In the Matter of the Termination of the Parent-Child Relationship of: J.G. (Minor Child), and A.S. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Apr 21 2015, 10:02 am
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
Megan B. Quirk Gregory F. Zoeller
Public Defender Attorney General of Indiana
Muncie, Indiana
Robert J. Henke
Abigail R. Miller
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the April 21, 2015
Termination of the Parent-Child Court of Appeals Case No.
Relationship of: 18A02-1409-JT-690
Appeal from the Delaware Circuit
J.G. (Minor Child), Court.
and The Honorable Kimberly S.
Dowling, Judge.
A.S. (Mother), Cause No. 18C02-1401-JT-2
Appellant-Respondent,

v.

The Indiana Department of
Child Services,
Appellee-Petitioner.

Baker, Judge.

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[1] A.S. (Mother) appeals the judgment of the trial court terminating the parent-

child relationship between Mother and J.G. (Child). Mother raises the

following arguments on appeal: (1) the trial court erred in making a finding in

the underlying Child in Need of Services (CHINS) case that the Department of

Child Services (DCS) did not have to make reasonable efforts to reunify Mother

and Child; and (2) there is insufficient evidence supporting the termination

order. Finding that Mother has waived the first argument and finding sufficient

evidence, we affirm.

Facts
[2] Mother and G.G.J. (Father) are the parents of Child, who was born on

November 7, 2012.1 Mother and Father were also the parents of G.G., Child’s

older sibling. G.G. was found to be a CHINS in May 2011, and both parents’

parental rights with respect to G.G. were terminated on July 23, 2013. Among

other reasons, the trial court terminated the parent-child relationship in that

case because of the “deeply disturbing, violent and troubled” relationship

between Mother and Father, which involved frequent domestic violence that

caused injuries to Mother. DCS Ex. 25 at 66-67.

1
Father’s parental rights with respect to Child were also terminated, but he did not appeal the termination
order.

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[3] On May 29, 2013, DCS removed Child from Mother’s care, 2 and on June 3,

2013, DCS filed a petition alleging Child to be a CHINS based on allegations of

domestic violence incidents occurring in Child’s presence, the parents’ history

of domestic violence, Father’s arrest on May 29 for a domestic violence

incident, Mother’s unstable housing, and the then-ongoing CHINS case

involving G.G. After holding a factfinding hearing, on October 30, 2013, the

trial court found that Child was a CHINS.

[4] On November 12, 2013, DCS filed a motion requesting that the trial court find

that DCS was not required to make reasonable efforts to reunify or preserve

Child’s family pursuant to Indiana Code section 31-34-21-5.6. On January 24,

2014, the trial court granted DCS’s motion, ordering DCS to cease any

reasonable reunification or family preservation efforts. Following that order, all

services except for visitation ceased. Mother continued to have the ability to

have supervised visits with Child.

[5] On January 23, 2014, DCS filed a petition to terminate the parent-child

relationship between Mother and Child. At the June 27, 2014, termination

hearing, evidence was presented regarding the violent relationship between

Mother and Father. Specifically, on April 18, 2013, Mother went to the doctor

for what she thought was a fractured nose resulting from a domestic violence

incident with Father. On May 29, 2013, Child was removed after Father

2
Child has been in the same preadoptive foster home since he was removed on May 29, 2013. It is the same
home where G.G. is placed. There is an adoption pending with respect to G.G. and the foster parents.

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 assaulted Mother in front of Child, resulting in Father’s arrest. Throughout

DCS’s involvement with this family, Mother and Father have had an “on

again, off again” relationship, but they always reunited, even after violent

altercations. Tr. p. 79. While Father was incarcerated, he and Mother spoke

on the phone ninety-four times, and at times, Mother said “I love you” to him

on the phone. Id. at 91.

[6] At the termination hearing, DCS also presented evidence regarding Mother’s

inconsistent visitation with Child. Between June 2013 and February 2014,

Mother’s visits were supervised by Brandie Campbell. Campbell testified that

during those months, Mother had the opportunity to have fifty-seven visits with

Child, but attended only fifteen. Id. at 62. The visits were closed in February

2014 because of “too many cancellations and no shows.” Id. at 61.

[7] After Campbell’s agency closed Mother’s visits, DCS referred her visits to

another agency. Between February 20, 2014, until June 27, 2014, Mother had

the opportunity to have twenty-one visits with Child, but attended only

fourteen. Id. at 53.

[8] Since this family has been involved with DCS, Mother has engaged in criminal

activity. In June 2012, Mother was charged with class D felony theft and class

A misdemeanor conversion; she pleaded guilty to class A misdemeanor

conversion in June 2013. In December 2013, Mother was charged with class A

misdemeanor conversion. Her probation was revoked as a result of the new

offense, and in March 2014, she pleaded guilty to class A misdemeanor

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 conversion. In April 2014, she was charged with class D felony theft. At the

time of the termination hearing, Mother had yet to pay the fine or complete the

community service for her March 2014 conversion conviction.

[9] After the termination petition was filed, Mother repeatedly tested positive for

illegal substances and prescription medication for which she did not have a

prescription. On March 18, 2014, she tested positive for benzodiazepine,

oxycodone, and tramadol. On March 26, 2014, she tested positive for

benzodiazepine and THC. On June 10, 2014, she tested positive for THC.

Mother was taking these illicit substances notwithstanding her knowledge, as of

March 2014, that she was pregnant and due in October 2014.

[10] DCS also presented evidence at the termination hearing that Mother has not

achieved stability. She had four different residences during the underlying

CHINS case. She was evicted from one of her residences in November 2013.

At the time of the termination hearing, Mother had been living with her mother

for approximately one month. At that time, Mother was unemployed. Over

the course of the underlying CHINS case, Mother gave the Family Case

Manager (FCM) ten different phone numbers at which she could be reached.

[11] Child is placed in a preadoptive foster home with G.G., his brother. Child “is

very bonded to his older brother.” DCS Ex. 13 at 33. The FCM and Child’s

Court Appointed Special Advocate (CASA) testified that they believe it is in

Child’s best interests for the parent-child relationship with Mother to be

terminated and for Child to be adopted by his current foster family. On August

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 28, 2014, the trial court issued an order terminating the parent-child

relationship between Mother and Child. Mother now appeals.

Discussion and Decision
I. No Reasonable Efforts Order
[12] Mother focuses much of her argument on the trial court’s January 24, 2014,

order in the CHINS case that DCS was no longer required to make reasonable

efforts to reunify the family. A trial court’s order finding that reasonable efforts

are not required is a final, appealable order. G.B. v. Dearborn Cnty. Div. of Family

and Children, 754 N.E.2d 1027, 1029-30 (Ind. Ct. App. 2001). Mother did not

appeal that order or otherwise raise this issue until now. See Ind. Appellate

Rule 9(A) (requiring that a notice of appeal must be filed within thirty days of

entry of a final judgment). Consequently, she has waived this issue.

[13] Waiver notwithstanding, we note briefly that Indiana Code section 31-34-21-5.6

provides that the trial court “may” find that DCS is not required to make

reasonable efforts to reunify a family when, among other things, “the parental

rights of a parent with respect to a biological or adoptive sibling of a child who

is a [CHINS] have been involuntarily terminated by a court under: (A) IC 31-

35-2 (involuntary termination involving a . . . [CHINS])[.]” Here, it is

undisputed that the parent-child relationship between Child’s older sibling,

G.G., and Mother, was involuntarily terminated in the past. Therefore, it was

within the trial court’s discretion to grant or deny DCS’s request for a no

reasonable efforts finding. We see no basis in the record to conclude that the

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 trial court abused its discretion in granting DCS’s motion in this case.

Consequently, even if the appeal of this issue had been timely, Mother would

not have succeeded with this argument.

II. Termination Order
A. Standard of Review
[14] Our standard of review with respect to termination of parental rights

proceedings is well established. In considering whether termination was

appropriate, we neither reweigh the evidence nor assess witness credibility.

K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

consider only the evidence and reasonable inferences that may be drawn

therefrom in support of the judgment, giving due regard to the trial court’s

opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

court entered findings of fact and conclusions of law, we will not set aside the

findings or judgment unless clearly erroneous. Id. In making that

determination, we must consider whether the evidence clearly and convincingly

supports the findings, and the findings clearly and convincingly support the

judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

evidence that the child’s emotional and physical development are threatened by

the respondent parent’s custody.” Bester v. Lake Cnty. Office of Family & Children,

839 N.E.2d 143, 148 (Ind. 2005).

[15] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

parental rights for a CHINS must make the following allegations:

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 (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.
(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 local office 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.
DCS must prove the alleged circumstances by clear and convincing evidence.

K.T.K., 989 N.E.2d at 1230.

[16] In this case, Mother spends the vast majority of her brief presenting argument

related to the no reasonable efforts finding. The remainder of her brief includes

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 little to no argument, and no citation to authority or the record, regarding the

elements of the termination statute set forth above. Based upon her list of issues

in the brief’s concluding paragraph, we discern that Mother is challenging the

trial court’s findings that there is a reasonable probability that the conditions

that resulted in Child’s removal will not be remedied, that the continuation of

the parent-child relationship poses a threat to Child’s well-being, and that

termination is in Child’s best interests.

B. Conditions Resulting in Removal
[17] In considering this issue, a juvenile court must judge a parent’s fitness to care

for his or her children at the time of the termination hearing. In re E.M., 4

N.E.3d 636, 643 (Ind. 2014). The juvenile court may, however, take into

consideration the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of the children. Id. Among other

things, a juvenile court may consider a parent’s criminal history, substance

abuse history, and lack of adequate housing. McBride v. Monroe Cnty. Office of

Family and Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003).

[18] In this case, Child was removed from Mother because of past and present

domestic violence between Mother and Father, Mother’s unstable housing

situation, and the then-ongoing CHINS case with G.G. Regarding Mother’s

habitual patterns of conduct, the record reveals the following facts that arose

during G.G.’s CHINS case:

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  Mother did not make any progress in services with respect to her
parenting skills.
 Mother missed eleven of fifteen counseling sessions.
 Mother failed to maintain stable housing or a stable source of income.
During the course of that CHINS case, Mother lived in fourteen different
locations. Mother also failed to obtain her GED.
 Mother continued to be in a violent relationship with Father.
 Despite participating with services for two years, Mother made no
sustainable progress in creating an environment suitable for G.G.
 Mother’s rights to G.G. were involuntarily terminated.

[19] In the course of the instant CHINS case related to Child, the record reveals the

following evidence regarding Mother:

 Mother repeatedly engaged in criminal activity.
 Mother repeatedly used illegal substances despite being aware that she
was pregnant.
 Mother continued to be in a romantic relationship with Father while he
was incarcerated for assaulting her in Child’s presence.
 Mother failed to maintain stable housing or income.
 Mother failed to attend the vast majority of her visitation sessions with
Child.

[20] In other words, the record establishes that despite years of contact with DCS

and participation with services, Mother has failed to make progress on any of

the reasons DCS became involved with Child. Given this record, we find that

the juvenile court did not err by finding that DCS proved by clear and

convincing evidence that there is a reasonable probability that the conditions

that led to Child’s removal from Mother’s care would not be remedied.

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 C. Threat to Child’s Well-Being
[21] Mother also appears to argue that the trial court erred in finding that

continuation of the parent-child relationship posed a threat to Child’s well-

being. In considering this element, the trial court “need not wait until a child is

irreversibly influenced by a deficient lifestyle such that her physical, mental, and

social growth is permanently impaired before terminating the parent-child

relationship.” In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). A

parent’s inability to meet the case plan requirements is sufficient evidence to

satisfy this element of the termination statute. In re A.K., 924 N.E.2d 212, 221

(Ind. Ct. App. 2010).

[22] In this case, DCS proved that Mother and Father have a history of domestic

violence. It is well established that exposure to domestic violence is harmful to

children, even if the child is an infant. In re E.M., 4 N.E.3d 636, 644-45 (Ind.

2014). Furthermore, the record reveals that Mother and Father engaged in

domestic violence in the Child’s presence on at least one occasion.

[23] Additionally, the record reveals that Mother continued to engage in substance

abuse and criminal activity, failed to participate with visits with Child, and

failed to achieve and maintain housing and income stability. This evidence is

sufficient to conclude that the juvenile court did not err by finding that DCS

proved by clear and convincing evidence that there is a reasonable probability

that the continuation of the parent-child relationship posed a threat to Child’s

well-being.

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 D. Child’s Best Interests
[24] Finally, Mother seems to argue that the trial court erred by finding that

termination is in Child’s best interests. In considering this factor, we must look

to the totality of the evidence, subordinating the interests of the parent to those

of the children. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1158 (Ind.

Ct. App. 2013). Furthermore, “we have previously held that the

recommendation 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.” Id. at 1158-59.

[25] In this case, both the FCM and the CASA testified that in their respective

opinions, termination was in Child’s best interests. And we have already found

herein that evidence of Mother’s habitual patterns of conduct, substance abuse,

criminal activity, instability, domestic violence, and failure to participate fully

with visits established that the conditions resulting in removal will not be

remedied. We also note that Child is placed in a loving preadoptive home with

his biological sibling, to whom he is strongly bonded. Consequently, we find

that the trial court did not err by concluding that DCS proved by clear and

convincing evidence that termination is in Child’s best interests.

[26] The judgment of the trial court is affirmed.

Najam, J., and Friedlander, J., concur.

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