Term. of the Parent-Child Rel. of: R.P., Minor Child, B.H., Mother v. Indiana Dept. of Child Services, and Child Advocates, Inc.

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before Nov 05 2012, 8:44 am
any court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the court of appeals and
tax court

case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

AMY KAROZOS PATRICK M. RHODES
Greenwood, Indiana Indiana Dept of Child Services
Indianapolis, Indiana

ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
R.P., Minor Child, )
)
B.H., Mother, )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1202-JT-84
)
INDIANA DEPARTMENT OF CHILD )
SEVICES, )
)
and )
)
CHILD ADVOCATES INC., )
)
Appellees-Petitioners. )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn A. Moores, Judge
The Honorable Danielle Gaughan, Magistrate
Cause No. 49D09-1107-JT-26268
 November 5, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

B.H. (“Mother”) appeals the involuntary termination of her parental rights to her

child, R.P. Concluding that there is sufficient evidence to support the juvenile court’s

judgment, we affirm.

Facts and Procedural History

Mother is the biological mother of R.P., born in April 2010.1 The evidence most

favorable to the juvenile court’s judgment reveals that R.P. was born testing positive for

methadone. At the time, R.P.’s older siblings, W.H. and Br.H., had each been

adjudicated a child in need of services (“CHINS”) and had been removed from Mother’s

care for nearly one year due to Mother’s struggle with substance abuse and inability to

properly care for the children.2 Several days after R.P. was born, the local Marion

County office of the Indiana Department of Child Services (“MCDCS”) filed a petition

alleging R.P. was also a CHINS while the child remained in neonatal intensive care at the

hospital.3

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At the time of R.P.’s birth, Mother and R.P.’s biological father, R.P., Sr. (“Father”) had been
living together and involved in a relationship for several years. Father’s parental rights were also
involuntarily terminated by the juvenile court’s January 2012 judgment. Father does not participate in
this appeal. We therefore limit our recitation of the facts to those facts pertinent solely to Mother’s
appeal.
2
Mother’s parental rights to W.H. and Br.H. were later terminated during the pendency of the
underlying case pertaining to R.P. after Mother failed to successfully complete reunification services and
signed voluntary consents for adoption in July 2011.
3
R.P. remained in neonatal intensive care for approximately three months before being
discharged from the hospital and placed with the current foster family.
2
 During a hearing in August 2010, Mother admitted that R.P. was a CHINS and the

child was so adjudicated. A dispositional decree was subsequently issued in October

2010 formally removing R.P. from Mother’s custody and making the child a ward of

MCDCS. In addition, the juvenile court’s dispositional order directed Mother to

successfully complete a variety of tasks and services similar to the reunification services

previously ordered in R.P.’s siblings’ cases and likewise designed to address Mother’s

parenting deficiencies and substance abuse issues. Specifically, Mother was ordered to,

among other things: (1) participate in a drug and alcohol assessment and follow any

resulting recommendations; (2) submit to random drug screens; (3) secure and maintain a

stable source of income and suitable housing; (4) complete a parenting assessment and

follow all resulting recommendations; and (5) successfully complete home-based

counseling.

Mother’s participation in court-ordered reunification services was sporadic from

the beginning and ultimately unsuccessful. Mother continued to abuse the prescription

drug Vicodin. Mother also tested positive for marijuana, amphetamines, and cocaine

during the initial months of the CHINS case. Although Mother began participating in a

methadone treatment program for her Vicodin addiction in March 2010, she failed to

successfully complete the program. Moreover, Mother was still receiving methadone

treatment at the time of the termination hearing over a year-and-a-half later, even though

the program was designed to be completed in nine to ten months. Mother also continued

to be involved in an on-again off-again romantic relationship with Father, despite the fact

Father had disengaged from reunification services and continued to test positive for

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illegal substances. Father also tested positive for methadone even though he did not have

a valid prescription for this drug.

MCDCS eventually filed a petition seeking the involuntary termination of

Mother’s parental rights to R.P. in August 2011. A two-day evidentiary hearing on the

termination petition was later held in October of 2011. During the termination hearing,

MCDCS presented substantial evidence establishing Mother had failed to overcome her

addiction to methadone. In addition, it was the general consensus of case workers and

service providers that Mother remained incapable of providing R.P. with a safe and stable

home environment. The evidence further revealed that Mother’s visitation time with R.P.

was never increased to unsupervised visits, and in-home visits had been discontinued due

to the service providers’ concerns regarding Mother’s drug use and lack of insight as to

how her drug use negatively impacted R.P. Service providers also remained concerned

as to Mother’s continuing relationship with Father due to Father’s disengagement from

reunification services, substantial history of criminal activities, and unresolved substance

abuse issues. As for the child, MCDCS presented evidence showing R.P. was happy and

thriving in a pre-adoptive foster home with the only family the child had ever known.

At the conclusion of the termination hearing, the juvenile court took the matter

under advisement. In January 2012, the court entered its judgment terminating Mother’s

parental rights to R.P. Mother now appeals.

Discussion and Decision

When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family

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& Children, 839 N.E.2d 143, 147 (Ind. 2005). Instead, we consider only the evidence

and reasonable inferences that are most favorable to the judgment. Id. When, as here,

the juvenile court makes specific findings of fact and conclusions thereon, we apply a

two-tiered standard of review. First, we determine whether the evidence supports the

findings, and second, we determine whether the findings support the judgment. Id. In

deference to the juvenile 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 L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied; see also Bester, 839

N.E.2d at 147. Thus, if the evidence and inferences support the trial court’s decision, we

must affirm. Id.

“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 M.B.,

666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of a

constitutional dimension, the law provides for the termination of these rights when

parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892

N.E.2d 144, 149 (Ind. Ct. App. 2008). Moreover, a juvenile court need not wait until a

child is irreversibly harmed before terminating the parent-child relationship. McBride v.

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

Before parental rights may be involuntarily terminated in Indiana, the State is

required to allege and prove, among other things:

(B) that one (1) of the following is true:

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 (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 . . . .

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, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). “[I]f

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 challenges the sufficiency of the evidence supporting the

juvenile court’s findings as to subsection (b)(2)(B) and (C) of the termination statute

cited above. We shall address each argument in turn.

I. Conditions Remedied/Threat to Well-Being

Indiana Code § 31-35-2-4(b)(2)(B) requires the State to establish, by clear and

convincing evidence, only one of the three requirements of subsection (b)(2)(B).

Because we find it to be dispositive, we limit our review to Mother’s allegations of error

pertaining to subsection (b)(2)(B)(i) of Indiana’s termination statute, namely, whether

MCDCS presented clear and convincing evidence establishing that there is a reasonable

probability the conditions leading to the removal and continued placement of R.P. outside

Mother’s care will not be remedied.

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 Mother argues that the juvenile court erred in finding she could “not provide

[R.P.] with a safe and stable environment” in light of her own testimony that she was

living in an “appropriate home,” had the “support of relatives nearby,” and “had a full[-

]time job at the time of termination.” Appellant’s Brief at 17. Mother goes on to assert

that there was “no requirement” in the case plan or Parental Participation order that she

“cut off contact” with Father. Id. at 20. Mother therefore insists the juvenile court

erroneously relied on the evidence of her recent interactions with Father in terminating

her parental rights. Mother therefore contends she is entitled to reversal.

In terminating Mother’s parental rights to R.P., the juvenile court made several

detailed findings regarding Mother’s history of deficient parenting, ongoing addiction

issues, income instability, and failure to complete and/or benefit from a majority of the

court-ordered reunification services. Specifically, the juvenile court acknowledged that

Mother failed to “successfully complete[] drug treatment or home[-]based services”

offered both in the underlying case and during the previous CHINS cases involving

R.P.’s older siblings. Appellant’s Appendix at 18. The juvenile court also noted that

Mother, “by her own admission,” remains “in methadone treatment with Indianapolis

Treatment Center because of an opiate addiction” and at the time of the termination

hearing had “not yet been weaned off of [methadone] even though [Mother] has been in

treatment for 19 months.” Id. As for Mother’s employment instability, the juvenile court

acknowledged that Mother had done some housecleaning and was currently employed at

the time of the termination hearing at McDonald’s, but the court went on to clarify that

Mother had “only had that job or any employment for approximately a month.” Id.

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 Several inconsistencies in Mother’s testimony regarding the status of her

relationship with Father were also observed by the juvenile court in its findings. For

example, after taking note of Father’s continued drug use and refusal to remain engaged

in reunification services, the court found that Mother’s “on-again off-again relationship”

with Father had been a “concern to MCDCS.” Id. at 17. The court went on to find that

although Mother reportedly “broke up” with Father in February 2011, Father continued to

financially support Mother. Id. Additionally, the juvenile court noted that Father moved

back in with Mother in April 2011 “with plans to get married.” Id. Although Mother

reported that she and Father had again broken-off the relationship, the juvenile court

noted in its findings that Mother admitted she had talked with Father several weeks

before the termination hearing and that Father’s name remained on the lease to her

apartment. Id. Based on these and other findings, the juvenile court concluded:

There is [a] reasonable probability that the conditions that resulted in the
removal of [R.P.] or the reasons for [the child’s] continued placement
outside the home of [Mother], will not be remedied. [Mother] had
undergone services in the past CHINS case[s,] as well as the pending
CHINS case involving [R.P.,] and has not successfully completed drug
treatment or home[-]based services. Service providers were never able to
recommend unsupervised visits, let alone returning [R.P.] to [Mother’s]
care. Given that [Mother] has had a pattern of inconsistency with services,
an on-again off-again relationship with [Father,] who is not participating in
services, and a history with MCDCS, it is unlikely that the conditions that
resulted in the removal of [R.P.] will be remedied.

Id. at 17-18. A thorough review of the record reveals that clear and convincing evidence

supports the juvenile court’s findings and conclusions detailed above.

During the termination hearing, home-based counselor Lisa Lance informed the

juvenile court that she had worked with Mother from December 2010 through June 2011.

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Lance further reported that, at the time she last worked with Mother, “there was a lot of

instability in [Mother’s] and [Father’s] relationship as far as them being together” and

although both parents had indicated that they had discontinued their relationship in

February 2011, Father “continued to . . . pay the rent, utilities[,] [and to] support

[Mother].” Transcript at 32. Lance further confirmed that the couple began living

together again “under the same roof” in April 2011, and to the best of her knowledge

Mother and Father “were still together in June of this year [2011].” Id. When asked

whether she was ever able to recommend increased visitation time between Mother and

R.P., Lance answered in the negative and further explained:

I didn’t see progress. . . . [Mother], um, didn’t have financial stability, . . .
other than cleaning houses, that would meet her needs as far as paying bills
. . . . [A]lso, I just didn’t observe that [Mother] had insight into her drug
use. . . . She had made statements to me, um that her drug use has never
impacted her children and just showed really no insight into her drug use
and how that negatively impacted her ability to parent.

Id. at 35. Mother’s current home-based therapist, Erin Cullen, likewise testified that she

was unable to recommend unsupervised visits for Mother and R.P. “at this moment.” Id.

at 58. Cullen further testified that Mother had confided to her that she still “loves” Father

and is “still having a hard time reconciling that relationship.” Id.

MCDCS case manager Kimberly Barlowe-Gay also testified during the

termination hearing. Barlowe-Gay confirmed that Mother failed to successfully complete

a majority of the court-ordered dispositional goals including substance abuse treatment,

sobriety, home-based counseling, and employment stability despite a wealth of services

available to her for approximately eighteen months in R.P.’s case. Barlowe-Gay went on

9
to testify that Mother had failed to demonstrate she was capable of “caring for [R.P.’s]

basic needs and necessities” and of providing the child with a stable home. Id. at 94.

Guardian ad Litem (“GAL”) Andrea Manning-Dudley also recommended

termination of Mother’s parental rights. In so doing, Manning-Dudley informed the

juvenile court that she had served as the GAL for R.P.’s older siblings and had

recommended termination of Mother’s parental rights in the prior CHINS cases because

Mother “just had not been consistent with anything . . . to reunify with [her] children and

any of their services.” Id. at 110. Regarding R.P.’s case, Manning-Dudley likewise

testified that although Mother had made some improvements in the final month or two

immediately preceding the termination hearing, Mother nevertheless had failed to

successfully complete the majority of the court’s dispositional goals despite having

approximately eighteen months to do so. Manning-Dudley further elaborated that

throughout all three CHINS cases “[t]hings have been very inconsistent and . . . the

home-based pieces were not ever completed successfully . . . .” Id. at 115. Finally,

clinical supervisor and addictions counselor Carolyn Henry of the Indianapolis Treatment

Center testified that although Mother recently had begun a medically supervised

withdrawal from her methadone treatment, “it could take another six to twelve months”

to complete the process, depending on Mother’s “physiology” and “stress factors.” Id. at

135.

As noted above, a trial court must judge a parent’s fitness to care for his or her

child at the time of the termination hearing, taking into consideration the parent’s

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

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of the child. In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004), trans. denied.

“[S]imply going through the motions of receiving services alone is not sufficient” to

show that conditions have been remedied if the services “do not result in the needed

change, or only result in temporary change.” In re J.S., 906 N.E.2d 226, 234 (Ind. Ct.

App. 2009). 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).

After reviewing the record in its entirety, we conclude that clear and convincing

evidence supports the juvenile court’s specific findings set forth above. These findings,

in turn, provide ample evidence to support the court’s ultimate decision to terminate

Mother’s parental rights to R.P. Mother’s arguments to the contrary, emphasizing her

self-serving testimony and suggesting that the juvenile court improperly relied upon

evidence concerning her ongoing relationship with Father, rather than the evidence cited

by the juvenile court in its termination order, amount to an impermissible invitation to

reweigh the evidence. See In re D.D., 804 N.E.2d at 265. Even assuming, without

deciding, that the juvenile court improperly relied on testimony concerning the current

status of Mother’s and Father’s relationship in terminating Mother’s parental rights

because Mother was never “given notice” that continuation of that relationship might

result in termination of her parental rights as Mother suggests, see Appellant’s Brief at

20, Mother still does not prevail because the judgment remains sufficiently supported by

numerous other findings which substantiate its determination that there is a reasonable

probability the reasons for removal and continued placement of R.P. outside Mother’s

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care will not be remedied. See, e.g., A.J. v. Marion Cnty Office of Family & Children,

881 N.E.2d 706, 715 (Ind. Ct. App. 2008) (stating that to the extent a judgment is based

on erroneous findings, those findings are superfluous and are not fatal to the judgment if

the remaining valid findings and conclusions support the judgment), trans. denied.

Accordingly, we find no error.

II. Best Interests

We next consider Mother’s assertion that MCDCS failed to prove termination of

her parental rights is in R.P.’s best interests. In determining what is in the best interests

of a child, the juvenile court is required to look beyond the factors identified by the

Indiana Department of Child Services and look to the totality of the evidence. McBride

v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).

In so doing, the court must subordinate the interests of the parent to those of the child.

Id. The court need not wait until a child is irreversibly harmed before terminating the

parent-child relationship. Id. Moreover, we have previously held that the

recommendations 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. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

In addition to the findings previously cited, the juvenile court made several

additional pertinent findings relating to R.P.’s best interests. Specifically, the juvenile

court noted that R.P. “needs permanency” and has lived in a pre-adoptive foster home

“his entire life” apart from the first several months the child “spent in the hospital

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because of methadone withdrawal.” Appellant’s Appendix at 19. The court further

found that the “pre-adoptive home is safe and stable and all of [R.P.’s] needs are being

met.” Id. Based on these and other findings, the juvenile court concluded that

termination of Mother’s parental rights is in R.P.’s best interests. These findings and

conclusion, too, are supported by the evidence.

During the termination hearing, GAL Manning-Dudley described R.P.’s

interactions with the foster parents as “great” and “loving” with a “natural attachment”

and “bond.” Transcript at 120. When asked to explain why she believed termination of

Mother’s parental rights to be in R.P.’s best interests, the GAL replied:

We have, um, the history with the other two children, we have eighteen
months of history with just [R.P.] and trying to get to where we need to be
to have reunification, and . . . I have not been able to see anything that
would lead me to believe that [Mother] can keep [R.P.] safe and . . . in a
drug[-]free environment . . . and being able to parent him. . . . Like I said
earlier[,] we’re still in supervised visitation.

Id. at 121. Similarly, in recommending termination of Mother’s parental rights, case

manager Barlowe-Gay reiterated that Mother has not shown she is capable of providing a

stable home for R.P. or that she can provide for R.P.’s “basic needs and necessities.” Id.

at 94. Barlowe-Gay further testified that R.P. was currently placed in a “safe and stable”

pre-adoptive foster home where the child was progressing “very well” and living in “the

only home that [the child] has known.” Id. at 95.

Based on the totality of the evidence, including Mother’s unresolved struggle with

substance abuse, financial instability, and failure to successfully complete and/or benefit

from a wealth of reunification services available to her throughout the underlying

proceedings, coupled with the testimony from case manager Barlowe-Gay and GAL

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Manning-Dudley recommending termination of the parent-child relationship, we

conclude that there is sufficient evidence to support the juvenile court’s determination

that termination of Mother’s parental rights is in R.P.’s best interests. See, e.g., In re A.I.,

825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of court-appointed advocate and

family case manager, coupled with evidence that conditions resulting in continued

placement outside home will not be remedied, is sufficient to prove by clear and

convincing evidence termination is in child’s best interests), trans. denied.

This court 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.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly

v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find

no such error here.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.

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