In the Matter of the Termination of the Parent-Child Relationship of D.B., Minor Child, and K.S., Mother, K.S. v. Indiana Department of Child Services

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
Sep 04 2014, 9:30 am
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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE
INDIANA DEPARTMENT OF CHILD
JOANN M. PRICE SERVICES:
Merrillville, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana

ROBERT J. HENKE
CHRISTINE REDELMAN
Deputy Attorneys General
Indianapolis, Indiana

ATTORNEY FOR APPELLEE
LAKE COUNTY CASA:

DONALD W. WRUCK, III
Wruck Paupore, P.C.
Dyer, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child )
Relationship of D.B., Minor Child, and K.S., Mother, )
)
K.S., )
)
Appellant-Respondent, )
)
vs. ) No. 45A04-1401-JT-25
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner, )
)
LAKE COUNTY COURT APPOINTED SPECIAL )
ADVOCATE, )
)
Appellee. )
 APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas W. Webber, Sr., Judge Pro Tempore
Cause No. 45D06-1308-JT-185

September 4, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

K.S. (“Mother”) appeals the juvenile court’s order terminating her parental rights to

her child, D.B., arguing that the evidence presented was insufficient to support the

termination of her parental rights.

We affirm.

FACTS AND PROCEDURAL HISTORY

On January 11, 2012, the Indiana Department of Child Services (“DCS”) received

a report from police that Mother was having a possible overdose. It was determined that

Mother was actually going through withdrawal symptoms, and D.B. was in the home

during this, which caused safety concerns. In speaking with Mother, DCS discovered that

Mother had been attending a methadone clinic because she was addicted to opiates. She

had been kicked out of the program after she threw away a take home methadone dose

bottle and had been experiencing withdrawal symptoms for several days. She hoped to get

back into the methadone clinic within two weeks. Mother also reported to DCS that she

smoked marijuana, but not in the home. At that time, DCS left D.B. in the home with

Mother.

On January 24, 2012, DCS filed a child in need of services (“CHINS”) petition,

alleging Mother was struggling with addiction and had recently been kicked out of a

methadone program. On the same day, the juvenile court adjudicated D.B. to be a CHINS

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upon Mother’s admission to the petition. D.B. remained in the home with Mother, and

Mother was offered services. On February 22, 2012, the juvenile court issued its

dispositional decree and ordered Mother to, among other things: (1) sign all releases

necessary for DCS to monitor compliance with the court’s order; (2) maintain suitable

housing; (3) secure and maintain a legal source of income; (4) refrain from using illegal

controlled substances and alcohol and only take valid prescription medications as

prescribed; (5) participate in an intensive family preservation program; (6) participate in

home-based counseling and demonstrate positive changes; (7) complete a parenting

assessment and follow all recommendations; (8) complete a substance abuse assessment

and follow all recommendations; (9) submit to random drug screens; (10) complete a

psychological evaluation and complete all recommendations; (11) meet with a psychiatrist

and take all medications prescribed; (12) return to the methadone clinic or receive drug

treatment services; and (13) participate in intensive substance abuse counseling through

Crown Counseling. Pet’r’s Exs. D, E. Mother was required to produce no positive drug

screens for anything other than methadone, and if she tested positive, D.B. would be

removed from her custody. Tr. at 12. Mother failed to comply with services and tested

positive for methadone, THC, benzodiazepines, opiates, and cocaine on March 15, 2012.

DCS removed D.B. from Mother’s care on March 19, 2012 and placed D.B. with a foster

family. On July 12, 2012, the juvenile court specifically ordered Mother to sign all

necessary releases from the methadone clinic and to go into a detox program. Appellant’s

App. at vi.

During the CHINS case, DCS learned that Mother began abusing drugs as a teenager

and, later, used Oxycontin and Vicodin. Mother became addicted to pain pills after she
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injured her back during childbirth; she receives social security and disability payments for

the injury. It was also learned during the DCS investigation that Mother used marijuana.

At the time DCS became involved with Mother, she had been participating in the

methadone program for about a year, but had been kicked out of the program because she

threw away a methadone bottle and failed to return it as the program required. When

Mother was accepted back into the methadone program about two weeks later, she was

ordered to sign releases in order for DCS to monitor whether her methadone dose was being

lowered throughout the program. If her levels got low enough, she could be admitted to

an inpatient program, and a doctor could manage her pain. Tr. at 19. Mother never signed

the releases, and DCS was never able to monitor her methadone levels. Mother

consistently refused to participate in an inpatient detox program throughout the CHINS

case despite multiple recommendations and a court order in July 2012 to participate in a

detox program. Since Mother refused inpatient treatment, she was provided the alternative

of intensive substance abuse therapy. Her participation in the substance abuse therapy was

inconsistent.

In May 2012, Mother’s visitations with D.B. were suspended because Mother was

still testing positive for drugs, not attending her substance abuse counseling consistently,

and attending her visitations with D.B. under the influence of substances. In October 2012,

Mother was still inconsistent with her substance therapy, but she attended at least every

other week and tested clean except for methadone. After she provided four to six clean

screens, she was allowed to participate in therapeutic supervised visitations with D.B. in

January 2013. In February 2013, the juvenile court approved in-home visitation if Mother

provided another four to six drug screens; however, she tested positive for cocaine six days
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later. By the end of March 2013, Mother was able to provide the required number of clean

drug screens to have in-home visitations, but on the day the family case manager (“FCM”)

inspected her home, Mother tested positive for THC. She had four more screens come

back positive for THC. During this time, Mother’s methadone levels were unknown

because she still had not signed the releases. She would forget about visitations, and when

she would attend, the supervisors suspected she was under the influence of something.

Mother refused to attend her group substance abuse therapy.

In June, July, and August of 2013, Mother continued to test positive for THC, and

one of the screens was also positive for Xanax and cocaine. Mother stated she used

marijuana, knowing the CHINS case was pending, because she wanted to “escape life.”

Tr. at 116-17. When it became apparent that a termination petition would be filed, an FCM

met with Mother to inquire if her services could be improved in order to obtain her

compliance because, if she failed to comply, she would lose her child. Mother requested a

different substance abuse counselor, and DCS made a referral for the provider that Mother

requested, but Mother stopped attending.

Mother claimed that she sought psychological treatment on her own, but never

signed releases to allow DCS to obtain information about such treatment. At the time that

visitations were suspended in May 2012, Mother had not yet completed her court-ordered

psychological and parenting assessments or attended parenting classes. She finally

completed her parenting assessment and began parenting classes in October 2012. Mother

stopped attending services and court hearings around July 2013, she failed to respond to

attempts to contact her, and the juvenile court ordered that all services stop on August 13,

2013.
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 Since D.B.’s removal on March 19, 2012, she has been placed with foster parents.

D.B. was diagnosed with symptoms of reactive attachment disorder related to her history

with Mother. She participated in weekly counseling and was excelling in school.

However, D.B.’s behavior and relationship with Mother regressed during and after

visitation. There was no affection between Mother and D.B., and Mother was often

detached during visits. During one visit, D.B. began to cry and asked Mother why Mother

used to leave D.B. alone, scream at her, and hit her; Mother responded that those things

never happened, D.B. hid behind a curtain and “shut off from mom after that.” Tr. at 78.

Mother called in a report to DCS that D.B. was being sexually abused by the foster

parents and was not regularly brushing her teeth. D.B. was removed from the foster home

for about a month while the allegations were investigated, but the report was

unsubstantiated. Mother was upset when she found out that, contrary to her belief, D.B.

would not be placed back in Mother’s care when removed from the foster home. During

this time, D.B.’s behavior regressed, and she experienced emotional trauma. When D.B.

was returned to the foster parents, she had to undergo intensive services and eventually

progressed. When Mother cancelled visits, D.B. became very upset, and the juvenile court

ordered that visitation stop in August 2013 based on recommendations of D.B.’s therapist

and service providers.

On August 6, 2013, DCS filed its petition to terminate Mother’s parental rights. On

December 4, 2013, an evidentiary hearing was held on the petition. At the hearing, FCM

Megan Ruich testified that termination was in the best interests of D.B. because Mother

had been given opportunities to address her substance abuse issues, such as a detox

program, methadone treatment, or outpatient therapy, but Mother was not consistent with
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services and continued to test positive for drugs. Id. at 34. FCM Luis Torres also testified

that termination was in the best interests of D.B. because Mother was not able to provide

the consistency that D.B. needed to thrive. Id. at 66. FCM Torres stated that Mother did

not change her life style at all, and without a change, it would be difficult for Mother to

comply with services and be able to parent D.B. Id. at 59-61. Faith Hayes, D.B.’s therapist,

testified that termination was in D.B.’s best interests because, due to D.B.’s attachment and

behavioral issues, she needs a safe, secure, and stable environment and that Mother was

not able to put D.B.’s needs and feelings first. Id. at 75, 79. The plan for D.B. was for the

foster parents to adopt her. On December 17, 2013, the juvenile court issued its order

terminating Mother’s parental rights to D.B. Mother now appeals. Additional facts will

be provided as necessary.

DISCUSSION AND DECISION

We begin our review by acknowledging that this court has long had a highly

deferential standard of review in cases concerning the termination of parental rights. In re

B.J., 879 N.E.2d 7, 14 (Ind. Ct. App. 2008), trans. denied. When reviewing a termination

of parental rights case, we will not reweigh the evidence or judge the credibility of the

witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead,

we consider only the evidence and reasonable inferences that are most favorable to the

judgment. Id. Moreover, in deference to the trial court’s unique position to assess the

evidence, we will set aside the court’s judgment terminating a parent-child relationship

only if it is clearly erroneous. In re B.J., 879 N.E.2d at 14.

Here, in terminating Mother’s parental rights to D.B., the juvenile court entered

specific findings and conclusions. When a trial court’s judgment contains specific findings
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of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake

Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine

whether the evidence supports the findings, and 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.” Quillen v. Quillen, 671 N.E.2d

98, 102 (Ind. 1996). If the evidence and inferences support the trial court’s decision, we

must affirm. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App.

2013), trans. denied.

The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution. In re C.G., 954

N.E.2d 910, 923 (Ind. 2011). These parental interests, however, are not absolute and must

be subordinated to the child’s interests when determining the proper disposition of a

petition to terminate parental rights. In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013).

In addition, although the right to raise one’s own child should not be terminated solely

because there is a better home available for the child, parental rights may be terminated

when a parent is unable or unwilling to meet his or her parental responsibilities. Id.

Before an involuntary termination of parental rights may occur, the State is required

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 well-being of the
child.
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 (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). The State’s burden of proof for establishing these allegations

in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d

1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if the court finds

that the allegations in a petition described in section 4 of this chapter are true, the court

shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a) (emphasis added).

Mother argues that DCS failed to prove the required elements for termination by

sufficient evidence. Mother specifically alleges that DCS failed to present sufficient

evidence to prove that the conditions which resulted in D.B. being removed will not be

remedied or that the continuation of the parent-child relationship poses a threat to D.B.

She also asserts that insufficient evidence was presented to prove that it was in the best

interests of the child that her parental rights be terminated. Mother additionally contends

that DCS did not prove that there was a satisfactory plan for the care and treatment of D.B.

Initially, Mother’s arguments consist of statements without citation to either legal

authority or citation to the record. A party waives an issue where the party fails to develop

a cogent argument or provide adequate citation to authority and portions of the record.

Dickes v. Felger, 981 N.E.2d 559, 562 (Ind. Ct. App. 2012) (citing York v. Fredrick, 947

N.E.2d 969, 979 (Ind. Ct. App. 2011), trans. denied). Consequently, Mother has waived

her claims. Waiver notwithstanding, we will address Mother’s arguments.

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 Mother’s first contention is that DCS did not prove by clear and convincing

evidence that the conditions that resulted in D.B.’s removal would not be remedied. When

a juvenile court decides the issue of whether the conditions that led to a child’s removal

would be remedied, the juvenile court must assess a parent’s fitness to care for his or her

child at the time of the termination hearing. In re D.D., 804 N.E.2d at 266. Additionally,

a juvenile court may consider not only the basis for a child’s initial removal from the

parent’s care, but also any reasons for a child’s continued placement away from the parent.

In re D.K., 968 N.E.2d 792, 798 (Ind. Ct. App. 2012)), trans. denied. The court may also

consider the parent’s habitual patterns of conduct, as well as evidence of a parent’s prior

criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and

lack of adequate housing and employment. Id. Additionally, the court may consider any

services offered by the DCS to the parent and the parent’s response to those services. Id.

Parental rights may be terminated when parties are unwilling or unable to meet their

parental responsibilities. In re D.D., 804 N.E.2d at 265.

The evidence showed that DCS became involved with D.B. in January 2012 when

the police were called to the home because Mother was experiencing severe withdrawal

symptoms while the child was in the home. Mother had been attending a methadone

program due to her addiction to pain pills, but had been kicked out of the program. D.B.

was allowed to stay in the home with Mother if Mother maintained clean drug screens. In

March 2012, Mother tested positive for methadone, THC, benzodiazepines, opiates, and

cocaine, and D.B. was removed from the home. Mother was offered several services

through DCS, but she was not compliant with the services, did not complete the ordered

assessments, and failed to meet with service providers. Mother also continued to test
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positive on her drug screens and would appear at visitations with D.B. under the influence

of illegal substances. After her visitations were suspended in May 2012 due to her failure

to comply with services and her repeated positive drug screens, Mother began to participate

in services and had several clean drug screens. Visitation was restored in February 2013;

however, she again tested positive for drugs other than methadone in March 2013 and had

four more screens come back positive for THC. During this time, Mother’s methadone

levels were unknown because she never signed the releases so DCS could monitor her

compliance with the court’s orders, and she refused to participate in an inpatient program

for her addiction. Although Mother requested services in July 2013 and agreed to

participate, the providers were never able to contact her, and she tested positive for cocaine.

All services were stopped in August 2013.

This evidence demonstrated that Mother continued to use drugs from the beginning

of the CHINS case, which resulted in D.B. being removed, and throughout the duration of

the case. She tested positive for many different drugs over the course of the CHINS case,

which resulted in her visitations with D.B. being suspended. Mother also refused to

participate in an inpatient detox program despite several recommendations and a court

order to do so and failed to sign the releases requested by DCS to monitor her participation

in services, including her methadone treatment. She also failed to consistently comply with

services and attend visitation with D.B. We, therefore, conclude that the juvenile court did

not err in finding that there was a reasonable probability that the conditions that resulted in

the removal of D.B. from Mother’s care would not be remedied.

Mother next contends that DCS failed to prove by clear and convincing evidence

that there was a reasonable probability that the continuation of the parent-child relationship
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posed a threat to the well-being of D.B. At the outset, we observe that Indiana Code section

31-35-2-4(b)(2)(B) is written such that, to properly effectuate the termination of parental

rights, the juvenile court need only find that one of the three requirements of subsection

(b)(2)(B) has been established by clear and convincing evidence. A.D.S., 987 N.E.2d at

1156. Therefore, as we have already determined that sufficient evidence supported the

conclusion that the conditions that resulted in the removal of D.B. from Mother’s care

would not be remedied, we need not address Mother’s argument on this element.

Mother’s next argument is that insufficient evidence was presented to prove that

termination was in the best interests of the child. In determining what is in the best interests

of the child, the trial court is required to look at the totality of the evidence. In re A.K., 924

N.E.2d 212, 224 (Ind. Ct. App. 2010) (citing In re D.D., 804 N.E.2d at 267), trans.

dismissed. In doing so, the trial court must subordinate the interests of the parents to those

of the child involved. Id. Termination of a parent-child relationship is proper where the

child’s emotional and physical development is threatened. Id. (citing In re R.S., 774 N.E.2d

927, 930 (Ind. Ct. App. 2002), trans. denied). The trial court need not wait until the child

is irreversibly harmed such that her physical, mental, and social development is

permanently impaired before terminating the parent-child relationship. Id. Additionally,

a child’s need for permanency is an important consideration in determining the best

interests of a child, and the testimony of the service providers may support a finding that

termination is in the child’s best interests. Id. (citing McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

The record is clear that D.B. needed stability and a sense of permanency in order to

foster her physical, mental, and social growth. At the time of the termination hearing, D.B.
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had been removed from Mother’s care and had been in the care of the foster parents for

almost twenty-one months. During that time, Mother continued to abuse drugs and failed

to participate in services. The evidence showed that D.B. had been diagnosed with

symptoms of reactive attachment disorder related to her history with Mother. While in the

care of the foster parents, she participated in weekly counseling and was excelling in

school. However, D.B.’s behavior and relationship with Mother regressed during and after

visitation, and there was no affection between Mother and D.B. During one visit, D.B.

began to cry and asked Mother why Mother used to leave D.B. alone, scream at her, and

hit her. When Mother cancelled visits, D.B. would became very upset, and the juvenile

court ordered that visitation stop in August 2013 based on recommendations of D.B.’s

therapist and service providers. At the termination hearing, FCM Ruich testified that

termination was in the best interests of D.B. because Mother had been given opportunities

to address her substance abuse issues, but Mother was not consistent with services and

continued to test positive for drugs. Tr. at 34. FCM Torres also testified that termination

was in the best interests of D.B. because Mother was not able to provide the consistency

that D.B. needed to thrive and that Mother had not changed her life style at all, and without

such a change, it would be difficult for Mother to comply with services and be able to

parent D.B. Id. at 59-61, 66. D.B.’s therapist testified that termination was in D.B.’s best

interests because, due to D.B.’s attachment and behavioral issues, she needed a safe, secure,

and stable environment and that Mother was not able to put D.B.’s needs and feelings first.

Id. at 75, 79. Based on the above, we conclude that sufficient evidence was presented to

prove that termination was in the best interests of D.B.

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 Mother’s final argument is that DCS failed to prove by clear and convincing

evidence that there was a satisfactory plan for the care and treatment of D.B. In order for

the trial court to terminate the parent-child relationship, the court must find that there is a

satisfactory plan for the care and treatment of the child. In re S.L.H.S., 885 N.E.2d 603,

618 (Ind. Ct. App. 2008). This plan need not be detailed, so long as it offers a general

sense of the direction in which the child will be going after the parent-child relationship is

terminated. Id. Here, DCS’s plan was for D.B. to be adopted by the foster parents.

Therefore, the evidence supports the juvenile court’s finding that DCS had a satisfactory

plan for the care and treatment of D.B. See In re D.D., 804 N.E.2d at 268 (concluding that

State’s plan for child to be adopted by current foster parents or another family constitutes

suitable plan for child’s future care).

We will reverse a termination of parental rights “only upon a showing of ‘clear

error’--that which leaves us with a definite and firm conviction that a mistake has been

made.” In re A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting In re Egly, 592

N.E.2d 1232, 1235 (Ind. 1992)). Based on the record before us, we cannot say that the

juvenile court’s termination of Mother’s parental rights to D.B. was clearly erroneous.

Further, Mother’s arguments are merely a request for us to reweigh the evidence and judge

the credibility of the witnesses, which we cannot do on appeal. In re D.D., 804 N.E.2d at

265. We therefore affirm the juvenile court’s judgment.

Affirmed.

BAKER, J., and ROBB, J., concur.

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