Pursuant to Ind.Appellate Rule 65(D),
Aug 02 2013, 6:19 am
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: ATTORNEYS FOR APPELLEE:
MARK SMALL ROBERT J. HENKE
Marion County Public Defender Agency Indiana Department of Child Services
Indianapolis, Indiana Indianapolis, Indiana
PATRICK M. RHODES
Indiana Department of Child Services
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF M.R.:)
)
C.B., )
)
Appellant-Respondent, )
)
vs. ) No. 49A05-1212-JT-643
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Larry Bradley, Magistrate
Cause No. 49D09-1208-JT-30752
August 2, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
C.B. (“Mother”) appeals the trial court’s termination of her parental rights over her
minor child M.R. (“the child”) on the petition of the Indiana Department of Child
Services (“DCS”). Mother raises one issue for our review, namely, whether the trial
court’s conclusion that termination of her parental rights over the child is in the child’s
best interests is clearly erroneous.
We affirm.
FACTS AND PROCEDURAL HISTORY
In August of 2009, the child was born and tested positive for opiates. Mother
admitted to the DCS that she had a history of substance abuse, and, on the DCS’s
petition, the court adjudicated the child a CHINS. The court ordered Mother to comply
with various services pursuant to a dispositional order, but Mother continued to test
positive for drugs despite the court-ordered services. In February of 2011, Mother was
reunited with the child.
On August 12, 2011, Mother was arrested for shoplifting. On November 22, the
court again adjudicated the child a CHINS based on its prior adjudication, Mother’s
criminal history, lack of housing for the child, Mother’s incarceration, and Mother’s
inability and unwillingness to provide the child with basic care and necessities. The court
then removed the child from Mother’s care and ordered Mother to participate in home-
based management and random drug screens; to notify the Family Case Manager
(“FCM”) of any arrests or criminal charges; to obtain substance abuse counseling,
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appropriate housing, and a legal source of income; and to participate in visitation with the
child.
On January 26, 2012, Mother was arrested for conspiracy to commit dealing in
cocaine, to which she later pleaded guilty. Thereafter, the court approved a plan of
adoption for the child based on Mother’s failure to comply with several conditions of the
court’s prior dispositional order. On August 3, the DCS filed its petition for the
involuntary termination of Mother’s parental rights.
The court held an evidentiary hearing on the DCS’s petition on October 25. Due
to her incarceration, Mother appeared by telephone. The FCM testified that Mother did
not complete any court-ordered services and only visited her son once, even though many
visits were scheduled. The FCM further testified that termination of Mother’s parental
rights was in the child’s best interests because, upon her release from the Department of
Correction, Mother did not know “where she [would] reside, how she [would] provide for
[the child,] and if she [could] remain sober without being incarcerated.” Transcript at 79.
The court-appointed guardian ad litem (“GAL”) likewise testified that termination of
Mother’s parental rights was in the child’s best interests. In her testimony, Mother
acknowledged that she had failed to visit the child because she “was using again
and . . . didn’t think it was right . . . to go around [the child while] using.” Id. at 40.
Mother also testified that her projected date of release from the Department of Correction
was May of 2014.
On October 29, the court entered its order terminating Mother’s parental rights.
This appeal ensued.
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DISCUSSION AND DECISION
We begin our review by acknowledging that “[t]he traditional right of parents to
establish a home and raise their children is protected by the Fourteenth Amendment of
the United States Constitution.” Bailey v. Tippecanoe Div. of Family & Children (In re
M.B.), 666 N.E.2d 73, 76 (Ind. Ct. Ap. 1996), trans. denied. However, a trial court must
subordinate the interests of the parents to those of the child when evaluating the
circumstances surrounding a termination. Schultz v. Porter Cnty. Office of Family &
Children (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a
parent-child relationship is proper where a child’s emotional and physical development is
threatened. Id. Although the right to raise one’s 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. at
836.
Before an involuntary termination of parental rights can occur in Indiana, the DCS
is required to allege and prove, among other things, that termination is in the best
interests of the child. Ind. Code § 31-35-2-4(b)(2)(C). The DCS’s “burden of proof in
termination of parental rights cases is one of ‘clear and convincing evidence.’” R.Y. v.
Ind. Dep’t of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting
I.C. § 31-37-14-2).
When reviewing a termination of parental rights, we will not reweigh the evidence
or judge the credibility of the witnesses. Peterson v. Marion Cnty. Office of Family &
Children, 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider
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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. Judy S. v. Noble Cnty. Office of Family & Children (In re L.S.), 717 N.E.2d
204, 208 (Ind. Ct. App. 1999), trans. denied.
In terminating Mother’s parental rights, the trial court entered specific findings of
fact and conclusions thereon. When a trial court’s judgment contains special findings and
conclusions, 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.” Id. If the evidence and inferences
support the trial court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.
Here, Mother asserts that the DCS failed to show that termination of the parent-
child relationship is in the child’s best interests. In determining what is in the best
interests of a child, the trial court is required to look beyond the factors identified by the
DCS and to consider the totality of the evidence. Stewart v. Ind. Dep’t of Child Servs.
(In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). We have previously held that the
recommendations of the FCM and a court-appointed advocate to terminate parental
rights, in addition to evidence that the continuation of the parent-child relationship poses
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a threat to the child,1 may be sufficient to show by clear and convincing evidence that
termination is in the child’s best interests. M.M. v. Elkhart Office of Family & Children
(In re M.M.), 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).
Here, both the FCM and the child’s GAL testified that they believed termination
of the parent-child relationship to be in the child’s best interests. Specifically, the FCM
testified that, upon her release from the Department of Correction in May of 2014,
Mother did not know “where she [would] reside, how she [would] provide for [the child,]
and if she [could] remain sober without being incarcerated.” Transcript at 79. The GAL
also recommended termination of Mother’s parental rights, stating:
[The child has] had lots of instability, [and] continued instability can lead to
issues with children’s behavior . . . behavioral issues, mental health issues
. . . and so I think at this point he needs permanency. He needs the stability.
He needs to be in a loving, forever home . . . that’s going to be able to
provide for . . . his basic needs.
Id. at 89.
Mother has not demonstrated that the court’s conclusion that termination of her
parental rights over the child is clearly erroneous. In addition to the testimony of the
FCM and the GAL, at the time of the termination hearing the child had spent a total of
eight of his thirty-eight months of life in Mother’s care. When Mother was not
incarcerated she attended only one visit with the child and cancelled all other scheduled
visits because she was abusing drugs. Mother’s pattern of substance abuse and
incarcerations, her inability to find or keep steady employment and income, her inability
1
Mother does not appeal the court’s conclusion that continuation of the parent-child relationship here
poses a threat to the child.
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to cooperate with and benefit from services offered to her, her lack of permanent housing,
and her general instability demonstrates her inability to provide for the child. See Bester,
839 N.E.2d at 152 (holding that “a parent’s habitual pattern of conduct” is a relevant
consideration in determining whether that parent’s rights should be terminated).
Moreover, the child has bonded with his foster parent, the placement meets all his needs,
and the foster parent intends to adopt the child. Mother’s arguments on appeal are merely
requests for this court to reweigh the evidence, which we will not do.2 We hold that the
court’s conclusion that termination of Mother’s parental rights is in the child’s best
interests is not clearly erroneous, and we affirm the court’s judgment.
Affirmed.
BAILEY, J., and BARNES, J., concur.
2
Insofar as Mother argues that her case is similar to In re G.Y., we cannot agree. In In re G.Y., G.Y.’s
mother had not committed any offenses during G.Y.’s lifetime, she had not used drugs, she cooperated and
completed dispositional orders, and she demonstrated a commitment and interest in maintaining a parental
relationship with G.Y. See 904 N.E.2d at 1264-65. Here, Mother’s relationship to the child is in stark contrast to
the facts presented in In re G.Y.
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