In the Term. of the Parent-Child Relationship of A.S. & L.S. (Minor Children) and M.S. (Mother) & J.S. (Father) v. The Ind. Dept. of Child Services (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Aug 30 2016, 8:36 am

regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR FATHER ATTORNEYS FOR APPELLEE
Thomas G. Krochta Gregory F. Zoeller
Evansville, Indiana Attorney General of Indiana
ATTORNEY FOR MOTHER Robert J. Henke
David E. Corey
Erin L. Berger
Deputy Attorneys General
Evansville, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- August 30, 2016
Child Relationship of A.S & L.S. Court of Appeals Case No.
(Minor Children) and M.S. 82A01-1601-JT-210
(Mother) & J.S. (Father), Appeal from the Vanderburgh
Appellants-Respondents, Superior Court
The Honorable Brett J. Niemeier,
v. Judge
Trial Court Cause Nos.
The Indiana Department of 82D04-1508-JT-1521
Child Services, 82D04-1508-JT-1522
Appellee-Petitioner

Mathias, Judge.

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[1] M.S. (“Mother”) and J.S. (“Father”) appeal the involuntary termination of their

parental rights to minor sons A.S. and L.S. (collectively “the Children”).

Mother and Father separately raise one issue, which we restate as whether the

Department of Child Services (“DCS”) presented sufficient evidence to support

the trial court’s termination order.

[2] We affirm.

Facts and Procedural History

[3] Mother and Father are the biological parents of L.S., born on January 2, 2004

and A.S., born on May 26, 2008. On April 1, 2014, DCS filed petitions alleging

that the Children were children in need of services (“CHINS”) based on a

domestic violence incident that occurred on March 19, 2014, which led to

Father’s arrest and subsequent incarceration. That same day, Mother admitted

that the Children were CHINS and Father stipulated to the evidence on April

22, 2014. After Father’s stipulation, the trial court adjudicated the Children as

CHINS and ordered him to contact family case manager, Dawn Moore

(“Moore”) within twenty-four hours of being released from incarceration.

[4] During the domestic violence incident, Father was drunk, threatened and

scratched Mother with a knife, and then trashed the house. This all occurred

while the Children were upstairs asleep. At this time, the Children were staying

with Mother.

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[5] On April 16, 2014, Mother was charged with possession of a controlled

substance and driving as a habitual traffic violator. The court set a dispositional

hearing in the CHINS cases for April 29, 2014, at which Mother failed to

appear. As a result, the trial court ordered the Children to be removed from

Mother’s care and placed in foster care and then issued a bench warrant for

Mother. The next day, the court determined that the Children’s detention was

necessary due to Mother’s incarceration.

[6] On May 7, 2014, the trial court held a dispositional hearing, took the petition

for parental participation under advisement, and ordered Mother to participate

in visitation with the Children. Another hearing was held on July 2, 2014, and

the trial court ordered Mother to participate in parent aide services, receive a

substance abuse evaluation, participate in parenting education classes, remain

drug and alcohol free, and submit to random drug screens. The trial court took

the domestic violence counseling under advisement but it was later stricken

from Mother’s parental participation agreement on July 30, 2014. That same

day, the trial court ordered Father to submit to random drug screens. The court

later modified its parental participation order to Father on January 28, 2015,

and ordered him to cooperate with the parent aide program, obtain a substance

abuse evaluation and follow recommended treatment, attend outpatient

substance abuse program, participate in visitation, remain drug and alcohol

free, and attend domestic violence classes.

[7] Shortly after the Children were removed, Mother went on a binge because it

was her birthday. She admitted that she partied and did drugs for about one

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 month. On May 7, 2014,1 Mother tested positive for methamphetamine,

hydrocodone, oxycodone, and THC. Mother also failed to comply with drug

screens, and the family case manager Moore did not know Mother’s location

from July 2014 until April 2015. Mother failed to attend the DCS referred

substance abuse treatment classes and stopped visiting the Children on July 10,

2014, because she was “on the run” from police due to warrants for her arrest.

Tr. p. 32. Before that, Mother visited the Children seven times between May

and July 2014, but cancelled twice and did not show up five times. Mother also

did not complete the parent aide services or the parenting classes, and her home

remained in a deplorable condition with “huge mounds of dog feces” in

numerous rooms and no electricity. Tr. p. 91.

[8] Mother was arrested on a bench warrant on March 9, 2015. She was released

on bond, but was arrested several more times between April and September

2015 for failure to appear in court. On March 26, 2015, Mother admitted to

violating probation and was sentenced to concurrent two year terms served at

Vanderburgh County Community Corrections (“VCCC”), a local work release

facility.2 On April 21, 2015, the trial court determined that Mother was

incarcerated and awaiting sentencing and Father had missed numerous drug

screens and visitation with the Children. The court also approved concurrent

1
This was the same day as the dispositional hearing.
2
Mother violated probation twice for bringing illegal substances and testing positive for alcohol while at
VCCC. Mother’s App. p. 27.

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 permanency plans of reunification and adoption. In May 2015, Mother

requested visitation with the Children, but the request was denied based on the

recommendations of the Children’s therapists.

[9] Like Mother, Father failed to complete court ordered substance abuse

treatment, failed to attend numerous drug screens, and twice failed to complete

“parenting belief” classes. Throughout the CHINS cases, Father tested positive

for alcohol even though he had been ordered to remain drug and alcohol free.

Father visited the Children for a brief period at the beginning of the CHINS

cases and three times between March and May 2015. However, between

August 2014 and March 2015, Father did not visit or inquire about visiting the

Children.

[10] On August 28, 2015, DCS filed petitions for termination of parental rights

concerning both children. On September 21, 2015, the trial court changed the

permanency plan to termination of parental rights and adoption. The trial court

then held an evidentiary hearing on DCS’s termination petitions on November

12, 2015.3

[11] Mother admitted to being involved with DCS on two prior CHINS cases.4 She

acknowledged that she had active warrants at this time and had drug issues as

3
Father was incarcerated at the time of the evidentiary hearing on felony intimidation and operating while
intoxicated convictions with an anticipated release date of August 5, 2016. Mother was incarcerated at
VCCC with an anticipated release date of February 2016.
4
One of the cases involved an older daughter and the other case involved the Children in 2011 due to Mother
and Father’s substance abuse issues.

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 well. Mother also stated that she stopped visiting the Children and contacting

DCS after being released on bond because she was afraid that family case

manager Moore would turn her into the police because she was “on the run.”

Tr. p. 32. Even though she was not visiting the Children, Mother testified that

she took a trip to Kings Island with her aunt and aunt’s two children while she

was out on bond. Mother also acknowledged that she has a criminal history

involving substance abuse.5 She admitted that her driver’s license has been

suspended for life but explained that “there are ways around that now.” Tr. p.

45.

[12] Although Mother admitted she has struggled with substance abuse in the past

and did not remain drug and alcohol free during the CHINS proceedings, she is

now sober and working since being incarcerated. Mother also reported

receiving substance abuse treatment from Counseling for Chance and attending

Alcoholics Anonymous meetings.

[13] Father admitted to continued substance abuse issues that started in 2009.

During the CHINS proceedings, Father stated that he drank more than five

drinks two to three times per week, which resulted in failed drug screens. Father

also discussed his criminal history, which again like Mother’s is linked to

5
In December 2011, Mother was convicted of Class C misdemeanor operating a motor vehicle while
intoxicated (“OWI”), OWI in a manner that endangers person, and OWI with a controlled substance in
body. In February 2014, Mother was convicted of Class A misdemeanor driving while suspended, Class C
misdemeanor OWI, and Class B misdemeanor public intoxication, endangering a person’s life. In August
2014, Mother was convicted of Class D felony possession of a controlled substance and Class D felony
operating a vehicle as a habitual traffic violator.

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 substance abuse.6 Father visited the children until he bonded out of jail. Then

he stopped the visits because he ran from the police until he was arrested again.

Father admitted that he is not currently in a position to parent the Children but

asked the court to give Mother another chance. Tr. p. 80. Father then alleged

that the court system had failed him and Mother for being too lenient in

sentencing and that if they were incarcerated sooner it would have “open[ed]

our eyes.” Tr. p. 81.

[14] Family case manager Moore has known Mother and Father since the beginning

of the 2014 CHINS cases. Moore testified that after Mother failed to show up

for the dispositional hearing that she visited her home.7 Moore found the home

trashed. There was food caked on the stove, trash piled up everywhere, and dog

feces all over the floor. Tr. p. 90. Moore discovered Mother hiding in the

shower, fully clothed, and trying to avoid being detected. When Moore

returned to Mother’s home three months later, the house was in even worse

condition with no electricity. Further, Moore stated that Mother stopped

visiting the Children in July 10, 2014, did not complete the parent aide services,

and did not attend the substance abuse counseling or “parenting belief” classes.

6
On May 20, 2014, Father pleaded guilty to Class D felony intimidation and Class A misdemeanor invasion
of privacy based on the domestic violence that led to the Children’s removal. Father was drunk at the time of
this incident. However, the court withheld judgment on each count and placed Father on probation. In
December 2014, Father pleaded guilty to Class B misdemeanor public intoxication and served ten days in
jail. In May 2015, Father was arrested and charged with Level 6 felony OWI with a prior conviction.
7
Mother and Father lived at the same home, even though they are separated.

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 Moore stated that Father also was ordered to participate in numerous services

including a substance abuse evaluation. However, Father never completed it.

[15] Moore also stated that Mother requested visitation with the Children in May

2015. The request was denied based on the recommendations from the

Children’s therapists. Moore stated that “the Children had moved on with their

lives,” had made tremendous progress, and never asked to visit with Mother.

Tr. p. 94. Moore testified that termination is in the Children’s best interests

because they need permanency and have waited long enough. Moore also

stated that Mother has been involved with three CHINS cases in the past and

will return to the same behaviors and lifestyle. She also testified that Mother

had eight months prior to being incarcerated to visit the Children but put her

own needs first to go on a drug binge for her birthday. Tr. p. 95. Moore stated

that the Children need a family who they can count on, will take care of them,

and will meet all of their needs. Moore had no doubt that she would find a pre-

adoptive placement for the Children.

[16] Although CASA Ed Derringe (“CASA Derringe”) was not available to testify

at the evidentiary hearing, he submitted a report that was considered by the

court. Appellee’s App. pp. 2-4. Like family case manager Moore, CASA

Derringe also concluded that termination of Mother and Father’s parental

rights was in the Children’s best interests. CASA Derringe first met with

Mother and Father in May 2014. They stated that they would “do anything” to

get their kids back, but when DCS told them that they needed to submit to drug

testing and parenting classes they said “[there’s] no way we’re doing that.” Id.

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 at 3. CASA Derringe observed that Mother and Father have made no effort in

the past year and a half to get their children back. Mother had not visited the

Children in over a year and Father visited the Children “seldom and

sporadically.” Id. At the visits, Father was out of touch with the Children. He

asked what grades they were in at one visit and brought a puppy to another

visit. CASA Derringe was concerned that Father was basically saying to the

Children that he could take care of a dog but not take care of them.

[17] CASA Derringe noted that after Mother was sentenced to work release that she

started asking about visits again, but after doing nothing for over one year,

termination was filed. He stated that the Children were doing well in foster care

and made great strides with their behaviors and studies. L.S. was almost a

straight “A” student and participated in sports. A.S. still struggled with his

behavior but was “light years ahead of last year.” Id. at 4. CASA Derringe

concluded that the Children had moved on with their lives after Mother and

Father had been absent over the last year and a half and that “putting them

back in their former situation would be a tragedy.” Id.

[18] After taking the matter under advisement, the court entered an order

terminating Mother and Father’s parental rights to the Children on January 13,

2016. Mother and Father now appeal.

Standard of Review

[19] We have long had a highly deferential standard of review in cases involving the

termination of parental rights. In re D.B., 942 N.E.2d 867, 871 (Ind. Ct. App.

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 2011). We neither reweigh the evidence nor assess witness credibility. Id. We

consider only the evidence and reasonable inferences favorable to the trial

court’s judgment. Id. Where the trial court enters findings of fact and

conclusions thereon, we apply a two-tiered standard of review: we first

determine whether the evidence supports the findings and then determine

whether the findings support the judgment. Id. In deference to the trial court’s

unique position to assess the evidence, we will set aside a judgment terminating

a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

which “leaves us with a definite and firm conviction that a mistake has been

made.” J.M. v. Marion Cnty. Office of Family & Children, 802 N.E.2d 40, 44 (Ind.

Ct. App. 2004), trans. denied.

Termination of Parental Rights

[20] “The purpose of terminating parental rights is not to punish parents but to

protect their children. Although parental rights have a constitutional dimension,

the law allows for their termination when parties are unable or unwilling to

meet their responsibility as parents.” In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

App. 2004) (citation omitted). Indeed, parental interests must be subordinated

to the child’s interests in determining the proper disposition of a petition to

terminate parental rights. In re G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009).

[21] Indiana Code section 31-35-2-4(b) provides that a petition to terminate parental

rights must meet the following requirements:

(2) The petition must allege:

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 (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.

[22] However, Indiana Code section 4(b)(2)(B) is written in the disjunctive;

therefore, the trial court is required to find that only one prong of subsection

(2)(B) has been established by clear and convincing evidence. In re A.K., 924

N.E.3d 212, 220 (Ind. Ct. App. 2010). DCS must prove “each and every

element” by clear and convincing evidence. G.Y., 904 N.E.2d at 1261; Ind.

Code § 31-37-14-2. Clear and convincing evidence need not establish that the

continued custody of the parent is wholly inadequate for the child’s very

survival. Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147

(Ind. 2005). Rather, it is sufficient to show by clear and convincing evidence

that the child’s emotional development and physical development are put at risk

by the parent’s custody. Id. If the court finds the allegations in a petition are

true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-

2-8(a).

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 I. Conditions that Led to Removal

[23] When making a determination as to whether a reasonable probability exists that

the conditions resulting in a child’s removal or continued placement outside of

a parent’s care will not be remedied, the trial court must judge a parent’s fitness

to care for her child at the time of the termination hearing while also taking into

consideration evidence of changed circumstances. A.D.S. v. Ind. Dep’t of Child

Servs., 987 N.E.2d 1150, 1156-57 (Ind. Ct. App. 2013). However, the court can

“disregard the efforts . . . made only shortly before termination and to weigh

more heavily [a parent’s] history of conduct prior to those efforts.” In re K.T.K.,

989 N.E.2d 1225, 1234 (Ind. 2013).

[24] The trial court is also required to consider the parent’s habitual patterns of

conduct in order to determine the probability of future neglect or deprivation of

the child. A.D.S., 987 N.E.2d at 1157. The trial court may consider evidence of

a parent’s prior history of neglect, failure to provide support, and lack of

adequate housing and employment. Id. The trial court may consider the

services offered to the parent by DCS and the parent’s response to those services

as evidence of whether conditions will be remedied. Id. DCS is not required to

provide evidence ruling out all possibilities of change. Id. Instead it needs to

establish only that a “reasonable probability” exists that the parent’s behavior

will not change. Id.

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 A. Mother

[25] Mother argues that the trial court erred in determining that there was a

reasonable probability that she would not remedy the condition that led to the

removal of the Children and their placement outside of Mother’s care and

custody because at the time of the termination hearing she was participating in

drug treatment, was employed, was compliant with the terms of the work

release program, and requested services and visitation after being incarcerated.

[26] In this situation, the Children were removed due to issues with Mother’s and

Father’s substance abuse, Mother’s and Father’s criminal behavior, and

Mother’s and Father’s non-compliance with court orders and failure to

participate in services. While Mother appears to have made progress while

being incarcerated, prior to incarceration Mother had an opportunity to remedy

her substance abuse through a 2011 CHINS case involving the Children, failed

to participate in services, failed to visit the Children, went on a month long

binge of drug use because it was her birthday, failed to comply with the court’s

dispositional orders, ran from the police, engaged in criminal conduct, and even

tested positive for alcohol during work release.

[27] In its discretion, a trial court can “disregard the efforts . . . made only shortly

before termination and to weigh more heavily [a parent’s] history of conduct

prior to those efforts.” See In re K.T.K., 989 N.E.2d at 1234. The trial court

acknowledged Mother’s progress and weighed it accordingly. Mother’s

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 argument here is simply a request to reweigh evidence, which is not within our

role as an appellate court. See In re D.B., 942 N.E.2d at 871.

B. Father

[28] Like Mother, Father argues that DCS did not present sufficient evidence to

support that Father would not remedy the conditions justifying removal of the

Children and their placement outside of Father’s care and custody. Specifically,

Father contends that while he has been incarcerated, he has not had the

opportunity to make substantial efforts to better his life through programs.

[29] As previously mentioned, the Children were removed due to issues with

substance abuse, Mother and Father’s criminal behavior, and Mother and

Father’s non-compliance with court orders and failure to participate in services.

Although Father claims he has not had the opportunity to participate in services

in jail, he testified that at the time of the evidentiary hearing he was

participating in a spiritual rehabilitation program called, “Celebrate Recovery.”

Tr. p. 77. Father emphasizes that he was not provided services while

incarcerated. This ignores the fact that he was offered comprehensive DCS

services, including substance abuse treatment and parenting classes, prior to

incarceration but failed to participate in those services, failed random drug

screens, and minimally visited the Children. Further, Father admitted to

“[being] under the influence of alcohol throughout the [CHINS proceedings].”

Tr. p. 81. Father is now sober, but he is incarcerated. He also admitted that he

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 was not currently in a position to parent the Children but that Mother should be

given another chance. Tr. p. 80.

[30] Not only may the trial court consider a parent’s fitness to care for the child at

the termination hearing, but it also may consider services offered to the parent

by DCS and the parent’s response to those services as evidence of whether

conditions will be remedied. A.D.S., 987 N.E.2d at 1157. Based on these facts

and circumstances, we conclude that the trial court did not err in determining

that the evidence was sufficient to support the conclusion that the conditions

that led to the removal of the Children would not be remedied by Father.

II. Best Interests of the Children8

[31] When determining what is in the best interests of a child, the trial court must

look beyond the factors identified by DCS and look to the totality of the

evidence. A.D.S., 987 N.E.2d at 1158. In doing so, the court must subordinate

the interests of the parent to those of the child. Id. The court need not wait until

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

Id. A recommendation by the case manager or child advocate to terminate

parental rights is sufficient to show by clear and convincing evidence that

8
Both Mother and Father challenge the court’s determinations that continuation of the parent-child
relationship would pose a threat to the well-being of the Children and that termination was in the best
interests of the Children. However, their arguments are not supported by cogent reasoning as required by
Indiana Appellate Rule 46(A)(8)(a). Although these arguments are waived, we will still address the best
interests argument. However, we decline to address the continuation of parent-child relationship because
Indiana Code section 4(b)(2)(B) is written in the disjunctive and we have already concluded that the
conditions that led to removal were not remedied by either Mother or Father.

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 termination is in the child’s best interests. Id. at 1158-59. Permanency is a

central concern in determining the best interests of a child. Id. at 1159.

[32] As with her argument that the conditions that led to removal have been

remedied, Mother argues that she has made progress, and therefore, it is not in

the best interests of the Children to terminate her parental rights. Father also

repackages his argument about remediation of the conditions that led to removal,

claiming that he has not had a chance to participate in services in jail as a reason

why it is not in the Children’s best interests to terminate his parental rights.

[33] The Children were removed after a domestic violence situation that resulted in

criminal charges for Father and then several weeks later Mother failed to attend

a dispositional hearing for the Children’s CHINS cases. Family case manager

Moore found Mother hiding in the shower, fully clothed, when she came to

notify her that the Children were being removed from her care. After the

Children were removed, both Mother and Father’s participation in visitation

was limited. They also failed to participate in services. At the time of the

termination hearing, Mother had not seen the Children in over one year and

Father had not seen them since around June 2015.

[34] Both family case manager Moore and CASA Derringe expressed that

termination of Mother and Father’s parental rights was in the Children’s best

interests. Case manager Moore emphasized that Mother and Father had prior

opportunities to participate in substance abuse treatment from a previous CHINS

case involving the Children. Moore also noted that Mother and Father had

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 opportunities to participate in services before they both were incarcerated but

consistently failed to do so. CASA Derringe stated that the Children are doing

well in foster care and have made great strides with their behaviors and studies.

He also emphasized that the Children had moved on with their lives and that

“putting them back in their former situation would be a tragedy.” Appellee’s

App. p. 4. Based on the recommendations of Moore and Derringe, we cannot

conclude that the trial court erred in determining that termination of Mother and

Father’s parental rights to the Children was in the best interests of the Children.

Conclusion

[35] Mother and Father have a long history with substance abuse issues that has

negatively impacted the Children. Both Mother and Father show a clear pattern

of running from the police to avoid incarceration. Mother has put her own

needs before the needs of the Children as evidenced by her month-long binge of

drug use to “celebrate her birthday.” She also failed to attend numerous court

hearings regarding her criminal charges. Neither Mother nor Father

participated in services or visited the Children when they had the opportunity to

do so before they were incarcerated. Applying our highly deferential standard of

review, we cannot conclude that the trial court’s decision to terminate Mother

and Father’s parental rights to the Children was clearly erroneous.

[36] Affirmed.

Robb, J., and Brown, J., concur.

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