Opinion
24A-JT-213
07-02-2024
In re the Termination of the Parent-Child Relationship of R.M., Sh.M., and H.M. (Minor Children) and V.M. (Mother), v. Indiana Department of Child Services, Appellee-Petitioner V.M. (Mother), Appellant-Respondent
ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Fayette Circuit Court The Honorable Hubert Branstetter, Jr., Judge Trial Court Cause Nos. 21C01-2304-JT-85 21C01-2304-JT-86 21C01-2304-JT-87
ATTORNEY FOR APPELLANT
Lisa Johnson Brownsburg, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General
Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
VAIDIK, JUDGE
Case Summary
[¶1] V.M. ("Mother") appeals the termination of her parental rights to her three children. We affirm.
Facts and Procedural History
[¶2] Mother had three children with S.M. ("Father"): R.M., born in December 2008, Sh.M., born in October 2010, and H.M., born in January 2018. Father died in 2020.
[¶3] The Department of Child Services (DCS) first became involved with the family in April 2019 after a report of physical abuse and exposure to domestic violence between Mother and Father. Mother admitted she was the victim of domestic violence by Father and that it happened in front of the children. Mother participated in an informal adjustment, which was closed in November after she secured housing and employment and created a safety plan that Father wouldn't return to the home. Despite the plan, Father eventually returned.
[¶4] In February 2020, DCS responded to another report of domestic violence. Mother again admitted to ongoing domestic violence in the home. A DCS case manager took Mother and the children to a shelter, but Mother returned home with the children the next day. Soon after, the family was evicted, so Mother and the children had to stay with a friend. In March, DCS filed a petition alleging the children were in need of services (CHINS) and removed them from Mother's care. DCS referred Mother for mental-health, domestic-violence, and case-management services. By July, Father was incarcerated and Mother had obtained housing and passed drug screens, so DCS returned the children to Mother and dismissed the CHINS petition.
[¶5] In March 2022, DCS responded to a report of drugs in the home. Mother admitted using methamphetamine and marijuana in the home, using illegal substances within the last few hours, and engaging in domestic violence with her boyfriend. With no sober caregiver, DCS removed the children on March 18. The children were initially placed in relative care and eventually moved to a foster home, where they remained until the termination hearing.
[¶6] Three days later, DCS filed a second CHINS petition. Shortly thereafter, Mother reported to DCS that she was being evicted. On April 13, upon Mother's admission, the trial court adjudicated the children to be CHINS. In its dispositional decree, the trial court ordered Mother to, among other things, maintain safe and stable housing, complete a substance-abuse assessment and any resulting recommendations, submit to random drug screens, complete recommended domestic-violence programming, and attend visitation. Molly Parkhurst was assigned as the Family Case Manager (FCM).
[¶7] Less than two weeks after the CHINS adjudication, Mother was charged with Class B misdemeanor battery and Class B misdemeanor disorderly conduct for fighting with her boyfriend
In November 2023, Mother entered into a plea agreement under which she pled guilty to Class B misdemeanor battery and the State dismissed the disorderly-conduct charge, and she was sentenced to 180 days suspended to probation.
[¶8] In May 2022, DCS referred Mother to Centerstone for various services, including a substance-abuse assessment and treatment. She completed the assessment but didn't participate in the recommended treatment and was discharged in August for noncompliance. She was also referred to Promising Futures for domestic-violence services but never engaged. Mother was then referred to Meridian Health Services for a substance-abuse assessment and treatment, supervised visitation, and home-based case management. She completed a substance-abuse intake and attended two intensive outpatient treatment sessions but after that was discharged for no-showing. Throughout the CHINS and termination proceedings, Mother was enrolled in intensive outpatient treatment at Meridian four times but was discharged each time for failing to attend, even after Meridian offered transportation to and from treatment.
[¶9] DCS also referred Mother for inpatient treatment at multiple locations. Each time, Mother would at first be receptive to inpatient treatment, but she never completed the intake process at any of the locations. She gave various reasons why she couldn't participate, such as not having anywhere for her dog to go and needing transportation, but she still didn't participate even after she found a pet-friendly treatment center and FCM Parkhurst offered to take her to treatment.
[¶10] In December 2022, Sh.M. was diagnosed with type 1 diabetes. Mother was instructed to take online classes to learn how to manage Sh.M.'s diabetes, but she "reported that she knew it all" and refused to take the classes. Tr. p. 64. After that, Mother was required to continue with supervised visitation at Meridian so a member of the nursing staff could assist if something went wrong with Sh.M.'s diabetes during a visit. A Meridian employee had to administer Sh.M.'s insulin shot if she ate a meal because Mother "was uneasy" and "not sure about the measurement that was required." Id. at 79.
[¶11] Later in December, the trial court found Mother in contempt for failing to participate in recommended substance-abuse treatment and continuing to use methamphetamine. The court ordered Mother to fully comply with either an inpatient or outpatient substance-abuse treatment program by the next review hearing or else face a thirty-day sentence in the county jail. By the January 18, 2023 hearing, Mother was homeless, hadn't complied with any substance-abuse treatment, and had continued to use illegal substances. The court ordered her to serve thirty days in jail. A week after being released, Mother tested positive for methamphetamine.
[¶12] On April 24, DCS petitioned to terminate Mother's parental rights. A month later, the court suspended Mother's visitation pending the outcome of the termination proceedings because she'd been inconsistent with visits, which was taking a toll on the children. Of the forty-three visits scheduled throughout the proceedings, Mother attended only twenty. When she did attend, she "focus[ed] on herself for most of the visits and not the children's wants and needs." Id. at 78. At one point, Mother said she should be allowed to have individual visits with each child "because it was overwhelming to be with all three at the same time." Id. at 83.
[¶13] By May, Mother was living with a new boyfriend and informed DCS that she wanted the children to be reunified with them. DCS asked for her boyfriend to start attending child-and-family team meetings, but he never did. Then in June, Mother and her boyfriend fought over methamphetamine, and he hit her multiple times in the face and head. At the time, they were living in a small camper on someone else's property. FCM Parkhurst offered to find Mother a shelter where she could stay, but Mother declined. By the end of June, Mother stopped engaging in case management at Meridian.
[¶14] The termination hearing was held in July 2023. FCM Parkhurst testified that Mother had open referrals for home-based case management, a substance-abuse assessment at Centerstone, intensive outpatient treatment at Meridian, and domestic-violence services at Promising Futures. She explained that Mother would initially show interest in inpatient treatment, but whenever they would find a bed available for her, she always came up with excuses for why she couldn't go and never followed through. For example, in April 2023, Mother told FCM Parkhurst she "wasn't ready to get clean" and "had too much other stuff going on to go to inpatient." Id. at 49. FCM Parkhurst also testified that throughout the proceedings, Mother had been living with friends but was kicked out of friends' homes multiple times. She explained Mother's camper wasn't a stable housing arrangement because the property owner didn't want her there and there wasn't enough room for the children.
[¶15] Samantha Douglas, Mother's case manager at Meridian, testified that in the case-management sessions Mother attended, she provided Mother a list of landlords and housing resources in the community. Doulgas said she offered to help Mother make calls and fill out applications, but Mother never followed up with any of the housing resources she provided. Douglas also supervised Mother's visitation, and she said that during several visits, she was concerned Mother was under the influence. After running out of time, the trial court continued the rest of the hearing for a later date.
[¶16] In August, the children were put in pre-adoptive placement. Around the same time, Mother was living in a homeless shelter. The next month, Mother reported another incident of domestic violence to FCM Parkhurst. Mother still had the domestic-violence referral open at Promising Futures, and FCM Parkhurst told Mother Promising Futures could help her get out of the relationship or get into a shelter, but Mother never followed up.
[¶17] The termination hearing had originally been continued to October 3 but was reset for November 27 because Mother had entered inpatient treatment at Recovery Works. However, she left Recovery Works three days after starting treatment. She then went to Wooded Glen on October 10 and completed a twenty-one-day inpatient program. Transportation was arranged to take Mother to a sober living community upon discharge from Wooded Glen, but Mother said she "didn't need to go there" and "had her boyfriend pick her up and come back home." Id. at 98. A week later, Mother tested positive for methamphetamine. After that test, Mother stopped communicating with DCS.
[¶18] At the beginning of November, Mother attended the first week of intensive outpatient treatment at Meridian but missed the second week. She then returned to treatment the next week. She had an appointment scheduled for the morning of November 27, before the termination hearing started in the afternoon, but she didn't attend.
[¶19] At the hearing, FCM Parkhurst testified that Mother has reported "consistent fighting" between her and her boyfriend, and at least two times, she's seen Mother with "bruises all over her face and arms." Id. at 103. She recalled that when she expressed concern to Mother about reunifying her and the children with her boyfriend in the home, Mother said "DCS can't dictate who she can and cannot date." Id. at 104. FCM Parkhurst explained that she asked Mother to have her boyfriend submit to drug screens and participate in domestic-violence and substance-abuse services with her, but he refused.
[¶20] Kimmie Smith, the children's court-appointed special advocate (CASA), testified that termination of Mother's parental rights and adoption by their current placement is in the children's best interests. She recommended termination due to Mother's inability to stay sober or maintain a stable home or employment, her failure to comply with services and treatment, and concerns with Mother's behavior during visitation. Additionally, R.M. was turning fifteen a week after the termination hearing, and thus his consent was required for adoption Both FCM Parkhurst and CASA Smith testified that R.M. told them he wants to be adopted.
[¶21] In December, the trial court issued an order terminating Mother's parental rights.
[¶22] Mother now appeals.
Discussion and Decision
[¶23] Mother argues there is insufficient evidence to prove the statutory requirements for termination. When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable inferences most favorable to the trial court's judgment. Id. When a trial court has entered findings of fact and conclusions of law, we will not set aside the court's findings or judgment unless clearly erroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence supports the trial court's findings and whether the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[¶24] A petition to terminate parental rights must allege, 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) (2023). DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231. If the trial court finds the allegations are true, the court "shall terminate the parent-child relationship." I.C. § 31-35-2-8(a).
Section 31-35-2-4 was amended effective March 11, 2024. See Pub. L. No. 70-2024, § 4. Neither party argues that this amendment has any bearing on the proceedings in this case.
I. The trial court did not err in concluding there is a reasonable probability that Mother will not remedy the conditions that led to the children's removal and continued placement outside the home
[¶25] Mother first challenges the trial court's determination that there is a reasonable probability the conditions resulting in the children's removal and continued placement outside the home will not be remedied. In making such a determination, the trial court engages in a two-step analysis. First, the court must determine what conditions led to the child's placement and retention outside the home. K.T.K., 989 N.E.2d at 1231. Second, the court must determine whether there is a reasonable probability those conditions will not be remedied. Id. The "trial court must consider a parent's habitual pattern of conduct to determine whether there is a substantial probability of future neglect or deprivation." Id. (quotation omitted).
[¶26] The trial court found that the children were removed due to Mother's substance abuse and their exposure to domestic violence. Mother contends the record doesn't support this finding, highlighting that the CHINS petition and order authorizing DCS to take the children into custody state that the children were removed only due to Mother's substance abuse. See Exs. 4A, 4B. But Indiana Code section 31-35-2-4(b)(2)(B)(i) allows consideration of the conditions resulting in the children's removal or continued placement outside the home. Mother's involvement with domestic violence was a reason the children remained outside the home. See Tr. pp. 43-44, 56, 95. The trial court's finding does not undermine the analysis of whether these conditions will be remedied.
[¶27] Mother acknowledges her struggles with substance abuse but asserts she has made progress toward achieving long-term sobriety. This is simply untrue. Mother tested positive for methamphetamine throughout the proceedings. While she completed substance-abuse assessments at both Centerstone and Meridian, she was discharged from both locations (from Meridian four times) for failing to participate in any recommended treatment. When she finally entered inpatient treatment at the end of September 2023, she left after only three days. And while she completed inpatient treatment at Wooded Glen, she tested positive for methamphetamine a week after her release. As our Supreme Court has noted, "simply going through the motions of receiving services alone is not sufficient if the services do not result in the needed change[.]" In re Ma.H., 134 N.E.3d 41, 50 (Ind. 2019) (quotation omitted), reh'g denied.
[¶28] In addition to Mother's substance abuse, the children remained outside of Mother's care because of her involvement with domestic violence and housing instability. Mother argues "there is no evidence that she will be involved in domestic violence in the future." Appellant's Br. p. 15. But there have been multiple incidents of domestic violence between Mother and her current boyfriend, with whom she lives. Although a referral for domestic-violence services through Promising Futures was open throughout the proceedings, Mother never engaged. And when FCM Parkhurst expressed concern that Mother's home with her boyfriend wasn't a safe environment for reunification, Mother said "DCS can't dictate who she can and cannot date." Additionally, despite bouts of homelessness and having to stay with friends, Mother never followed through with the housing resources Meridian provided. She now lives with her boyfriend in a camper on someone else's property, which isn't big enough to house the children. The evidence supports the court's conclusion that there is a reasonable probability Mother will not remedy the conditions that resulted in the children's removal and continued placement outside the home.
Mother also challenges the trial court's conclusion that there is a reasonable probability continuation of the parent-child relationship poses a threat to the children's well-being. But because we affirm the trial court's conclusion that there is a reasonable probability Mother will not remedy the conditions resulting in the children's removal and continued placement outside the home, we need not address this alternate conclusion. See In re A.G., 45 N.E.3d 471, 478 (Ind.Ct.App. 2015) (explaining Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires trial courts to find only one of the three provisions has been established by clear and convincing evidence), trans. denied.
II. The trial court did not err in concluding that termination is in the children's best interests
[¶29] Mother also challenges the trial court's conclusion that termination of Mother's parental rights is in the children's best interests. In determining whether termination is in a child's best interests, the trial court must look at the totality of the evidence and subordinate the parent's interests to those of the child. Ma.H., 134 N.E.3d at 49. Central among these interests is the child's need for permanency, as "children cannot wait indefinitely for their parents to work toward preservation or reunification." Id. We have previously held that recommendations of the case manager and court-appointed advocate, 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. In re A.S., 17 N.E.3d 994, 1005 (Ind.Ct.App. 2014), trans. denied.
[¶30] Mother contends "[t]here is no clear and convincing evidence that [she] cannot adequately meet all of the children's needs." Appellant's Br. p. 15. But Mother's visitation had to be supervised because she refused to learn how to manage Sh.M.'s diabetes. Multiple providers expressed concern about her inability to provide appropriate snacks or administer insulin to Sh.M. during visits. And as noted above, Mother has not shown an ability to provide a stable, drug-free home for the children. Mother's issues with substance abuse have not been remedied and pose a safety risk to the children if they were returned to her care. See A.S., 17 N.E.3d at 1006 (finding termination of parental rights in children's best interests where parents did not address their substance-abuse issues or complete recommended services during the two-year case).
[¶31] In contrast, the children are thriving in their current pre-adoptive placement and can "achieve permanency through adoption." Tr. p. 65. FCM Parkhurst testified that the current placement meets all the children's needs. CASA Smith testified that termination and remaining in the current placement are in the children's best interests because of Mother's inability to stay sober, maintain stable housing or employment, or comply with services and treatment. R.M., now fifteen, wants to be adopted by the current placement and "loves living there." Id. at 126. The totality of the evidence supports the trial court's conclusion that termination is in the children's best interests.
[¶32] Affirmed.
Weissmann, J., and Foley, J., concur.