MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 26 2016, 7:59 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Russell Dean Bailey Gregory F. Zoeller
Demotte, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the August 26, 2016
Parent-Child Relationship of: Court of Appeals Case No.
E.M., Minor Child, 37A03-1604-JT-912
Appeal from the Jasper Circuit
T.R., Court
Appellant-Respondent, The Honorable John D. Potter,
Judge
v. Trial Court Cause No.
37C01-1512-JT-339
Indiana Department of Child
Services,
Appellee-Petitioner.
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Najam, Judge.
Statement of the Case
[1] T.R. (“Mother”) appeals the trial court’s termination of her parental rights over
her minor child E.M. (“Child”). Mother raises a single issue for our review,
namely, whether the State presented sufficient evidence to support the
termination of her parental rights. We affirm.
Facts and Procedural History
[2] Mother gave birth to Child on September 8, 2013.1 In November and
December 2014, the Indiana Department of Child Services (“DCS”) received
two reports that Mother was abusing illegal drugs. One of those reports was
made after a family member found Mother unconscious outside of her
apartment while Child was alone inside Mother’s apartment. On December 31,
Jody Knoth, a DCS caseworker, made an unannounced visit to Mother’s home
and conducted a drug screen on Mother, which indicated that Mother had
taken methamphetamine. Thereafter, on January 8, 2015, DCS removed Child
from Mother’s care and placed Child with Child’s father.
[3] On January 9, 2015, DCS filed a petition alleging that Child was a Child in
Need of Services (“CHINS”). In particular, DCS alleged that Mother: was
abusing methamphetamine and marijuana, as indicated by a drug screen; was
1
In February 2016, Child’s father, K.M., voluntarily terminated his parental rights and does not participate
in this appeal.
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reportedly abusing heroin; had left Child home alone when Mother was found
passed out outside of her apartment; and had not provided stable housing for
Child. During the initial hearing on that petition, Mother denied the
allegations. The trial court adjudicated Child to be a CHINS and, following a
factfinding hearing, the court ordered Mother to participate in a drug treatment
program, submit to random drug screens, participate in individual therapy,
complete a substance abuse evaluation, and participate in parenting education.
Mother’s compliance with that dispositional order was inconsistent. While
Mother initially complied with parent education services and visited with Child,
“things dropped off pretty substantially” in terms of Mother’s participation in
services as of April or May of 2015. Tr. at 13. Mother did not comply with the
recommendations of the substance abuse evaluation, and she left an inpatient
substance abuse treatment facility one day after she had checked in. Mother
continued to fail drug screens and had “[c]riminal involvement, including for
drugs.” Id.
[4] On December 23, 2015, DCS filed a petition to terminate Mother’s parental
rights to Child. Following a hearing, the trial court granted that petition. In
support of its order, the trial court entered the following findings and
conclusions:
8. That after the Dispositional Order was entered Mother
inconsistently participated with services. Since that time mother
failed to complete any drug treatment program; continued to test
positive for illegal substances or substances she does not have a
prescription for including opiates, marijuana, methamphetamine,
tramadol, and heroin; has had criminal charges through the
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CHINS case and presently a warrant for her arrest; has given
different addresses and phone numbers in order to avoid service
providers and DCS; and failed to participate in visitations.
9. DCS’ plan for Child is that she be adopted; this plan is
satisfactory for Child’s care and treatment.
10. It was established by clear and convincing evidence that the
allegations of the petition are true in that:
a. The child has been removed from her parents for
at least six (6) months under a dispositional
decree. . . .
b. There is a reasonable probability that: the
conditions that resulted in the child’s removal or the
reasons for the placement outside the parent’s home
will not be remedied and/or the continuation of the
parent[-]child relationship poses a threat to the well[-
]being of the child, in that:
i. That Mother currently has a warrant
out for her arrest for a revocation of
probation.
ii. That Mother inconsistently
participated in services and was not
compliant.
iii. That Mother is still continuing to
test positive for substances that she does
not have a prescription for and for
illegal substances.
iv. That Mother has had criminal
charges during the underlying CHINS
case.
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v. That Mother only made 19 [of] 46
offered visitations.
vi. That Mother failed to complete any
drug treatment program.
vii. That Mother has had inconsistent
housing and still continues to have
unstable housing.
viii. That Mother was only employed
once between September and November
during the CHINS case and is no longer
employed.
ix. That Mother actively tried to avoid
service providers and DCS by giving
different addresses and phone numbers.
c. Termination is in the best interest of the child in
that:
i. The child needs a safe, stable
substance abuse[-]free home that mother
cannot provide.
ii. That the mother cannot provide the
child with permanency that can be
provided by the prospective adoptive
home.
d. The DCS has a satisfactory plan for the care and
treatment of the child, which is adoption.
Appellant’s App. at 8-9. This appeal ensued.
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Discussion and Decision
[5] We begin our review of this appeal 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. App. 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. Ofc. 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 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.
[6] Before an involuntary termination of parental rights can occur in Indiana, DCS
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.
(ii) There is a reasonable probability that the
continuation of the parent-child relationship poses a
threat to the well-being of the child.
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***
(C) [and] that termination is in the best interests of the child . . . .
Ind. Code § 31-35-2-4(b)(2). That statute provides that DCS need establish only
one of the requirements of subsection (b)(2)(B) before the trial court may
terminate parental rights. 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).
[7] When reviewing a termination of parental rights, we will not reweigh the
evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of
Family & Children (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 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. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208
(Ind. Ct. App. 1999), trans. denied.
[8] Here, 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. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.
2005). First, we determine whether the evidence supports the findings and,
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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 trial court’s
decision, we must affirm. In re L.S., 717 N.E.2d at 208.
[9] Mother contends that the evidence is insufficient to support the trial court’s
findings underlying its conclusions that Mother will not remedy the conditions
that resulted in Child’s removal; that the continuation of the parent-child
relationship poses a threat to the well-being of Child; that termination is in the
best interests of Child; and that there is a satisfactory plan for Child. Because
Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, we only
address the sufficiency of the evidence to support the trial court’s conclusions
that continuation of the parent-child relationship poses a threat to Child’s well-
being; that termination is in Child’s best interests; and that there is a satisfactory
plan for Child. And we address each of those contentions in turn.
Continuation of the Parent-Child Relationship
[10] In the opening paragraphs of the Argument section of her brief, Mother
purports to challenge the DCS’ evidence in support of this element of the
statute. However, Mother does not make cogent argument or provide citations
to the record on appeal or case law in support of this contention. Ind. Appellate
Rule 46(A)(8)(a). Accordingly, the issue is waived.
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[11] Waiver notwithstanding, DCS presented ample evidence to support the trial
court’s conclusion that the continuation of the parent-child relationship poses a
threat to Child’s well-being. A trial court need not wait until a child is
irreversibly influenced by a deficient lifestyle such that his physical, mental, and
social growth is permanently impaired before terminating the parent-child
relationship. Shupperd v. Miami Cnty. Div. of Family & Children (In re E.S.), 762
N.E.2d 1287, 1290 (Ind. Ct. App. 2002). When the evidence shows that the
emotional and physical development of a child in need of services is threatened,
termination of the parent-child relationship is appropriate. Id.
[12] Mother does not challenge any of the trial court’s findings. The undisputed
evidence shows that Child was removed from Mother’s care approximately one
year before DCS filed its petition to terminate her parental rights. During the
CHINS proceedings, Mother did not follow recommendations for treatment of
her substance abuse and checked herself out of an inpatient substance abuse
treatment facility after one day; Mother continued to fail drug screens
throughout the CHINS proceedings; Mother avoided contact with DCS; and
Mother attended only nineteen of forty-six scheduled visitations with Child. In
short, Mother failed to comply with the court’s dispositional order in a myriad
of ways. The trial court’s findings support the trial court’s conclusion that there
is a reasonable probability that the continuation of the parent-child relationship
poses a threat to Child’s well-being.
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Best Interests
[13] In determining whether termination of parental rights is in the best interests of a
child, the trial court is required to look at the totality of the evidence. In re A.K.,
924 N.E.2d 212, 224 (Ind. Ct. App. 2010). “A parent’s historical inability to
provide adequate housing, stability and supervision coupled with a current
inability to provide the same will support a finding that termination of the
parent-child relationship is in the child’s best interests.” Castro v. State Office of
Family & Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.
“Additionally, a child’s need for permanency is an important consideration in
determining the best interests of a child, and the testimony of the service
providers may support a finding that termination is in the child’s best interests.”
In re A.K., 924 N.E.2d at 224.
[14] Mother has also waived this issue for failure to present cogent argument. 2
Waiver notwithstanding, both the family case manager and the court appointed
special advocate testified that termination of Mother’s parental rights was in
Child’s best interests. The totality of the evidence, including Mother’s historical
inability to provide a safe and stable home and her refusal to take advantage of
the resources DCS provided her during the CHINS proceedings, supports the
2
After arguing that the trial court “erred in ruling that there was a likely probability that the conditions
leading to the removal [of Child] would not be remedied,” Mother’s argument on the remaining two
statutory elements consists of the following: “Mother also disputes that the termination was in the best
interests of the Child or that DCS had a satisfactory plan for the Child in adoption as Child will now grow up
without having her Mother in her life[.]” Appellant’s Br. at 18.
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trial court’s conclusion that termination of Mother’s parental rights is in Child’s
best interests.
Satisfactory Plan
[15] In order for the trial court to terminate the parent-child relationship, the trial
court must find that there is a satisfactory plan for the care and treatment of the
child. A.P. v. Marion Cnty. Ofc. of Family & Children (In re D.D.), 804 N.E.2d 258,
268 (Ind. Ct. App. 2004), trans. denied. This plan does not need to 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.
[16] By again failing to present cogent argument, Mother has waived her contention
that the evidence does not support the trial court’s conclusion that DCS has a
satisfactory plan for the care of Child. Waiver notwithstanding, the undisputed
evidence shows that DCS plans to place Child for adoption in one of four
prospective homes. The trial court’s conclusion on this issue is supported by
clear and convincing evidence. The trial court did not err when it terminated
Mother’s parental rights to Child.
[17] Affirmed.
Vaidik, C.J., and Baker, J., concur.
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In re the Termination of the Parent-Child Relationship of: E.M., Minor Child, T.R. v. Indiana Department of Child Services (mem. dec.)
Combined Opinion