Opinion
21A-JT-358
08-03-2022
In the Matter of the Termination of the Parent-Child Relationship of: W.D.T., Child, v. Indiana Department of Child Services, Appellee-Petitioner. D.H. (Mother), Appellant-Respondent,
Attorney for Appellant Harold E. Amstutz Lafayette, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana, David E. Corey Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Tippecanoe Superior Court The Honorable Nancy Gettinger, Senior Judge Trial Court Cause No. 79D03-2108-JT-70
Attorney for Appellant Harold E. Amstutz Lafayette, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana, David E. Corey Robert J. Henke Deputy Attorneys General Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Respondent, D.H. (Mother), appeals the trial court's Order, terminating her parental rights to her minor child, W.D.T. (Child).
[¶2] We affirm.
ISSUE
[¶3] Mother presents this court with three issues, which we consolidate and restate as: Whether the trial court's Order terminating her parental rights to Child is supported by clear and convincing evidence.
FACTS AND PROCEDURAL HISTORY
[¶4] Child was born to Mother and J.T. (Father) on March 20, 2020. On June 26, 2020, the Tippecanoe County Department of Child Services (DCS) received an allegation that Mother was using drugs while breastfeeding Child. DCS' family case manager (FCM) met with Mother at Lafayette Quality Inn Suites. Mother did not allow FCM to access her room, but she showed FCM the formula she gave to Child. Four days later, on June 30, 2020, DCS received a second neglect report, alleging that Mother and Child were present when another individual overdosed on methamphetamine in their hotel room. At the time, Mother was staying at a different hotel. Mother declined to submit to a drug screen when requested by DCS, and she informed DCS that she and Child were travelling to Arkansas the following morning.
The trial court also terminated Father's parental rights to Child. Father appealed separately.
[¶5] On August 28, 2020, Mother was admitted to a hospital in White County, Indiana. Child was in paternal grandfather's (Paternal Grandfather) home while Mother was in the hospital. The following day, on August 29, 2020, DCS learned of Mother's return to Indiana through new neglect allegations in White County. The allegations were that she lacked housing and was impaired while caring for Child. DCS met with Mother in the hospital. Mother alleged that she was residing with friends and would be moving in with her sister, but she later revised her story and stated that she was moving in with a friend. During the interview, Mother seemed impaired, as she fell asleep during her conversation, her speech was slurred, and she bounced between stories. When DCS requested her to submit to a drug screen, Mother declined. On September 1, 2020, Paternal Grandfather met with DCS and expressed concerns he had regarding Mother's drug use and housing instability.
[¶6] On September 2, 2020, DCS filed a petition alleging that Child was a child in need of services (CHINS) because of Mother's drug use and housing instability. The following day, DCS removed Child from Mother's care and placed him with Paternal Grandfather. On November 19, 2020, Mother tested positive for methamphetamine, amphetamine, and THC. On January 1, 2021, after a fact-finding hearing, Child was adjudicated as a CHINS.
[¶7] On January 22, 2021, the trial court entered a dispositional order and a parental participation order requiring Mother, among other things to, contact DCS at least twice a month, keep all appointments with service providers, secure and maintain safe housing and employment, enroll in recommended programs, not consume illegal substances, complete a substance abuse assessment and submit to random drug screens, complete a clinical interview and assessment, participate in home-based case management, and participate in supervised visitation. A week after the trial court entered these orders, Mother tested positive for methamphetamine, amphetamine, THC, Fentanyl, morphine, and tramadol. Mother also tested positive for THC in February 2021.
[¶8] Beginning in March 2021, Mother received intensive outpatient treatment (IOT) for her drug addiction at Aspire Indiana Health in Lebanon, Indiana. Since Mother thereafter moved to Lafayette, Aspire could only offer Mother virtual services. FCM Christeen Wingate (FCM Wingate) referred Mother to Bauer Family Resources for in-person treatment and therapy. Bauer later discharged Mother due to non-compliance.
[¶9] In April 2021, Jacqueline Hadley (Hadley) of Lifeline provided services to Mother related to home-based case management and supervised visitations. Mother's supervised visits, which were approximately three times a week, occurred in Mother's apartment. Hadley did not detect any issues with Mother's visitations. Also, around that time, Mother completed a parenting assessment, and there were no further recommendations made at that point. Based on Mother's progress, on June 10, 2021, Mother's trial home visit began. Hadley randomly checked in on Mother and Child, and she did not report any issues. Despite the improvement Mother had made, on June 15, 2021, just five days after the trial home visit began, she tested positive for fentanyl. DCS did not obtain Mother's failed drug test result until July 9, 2021. On the day DCS received Mother's drug screen results, Mother's trial home visit ended, and Child was placed with Paternal Grandfather. Subsequent hair follicle drug screens collected from Mother and Child tested positive for methamphetamine and fentanyl.
[¶10] On August 16, 2021, after a permanency hearing, the trial court found, in part, that Mother was discharged from "Aspire for non-compliance with medication management, drugs screens, and IOT []." (Exh. Vol. II, p. 104). It also noted that Mother's trial home visit was terminated because Mother tested positive for fentanyl. Based on Mother's relapse, the trial court ordered Mother's visitations to be virtual for thirty days and to resume if Mother presented a negative drug screen. The trial court then ordered the permanency plan to change from reunification to adoption. On August 17, 2021, a day after the permanency order was issued, Mother tested positive for methamphetamine, amphetamine, morphine, and fentanyl. On August 18, 2021, DCS filed a petition to terminate Mother's parental rights.
After the trial home visit failed, Child was placed with Paternal Grandfather. However, Paternal Grandfather informed DCS that he was only willing to keep Child for a month while a foster home was located. When the permanency plan for reunification changed to adoption, maternal grandmother (Maternal Grandmother) requested DCS to place Child with her and she expressed her desire to adopt Child.
[¶11] On September 16, 2021, Mother was discharged from home-based case management through Lifeline for non-compliance. In early October 2021, FCM Carrie Snider (FCM Snider) took over the case from FCM Wingate. Around that time, Mother completed a seven-day in-patient substance abuse treatment at Sycamore Springs. Following her successful completion, Sycamore urged Mother to take part in their partial hospitalization program. Mother emailed FCM Wingate to inquire about that program. FCM Wingate responded to Mother's questions, but FCM Wingate never got a confirmation from Mother that she had enrolled.
[¶12] On October 20, 2021, the Court Appointed Special Advocate (CASA) met with Mother at the restaurant where Mother was working. At the time, Mother was not engaged in any services. Mother confessed to CASA that she was using THC. CASA advised Mother to immediately contact FCM Snider in order to submit to a drug screen, and to reengage in services. Mother thereafter texted FCM Snider and expressed a desire to meet, but Mother did not show up at the meeting and did not respond to FCM Snider's calls or texts.
[¶13] On November 10, 2021, the trial court convened the fact-finding hearing on DCS' petition to terminate Mother's parental rights. Mother did not attend, but her counsel was present. FCM Wingate testified that she managed the CHINS case from September 2020 until October 6, 2021. She indicated that Mother had a long history of substance abuse issues dating to when she was a teenager. FCM Wingate stated that Mother currently struggled with heroin, methamphetamine, and fentanyl. Other than obtaining housing and completing a parental assessment, FCM Wingate stated that Mother had not completed any other services such as psychological evaluation or therapy. Mother's therapist from Bauer testified that when Mother claimed that she was pursuing in-patient treatment at Sycamore in August 2021, it halted therapy sessions and informed Mother that it would resume following Mother's discharge. Mother's therapist never heard back from Mother. FCM Snider testified that when she took over the case in October 2021, it was apparent that Mother continued to struggle with substance abuse. FCM Snider stated that she tried to contact Mother numerous times via email, phone call, and text, but was unable to schedule a meeting with Mother. FCM Snider stated that while Mother had secured housing, at the time of the termination hearing, Mother was unemployed. FCM Snider testified that Child is "adequately protected" and "doing good" in Maternal Grandmother's home, and that the long-term plan was adoption for Child. (Tr. Vol. II, pp. 31, 33). CASA also testified that Mother continued to struggle with drug use because Mother admitted to her that she was using THC when they met in October 2021. CASA stated that Mother was not engaged in any services, and that Mother had failed to maintain contact with DCS during the course of these proceedings. CASA testified that Child was well-bonded with the individuals in Maternal Grandmother's home, which included Child's nine-year-old half bother, who had been adopted by Maternal Grandmother. CASA recommended termination of Mother's parental rights by stating that Child would receive permanency if left in the care of Maternal Grandmother.
[¶14] On November 29, 2021, the trial court issued its Order terminating Mother's rights to Child and entered the following relevant findings of fact and conclusions thereon: f.Mother has recently tested positive, but has not stayed in consistent contact with DCS.
g. After her relapse, Mother still had an open referral with Bauer [], a service provider with whom she was working. Mother reported to Bauer in September [2021] that she had relapsed[,] and it was agreed that Bauer would suspend services until she had finished an in-patient treatment program. Bauer has never heard back from Mother.
h. Although Mother had notice of the hearing and was represented by counsel at the fact-finding hearing in this cause, Mother did not appear in person at the fact-finding hearing on the Involuntary Petition for Termination of Parent-Child Relationship.
[i]. Child's CASA has provided testimony that Mother has failed to attend appointments with the CASA [] and in fact may have avoided contact with CASA.
j. CASA believes that Child needs permanency and that termination of the parent-child relationship is in Child's best interest.
k. CASA believes the plan of adoption in the home where he lives is also in his best interest.
l. The uncertainty of Mother's involvement in services, if any, and her current unwillingness to cooperate or communicate with
her counsel, the DCS or CASA leaves the [c]ourt with no information to dispute the position of CASA and DCS that not only is there a reasonable probability that the conditions that resulted in Child's removal will not be remedied, but also that continuation of the parent-child relationship poses a threat to the well-being of the Child, as she is unable to maintain sobriety.
The [c]ourt concludes as follows:
a.[] [C]hild has been removed from the parent for at least six (6) months under a dispositional decree.
b. There is a reasonable probability that the conditions that resulted in [] [C]hild's removal or the reasons for placement outside the home of the parents will not be remedied.
c. There is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being of [] [C]hild.
d. It is [in] Child's best interest that parent-child relationship between Mother, Father and Child be terminated.
(Appellant's App. Vol. II, pp. 19-20).e. The DCS has a suitable plan for Child, that is adoption.
[¶15] Mother now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶16] Mother asserts that the trial court's Order terminating her parental rights to
Child was unsupported by the evidence. We have long had a highly deferential standard of review in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind.Ct.App. 2011). We will neither reweigh evidence nor judge witness credibility. Id. "Instead, we consider only the evidence and reasonable inferences that are most favorable to the judgment." Id. We apply a two-tiered standard of review: we first determine whether the evidence supports the trial court's findings and then determine whether the findings support the judgment. Id. We must give due regard to the trial court's opportunity to judge the credibility of witnesses firsthand, and we do not set aside the trial court's findings or judgment unless it is clearly erroneous. In re E.M., 4 N.E.3d 636, 642 (Ind. 2014). "Clear error is that which leaves us with a definite and firm conviction that a mistake has been made." C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 93 (Ind.Ct.App. 2014) (quotation omitted). To the extent Mother does not challenge any of the trial court's specific findings of fact, the unchallenged facts stand as proven. See In re B.R., 875 N.E.2d 369, 373 (Ind.Ct.App. 2007).
II. Termination of Mother's Rights
[¶17] In order to terminate a parent's rights to their child, DCS must prove:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.
* * * *
(iii) The child has been removed from the parent and has been under the supervision of a local office . . . for at least fifteen (15) months of the most recent twenty-two (22) months, beginning with the date the child is removed from the home as a result of the child being alleged to be a [CHINS] . . .;
(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 [CHINS];
(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). DCS must prove each of the foregoing elements by clear and convincing evidence. C.A. v. Ind. Dep't of Child Servs., 15 N.E.3d 85, 92 (Ind.Ct.App. 2014). "[C]lear and convincing evidence requires the existence of a fact to 'be highly probable.'" Id. On appeal, Mother argues that there is insufficient evidence supporting the trial court's findings that (1) there is a reasonable probability that the conditions resulting in the Child's initial removal will not be remedied; and (2) termination is in the Child's best interests. We address those factors in turn.
A. Remediation of Conditions
[¶18] In determining whether the conditions that resulted in a child's removal will not be remedied, we engage in a two-step analysis. E.M., 4 N.E.3d 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 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.
[¶19] Mother argues that the evidence shows that she participated in services including home-based case management, therapy, visits, and clinical assessment. She also claims that she sought out and completed in-patient substance treatment at Sycamore and had made steady and significant progress which earned her a trial home visit.
[¶20] At the time Child was removed from Mother's care in September 2020, Child was six months old. The record shows that Maternal Grandmother initially declined placement of Child with her, hoping that it would force Mother to address her substance abuse. Mother was ordered to participate in several services to address her substance abuse, housing instability, and unemployment. Mother's attempt to remain drug free was short-lived because she tested positive for fentanyl five days after the trial home visit began. After DCS terminated Mother's trial home visit, Mother regressed and failed to engage in any services. For example, Mother tested positive for methamphetamine and fentanyl in August 2021. Then, between August and September 2021, Mother did not consistently visit Child, and in September 2021, Lifeline closed out its services to Mother because she was not attending visits. Mother was also not attending therapy, which was also halted. To the degree that Mother lauds her efforts in completing a seven-day in-patient treatment program at Sycamore, she was advised by Sycamore to advance to the partial hospitalization program, but the record is silent as to whether she completed that additional program. More significantly, in October 2021, and shortly before the termination hearing, Mother admitted to CASA that she had relapsed, and she specifically stated that she would test positive for THC. CASA also learned later that month that Mother lost her job in October 2021.
[¶21] Inasmuch as Mother had established housing, Mother's inability to maintain sobriety and her relapse throughout these proceedings support the trial court's conclusion that a reasonable probability exists that the conditions that resulted in Child's removal will not be remedied. See In re D.W., 969 N.E.2d 89, 96-97 (Ind.Ct.App. 2012) (finding sufficient evidence that conditions of removal would not be remedied where Father "consistently failed to take advantage of services provided and ordered by the trial court and consistently failed to stay clean of drugs").
Mother also argues that the continuation of the parent-child relationship does not pose a threat to the well-being of Child. It is well-settled that because Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive, consequently DCS was required to demonstrate by clear and convincing evidence that one of the conditions listed therein has been met. See In re C.C., 788 N.E.2d 847, 854 (Ind.Ct.App. 2003), trans. denied. Because we have found that a reasonable probability that the conditions that resulted in Child's removal or reasons for placement outside Mother's home will not be remedied, we do not address Mother's second argument.
B. Child's Best Interests
[¶22] Mother challenges the trial court's conclusion that termination of her parental rights was in the Child's best interests. In determining the best interests of a child, the trial court is required to look at the totality of the evidence. See In re A.B., 887 N.E.2d at 167-68. The trial court must subordinate the interests of the parents to those of the child involved. Id. at 168. Termination of a parent-child relationship is proper where the child's emotional and physical development is threatened. K.T.K. v. Indiana Dep't of Child Servs., 989 N.E.2d 1225, 1235 (Ind. 2013). A trial court need not wait until a child is irreversibly harmed such that his or her physical, mental, and social development is permanently impaired before terminating the parent-child relationship. Id. Additionally, a child's need for permanency is a "central consideration" in determining the best interests of a child. Id.
[¶23] CASA testified that Child was doing well in Maternal Grandmother's home and was bonded with the family members, including Child's nine-year-old half bother, who was adopted by Maternal Grandmother. CASA testified that Mother continues to struggle with substance abuse, which affected her ability to maintain employment. CASA recommended termination of Mother's parental rights by stating that Child would receive permanency if left in the care of Maternal Grandmother. FCM Snider testified that Child is "adequately protected" and "doing good" in Maternal Grandmother's home, and the long-term plan is adoption for Child. (Tr. Vol. II, pp. 31, 33). See A.D.S. v. Ind. Dep't of Child Servs., 987 N.E.2d 1150, 1158-59 (Ind.Ct.App. 2013) (relying on the recommendation of both the CASA and the FCM in addition to evidence that the conditions resulting in removal will not be remedied to uphold the trial court's best interests determination), trans. denied.
[¶24] Mother claims that DCS failed to present evidence that "there would be any harm to [] [C]hild if the TPR was denied and extending the CHINS case. [] Child was going to remain in the same placement either way." (Appellant's Br. p. 16). In support of her claim, Mother argues that the termination order must be reversed in light of K.E. v. Ind. Dep't of Child Servs., 39 N.E.3d 641 (Ind. 2015).
[¶25] In that case, our supreme court reversed the termination of father's parental rights, finding that there was insufficient evidence to demonstrate a reasonable probability that father could not remedy the conditions that led to the child's removal and that father posed a threat to the child's well-being. Id. at 646. Our supreme court found that the evidence showed: father had plans for both housing and employment after his incarceration; while incarcerated, father completed twelve programs targeted at parenting and life skills and addressing substance abuse; and he continued to have a bonded relationship with his children while he was incarcerated, visiting with them every other week for two to three hours and calling them each night. Id. at 647-48. Also, father in K.E. was scheduled to be released from prison in approximately two years after the termination hearing, and the CASA recommended delaying termination, given father's efforts to complete programs and the bond he had developed with his children. Id. at 645.
[¶26] At the onset, we note that the K.E. court reversed the termination order because neither of the factors under Indiana Code section 31-35-2-4(b)(2)(B) were proven by clear and convincing evidence, therefore, it did not address whether termination was in the child's best interests. As such Mother's reliance on this case is misplaced. Moreover, we find that the present case is readily distinguishable from K.E. The most important fact in K.E. was that the father in K.E. made significant efforts to maintain a meaningful relationship with the child and completed programs that would better himself. Here, after Mother's trial home visit was terminated in July 2021, she failed to maintain her visitations with Child, and by September 2021, she was discharged from this service. Further, at the time of the termination hearing, Mother was not engaged in any other services.
[¶27] In sum, we find that while Mother actually reunited with Child during a brief trial home visit, no progress was made after the trial home visit failed and Mother essentially no longer engaged in any services. "[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification." In re E.M., 4 N.E.3d at 648. Even though "the ultimate purpose of the law is to protect the child, the parent-child relationship will give way when it is no longer in the child's interest to maintain this relationship." In re B.D.J., 728 N.E.2d 195, 200 (Ind.Ct.App. 2000). Mother's failure to maintain contact with DCS, her lack of participation in services requested by DCS, her complete failure to establish sobriety from illegal drugs, and including her lack of interest in Child to the point that she did not attend the termination hearing, support the trial court's conclusion that termination of her parental rights is in the best interests of Child. Accordingly, we affirm the trial court's decision.
CONCLUSION
[¶28] Based on the foregoing, we conclude that the trial court's Order terminating Mother's parental rights to Child was supported by the evidence and was not clearly erroneous.
[¶29] Affirmed.
[¶30] May, J. and Tavitas, J. concur.