Term. of the Parent-Child Rel. of: M.A. (minor child) Mi.A. and C.A. v. The Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Aug 13 2013, 7:23 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

THEODORE J. MINCH KRIS MELTZER
Sovich Minch, LLP (counsel for Mi.A) DCS Shelby County
McCordsville, Indiana Shelbyville, Indiana

CARA SCHAEFER WIENEKE ROBERT J. HENKE
Wieneke Law Office, LLC (counsel for C.A.) DCS Central Administration
Plainfield, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF: M.A. (minor child); )
)
Mi.A. and C.A., )
)
Appellants-Respondents, )
)
vs. ) No. 73A01-1209-JT-411
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause No. 73D01-1202-JT-1

August 13, 2013
 August 13, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge

STATEMENT OF THE CASE

C.A. (“Mother”) and Mi.A. (“Father”) appeal the termination of their parental

rights as to their minor child, M.A.

We affirm.

ISSUES

1. Whether the juvenile court erred in concluding that there was clear
and convincing evidence to support the termination of Mother’s
parental rights.

2. Whether the juvenile court erred in concluding that there was clear
and convincing evidence to support the termination of Father’s
parental rights.

FACTS AND PROCEDURAL HISTORY

M.A. was born on October 22, 2010, and on January 5, 2011, she was removed

from Mother’s care after the Shelby County Department of Child Services (“SDCS”)

confirmed that Mother used methamphetamine and smoked marijuana while in the

presence of two-month-old M.A. Father was not living with Mother at the time, and

SDCS asked him to care for M.A. However, Father responded that he had drug and legal

problems that prevented him from caring for his child.

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 SDCS placed M.A. in the homes of two different relatives; however, the

placements failed due to financial and health problems. In July 2011, SDCS placed M.A.

in a foster home, where she stayed for all but one week during the period leading up to

the July 2012 termination hearing.

SDCS filed a CHINS petition, and on February 17, 2011, the juvenile court, based

on each parent’s admission, adjudicated M.A. to be a CHINS. On February 27, 2011,

Mother was arrested for domestic battery for striking Father. She was released from

custody in mid-March 2011.

On May 5, 2011, both Mother and Father were arrested for dealing in a controlled

substance as a Class B felony. Mother did not bond out of jail after her May 2011 arrest

and was sentenced on December 14, 2011 to a term of eight years executed to the

Department of Correction (the “DOC”) after pleading guilty to the Class B felony charge.

Meanwhile, Father bonded out of jail after his arrest and accepted services pursuant to the

juvenile court’s dispositional order. However, on June 13, 2012, Father was sentenced to

a term of eight years executed to the DOC after pleading guilty to two Class B felony

charges.

Before being incarcerated, Mother participated in home-based services and drug

rehabilitation services through the Gallahue Mental Health Center. During this period,

Mother initially did not use drugs and participated in unsupervised visits with M.A.

However, Mother relapsed before her arrest for dealing in a controlled substance and

began to use methamphetamine. Indeed, even though the arrest for dealing did not occur

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until May 2011, the drug sale that precipitated the arrest occurred only two months after

M.A. was removed from Mother’s care.

Mother participated in a number of rehabilitation programs in prison, some of

which would shorten her sentence if successfully completed. Mother was prevented from

visiting with M.A. by prison policy and “issues with scabies and lice and lots of different

parasite outbreaks.” (Tr. 31).

During the time that Father was out on bond on the drug charge, he and his two

daughters from a previous relationship exercised supervised visitation with M.A. A

Court Appointed Special Advocate (“CASA”) was assigned to the case, and she testified

that the visitations helped develop a bond between Father and M.A. Father participated

in some treatment programs before his prison term began, but his treatment was limited

during his imprisonment.

After it became apparent that reunification was hindered by both parents’

incarceration, SDCS determined that involuntary termination and adoption by the foster

parents was in M.A.’s best interests. Both the case manager, Sirena Shouse, and the

CASA, Kelly Smith-Ford, testified at the termination hearing that Mother’s and Father’s

continued incarceration was the determining factor in SDCS’s decision because M.A.

was beginning to exhibit “problems with attachment” or “reactive attachment disorder”

because of the numerous changes in her environment and in her caretakers. (Tr. 26, 48).

This disorder manifested itself in M.A.’s struggles with attachment to women, her

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sleeping problems, her refusal to eat, and her attendant problems with “bowel

movements.” (Tr. 26).

After the July 24, 2012 termination hearing, the juvenile court made the following

relevant findings:

11. After formal removal of the Child per the Dispositional Decree of
March 30, 2011, the Child was never returned to her parents’ care
and custody.

12. The parents’ relationship continued to be marred by domestic
violence. Mother was arrested for Domestic Battery on Father on
February 27, 2011. She was released from custody in mid-March
2011.

13. On May 5, 2011, both parents were arrested for Dealing in a
Controlled Substance as a Class B felony.

14. Mother never bonded out of jail after her May 2011 arrest and was
sentenced on December 14, 2011 to a term of 8 years executed to the
[DOC] after pleading guilty to Dealing in a Controlled Substance as
a Class D felony.

15. Father did bond out of jail after his arrest and accepted services
pursuant to the Court’s Dispositional Order. However, on June 13,
2012, Father was sentenced after pleading guilty to two counts of
Dealing in a Schedule IV Controlled Substance as a Class B felony
and as a Class C felony. Father’s sentence was 15 years to the
[DOC] with 8 years executed and seven years suspended.

16. Father has a lengthy criminal record with convictions for drug and
property crimes and crimes of violence including Battery, Domestic
Battery, and Criminal Confinement. Father has had probation
revoked on 5 occasions.

17. Mother has completed several programs while in the Indiana
Department of Correction and is attempting to improve her life.
However, mother’s criminal record is lengthy with numerous felony
and misdemeanor convictions including property crimes, drug

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 crimes, and crimes of violence. Mother has had her probation
revoked numerous times in the past.

18. During the week of June 27, 2011, [a relative] informed SDCS she
could no longer take care of the Child. The Court placed Child with
[the foster parents].

19. Child has been with [the foster parents] for most of the Child’s life.
Mother and Father [unsuccessfully] attempted to locate family
members to provide care for the Child. In the Order on Periodic
Review dated October 21, 2011, the Child was placed in relative
placement with [two relatives]. However, [one relative] contacted
the foster parents within approximately one week and requested that
the Child be returned to their care. The Child was returned to the
care of foster parents by court order on October 31, 2011.

*****

21. The CASA, Kelly Smith-Ford, testified that adoption and
termination of parent rights were in the Child’s best interests. The
CASA also filed a written report with the Court which is made a part
hereof by reference, and which expresses the same sentiment as her
testimony.

22. SDCS’s plan for the Child is that she be adopted; this plan is
satisfactory for the Child’s care and treatment.

23. The Child has been in the same foster home for most of her life. The
child is very bonded with [the foster parents], and they are willing to
adopt the Child.

(App. 30-32).

The juvenile court concluded the following (among other things):

There is a reasonable probability that:

a. The conditions which resulted in Child’s removal and continued
placement outside the home will not be remedied;

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 b. That continuation of the parent-child relationship poses a threat to
the Child’s well-being.

The parents are both incarcerated and not able to meet their
daughter’s needs. Each parent is serving an executed eight-year
sentence and is not expected to be released from prison until at least
2015. Each parent has had significant criminal and specifically
substance abuse problems in their life. Each parent’s substance
abuse issues have significantly impaired their ability to appropriately
parent their children, including [M.A.]. While the Court hopes the
parents successfully rehabilitate themselves, each parent’s prognosis
for a crime-free life is poor given their history.

(App. 34). The juvenile court terminated both parents’ parental rights.

Additional facts are discussed below as necessary.

DISCUSSION AND DECISION

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

protected by the Fourteenth Amendment to the United States Constitution. Bester v. Lake

County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Parental rights

may be terminated when parents are unable or unwilling to meet their parental

responsibilities. Id. The purpose of terminating parental rights is not to punish the parent

but to protect the child. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans.

denied, cert. denied.

When DCS seeks to terminate parental rights pursuant to Indiana Code § 31-35-2-

4(b)(2), it must plead and prove in relevant part:

(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.

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 ****

(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.

These allegations must be established by clear and convincing evidence. In re I.A., 934

N.E.2d 1127, 1133 (Ind. 2010).

Because subsection (b)(2)(B) is written in the disjunctive, DCS need prove only

one of the elements by clear and convincing evidence. See I.A., 934 N.E.2d at 1133.

Thus, if we hold that the evidence sufficiently shows that there is reasonable probability

that the reasons for continued placement outside the home of the parents will not be

remedied, we need not address whether the continuation of the parent-child relationship

poses a threat to the well-being of the child. See I.C. § 31-35-2-4(b)(2)(B); In re A.N.J.,

690 N.E.2d 716, 721 n.2. (Ind. Ct. App. 1997).

1. Termination of Mother’s Rights
a. Conditions Remedied

Mother contends that the juvenile court erred in concluding that the conditions that

resulted in M.A.’s continued placement outside Mother’s home would not be remedied.

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For the most part, Mother cites her own testimony from the termination hearing in

support of her contention, while occasionally citing testimony by SDCS employees and

the CASA that indicated Mother was doing well in the various classes she took while in

prison. In essence, Mother is asking us to reweigh the evidence.

The juvenile court should judge a parent’s fitness to care for her child at the time

of the termination hearing, taking into consideration evidence of changed conditions. In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. “However, a parent’s

habitual patterns of conduct must also be considered to determine whether there is a

substantial probability of future neglect or deprivation.” Id. “[A] juvenile court does not

need to 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 v. Ind. Office of Family & Children, 842 N.E.2d 367,

372 (Ind. Ct. App. 2006), trans. denied. When the evidence shows that the emotional and

physical development of a child is threatened, termination of parental rights is

appropriate. Id.

The juvenile court may consider a parent’s history of neglect, failure to provide

support, lack of adequate housing and lack of employment, among other things. McBride

v. Monroe Cnty. Office of Family and Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

2003). DCS is not required to 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).

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 Here, the juvenile court’s findings and conclusion are based on testimony that

Mother has had numerous opportunities to change the behavior that resulted in

incarceration. Mother has not made the changes in the past. Indeed, she initially showed

progress in overcoming her drug addiction during the beginning of the CHINS process,

only to relapse. During the CHINS process, she also committed the drug-related offense

that resulted in her current incarceration. Although there is evidence to support Mother’s

contention that she is doing well in DOC-provided classes and that her release date has

been changed to reflect progress in one class, there is a multitude of evidence to support

the juvenile court’s finding that Mother’s newfound success will not last. Furthermore,

there is also evidence that M.A. is already suffering from reactive attachment disorder.

There is no indication that this disorder would improve during Mother’s further

incarceration, and we cannot conclude that an earlier release date will undo the damage

that has already been done. Given the onset of the reactive attachment disorder and

Mother’s history of drug abuse and incarceration, we cannot say that the juvenile court

abused its discretion in making its findings and concluding that the reasons for placement

outside the home will not be remedied. In short, we will not reweigh the evidence and

give credit to testimony that the juvenile court rejected.

b. Best Interests

With regard to the “best interests of the child” statutory element, the juvenile court

is required to consider the totality of the evidence and determine whether the custody by

the parent is wholly inadequate for the child’s future physical, mental, and social growth.

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In re A.K., 924 N.E.2d 212, 223 (Ind. Ct. App. 2010), trans. dismissed. In making this

determination, the juvenile court must subordinate the interest of the parent to that of the

child involved. Id. The recommendations of the CASA and the child’s caseworker that

parental rights be terminated support a finding that termination is in the child’s best

interests. See A.J. v. Marion County Office of Family and Children, 881 N.E.2d 706, 718

(Ind. Ct. App. 2008), trans. denied.

Here, M.A.’s CASA representative testified that termination was in M.A.’s best

interests because of the length of Mother’s incarceration. M.A.’s case manager

concurred with the CASA representative’s testimony. Although the length of Mother’s

incarceration was shortened after the termination hearing, there is no evidence that the

shortened period will result in the permanent alleviation of the symptoms of M.A.’s

reactive attachment disorder. This disorder is alleviated by consistent contact with a

loving female mother figure like M.A.’s foster mother; it cannot be alleviated by a

Mother whose history shows that she will be consistently absent from M.A.’s life. Thus,

the juvenile court did not err in terminating Mother’s parental rights to M.A.

2. Termination of Father’s Rights
a. Conditions Remedied

Father contends that the juvenile court erred in concluding that the conditions

resulting in M.A.’s continued placement outside his custody will not be remedied. He

points to evidence that he bonded with M.A. during the times he was not incarcerated and

that he informed the juvenile court at the termination hearing that although other

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placements with relatives had failed, he had another relative willing to assume custody of

M.A. during Father’s current incarceration.

The juvenile court acknowledged that Father accepted services pursuant to the

court’s dispositional order and that Father had attempted to locate family members to

provide for M.A. during Father’s incarceration. However, the juvenile court also found

that Father’s efforts were insufficient given his extensive criminal history and his current

incarceration. We have repeatedly recognized that “[i]ndividuals who pursue criminal

activity run the risk of being denied the opportunity to develop positive and meaningful

relationships with their children.” Castro, 842 N.E.2d at 375. Moreover, where a

parent’s “pattern of conduct shows no overall progress, the court might reasonably find

that under the circumstances, the problematic situation will not improve.” In re A.H., 832

N.E.2d 563, 570 (Ind. Ct. App. 2005).

Here, as the juvenile court concluded, Father has consistently demonstrated an

inability to stop using illegal drugs, to avoid incarceration, or to provide M.A. with the

safe, stable, and drug-free environment that she needs. Indeed, Father has consistently

shown his disdain for the criminal justice system by violating terms of probation.

Accordingly, we cannot conclude that the juvenile court abused its discretion in finding

that the reasons for placement outside Father’s home will not be remedied.1

b. Best Interests

1
We note that the family-related custodian referred to by Father wrote a letter to the juvenile court
expressing a desire to adopt M.A. However, the family-related custodian did not attend the termination
hearing, and Father has not shown that the juvenile court erred in not granting custody to another family
member.
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 Father contends that the juvenile court abused its discretion in determining that

termination of Father’s parental rights was in M.A.’s best interests. Father’s primary

argument is that the juvenile court failed to consider his “historical data,” which if

“seriously considered by the [juvenile] court” did not support termination. (Father’s Br.

15).

A parent’s historical inability to provide a suitable environment along with the

parent’s current inability to do so support a finding that termination of parental rights is

in the best interests of the child. See Lang v. Starke County OFC, 861 N.E.2d 366, 373

(Ind. Ct. App. 2007), trans. denied. A fact finder properly considers evidence of a

parent’s history of neglect, failure to provide support, and lack of adequate housing and

employment. See Matter of D.G., 702 N.E.2d 777, 779 (Ind. Ct. App. 1998). Here, the

juvenile court concluded that Father’s cooperation with DCS during the time before his

most recent incarceration was outweighed by his use of illegal drugs, his history of

constant incarceration, and his inability to provide a stable home for M.A. We cannot

disagree with the juvenile court, especially given the Father’s engagement in criminal

activity after the initiation of the CHINS proceeding. Therefore, the juvenile court did

not err in terminating Father’s parental rights to M.A.

CONCLUSION

We conclude there was clear and convincing evidence to support the juvenile

court’s decision to terminate Mother’s and Father’s parental rights to M.A. We reverse a

termination of parental rights “only upon a showing of ‘clear error’—that which leaves us

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with a definite and firm conviction that a mistake has been made.” Egly v. Blackford

County Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We find no such

error here and, therefore, affirm the juvenile court.

Affirmed.

KIRSCH, J., and VAIDIK, J., concur.

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