Opinion
24A-JT-49
06-12-2024
In the Involuntary Termination of the Parent-Child Relationship of K.H. (Minor Child) v. Indiana Department of Child Services, Appellee-Plaintiff S.H. (Mother), Appellant-Defendant
ATTORNEY FOR APPELLANT Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Frances H. 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Brown Circuit Court The Honorable Mary Wertz, Judge Trial Court Cause No. 07C01-2308-JT-49
ATTORNEY FOR APPELLANT Tyler D. Helmond Voyles Vaiana Lukemeyer Baldwin & Webb Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Frances H. Barrow Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE.
[¶1] The Brown Circuit Court involuntarily terminated S.H.'s ("Mother's") parental rights to her minor child, K.H. Mother appeals, arguing that the order terminating her parental rights is not supported by clear and convincing evidence.
[¶2] We affirm.
Facts and Procedural History
[¶3] Mother and L.K. ("Father") are the biological parents of K.H., who was born in October 2017. Shortly after K.H.'s birth, the Department of Child Services ("DCS") filed a petition alleging that K.H. was a Child in Need of Services ("CHINS") due to Mother's substance abuse. Mother has struggled with substance abuse since she was a teenager. The trial court adjudicated K.H. a CHINS on January 8, 2018.
Father consented to K.H.'s adoption and does not participate in this appeal.
[¶4] While the CHINS proceeding was pending, Mother pleaded guilty to misdemeanor battery resulting in bodily injury. She was ordered to serve one year, but her sentence was suspended to probation. As a part of her probation, Mother attended residential addiction treatment. Mother later completed an intensive outpatient treatment program at the same facility.
[¶5] The CHINS adjudication was closed in 2019 when the trial court appointed K.H.'s maternal grandmother as his guardian. Mother was allowed to live in maternal grandmother's home but was not allowed to be K.H.'s sole caregiver.
[¶6] On January 22, 2020, DCS requested an informal adjustment because both Mother and maternal grandmother had used illegal substances. The trial court ordered Mother and maternal grandmother to participate in homebased counseling, complete a substance abuse assessment, comply with treatment recommendations, and submit to random drug screens. The informal adjustment was closed in August.
[¶7] Approximately two months later, Mother overdosed and was found unresponsive in her vehicle at a pumpkin patch. K.H. was outside the vehicle. Mother was K.H.'s only caregiver present. As a result, the State charged Mother with Level 6 felony neglect of a dependent. Mother pleaded guilty to that offense in June 2021.
[¶8] K.H.'s maternal grandmother was hospitalized in September 2021, and K.H. was removed from her home. DCS again alleged that K.H. was a CHINS on September 8. Shortly thereafter, K.H.'s grandmother died. The trial court adjudicated K.H. a CHINS on October 27. After a few short-term placements, K.H. was placed in his Mother's aunt and uncle's home.
[¶9] Mother continued to struggle with substance abuse issues and suffered two overdoses in 2021. On January 31, 2022, the State charged Mother with Level 6 felony possession of methamphetamine, Class B misdemeanor possession of marijuana, and two counts of Class C misdemeanor possession of paraphernalia. Mother pleaded guilty to the Level 6 felony in July, and, as provided in her plea agreement, the trial court imposed a 545-day sentence.
[¶10] Mother was released from incarceration on January 30, 2023, and began living at Transformational Living Ministries in Columbus. Mother had a job, she was attending recovery meetings, and was participating in supervised visitation with K.H. But Mother relapsed and overdosed on fentanyl in May. Thereafter, Mother was admitted to Centerstone Recovery Center. Mother was incarcerated for several weeks for a parole violation from the end of May to mid-July. Mother then returned to Transformational Living Ministries in July, but she relapsed again in August and returned to Centerstone for inpatient treatment.
[¶11] DCS filed a petition to terminate Mother's parental rights on August 3. On October 27, the trial court held the fact-finding hearing. K.H. was six years old on the date of the hearing, and he was doing well in his placement with his great aunt and uncle. Mother had recently transitioned to living in a VOA sober living home. She anticipated living there another three or four months. Children cannot live at that facility. Mother was compliant with services, was participating in an intensive outpatient program and therapy, and her drug screens were negative. The visitation supervisor reported that Mother and K.H. are "bonded and have a loving relationship." Appellant's App. Vol. 2, p. 164.
[¶12] Mother's family case manager acknowledged Mother's successful completion of various treatment programs but observed that Mother has not been able to achieve long-term sobriety. Mother also failed to inform her case manager that she had overdosed in May and August and that she was incarcerated in August. Mother's visitation with K.H. never progressed beyond supervised visitation because Mother could not comply with services or maintain a stable home. Both the case manager and the guardian ad litem testified that adoption is in K.H.'s best interests. Tr. pp. 74, 94. And K.H.'s great aunt and uncle wanted to adopt him.
[¶13] On December 28, the trial court issued an order involuntarily terminating Mother's parental rights to K.H. The court's order set out Mother's significant history of substance abuse, her attempts at treatment, and her criminal history. The trial court concluded that:
11. The conditions that caused the child's removal were [Mother's] drug use and the Court's finding that there was no evidence that [Mother] had remedied the circumstances that led to the CHINS adjudication in 2017. Throughout these proceedings and the prior CHINS proceedings, she consistently failed to demonstrate the ability to provide a stable home and she has consistently failed to maintain legal employment. At no point in these proceedings has she demonstrated sufficient stability and sobriety to be afforded unsupervised visits or a trial home visit with the child. She does demonstrate insight into her substance abuse and need for treatment during periods of time when she is
in an inpatient facility and/or incarcerated and for a period of time after her release. However, she has not demonstrated that she can maintain sobriety for any significant length of time. She has demonstrated a pattern of relapsing on opiates. It is noteworthy that she has overdosed on opiates twice since May of 2023. She has endangered the child in the past while using drugs as evidenced by an overdose in 2020 while she had [K.H.] in her care. [Mother] has not had custody of [K.H.] since he was an infant.
12. DCS has made reasonable efforts to reunify [Mother and K.H.]. These services have included inpatient treatment, individual therapy, recovery coaching, intensive outpatient programs, supervised visits, random drug screens and homebased case work. Through much of the most recent CHINS proceeding, excluding periods of inpatient treatment and incarceration, [Mother] was non-compliant. She did not regularly drug screen, continued to use illegal drugs, and failed to complete outpatient treatment. She did have times of compliance. Those occurred while in inpatient treatment and short periods of time thereafter. She has never achieved sufficient compliance and progress to be permitted unsupervised visits with [K.H.].
13. [Mother] has endured many hardships, beginning [with] being raised by addicts who introduced her to methamphetamine and opiates at an early age. She is now recognizing the impact of her actions on her child and expresses a commitment to change and sobriety.
***
15. [DCS] has carried its burden to prove that there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home will not be remedied. The Court acknowledges that in the two months prior to the trial on this matter [Mother] has demonstrated sobriety and commitment to long term sobriety. This is consistent with her history. This history demonstrates a
habitual pattern of conduct which cycles between periods of sobriety followed by periods of relapse. The relapses are interrupted by periods of incarceration and/or inpatient treatment, which are followed by periods of sobriety, which are followed by relapses. This cycle has been consistent throughout [K.H.'s] young life. [Mother] has not had custody of her son since early December 2017, when he was less than two months old.Appellant's App. Vol. 2, pp. 167-68. The court also found that termination of Mother's parental rights was in K.H.'s best interests.
[¶14] Mother now appeals.
Standard of Review
[¶15] Indiana appellate courts 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, 1230-31 (Ind.Ct.App. 2019). In analyzing the trial court's decision, we neither reweigh the evidence nor assess witness credibility. Id. We consider only the evidence and reasonable inferences favorable to the court's judgment. Id. In deference to the trial court's unique position to assess the evidence, we will set aside a judgment terminating a parent-child relationship only if it is clearly erroneous. Id.
[¶16] To determine whether a termination decision is clearly erroneous, we apply a two-tiered standard of review to the trial court's findings of facts and conclusions of law. Bester v. Lake Cnty. Off. of Fam. & Child., 839 N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence supports the findings; second, we determine whether the findings support the judgment. Id. "Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference." In re A.D.S., 987 N.E.2d 1150, 1156 (Ind.Ct.App. 2013), trans. denied. If the evidence and inferences support the court's termination decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind.Ct.App. 1999), trans. denied. We will accept unchallenged factual findings as true. See In re S.S., 120 N.E.3d 605, 614 n.2 (Ind.Ct.App. 2019).
[¶17] It is well-settled that the parent-child relationship is one of society's most cherished relationships. See, e.g., In re A.G., 45 N.E.3d 471, 475 (Ind.Ct.App. 2015), trans. denied. Indiana law thus sets a high bar to sever that relationship by requiring DCS to prove four elements by clear and convincing evidence. Ind. Code § 31-35-2-4(b)(2) (2023). We need only discuss two of those elements raised by Mother in this appeal: (1) whether there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside of Mother's home will not be remedied; and (2) whether termination of Mother's parental rights is in the child's best interests. I.C. § 31-35-2-4(b)(2)(B)(i) and (C).
The legislature has amended this statute effective March 11, 2024. Rather than subsection (b), the relevant provisions are now found in subsection (d).
[¶18] Clear and convincing evidence need not establish that the continued custody of a parent is wholly inadequate for a child's very survival. Bester, 839 N.E.2d at 148. It is instead sufficient to show that the child's emotional and physical development are put at risk by the parent's custody. Id. If the court finds the allegations in a petition are true, the court shall terminate the parent-child relationship. I.C. § 31-35-2-8(a).
[¶19] Finally, we observe that Mother does not challenge the trial court's findings of fact, and therefore, she has waived any arguments relating to the unchallenged findings. See In re S.S., 120 N.E.3d 605, 610 (Ind.Ct.App. 2019). And we accept all of the trial court's findings as true. Id.
Reasons for Removal
[¶20] Mother claims that DCS failed to prove that there is a reasonable probability that the conditions that resulted in K.H.'s removal and continued placement outside of her home will not be remedied. Consideration of this argument involves a two-step analysis: first, identifying the conditions that led to removal, and second, determining whether there is a reasonable probability those conditions will be remedied. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). In the second step, the trial court determines a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions; in other words, the court must balance a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. In conducting its analysis, the trial court may also consider the reasons for the child's continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind.Ct.App. 2013).
[¶21] K.H. was removed from Mother's care due to her substance abuse issues and criminal conduct. Mother has struggled with substance abuse since she was eleven or twelve years old. Throughout the CHINS and termination proceedings, Mother participated in treatment, made improvements in her life and addressed her substance abuse issues, but ultimately after short periods of sobriety, Mother has relapsed. For this reason, on the date of the termination hearing, Mother had not had K.H. in her care for over five and one-half years. And her visitation with K.H. did not progress beyond supervised visitation at any point after he was removed from her care. Mother had many opportunities for substance abuse treatment during the five years preceding the fact-finding hearing but was unable to significantly benefit from that treatment. The trial court thoughtfully considered the evidence that Mother had been sober for approximately two months on the date of the fact-finding hearing and weighed that evidence against Mother's historic inability to maintain sobriety and benefit from services. The trial court's conclusion that it is reasonably probable, given Mother's habitual conduct, that she will be unable to maintain sobriety is supported by clear and convincing evidence.
[¶22] For all of these reasons, we conclude that DCS proved that there is a reasonable probability that the conditions that resulted in K.H.'s removal and continued placement outside of Mother's home will not be remedied.
Best Interests
[¶23] Mother also argues that DCS failed to prove that termination of her parental relationship with K.H. is in his best interests. In determining what is in a child's best interests, a court is required to look beyond the factors identified by DCS and consider the totality of the evidence. A.S. v. Ind. Dep't of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind.Ct.App. 2010). A parent's historical inability to provide "adequate housing, stability, and supervision," in addition to the parent's current inability to do so, supports finding termination of parental rights is in the best interests of the child. Id.
[¶24] When making its decision, the court must subordinate the interests of the parents to those of the child. See Stewart v. Ind. Dep't of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind.Ct.App. 2009). "The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship." Id. Moreover, this Court has previously held that recommendations of the family case manager and court-appointed special advocate to terminate parental rights, coupled with evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the child's best interests. Id.
[¶25] Six-year-old K.H. has not been in Mother's care since he was an infant. DCS presented evidence that Mother's instability and inability to maintain sobriety has had a negative effect on K.H.'s behavior. Six-year-old K.H. has resided in multiple homes with different caregivers for the past five and one-half years because Mother has been unable to benefit from substance abuse treatment and other services offered to her. K.H. needs stability and permanency that Mother is not able to provide. Mother and K.H. are bonded and love each other, but that is not enough to provide K.H. with the home he needs and deserves. In addition, the DCS family case manager and guardian ad litem agreed that termination of Mother's parental rights was in K.H.'s best interests. For these reasons, we conclude that the trial court's finding that termination of Mother's parental rights is in K.H.'s best interests is supported by clear and convincing evidence.
Mother argues that the circumstances in her case are analogous to those in In re R.S., 56 N.E.3d 625 (Ind. 2016). However, the Father in that case made significant improvements and benefitted from services for over a year after he was released from incarceration. He had successfully completed felony probation, he had exercised parenting time two-to-three times a week, including overnights, and the trial court had entered a finding that continued contact between R.S. and his father was in R.S.'s best interests. Id. at 630-31. Mother's two-month period of sobriety preceding the fact-finding hearing is not analogous to the significant and sustained improvements made by the Father in In re R.S.
Conclusion
[¶26] Mother has not persuaded us that the trial court's order is clearly erroneous, and we affirm the court's order terminating Mother's parental rights to K.H.
[¶27] Affirmed.
Altice, C.J., and Bailey, J., concur.