In the Matter of the Involuntary Termination of the Parent-Child Relationship of K.M.(Minor Child) and C.M.(Mother) and R.M.(Father) v. Indiana Department of Child Services

Sep 12 2013, 6:05 am
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.

ATTORNEY FOR APPELLANT C.M.: ATTORNEY FOR APPELLEE:

ANDREW J. SICKMANN TROY HARMON
Boston Bever Klinge Cross & Chidester DCS, Union County Local Office
Richmond, Indiana Brookville, Indiana

ATTORNEY FOR APPELLANT R.M.: ROBERT J. HENKE
DCS Central Administration
E. THOMAS KEMP Indianapolis, Indiana
Richmond, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE )
INVOLUNTARY TERMINATION OF THE )
PARENT-CHILD RELATIONSHIP OF )
K.M. (Minor Child) and )
)
C.M. (Mother) and R.M. (Father), )
)
Appellants-Respondents, )
)
vs. ) No. 81A01-1302-JT-58
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE UNION CIRCUIT COURT
The Honorable Matthew R. Cox, Judge
Cause No. 81C01-1204-JT-43
 September 12, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary

C.M. (“Mother”) and R.M. (“Father”) appeal the trial court’s involuntary termination

of their parental rights to their four-year-old child, K.M. Finding that the evidence is

sufficient to support the trial court’s conclusion that there is a reasonable probability that the

conditions that led to K.M.’s removal would not be remedied and that termination is in the

child’s best interest, we affirm.

Facts and Procedural History

On January 19, 2011, Mother and Father were arrested when drugs and paraphernalia

were found in their home. Police notified the Department of Child Services (“DCS”) that no

one would be at the home to care for Mother and Father’s two-and-a-half-year-old daughter,

K.M. Two days later, DCS filed a petition alleging that K.M. was a child in need of services

(“CHINS”). The petition alleged that K.M. had been found in a house containing drugs and

drug paraphernalia; that Mother and Father were unable to care for her due to their arrests;

and that the home was cluttered and dirty. Mother and Father both admitted to the CHINS

allegations, and K.M. was designated a CHINS and made a ward of DCS. In the CHINS

participation order, Mother and Father were ordered to maintain regular contact with DCS;

notify DCS of any address changes or arrests; allow DCS caseworkers to make announced or

unannounced visits; enroll in, participate in, and complete required programs; keep all

2
appointments or provide advanced notice with good cause for absences; maintain suitable,

safe, clean, and stable housing; secure and maintain a legal, stable, and adequate source of

income; not use, consume, manufacture, trade, distribute, or sell any illegal controlled

substances or permit them in the home; take prescription drugs only under a valid

prescription and in doses specified by the prescribing physician; participate in home-based

counseling; complete parenting and substance abuse assessment; submit to random

drug/alcohol screens in a timely manner (with refusal to submit to screening deemed a

positive result); follow all recommendations from any domestic violence assessment; and

attend all visitations and comply with visitation rules.

On April 20, 2012, DCS filed a petition for involuntary termination of the parental

relationship between Mother and Father and K.M. After conducting an evidentiary hearing,

on January 9, 2013, the trial court issued an order terminating the parent-child relationship.

The termination order contains findings of fact and conclusions thereon. The factual findings

state in part,1

11. Mother and Father failed to comply with several of the orders of the
Court as set forth in the Dispositional Order and Order of Participation.
Specifically, Mother and Father failed in the following manner[:]

(1) Mother and Father have failed to inform DCS of changes in
their address, leading to multiple attempts to contact them via
mail being returned as undeliverable or unaccepted.

(2) Mother and Father failed to notify FCM [DCS family case
manager] of their arrest and charges of theft.

1
The trial court’s order refers to the parties by their full names. We refer to them as Mother, Father,
and K.M. where appropriate.

3
 (3) Mother and Father have missed multiple appointments with
service providers, including approximately 2 and a half months
continuously from YSB [Youth Service Bureau] by both of
them, failure to attend appointments in Darke County [Ohio] by
Mother, and failure to attend follow up appointments to his drug
assessment by Father.

(4) Mother failed to schedule an appointment with George Jr.
Republic [counseling center] for an extended period before her
assigned therapist left the company. Following that she was
referred to Lifeline, but did not schedule an appointment before
termination proceedings began.

(5) Mother and Father have not maintained stable housing as they
have each provided more than 10 addresses to DCS during this
case and Father admitted to FCM that he was basically homeless
and living in a tent.

(6) Mother and Father have each used drugs after being ordered not
to. Mother returned positive drugs screens on September 29,
2011 and October 24, 2011. She also refused to give a sample
… on October 17, 2011 after providing a sample which did not
register a temperature and refused to submit to a drug screen by
DCS after the initial hearing in this case. Father returned a
positive drug screen prior to the dispositional order on May 24,
2011 and returned a positive drug screen after the dispositional
order on April 1, 2012. He also refused a drug screen after the
initial hearing in this case.

(7) Mother and Father missed multiple scheduled visitations in this
case, cancelling 11 of 19 visits from January to April 2012
before failing to schedule any appointments after being
informed that visits would be changed back to supervised visits.

12. The child has been placed with [foster parent], who has indicated that
she is willing to adopt the child, since July of 2012.

13. Mother plead [sic] guilty to visiting a common nuisance and reckless
possession of paraphernalia which the court accepted. She was
sentenced to 180 days with 150 suspended in an order dated January 10,
2012 on those charges. (DCS Exhibit 25)

4
14. Mother plead [sic] no contest to one count of theft in the Clermont
County [Ohio] Municipal Court. This plea was accepted and Mother
was found guilty and sentenced to 90 days with 87 suspended on
August 15th, 2012. (DCS Exhibit 13)

15. Father plead [sic] guilty to one count of public intoxication and one
count of disorderly conduct in the Union Circuit Court. The court
accepted this plea and found them [sic] guilty. He was sentenced to
180 days with 176 suspended on those charges on July 11, 2011. (DCS
Exhibit 14)

16. Father plead [sic] guilty to one count of visiting a common nuisance
and one count of reckless possession of paraphernalia in the Union
Circuit Court. He was sentenced to 180 days with 150 suspended on
those charges on August 9, 2011. (DCS Exhibit 15)

17. Father plead [sic] guilty to one count of theft in the Clermont County
[Ohio] Municipal Court. The court accepted this plea and Father was
sentenced to 180 days with 171 suspended on those charges on August
6, 2012. (DCS Exhibit 16)

18. Father plead [sic] guilty to one count of disorderly conduct in the
Clermont County [Ohio] Municipal Court on August 24, 2012. (DCS
Exhibit 17)

19. Mother and Father’s youngest daughter, [P.M.], is in the custody of the
Clermont County [Ohio] Department of Job and Family [S]ervices.
The Clermont County [Ohio] Court of Common Pleas awarded them
temporary custody based on allegations that the child was born drug
positive finding that the child’s best interests were served by placement
outside the home. (DCS [E]xhibit 18)

20. Mother’s daughter [Kay.M.] is in the custody of the Clermont County
[Ohio] [D]epartment of Job and Family Services. The child was
adjudged abused on June 16, 2011. (DCS Exhibit 23)

21. The Clermont County [Ohio] Department of Job and Family Services
has moved for permanent custody of [Kay.M.] (DCS Exhibit 19)

22. In July of 2011, there was a domestic violence incident between Mother
and Father which lead [sic] to their temporary separation and a

5
 protective order. Later that month Mother returned to Father and asked
that the protective order be dismissed. (DCS [E]xhibit 9)

23. The parents have not complied with the child’s case plan. (DCS
[E]xhibit 11)

24. The parents have not enhanced their ability to parent. (DCS [E]xhibit
11)

25. DCS has a satisfactory plan for the care and treatment of K.M.,
specifically adoption by her current foster parent[.]

Appellants’ App. at 23-25.

The trial court specifically concluded that there is a reasonable probability that the

conditions that led to K.M.’s removal will not be remedied because Mother and Father “have

continued to use controlled substances, participate in criminal activity, and fail to obtain

stable housing.” Id. at 28. As support for this conclusion, the court cited Mother’s and

Father’s “poor attendance in services and visits, outstanding child protection cases with other

children, willful violation of court orders, and continued negative behaviors.” Id. In support

of its decision to terminate the parent-child relationship, the trial court also cited “the

domestic violence incident, [Father and Mother’s] continued drug use, criminal activity, and

failure to maintain a stable residence.” Id.

Mother and Father appeal the termination order. Additional facts will be provided as

necessary.

Discussion and Decision

Mother and Father challenge the sufficiency of evidence to support the trial court’s

judgment terminating their parent-child relationship with K.M. When reviewing a trial

6
court’s findings of fact and conclusions thereon in a case involving the termination of

parental rights, we review for clear error, applying a two-tiered standard of review wherein

we first determine whether the evidence supports the findings and then whether the findings

support the judgment. In re M.W., 943 N.E.2d 848, 853 (Ind. Ct. App. 2011), trans. denied.

“We will set aside the trial court’s judgment only if it is clearly erroneous.” Bester v. Lake

Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We neither reweigh

evidence nor judge witness credibility. In re A.I., 825 N.E.2d 798, 805 (Ind. Ct. App. 2005),

trans. denied. Rather, we consider only the evidence and inferences most favorable to the

judgment. Id.

In Bester, our supreme court stated,

The Fourteenth Amendment to the United States Constitution protects the
traditional right of parents to establish a home and raise their children. A
parent’s interest in the care, custody, and control of his or her children is
perhaps the oldest of the fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture. We
recognize of course that parental interests are not absolute and must be
subordinated to the child’s interests in determining the proper disposition of a
petition to terminate parental rights. Thus, parental rights may be terminated
when the parents are unable or unwilling to meet their parental responsibilities.

Id. (citations, quotation marks, and alteration omitted).

To obtain a termination of the parent-child relationship between Mother and Father

and K.M., DCS was required to establish:

(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.

7
 (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable
efforts for family preservation or reunification are not required,
including a description of the court’s finding, the date of the finding,
and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the
supervision of a county office of family and children or probation
department 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 child in need of
services or a delinquent child;

(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). In recognition of the seriousness with which we address

parental termination cases, Indiana has adopted a clear and convincing evidence standard.

Ind. Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367, 377

(Ind. Ct. App. 2006), trans. denied.

Both Mother and Father assert that the evidence is insufficient to support the trial

court’s conclusion that a reasonable probability exists that conditions that led to K.M.’s

8
removal will not be remedied.2 At the outset, we note that neither Mother nor Father

challenges any specific finding of fact. Where the trial court’s unchallenged findings clearly

and convincingly support its ultimate decision to terminate parental rights, we find no error.

T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans. denied.

Mother and Father both raise a more general challenge to the trial court’s conclusion

concerning unremedied conditions. In Conclusion 14, the trial court lists as supporting

evidence for its conclusion Mother and Father’s (1) continued use of controlled substances;

(2) participation in criminal activities; (3) failure to obtain stable housing; (4) poor

attendance in services and visits; (5) outstanding child protection cases as to their other

children; (6) willful violation of court orders; and (7) continued negative behaviors.

Appellants’ App. at 28.

When assessing whether there is a reasonable probability that conditions that led to the

child’s removal will not be remedied, we must consider not only the initial basis for the

child’s removal, but also the bases for continued placement outside the home. A.I., 825

N.E.2d at 806. Moreover, “the trial court should judge a parent’s fitness to care for his [or

her] children at the time of the termination hearing, taking into consideration evidence of

changed conditions.” In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

“Due to the permanent effect of termination, the trial court also must evaluate the parent’s

2
Father also challenges the trial court’s conclusion that there is a reasonable probability that the
continuation of their relationship with K.M. poses a threat to her well-being. Indiana Code Section 31-35-2-
4(b)(2)(B) requires DCS to prove only one of the three circumstances listed. Because we find no error
concerning the reasonable probability of unremedied conditions, we need not address the threat to the child’s
well-being. Notwithstanding, we note that the trial court made specific findings and conclusions with respect
to both unremedied conditions and threat to well-being.

9
habitual patterns of conduct to determine the probability of future neglect or deprivation of

the child.” Id. For example, the court may properly consider evidence of a parent’s

substance abuse, criminal history, lack of employment or adequate housing, history of

neglect, and failure to provide support. McBride v. Monroe Cnty. Office of Family &

Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). In making its case, “DCS need not rule

out all possibilities of change; rather, [it] need establish only that there is a reasonable

probability that the parent’s behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242

(Ind. Ct. App. 2007). “[A] trial court need not wait until a child is irreversibly influenced by

a deficient lifestyle such that his or her physical, mental, and social growth is permanently

impaired before terminating the parent-child relationship.” Castro, 842 N.E.2d at 372.

Here, the conditions that led to K.M.’s initial removal included the presence of drugs

and paraphernalia in the home, the filthy conditions in the home, and the arrests of both

Mother and Father. The record and unchallenged factual findings indicate that both Mother

and Father continued to engage in criminal activity during the pendency of the termination

proceedings, with both having July 2012 arrests and subsequent convictions for theft. FCM

Denise Paxton testified that neither parent notified her of the convictions as required in the

participation order. Tr. at 54. She further testified that Mother and Father had approximately

thirteen different residences during the pendency of the proceedings, some in Indiana and

some in Ohio and Kentucky. Id. at 53. She reported that at one point Father told her that he

was homeless and living in a tent under a bridge. Id. at 54. Although Mother and Father

participated in some services, they did not complete many of the services offered. They

10
missed numerous visitation appointments and scheduled services, and to the extent they

blame work schedules and transportation issues, we note that their transient living situations

(especially across state lines) complicated DCS’s implementation of the ordered services.

Mother claims that the trial court erred in concluding that she continued to use

controlled substances, since it was only Father, not she, who tested positive for drugs in April

2012. However, DCS Exhibit 18 undercuts her argument, indicating that when she gave birth

to P.M. during the pendency of the termination proceedings, P.M. tested positive for high

levels of opiates inconsistent with therapeutic use of Vicodin. Notably, P.M. was the second

of Mother’s children to be born with drugs in her system. Mother has a total of six children,

and she has maintained custody of none of them. Both Mother and Father have a pattern of

drug use, whether it be illegal drug use or misuse of prescription drugs. Their patterns of

criminal activity and instability in housing and relationships simply do not bode well for

successful parenting. To the extent that they offer numerous excuses for their failures, they

invite us to reweigh the evidence, which we may not do. The evidence supports the trial

court’s conclusion that there is a reasonable probability that the conditions that led to K.M.’s

removal will not be remedied.

Mother and Father also challenge the trial court’s conclusion that the termination of

their parental rights is in K.M.’s best interests. Again, we recognize their fundamental liberty

interests in parenting K.M., but we are also mindful that their parental interests are not

absolute, must be subordinated to K.M.’s interests, and may be terminated if they are unable

or unwilling to meet their parental responsibilities. In re G.Y., 904 N.E.2d 1257, 1259-60

11
(Ind. 2009). Although not dispositive, permanency and stability are key considerations in

determining the best interests of a child. Id. at 1265. A determination of a child’s best

interests should be based on the totality of the circumstances. In re A.P., 981 N.E.2d 75, 84

(Ind. Ct. App. 2012).

With respect to K.M.’s best interests, Court Appointed Special Advocate (“CASA”)

Karen Bowen specifically testified that “[K.M.’s] best interest would be served by

termination and adoption.” Tr. at 79. FCM Paxton testified more generally with respect to

the case plan being changed from reunification to adoption, reporting that K.M. “had

blossomed” while in the care of her pre-adoptive foster mother and was extremely attached to

her. Id. at 56. Paxton explained that K.M. had become more outgoing and talkative, with no

more negative behavior issues. In contrast, Paxton testified that “[Mother and Father] had

not shown that they were committed to being responsible parents to K.M.” Id. at 57. She

cited their substance abuse, poor attendance at visits, unstable housing, problems with their

other children, and criminal charges. She summed it up by stating, “[I]t’s just been very hard

to … determine where they are living and what they are doing.” Id. Given the trial court’s

discretion to determine the credibility of witnesses, we cannot say that the trial court erred in

giving credence to the CASA’s and the FCM’s professional opinions regarding K.M.’s best

interests. See In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010) (“the testimony of service

providers may support a finding that termination is in the child’s best interests.”). Based on

the foregoing, we find that the record and unchallenged findings support the trial court’s

conclusion that termination was in K.M.’s best interests. Accordingly, we affirm.

12
 Affirmed.

BARNES, J., and PYLE, J., concur.

13