Opinion
24A-JT-1539
12-27-2024
In the Matter of the Termination of the Parent-Child Relationship of Ty. W. and Ta. W., Minor Children v. Indiana Department of Child Services, Appellee-Respondent and W.F. (Mother), Appellant-Petitioner
ATTORNEY FOR APPELLANT Ernest Peter Gabriel Galos South Bend, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Frances H. Barrow Deputy Attorney General Indianapolis, Indiana
Pursuant to, this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 St. Joseph Probate Court The Honorable Jason A. Cichowicz, Judge The Honorable Len Zappia, Referee Trial Court Cause No. 71J01-2306-JT-000075 71J01-2306-JT-000076
ATTORNEY FOR APPELLANT
Ernest Peter Gabriel Galos South Bend, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana
Frances H. Barrow Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
DEBOER, JUDGE.
Case Summary
[¶1] W.F. ("Mother") appeals the trial court's involuntary termination of her parental rights to her minor twin children, Ty. W. and Ta. W. ("Children"). She raises one issue for our review which is whether the Indiana Department of Child Services ("DCS") presented insufficient evidence to support the termination. We affirm.
Facts and Procedural History
[¶2] Mother and Tu. W. ("Father") are the biological parents of Children. "[A]bout a week prior to giving birth to" Children, Mother complained of leg pain and briefly went to the hospital, where she tested positive for amphetamine, opiates, and THC. Transcript at 43. Against medical advice, Mother left the hospital. On June 20, 2021, Children were born six weeks prematurely, testing positive for methamphetamine and THC. They remained in the Newborn Intensive Care Unit for three weeks because of respiratory complications due to their premature birth.
Father's paternity to Children was established by paternity affidavit. The trial court terminated Father's parental rights to Children contemporaneously with Mother's parental rights; however, Father does not join in this appeal. Facts pertaining to Father will be included in this opinion insofar as they are relevant to these appellate proceedings.
[¶3] After Children were born, Mother "seemed to be going through withdrawals." Tr. at 44. She "was going back and forth between hot and cold" and "couldn't keep her eyes open[.]" Id. When confronted with Children's positive drug screens at birth, Mother "denied using methamphetamines and gave conflicting explanations for her opiate-positive screen." Appellant's App. Vol. 2 at 15. Parents failed to visit Children consistently during their three-week hospitalization and they did not have the necessary baby supplies at the time of their discharge.
[¶4] Because of DCS's concerns about Children's positive tests for illegal substances, Mother's substance abuse issues, Parents' limited visitation with Children during their hospitalization, and Mother's two prior substantiated assessments, DCS filed a Child in Need of Services ("CHINS") petition, but did not request the court's authorization to detain Children at that time. On October 29, 2021, the trial court adjudicated Children as CHINS and on November 17, 2021, the court entered a dispositional order, directing parents to engage in reunification services. The trial court imposed the standard dispositional requirements on Mother including staying in contact with DCS, allowing DCS to visit the home, maintaining suitable housing and a legal source of income, complying with parenting and substance abuse assessments and treatment recommendations, submitting to random drug screens, and participating in family preservation services.
Mother's first substantive assessment occurred in December 2017, when she gave birth to a child testing positive for marijuana, which was followed by a second substantive assessment in February 2020, when she gave birth to a child testing positive for marijuana and amphetamines. These prior-born children are not part of the current proceedings.
[¶5] Mother did not remain in regular contact with DCS and was often evasive about her whereabouts. She would become hostile when DCS or Children's CASA visited the home. Mother's home, which she shared with her mother ("Maternal Grandmother") and Maternal Grandmother's girlfriend was "unsafe" for Children. Id. at 17. There was a leaking pipe within Children's reach and, even though Mother used totes to collect the leaking water, she would not timely empty them. Children were often left in the care of Maternal Grandmother and Maternal Grandmother's girlfriend, both of whom DCS found to be physically and/or cognitively unable to provide appropriate childcare for Children.
CASA is the Court Appointed Special Advocate, a trained individual appointed to represent the best interests of Children in court.
[¶6] On January 21, 2022, DCS filed a verified information for rule to show cause alleging Mother had not allowed DCS or the CASA inside the home for more than a month, she failed to participate in regular drug screens, and she had been discharged unsuccessfully from the Center for Positive Change for failing to engage in drug treatment services. On March 9, 2022, the trial court found Mother in contempt and sentenced her to a suspended sentence of sixty days, to be executed if Mother did not comply with the court-mandated services by the next review hearing set for May 19, 2022.
[¶7] On March 28, 2022, DCS's Family Case Manager Dayna Norman ("FCM Norman") and Children's CASA visited Mother's home and found the nine-month-old Children sleeping in unsafe sleeping positions while being cared for by Maternal Grandmother and girlfriend. One child was asleep face-down on a diaper while on an adult bed without guardrails. The bed was not clean and the bed's blanket had "some brown debris that could have been like chocolate or cat feces." Tr. at 58. The other child was asleep in an unpadded car seat.
[¶8] Given DCS's and CASA's observations, and because Mother failed to participate in services and random drug screens as ordered, DCS moved to modify the dispositional decree on March 30, 2022, and requested Children be detained because Mother was "not able to safely care for [C]hildren[.]" Ex. Vol 1 at 107. The next day, the trial court authorized Children's removal from the home with Mother receiving supervised visitation. DCS placed Children in foster care where they have remained throughout these proceedings. During her supervised visits, Mother did not engage with Children and had trouble feeding both Children at the same time. Despite the visit supervisor providing Mother with “parenting guidance,” Mother did not improve. Tr. at 108.
[¶9] While subject to the court's order, Mother continued to use illegal substances and failed to regularly comply with drug screens. She tested positive for methamphetamine, amphetamine, and THC on March 29 and April 6, 2022, as well as for methamphetamine and amphetamine on March 31, April 7, April 18, May 24, May 31, and August 12, 2022. Mother's participation in home-based case management services was sporadic at best and stopped altogether in December 2022. At no point did Mother make any meaningful progress in gaining sobriety, participating in therapy, or obtaining housing and employment. When Mother failed to appear for the permanency hearing on December 1, 2022, the trial court suspended her parenting time pending completion of inpatient services and compliance with random drug screens. DCS lost contact with Mother from November 2022 until July 2023.
[¶10] Between March of 2021 and January of 2024, Mother's criminal conduct was problematic as well. To illustrate:
- Elkhart County: On March 15, 2021, Mother was charged with theft. After pleading guilty plea to theft as a Class A misdemeanor, she was
sentenced to probation. Mother violated the terms of probation and a bench warrant was issued for her arrest on September 29, 2022.
- St. Joseph County: At the time of Children's birth, Mother had a St. Joseph County arrest warrant for possession of marijuana, theft, and possession of methamphetamine. On January 18, 2022, she pled guilty to possession of marijuana as a Class B misdemeanor and was sentenced to time served.
- Marshall County: On October 6, 2022, Mother was charged with theft as a Level 6 felony in Marshall County and was incarcerated beginning July 2023. Mother pled guilty to the charge on January 11, 2024 and was sentenced to a term of 365 days.
[¶11] On July 5, 2023, DCS filed its petition to terminate Mother's parental rights. During the hearing on DCS's petition on January 30, 2024, psychologist Alan Wax ("Dr. Wax") testified about Mother's psycho-parenting and substance abuse assessments. Dr. Wax determined that despite Mother's I.Q. of eightyeight, which was in the 20th to 25th percentile range, Mother should have no problem communicating with her Children's doctors and DCS or understanding the trial court's orders. Mother did not perform well on the parenting assessment and received a low score on the nurturing test. According to Dr. Wax, because Mother struggles to understand Children's basic behavior modification principles, how they communicate, and their developmental capabilities, Mother mistakenly credits Children with being able to function at a higher level than they can, which in turn results in Mother having unrealistic expectations of their capabilities and a lack of empathy for Children.
DCS amended its petition on January 4, 2024 to correct a scrivener's error.
[¶12] Mother's substance abuse testing indicated "a very high probability of a moderate to severe substance abuse disorder." Tr. at 27. Because she relapsed during the substance abuse evaluation, Dr. Wax considered Mother to be at "a serious level of [] addiction." Id. at 30.
[¶13] Dr. Wax recommended Mother participate in individual reality-oriented therapy, address childhood attachment issues, acquire a more realistic understanding of child development, and work on skills to become more independent before reuniting Mother with Children. He cautioned that placing Mother and Children back together prematurely would put Mother "at risk for substance abuse." Id. at 31. He explained "people who don't have good coping skills, often turn to inappropriate [] measures to cope with their stress. And substance abuse is one of those ways." Id. at 24. After being informed that Mother had been in jail for six months and had not participated in any substance abuse treatment before being incarcerated, Dr. Wax advised against reunification with Children because Mother's "incarcerated sobriety" had been forced upon her. Id. at 32. He recommended a sobriety period of one year after her release from jail but also cautioned that reunification with Mother after Children had formed an attachment with foster parents for two years would be "psychologically cruel." Id. at 34.
[¶14] FCM Hannah Dykstra ("FCM Dykstra"), assigned to this case in August 2022, testified that while Mother was in jail, Mother acknowledged she was struggling with substance abuse "and that she knew that it was a problem." Id. at 75. Mother admitted to the FCM "she was running from things that were troubling her, and that she was more worried about her substance use and chasing that high, instead of [] addressing what needed to be addressed." Id. at 75.
[¶15] The trial court heard evidence Children were doing well in their placement and participated in church and swimming lessons. They were "really thriving" and "super bonded with the [foster family]." Id. at 91. Both FCM Dykstra and the current FCM Cloey Wright ("FCM Wright") advised the trial court that termination of Mother's parental rights and adoption was in Children's best interests. FCM Wright noted that continuation of the parent-child relationship would pose a threat to Children because "Mother still [hadn't] resolved her substance abuse outside of incarceration." Id. at 92. Mother "didn't do anything prior to going to jail," she had "opportunities to do parenting education, she had opportunities to do therapy," but "she chose to do nothing during [the] entire case." Id. at 93. Even after DCS detained Children, "it still wasn't enough motivation for her to do what she needed to do." Id. at 93. Children's CASA also testified termination would be in Children's best interests as "it would be very traumatic" for them to be reunited with Mother after having lived with foster parents for almost two years. Id. at 114.
[¶16] On May 30, 2024, the trial court issued its Order, concluding there was a reasonable probability the conditions that resulted in Children's removal or the continued placement outside the home would not be remedied and there was a reasonable probability the continuation of the parent-child relationship would pose a threat to the well-being, safety, physical health, or life of Children. Finding termination of the parent-child relationship to be in Children's best interests, with adoption being a satisfactory plan, the trial court terminated Mother's parental rights to Children.
Discussion and Decision
1. Standard of Review
[¶17] Mother challenges the trial court's termination of her parental rights to Children. "The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children." Bester v. Lake Cnty. Office of Family &Children, 839 N.E.2d 143, 147 (Ind. 2005). "A parent's interest in the care, custody, and control of his or her children is 'perhaps the oldest of the fundamental liberty interests.'" (quoting). However, parental rights "are not absolute and must be subordinated to the child's interests in determining the proper disposition of a petition to terminate parental rights." If "parents are unable or unwilling to meet their parental responsibilities," termination of parental rights is appropriate. We recognize that the termination of a parent-child relationship is "an 'extreme measure' and should only be utilized as a 'last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.'" (quoting, trans. denied).
[¶18] Indiana appellate courts rely on a "deferential standard of review in cases concerning the termination of parental rights" due to the trial court's "unique position to assess the evidence.", trans. dismissed. Our court neither reweighs evidence nor assesses the credibility of witnesses. . We consider only the evidence and any reasonable inferences that support the trial court's judgment, and we accord deference to the trial court's "opportunity to judge the credibility of the witnesses firsthand."
2. Termination of Parental Rights
[¶19] In order to terminate a parent's rights to his or her 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 wellbeing 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..
Effective March 11, 2024, our Legislature made statutory changes to . Because no retroactive provision was included in the amended statute, we will apply the version of the statute in effect at the time of the termination of parental rights hearing on January 30, 2024. Mother does not appeal the trial court's conclusions that Children have been removed from Mother's care for at least fifteen of the most recent twenty-two months, Children have been removed from Mother's care for at least six months under the dispositional decree entered on November 17, 2021, and DCS presented a satisfactory plan of care and treatment for Children. See I.C.; (D)(2019).
DCS must prove each of the foregoing elements by clear and convincing evidence. . "[C]lear and convincing evidence requires the existence of a fact to 'be highly probable.'" Id. (quoting).
[¶20] It is well-established that "[a] trial court should judge a parent's fitness as of the time of the termination hearing and take into consideration evidence of changed conditions.", trans. denied. In judging fitness, a trial court may properly consider, among other things, a parent's substance abuse and lack of adequate housing and employment. . The trial court may also consider a parent's failure to respond to services., trans. denied. "[H]abitual patterns of conduct must be evaluated to determine whether there is a substantial probability of future neglect or deprivation." . A trial court "need not wait until the children are irreversibly influenced by their deficient lifestyle such that their physical, mental and social growth is permanently impaired before terminating the parent-child relationship." "Clear and convincing evidence need not reveal that the continued custody of the parents is wholly inadequate for the child's very survival. Rather, it is sufficient to show by clear and convincing evidence that the child's emotional and physical development are threatened by the respondent parent's custody."
A. Reasonable Probability of Remedying Conditions
[¶21] The trial court removed Children from Mother's care because of her noncompliance with court-ordered services, criminal conduct, positive drug screens, and Children's unsafe sleeping practices. At the close of the factfinding hearing, the trial court concluded a reasonable probability existed that the conditions which led to the removal of Children and their continued placement outside the home would not be remedied.
[¶22] The evidence presented at the hearing reflects that during the time Mother was court-ordered to participate in reunification services and Children were removed from her care, Mother failed to successfully complete a single service provided to her. Although she participated in Dr. Wax's clinical assessment, Mother did not follow any of his resulting recommendations or make any progress in obtaining or maintaining sobriety. Despite being mandated to submit to random drug screens, Mother failed to make herself available as ordered. She used illegal substances while pregnant with Children and continued to abuse substances as evidenced by her eight positive drug tests in a five month span of time.
[¶23] Mother's visitation with Children was inconsistent. She had difficulties engaging with Children and failed to improve, even with guidance. Eventually the trial court suspended her parenting time pending completion of court-mandated services and compliance with drug screens, after which, Mother never resumed visitation with Children. At no point during these proceedings did Mother provide any evidence that she was able to procure suitable housing for Children or obtain employment to support their needs. To the contrary, Mother persisted in committing criminal offenses, which resulted in an executed sentence and incarceration.
[¶24] Mother now points to her incarceration as a turning point in her life, crediting the experience with providing her "clarity of mind" and parenting classes and services designed to help her understand and overcome her drug use. Appellant's Br. at 17. She presented the trial court with six months of sobriety and a plan to enter a facility for additional treatment and services upon her release.
[¶25] Despite Mother's current progress, her sobriety was the result of incarceration forced upon her by her criminal lifestyle, rather than evidence of her motivation to clean up her act and reunite with Children. The trial court did not credit Mother for any recent achievements as "Mother's refusal to participate in services to obtain sobriety while not in custody should be granted greater weight than her efforts to participate in services while in custody." Appellant's App. Vol. 2 at 24; see, e.g., ("the trial court was within its discretion to consider that the first eleven months of [Mother's] sobriety were spent in prison where she would have not had access to any illegal substances, nor be subjected to the type of stressors-namely the responsibility of maintaining a household and raising three young and active children-that would normally trigger a desire to pursue an escape from the pressures of everyday life that drugs often provide."); (Mother did not "demonstrate[] she will remain sober without the constant threat of imprisonment.")
[¶26] Mother's failure to engage in services prior to her incarceration demonstrates a "lack of commitment to complete the actions necessary to preserve [the] parent-child relationship." . Mother's prior, habitual pattern of substance abuse and criminal conduct "is the best predictor of [her] future behavior." . The trial court was within its discretion to disregard the efforts Mother made only shortly before termination and to weigh more heavily Mother's history of conduct prior to those efforts. See (Although argued "she had started to comply with the dispositional order shortly before the termination hearing, it was within the province of the trial court . . . to ignore or discredit this evidence."). As such, the trial court was entitled to weigh the evidence as it found appropriate in the context of this case, and we affirm the trial court's conclusion that Mother's failure to successfully complete any services, to remedy her substance abuse issues, and to refrain from committing criminal acts demonstrates by clear and convincing evidence that a reasonable probability exists the conditions that resulted in Children's removal will not be remedied. See ___.
Because is written in the disjunctive and we affirm the trial court on the statute's first prong, we need not evaluate whether DCS presented clear and convincing evidence to establish there is a reasonable probability the continuation of the parent-child relationship poses a threat to the well-being of Children. Even if we were to address the trial court's termination of parental rights under this prong, Mother formulated no argument on the threat to Children's well-being and thus waived the issue for failure to make a cogent argument. See ___.
B. Best Interests
[¶27] In a single, three-sentence paragraph, Mother also challenges the trial court's conclusion that termination is in Children's best interests. To determine whether termination is in a child's best interests, the trial court must look to the totality of the evidence., trans. denied. The court must "subordinate the interests of the parents to those of the child[]" and need not wait until a child is irreversibly harmed before terminating the parent-child relationship. "[R]ecommendation[s] by both the 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."
[¶28] Here, FCMs Dykstra and Wright and the CASA testified that termination is in Children's best interests. They acknowledged Children are thriving, are "super bonded" with the foster family, and had "minimal to no contact" with Mother. Tr. at 91, 84. DCS's plan for Children's future care is adoption and Children have shown improvement since being placed outside Mother's care.
[¶29] The evidence clearly and convincingly supports Mother's unwillingness to provide Children with safe and stable permanency. Mother had minimal engagement in any services ordered by the trial court, never voluntarily reached sobriety, had her visitation suspended, did not obtain appropriate housing, failed to find employment, and engaged in criminal activity. ("Individuals who pursue criminal activity run the risk of being denied the opportunity to develop positive and meaningful relationships with their children.") "[C]hildren cannot wait indefinitely for their parents to work toward preservation or reunification." . 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." . Therefore, we conclude that Mother's historical lack of participation in services and her continued criminal lifestyle which led to Children's removal from the home supports the trial court's conclusion that termination of her parental rights is in Children's best interests.
Conclusion
[¶30] Based on the evidence before us, we conclude DCS presented clear and convincing evidence to support the trial court's termination of Mother's parental rights to Children.
[¶31] Affirmed.
May, J., and Tavitas, J., concur.