother's failure to respond to her emails, text messages, and phone calls. When asked what issues or barriers Mother still had to reunification with the Children, FCM Fields answered: "So Mother denying compliance of the drug screens, not having the clean drug screens for testing positive for the THC. Mother is still on supervised visits due to reported safety concerns and inappropriate communication." Id. at 132.
To the extent Mother argues that DCS did not prove that her use of THC was illegal, Dr. Brown, the Scientific Directory at Cordant Health Solutions, testified that the drug screens test for Delta 9 THC. When asked if there was a difference between Delta 8 and Delta 9, he explained: "Yes, there is. They are separate compounds. Delta 9 is the main psychoactive component found in marijuana and is what - all of the percent of Delta 9 in a product is what differentiates between marijuana and hemp, both at the federal level as well as under Indiana state law. Delta 8 is currently considered legal if it comes from a product containing less than 0.3 percent Delta 9 THC, while Delta 9 is considered a controlled substance." Transcript Volume II at 79. He also testified that the drug screen result was specific to Delta 9 and "would be consistent with actual Delta 9 THC having entered the body" and "would not be from the use of Delta 8 by itself." Id. He further stated that "neither CBD nor Delta 8 will cause a confirmed positive result for this - on this specific test." Id.
[¶16] Faulkner, the DCS family case manager supervisor, testified that Mother was initially homeless and struggled with maintaining employment and services. She testified that Mother became "a little more consistent with services" as the case progressed and was able to begin a trial home visit with M.W.B., but the trial visit was terminated unsuccessfully. Id. at 138. She described M.W.B.'s "increased aggression" during the trial home visit and stated that Mother reported struggling with his behaviors. Id. She also testified that, "[w]hen the FCMs went into the home, the home was cluttered and dirty." Id. at 139. She stated that, during the last time that she had the case, Mother had trouble regulating M.W.B.'s behavior, struggled in visits, with inappropriate comments, with having her phone out quite a bit during visitations, with nutrition and bringing nutritious meals during visits, and with meeting with her therapist and the parent aide.
[¶17] 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 the Children's removal and the reasons for placement outside Mother's care will not be remedied.
[¶18] 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 that the conditions resulting in removal will not be remedied, is sufficient to show by clear and convincing evidence that termination is in the children'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. "A parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests." Castro v. State Off. of Fam. &Child., 842 N.E.2d 367, 374 (Ind.Ct.App. 2006), trans. denied. We have previously recognized that "[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children." Id. (citation omitted).
[¶19] When asked if she believed it was in the Children's best interests for Mother's parental rights to be terminated and for them to be adopted, FCM Fields answered: "Throughout the course of the nature of the case and noncompliance and other issues that would be determined, that is the best decision." Transcript Volume II at 133. When asked if termination was in the Children's best interests, she answered: "Due to the many conversations I've had with the children, due to my review of the case, documentation, the length of the case, and compliance of some services, yes." Id. at 136.
[¶20] After closing arguments, CASA Smith stated:
Your Honor, I agree with DCS and the arguments that [DCS's counsel] made. [Mother's counsel] talks about TPR being the last resort. This case has been open for five years. [Mother] has been given opportunity after opportunity to get her children back. She was given the opportunity in April of 2023 to progress the case to monitored visits with clean drug screens.
She refused and had excuses of why she wasn't going to drug test if the foster parents or relative placement or whomever was not going to drug test. Even though she was under a Court order to drug test....
These children deserve permanency and that is why I feel like it is, after five years, in their best interest for them to have their rights - [Mother] to have her rights terminated to these children.Id. at 148.
[¶21] Based on the totality of the evidence, we conclude the trial court's conclusion that termination is in the Children's best interests is supported by clear and convincing evidence.
[¶22] For the foregoing reasons, we affirm the trial court.
[¶23] Affirmed.
May, J., and Pyle, J., concur.