In the Matter of the Term. of Parent-Child Rel. of Ge.S. & O.S., and G.S. 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 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:

JOANN M. PRICE ROBERT J. HENKE
Merrillville, Indiana DCS, Central Administration
Indianapolis, Indiana

EUGENE M. VELAZCO, JR.
DCS, Lake County Office
Gary, Indiana

ATTORNEY FOR CASA:

DONALD W. WRUCK
Dyer, Indiana
FILED
Sep 20 2012, 9:21 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and

______________________________________________________________________________ tax court

IN THE MATTER OF THE TERMINATION )
OF PARENT-CHILD RELATIONSHIP OF )
Ge.S. & O.S., Minor Children )
)
and )
)
G.S., Mother, )
)
Appellant, )
)
vs. ) No. 45A03-1201-JT-11
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee. )

APPEAL FROM LAKE SUPERIOR COURT
The Honorable Mary Beth Bonaventura, Judge
Cause Nos. 45D06-1011-JT-201 and 45D06-1011-JT-202

September 20, 2012
 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

G.S. (“Mother”) appeals the involuntary termination of her parental rights to her

children, G.S. and O.S., claiming there is insufficient evidence supporting the juvenile

court’s judgment. We affirm.

Facts and Procedural History

Mother is the biological mother of G.S., born in March 2008, and O.S., born in

December 2009. The facts most favorable to the juvenile court’s judgment reveal that

following O.S.’s birth, the local Lake County office of the Indiana Department of Child

Services (“LCDCS”) was notified by hospital officials that O.S. was born testing positive

for cocaine. Mother, too, had tested positive for cocaine at O.S.’s birth. During

LCDCS’s ensuing assessment, Mother admitted to having a history of substance abuse,

including using cocaine from the age of twenty-four. Mother also reported that she had

used crack-cocaine throughout the beginning of her pregnancy, and that she did not know

the paternity of either of the children.1 As a result of its investigation, LCDCS took both

children into emergency protective custody and filed petitions alleging G.S. and O.S.

were children in need of services (“CHINS”).

1
G.S.’s biological father remains unknown. During the underlying proceedings, the biological father of
O.S. was determined to be A.C. The juvenile court terminated the parental rights of both children’s
biological fathers in its November 2011 termination order. Neither father participates in this appeal. We
therefore limit our recitation of the facts to those pertinent solely to Mother’s appeal.
2
 During a hearing in January 2010, Mother admitted to the allegations of the

CHINS petitions, and the children were so adjudicated. The juvenile court proceeded to

disposition the same day and thereafter issued an order formally removing G.S. and O.S.

from Mother’s care and custody, retroactive to the date of their removal in December

2009. As part of its dispositional order, the juvenile court also directed Mother to

participate in and successfully complete a variety of tasks and services designed to

address her parenting and substance abuse issues, a process the juvenile court hoped

would facilitate reunification of the family. Specifically, Mother was ordered to, among

other things: (1) successfully complete a substance abuse evaluation and any

recommended treatment; (2) submit to random drug screens; (3) undergo a psychological

evaluation; (4) participate in parenting classes and individual counseling; and (5) exercise

regular supervised visitation with the children.

During the ensuing CHINS case, Mother failed to demonstrate any enduring

commitment to completing court-ordered services and achieving reunification with the

children. For example, Mother was “really evasive” during her psychological

assessment, and it took three attempts on three different dates just to complete the

evaluation. Tr. p. 48. In addition, Mother failed to participate in the recommended

individual counseling by failing to show for all but one of her scheduled appointments.

As for parenting classes, Mother attended only four classes. She also was very

inconsistent in attending visits with the children, visiting only twice during the months of

December 2009 and January 2010.
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 Regarding random drug screens, Mother did not make herself available until the

end of January 2010 when she tested positive for cocaine. In February 2010, Mother

tested positive for cocaine four times and for marijuana once. The following month,

Mother tested positive for cocaine and alcohol three times before she was arrested and

incarcerated on March 18, 2010, on an outstanding warrant from the Gary Drug Court.

Near the time of her incarceration, Mother’s referral to Human Beginnings for individual

counseling was closed due to her lack of participation and numerous “no shows” for

scheduled appointments. Id.

Although Mother was sentenced to twelve months of incarceration, LCDCS case

managers were able to work with the Drug Court and make arrangements for Mother to

serve her sentence through the Transitions in-patient program in Fort Wayne. At

Transitions, Mother would be able to complete her parenting classes, participate in

individual counseling, and exercise visitation with the children while simultaneously

serving her criminal sentence. Mother entered the Transitions program in late-April

2010, but four weeks later she was discharged from the program prior to completion due

to her bizarre behavior culminating in a psychotic episode.

Immediately following this episode, Mother was transported to Parkview

Behavioral Health Center where she underwent a psychiatric evaluation and was

diagnosed with a mood disorder, borderline personality disorder, and substance abuse

dependency. The evaluator recommended further psychological and psychiatric

evaluations to help Mother address her mental health issues, explaining that these issues
4
needed to be resolved before Mother could effectively address her substance abuse

problems. Because the Transitions program was not equipped to deal with Mother’s

psychiatric problems, Mother was returned to the Lake County Jail. Sometime later,

Mother was permitted to participate in a work release program but was returned to jail

after her involvement in an altercation with another inmate. Mother served the remainder

of her sentence in jail and was released from incarceration in November 2010.

Meanwhile, in July 2010, the juvenile court approved LCDCS’s recommendation to

change the children’s permanency plans from reunification to termination of parental

rights and adoption.

Notwithstanding this change in permanency plans, LCDCS and the juvenile court

continued to offer Mother services as a final “new chance” to “achieve her goal of

sobriety and getting her children back” following her release. Id. at 73. To that end,

Mother completed parenting classes and began participating in individual counseling. In

addition, the juvenile court ordered Mother to complete the in-patient substance abuse

treatment program she had begun with Transitions. Transitions, however, would not

accept Mother back into its program until Mother addressed her mental health issues and

obtained an updated psychological/psychiatric evaluation.

In January 2011, Mother submitted to a psychiatric examination with Dr. Martha

Hernandez. Based on this assessment, Dr. Hernandez recommended that Mother

participate in long-term inpatient and outpatient programs due to her dual diagnosis of

mental health and substance abuse issues. It was also recommended that Mother undergo
5
a neurological examination to determine if the deficits Mother was displaying were

“organic.” Id. at 77. Mother was subsequently referred to various mental health and

substance abuse treatment programs.

Mother’s participation in these referrals, however, was sporadic and ultimately

unsuccessful. For example, Mother completed a two-week inpatient substance abuse

treatment program with Regional Mental Health Center, which was to be immediately

followed by an eight-week intensive outpatient program. Although Mother was expected

to attend classes four days per week during the outpatient treatment program, she only

appeared for a handful of classes during the months of May and June 2011, none in July,

three in August, and two in September. Ultimately, Mother completed only twelve of the

thirty-two required classes. As a result of this sporadic participation in outpatient

treatment, Regional Mental Health declined to provide Mother with any psychiatric and

individual counseling to address her mental health issues.

Mother also continued to use cocaine and alcohol throughout 2011, failing several

random drug screens in February, March and August 2011. A ninety-day hair follicle

test, which covered the months of May through August 2011, likewise came back

positive for cocaine. In addition, Mother tested positive for alcohol in October 2011.

A consolidated evidentiary hearing on the termination petitions commenced in

November 2011. During the termination hearing, LCDCS presented substantial evidence

concerning Mother’s history of substance abuse, prior involvement with LCDCS

concerning two older children, and ongoing mental health and substance abuse issues.
6
The evidence also established that Mother (1) had not visited with the children since

March 2011 when her visitation privileges were cancelled after the court learned Mother

had attended a visitation with cocaine in her system; (2) was essentially unemployed,

working occasionally for neighbors and depending upon family members to pay her

utilities; and (3) had failed to successfully complete a majority of the trial court’s

dispositional goals. Finally, LCDCS presented evidence showing that the children were

living together, thriving, and bonded with their pre-adoptive foster mother.

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

under advisement. Approximately two weeks later, the court entered its judgment

terminating Mother’s parental rights to both children. Mother now appeals.

Discussion and Decision

When reviewing a judgment terminating parental rights, 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

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.

When a juvenile court’s judgment contains specific findings of fact and

conclusions thereon, as is the case here, 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
7
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

juvenile court’s decision, we must affirm. L.S., 717 N.E.2d at 208.

“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. However, a juvenile court must

subordinate the interests of the parents to those of the child when evaluating the

circumstances surrounding a termination. K.S., 750 N.E.2d at 837. 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 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. at 836.

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:

(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.

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 (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)(B)-(D).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 subsections (b)(2)(B) and (D) of the termination statute

cited above.

I. Sufficiency of the Evidence - Conditions Remedied

In challenging the sufficiency of the evidence supporting the juvenile court’s

determination that there is a reasonable probability the conditions resulting in the

children’s removal will not be remedied, Mother claims that the juvenile court’s findings,

in general, were “unfounded” and “unreasonable.” Appellant’s Br. at 6. Mother further

2
Indiana Code section 31-35-2-4 was amended by Public Law No. 48-2012 (eff.
July 1, 2012). The changes to the statute became effective after the filing of the termination petition
involved herein and are not applicable to this case.
9
asserts that LCDCS’s services inappropriately focused primarily on treatment of

Mother’s substance abuse issues, rather than her mental health issues. Mother therefore

contends she is entitled to reversal.

We begin our review by observing that Indiana’s termination statute requires the

juvenile court to find only one of the three requirements of Indiana Code section 31-35-2-

4(b)(2)(B) to be established by clear and convincing evidence before it can properly

terminate parental rights. See id. Because we find it to be dispositive under the facts of

this case, we only consider whether LCDCS established, by clear and convincing

evidence, that there is a reasonable probability the conditions resulting in the children’s

removal or continued placement outside Mother’s care will not be remedied. See I.C. §

31-35-2-4(b)(2)(B)(i).

In making such a determination, the juvenile court must judge a parent’s fitness to

care for his or her child 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. The court must also “evaluate the parent’s habitual patterns of conduct to

determine the probability of future neglect or deprivation of the child.” Id. Pursuant to

this rule, courts have properly considered 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. A.F. v. Marion Cnty. Office of Family & Children,

762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The juvenile court may also

consider any services offered to the parent by the local Indiana Department of Child
10
Services office (here, LCDCS) and the parent’s response to those services, as evidence of

whether conditions will be remedied. Id. Moreover, LCDCS is not required to provide

evidence ruling out all possibilities of change; rather, it need establish only that there is a

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

236, 242 (Ind. Ct. App. 2007).

Here, the juvenile court made detailed findings in its judgment regarding Mother’s

unresolved parenting, substance abuse, and mental health issues. In so doing, the

juvenile court acknowledged that the children were removed from Mother’s care at the

time of O.S.’s birth, as both O.S. and Mother tested positive for cocaine. The court

further found that Mother failed to take advantage of the many services offered to her,

was “non-compliant” and “very evasive” with service providers throughout the

underlying proceedings, failed to complete “any program for substance abuse

rehabilitation,” does not have “steady” employment, “depends on others to provide for

the utilities on her house,” and remains “in denial” of her ongoing “drug problem.”

Appellant’s App. p. ii. The court also found Mother “has psychological problems and

has refused to take her psychotropic medication.” Id. In addition, the court

acknowledged that Mother “was offered every service available for rehabilitation,” but

“was not amenable to the services.” Id. at iii. Finally, the juvenile court found:

Mother has failed to demonstrate the necessary skills to raise the children.
Mother has four children, none of which are in her care. Mother has
demonstrated that she could not remain drug free. . . . It is unlikely that any
of the parents would be in a position to properly parent these children.

11
 Id. A thorough review of the record leaves us satisfied that clear and convincing

evidence supports the juvenile court’s findings set forth above, which in turn support the

court’s ultimate decision to terminate Mother’s parental rights to both children.

The record makes clear that, at the time of the termination hearing, Mother had

made little, if any, progress in demonstrating that she will ever be capable of providing

the children with a safe, stable, and drug-free home environment. Specifically, Mother

did not have steady employment, failed to successfully complete individual therapy and

substance abuse treatment, refused to take her prescribed medication, and had not visited

with the children since March 2011. During the termination hearing, LCDCS case

manager Monroe confirmed that prior to Mother’s incarceration she was “not complying

with anything,” was “very combative with all of the services,” and was “not willing to

admit her addiction to cocaine . . . and all of her problems.” Tr. p. 58. When asked to

explain why LCDCS changed the children’s permanency plan from reunification to

adoption, Monroe again referred to Mother’s “noncompliance,” with services, explaining

that “[o]ther than [Mother] being drug[-]free, because she could not use drugs while

incarcerated, there was no progress. . . . [Mother] was not, uh, consistent with the case

plan before her incarceration.” Id. Monroe also testified that she had observed Mother

“was not bonding with [O.S.] at all” during visits with the children and that Mother had

indicated “from the beginning” that she wanted to “give [O.S.] up for adoption . . . but

she did want to keep [G.S.].” Id. at 58-59. Similar testimony was likewise provided by

visit supervisors.
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 Moreover, Mother admitted during the termination hearing that she had failed to

complete any of the recommended substance abuse and individual therapy services. She

also acknowledged that her current employment consisted solely of working for “some of

[her] neighbors” doing “[h]ome healthcare” such as cooking and cleaning. Id. at 176.

When asked to describe her client base, Mother indicated that she had two clients, that

“everyone else” was “not very consistent” and “may not call and ask for my services.”

Id. She went on to explain that her rates varied from five dollars to twenty-five dollars

for “a couple of hours” of work. Id. at 177. Finally, Mother informed the juvenile court

that she believed she had “come a long way” and that she believed she could “with time”

complete the long-term drug program and “probably find a medication that would help

me keep my emotional psychotic, whatever you guys call this, under control.” Id. at 180-

81.

As noted earlier, a juvenile 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 of the

child. D.D., 804 N.E.2d at 266. 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, LCDCS presented clear and convincing evidence to support the juvenile

court’s findings and ultimate determination that there is a reasonable probability the

conditions leading to G.S.’s and O.S.’s removal or continued placement outside of
13
Mother’s care will not be remedied. Mother’s arguments to the contrary, including her

assertion that LCDCS should have provided more mental health services and focus less

on helping Mother overcome her substance abuse issues, amount to an invitation to

reweigh the evidence, which we may not do. D.D., 804 N.E.2d at 265; see also In re

E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000) (concluding that provision of services is

not requisite element of Indiana’s termination statute and even complete failure to

provide reunification services does not serve to negate necessary element of termination

statute).

II. Best Interests

We next consider Mother’s assertion that termination of her parental rights is not

in the children’s best interests. We are ever mindful that, when determining what is in a

child’s best interests, a juvenile court is required to look beyond the factors identified by

the Indiana Department of Child Services and to 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, however, the court must subordinate the interests of the parent

to those of the child. Id. Moreover, we have previously explained that recommendations

from the case manager and child advocate that parental rights should be terminated

support a finding that termination is in the child’s best interests. Id.

Here, in addition to the findings set forth previously, the juvenile court found that

Mother “did not bond with [O.S.] and often indicated that she was not interested in

parenting this child.” Appellant’s Appendix pp. ii-iii. The court went on to find that
14
Mother had failed to provide “any emotional or financial support for the children,” to

“demonstrate the necessary parental skills to raise the children,” and to “remain drug

free.” Id. at iii. As for the children, the court specifically found that they were “bonded

in the foster home and are thriving.” Id. Based on these and other findings, the juvenile

court concluded that it is in the “best interests of the child[ren] and their health, welfare

and future that the parent-child relationships . . . be forever fully and absolutely

terminated.” Id. These findings and conclusions, too, are supported by the evidence.

It was the general consensus of LCDCS case managers and services providers

alike that termination of Mother’s parental rights was in the children’s best interests. In

recommending termination, case manager Monroe informed the juvenile court that both

children were found in a poor state of health when initially removed from Mother’s care.

Monroe further confirmed that O.S. tested positive for cocaine, was suffering from

symptoms of withdrawal, and “was kind of a spastic newborn.” Tr. p. 59. G.S., who was

two years old at the time, was likewise described as “a very sickly child.” Id. He was

“very small,” had pneumonia, did not respond to his own name, and could not give more

than “one-word responses.” Id.

When asked to describe how the children were currently doing in foster care,

current LCDCS case manager Geralyn Martin (“Martin”) testified that the children had

“improved greatly,” that their health problems were “starting to subside,” and that they

were living together and thriving in foster care. Id. at 89. Martin went on to testify that

she believed the children’s progress was due in large part to the “stability they now have
15
with [foster mother].” Id. at 91. Additionally, Martin explained that the children “need

to grow up in a drug[-]free environment,” with a parent that can “protect them” and

“ensure that their medical needs are going to be met, [and] that they will have

consistency, structure, [and] nurturance . . . .” Id. at 102.

A juvenile 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. In re E.S., 762 N.E.2d 1287 (Ind. Ct.

App. 2002). For all these reasons, including Mother’s unresolved mental health and

substance abuse issues, coupled with the testimony from Martin and Monroe and other

service providers recommending termination of the parent-child relationships, we

conclude that the juvenile court’s determination that termination of parental rights is in

G.S.’s and O.S.’s best interests is supported by the evidence.

III. Satisfactory Plan

Finally, we turn to Mother’s assertion that LCDCS failed to show it has a

satisfactory plan for the future care of the children. Indiana Code section 31-35-2-

4(b)(2)(D) provides that before a juvenile court may terminate a parent-child relationship,

it must find there is a satisfactory plan for the future care and treatment of the child. Id.;

see also D.D., 804 N.E.2d at 268. It is well-established, however, that 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, LCDCS’s plan is for

G.S. and O.S. to be adopted by their current foster mother who has expressed a desire to
16
do so. This plan provides the juvenile court with a general sense of the direction of the

children’s future care and treatment. LCDCS’s plan is therefore satisfactory. See id.

(concluding that State’s plan for child to be adopted by current foster parents or another

family constituted suitable plan for future care of child).

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

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

no such error here.

Affirmed.

VAIDIK, J., and BARNES, J., concur.

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