In re the Termination of the Parent-Child Relationship of M.L. and A.L. (Minor Children), and A.H. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 17 2017, 8:02 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven Knecht Curtis T. Hill, Jr.
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana Robert J. Henke
Marjorie Newell
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Termination of the February 17, 2017
Parent-Child Relationship of Court of Appeals Case No.
M.L. and A.L. (Minor 91A02-1607-JT-1758
Children), Appeal from the White Circuit
and Court
The Honorable Robert W.
A.H. (Mother) Thacker, Judge
Appellant-Respondent, Trial Court Cause Nos.
91C01-1510-JT-14
v. 91C01-1510-JT-15

Indiana Department of Child
Services,
Appellee-Petitioner.

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 Mathias, Judge.

[1] A.H. (“Mother”) appeals the judgment of the White Circuit Court terminating

Mother’s parental rights to her daughter M.L. (“Daughter”) and her son A.L.

(“Son”). On appeal, Mother claims that the evidence was insufficient to support

the trial court’s decision to terminate her parental rights.

[2] We affirm.

Facts and Procedural History

[3] Mother and A.L. (“Father”) were in a romantic relationship and had two

children, Daughter, who was born in October 2008, and Son, who was born in

March 2014. Due to the parents’ use of methamphetamine, Daughter has been

removed from their care twice before this case began: the first time in 2009 and

again in 2010. Both of these removals resulted in Daughter being determined to

be a child in need of services (“CHINS”). As a result of the 2010 case, Mother

was convicted of neglect of a dependent and possession of methamphetamine.

Mother appears to have temporarily stopped using methamphetamine after

being treated at the Lighthouse Rehabilitation Center in Washington, Indiana,

and neither of these prior CHINS cases resulted in the termination of either

parents’ parental rights. However, Mother soon relapsed.

[4] Between May 2012 and May 2013, Mother bought pseudoephedrine twenty-

one times. On two other occasions, she attempted to purchase pseudoephedrine

but was unsuccessful. Mother’s family members were concerned that she was

using and manufacturing methamphetamine. In May 2014, DCS received a

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 report that Mother and Father were manufacturing methamphetamine and

using it regularly. When DCS investigated, Mother and Father denied using but

refused to be tested for drug use. They did agree to have Daughter and Son

tested, however. The children underwent hair follicle testing on June 4, 2014.

The tests came back as positive for methamphetamine. Accordingly, DCS

removed the children from the parents’ care on June 10, 2014. Mother

eventually admitted to using methamphetamine but claimed not to have done

so in the presence of the children, a claim apparently contradicted by the results

of the drug tests.

[5] On August 14, 2014, Daughter and Son were both determined by the trial court

to be in need of services. The children were placed with Mother’s cousin for one

day but were put in non-relative foster care when DCS became aware that

Mother’s cousin’s husband was also purchasing large amounts of

pseudoephedrine. Later that month, the children were placed with their

paternal grandparents, where they have remained since.

[6] On September 5, 2014, the trial court entered a dispositional order requiring

Mother to participate in the offered services, follow DCS’s recommendations,

complete a substance abuse assessment and follow all the recommendations

after the assessment, refrain from using and manufacturing illicit substances,

submit to random drug screenings, maintain a legal and stable source of

income, and maintain safe, stable, and suitable housing. The long-term goal

was at this point reunification of the children with the parents.

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[7] Mother did undergo a substance abuse assessment, and it was recommended

that she participate in intensive outpatient therapy (“IOP”). Despite several

attempts by DCS to get Mother to participate in IOP, she failed to complete the

program. Mother’s cooperation with drug testing was similarly poor. From

September 12, 2014 to June 29, 2015, Mother either refused to take or failed to

show for twenty-two of the forty-four scheduled drug screens. Although Mother

maintained a brief period of sobriety from November 2014 to March 2015,

Mother consistently tested positive for methamphetamine use from March 2015

until November 2015. Mother also refused to submit to any drug screen since

November 2015. This is consistent with Mother’s history of methamphetamine

use, which dates back to at least 2006.

[8] As found by the trial court, Mother was incarcerated multiple times during the

course of the CHINS case. During 2015, she was arrested twice for theft and

once for possession of methamphetamine. At the time of the termination

hearing, Mother was serving ten weekends in the Gibson County jail as part of

her most recent conviction for theft, and she was awaiting sentence in her most

recent conviction for possession of methamphetamine, which would most likely

result in further incarceration.

[9] Mother also struggled to maintain steady housing and employment. She was

homeless for a period of time and moved multiple times during the pendency of

the CHINS case. Although Mother claimed to have various jobs through a

temporary agency, except for one time, she refused to provide DCS with proof

of her employment.

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[10] Mother did consistently participate in visitation with Daughter and Son, but she

was consistently late, as well. Mother’s tardiness resulted in the children being

distressed. The visitations were fully supervised at the offices of Ireland Home

Based Services (“Ireland”), but in March 2015, the visitations were moved to

Mother’s home and were only partially supervised. However, Mother then

refused to submit to a drug test, causing DCS to obtain a court order requiring

Mother to submit to a test. When she did, the test came back positive for

methamphetamine, and the visitations were again returned to Ireland and were

fully supervised. The children initially wanted to visit with Mother and

interacted with her in a positive way, but they have recently become more

withdrawn during visits and expressed a desire not to go.

[11] On June 15, 2015, DCS requested that the permanency plan be changed from

reunification to adoption. The trial court denied this request in an effort to give

Mother “one more opportunity to turn her life around for her children.”

Appellant’s App. pp. 45, 64. Mother, however, continued to test positive for

methamphetamine.

[12] Accordingly, on September 18, 2015, DCS again petitioned the trial court to

change the permanency plan from reunification to adoption. This time, the trial

court granted DCS’s request and set a review hearing to be held on December

9, 2015. On October 29, 2015, DCS filed a petition to terminate Mother’s

parental rights. Despite having notice of the December 9 review hearing,

Mother failed to appear.

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[13] Before the final evidentiary hearing on the termination petition, Father

voluntarily terminated his parental rights. The trial court held an evidentiary

hearing regarding the termination of Mother’s parental rights on April 4, 2016.

At the conclusion of the hearing, the trial court took the matter under

advisement and, on May 23, 2016, entered findings of fact and conclusion of

law granting DCS’s petition and terminating Mother’s parental rights to

Daughter and Son. Mother now appeals.

Termination of Parental Rights

[14] The purpose of terminating parental rights is not to punish parents but instead

to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

Although parental rights have a constitutional dimension, the law allows for

their termination when the parties are unable or unwilling to meet their

responsibilities as parents. Id. 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).

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

parental rights must allege:

(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.

[16] DCS must prove each element by clear and convincing evidence. Ind. Code §

31-37-14-2; G.Y., 904 N.E.2d at 1261. But because Indiana Code section 31-35-

2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that

only one prong of subsection (b)(2)(B) has been established by clear and

convincing evidence. In re A.K., 924 N.E.3d 212, 220 (Ind. Ct. App. 2010).

[17] 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). It is instead

sufficient to show by clear and convincing evidence that the child’s emotional

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).

[18] 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.

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

consider only the evidence and reasonable inferences favorable to the trial

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 court’s 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.

I. Conditions that Resulted in Children’s Removal

[19] Mother first contends that the trial court clearly erred in concluding that there

was a reasonable probability that the conditions that resulted in the children’s

removal or the reasons for their placement outside Mother’s home would not be

remedied. Mother’s argument has little merit.

[20] When deciding whether there is a reasonable probability 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 determine a parent’s fitness to care for

the 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 trial court

may disregard efforts made only shortly before termination and 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). The termination statute does not simply focus

on the initial reason for a child’s removal in determining whether a parent’s

rights should be terminated, but also those reasons resulting in the continued

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 placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App.

2013).

[21] Here, the reason for the children’s removal from Mother and their continued

placement outside of her home was Mother’s obvious addiction to and repeated

use of methamphetamine. Mother refers us to evidence before the trial court

that indicated she had recently began to make progress to combat her substance

abuse problem. Specifically, she notes that there was evidence that she ended

her relationship with Father, recently started to attend N.A. meetings and

intensive outpatient therapy, and had not recently tested positive for illicit drug

use.

[22] All of this evidence was before the trial court, and Mother’s argument is little

more than a request that we consider evidence not favorable to the trial court’s

decision, reweigh this evidence, and come to a conclusion different than that

reached by the trial court. This, of course, is not our role as an appellate court.

See In re D.B., 942 N.E.2d at 871. Furthermore, as noted by DCS, these changes

in Mother’s behavior came only after Mother’s most recent arrest and shortly

before the termination hearing. Thus, the trial court was well within its

discretion to disregard efforts made only shortly before termination and weigh

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

989 N.E.2d at 1234. Mother has a long history of methamphetamine abuse and

criminal activity and convictions associated with this methamphetamine use.

Mother has also been involved with two prior CHINS cases regarding

Daughter, and these CHINS cases were also based on Mother’s use of

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 methamphetamine. Indeed, Mother was even convicted of neglect of Daughter

based on her use of methamphetamine. Mother has repeatedly participated in

substance abuse treatment, only to fail or relapse.

[23] Under these facts and circumstances, the trial court did not clearly err by

concluding that there was a reasonable probability that the conditions that

resulted in the children’s removal or the reasons for their placement outside

Mother’s home would not be remedied. See In re A.S., 17 N.E.3d 994, 1005

(Ind. Ct. App. 2014) (concluding that evidence supported trial court’s finding

that the conditions that led to children’s removal, specifically parents’ substance

abuse, would not be remedied, where mother’s substance abuse worsened when

children were returned to her for a trial home visit, and mother failed to

participate in substance abuse treatment), trans. denied.

II. Continuation of Parent-Child Relationship

[24] Mother also argues that the trial court clearly erred in determining that there

was a reasonable probability that the continuation of the parent-child

relationship poses a threat to the well-being of the children. We first observe

that Section 4(b)(2)(B) is written in the disjunctive; accordingly, the trial court is

required to find that only one prong of Indiana Code section 31-35-2-4(b)(2)(B)

has been established. In re A.K., 924 N.E.2d at 220. Because we conclude that

DCS proved that there was a reasonable probability that the conditions which

resulted in the children’s removal from Mother’s care would not be remedied,

we need not address Mother’s arguments directed at the “threat” prong of

Section 4(b)(2)(B). See In re A.K., 925 N.E.2d at 220.
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[25] Even if we address the “threat” prong of Section 4(b)(2)(B), however, Mother

does not prevail. In addressing the threat prong of section 4(b)(2)(B), the trial

court must consider the parent’s habitual patterns of conduct 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. 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.

[26] Mother’s habitual patterns of conduct show that Mother has been addicted to

methamphetamine for years and used methamphetamine throughout the vast

majority of the underlying CHINS case. Even though the trial court gave

Mother extra time to demonstrate that she could change her behavior, she

continued to test positive for use of methamphetamine. As a result of her

methamphetamine addiction, Mother has been unable to maintain steady

employment or stable housing, and she has been arrested and incarcerated for

both theft and possession. The children had been removed from Mother’s care

since June 2014, and between then and the April 2016 termination hearing,

Mother had made precious little improvement. She had yet to complete any of

the drug treatment, had tested positive for methamphetamine as recently as

November 2015, and had refused any drug tests thereafter.

[27] Mother is correct to note that there was no indication that she physically abused

the children. However, a finding of physical abuse is not required before a trial

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 court may determine that the continuation of the parent-child relationship poses

a threat to a child’s well-being. See In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App.

2005) (“Although there was no specific testimony that either parent had

physically abused A.I., there can be little doubt that the parties’ serious

substance abuse addictions detrimentally affected or greatly endangered her.”).

[28] Given Mother’s drug addiction, her resulting failure to demonstrate an ability to

adequately care for the children, and her lack of progress throughout the history

of this case, the trial court could readily conclude that there was a reasonable

probability that the continuation of the parent-child relationship poses a threat

to the well-being of the children.

III. Termination in Best Interests of the Children

[29] Lastly, Mother argues that the trial court erred in concluding that termination

of the parent-child relationship was in the best interests of the children. In

determining what is in the best interests of the child, the trial court must look

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

A.D.S., 987 N.E.2d at 1158. The trial court must subordinate the interests of the

parent to those of the child, and the court need not wait until the child are

irreversibly harmed before terminating the parent-child relationship. Id. A

recommendation by the case manager or 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.

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[30] Here, the trial court concluded that “[b]ased on Mother’s lack of progress and

her refusal or inability to improve her capacity to provide proper care and

nurturing for the child, adoption and termination of parental rights is in the

child’s best interests.” Appellant’s App. pp. 48, 67. Ample evidence supports

this conclusion.

[31] Mother’s continued drug use and her inability to maintain any progress in her

treatment clearly demonstrate that Mother was still in no condition to regain

custody of her children. Nor was the trial court required to, yet one more time,

wait and see if Mother would progress if given more time. The children had

been in out of Mother’s custody for almost two years at the time of the

termination hearing. The children were doing well in foster care with their

paternal grandparents, who desired to adopt the children. The family case

manager testified that it was in the children’s best interests to remain with the

grandparents. The guardian ad litem testified similarly.

[32] Mother complains that, if the paternal grandparents adopt Daughter and Son,

then she will be cut off from her children, but Father, who voluntarily

terminated his parental rights, will likely continue to have a relationship with

the children. However, as noted by the trial court, whether adoption by the

paternal grandparents is in the children’s best interests is a question for the

adoption court, not the termination court. See I.C § 31-19-11-1 (requiring

adoption court to find that adoption is in the best interests of the child before

granting a petition for adoption); I.C. § 31-19-10-6 (requiring adoption court to

dismiss petition for adoption if it is established that it is in the best interests of

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 the child that a motion to contest an adoption be granted). Even if Father has

some contact with his children, his rights as a parent have been terminated, as

have Mother’s.

[33] In short, the evidence supports the trial court’s conclusion that termination of

the parent-child relationship was in the best interests of the children.

Conclusion

[34] DCS presented sufficient evidence to support the trial court’s conclusion that

there was a reasonable probability that the conditions that resulted in the

children’s removal from Mother’s care would not be remedied and that the

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

well-being. The evidence was also sufficient to support the trial court’s

conclusion that termination of the parent-child relationship was in the

children’s best interests. Accordingly, we affirm the judgment of the trial court

terminating Mother’s parental rights to Daughter and Son.

[35] Affirmed.

Baker, J., and Pyle, J., concur.

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