In re the Termination of the Parent-Child Relationship of A.S., M.M., and T.S. (Minor Children) and J.M. (Mother) v. Indiana Department of Child Services (mem. dec.)
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Oct 04 2018, 9:14 am
regarded as precedent or cited before any
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
Mary P. Lake Curtis T. Hill, Jr.
Lake Law Office Attorney General of Indiana
LaPorte, Indiana Katherine A. Cornelius
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Termination of the October 4, 2018
Parent-Child Relationship of Court of Appeals Case No.
A.S., M.M., and T.S. (Minor 18A-JT-585
Children) and Appeal from the LaPorte Circuit
J.M. (Mother), Court
The Honorable Thomas J.
Appellant-Respondent,
Alevizos, Judge
v. The Honorable W. Jonathan
Forker, Magistrate
Indiana Department of Child Trial Court Cause Nos.
Services, 46C01-1606-JT-213
46C01-1606-JT-214
Appellee-Petitioner. 46C01-1606-JT-215
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Mathias, Judge.
[1] The LaPorte Circuit Court granted the Department of Child Services’s (“DCS”)
petition to terminate J.M.’s parental rights to her three minor children. J.M.
appeals and argues that there was insufficient evidence to support the trial
court’s order terminating her parental rights.
[2] We affirm.
Facts and Procedural History
[3] Three of J.M.’s four children are the subject of these termination proceedings:
M.M. born in February 2005, T.S. born in July 2006, and A.S. born in
February 2008.1 The fourth child now resides with his biological father.
[4] Until the fall of 2014, Mother and the children lived in White County. DCS
investigated multiple allegations of abuse while the family lived in White
County. DCS continued their involvement with the family after they moved to
LaPorte County, and J.M. agreed to an informal adjustment because she
wanted to receive assistance for her addiction issues. J.M. was participating in a
suboxone program, and she agreed to participate in urine screens, parenting
education, and case management services.
[5] J.M. was dismissed from the suboxone program in March 2015. J.M. stopped
communicating with DCS and refused to submit to a drug screen. Eventually, a
1
M.M.’s, T.S.’s, and A.S.’s biological father is deceased.
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DCS caseworker was able to speak to one of the children at school, and she
learned that the children were being disciplined inappropriately by J.M.’s
boyfriend.
[6] DCS removed all four children from J.M.’s home in May 2015 due to
allegations of neglect. Specifically, DCS discovered that J.M.’s home lacked
electricity, the children did not have adequate food, J.M.’s boyfriend was using
a belt to discipline the children, and the landlord was planning to evict the
family from the home. J.M. finally submitted to a drug screen and tested
positive for THC and methadone.
[7] A Child(ren) In Need of Services petition (“CHINS”) was filed shortly
thereafter, and on June 24, 2015, the children were adjudicated CHINS. J.M.
admitted that the children were CHINS. In March 2016, DCS moved to dismiss
the CHINS adjudication with regard to J.M.’s youngest child because his father
had been granted custody in a related proceeding in LaPorte Superior Court.
[8] J.M. has struggled with drug abuse since she was approximately ten years old.
J.M. is addicted to opiates and has used heroin. She also has a number of health
conditions requiring numerous prescription medications. J.M. has participated
in a methadone clinic and a suboxone program to address her addiction to
opiate drugs to no avail.
[9] During the first few months of the CHINS proceedings, J.M. made little
progress and failed to keep in contact with case managers. When J.M. met with
her service providers, she expressed interest in working on issues, but she could
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not retain what she had learned. J.M. failed to follow through on finding
employment or housing. J.M.’s application for disability social security benefits
was denied and she failed to appeal the decision. J.M. was encouraged to seek
in-patient treatment for her drug abuse, but she chose to enroll in a methadone
program.
[10] In October 2015, J.M. was accepted into a shelter called the Caring Place. She
made significant progress for approximately three months while she resided at
the shelter. Caring Place provided substance abuse treatment and other
programs that assisted J.M. in addressing her anger, parenting, and mood
issues. J.M. obtained employment, and her visits with the children proceeded
from supervised to partially supervised. DCS planned to allow J.M. to start
overnight visitation with the children toward the end of December 2015.
[11] However, in early January 2016, J.M. was evicted from the Caring Place for her
third violation of possession of an e-cigarette, which was against the shelter’s
rules. J.M.’s visits with the children were returned to fully supervised. J.M. also
lost her job and resumed living with her former boyfriend. Once again, J.M.
stopped communicated with her service providers.
[12] In January 2016, J.M. was accepted into another shelter, Day Spring. Shortly
thereafter, J.M. had a positive drug screen. J.M. was insistent that she had not
used illegal substances and took two additional drug screens that day, which
were negative. However, Day Spring would not allow J.M. to continue to
reside at the shelter because she often fell asleep during shelter programming.
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[13] Thereafter, J.M. did not have a stable home and her participation in services
became inconsistent. She attended visits with the children but was often late
and would fall asleep during the visit. She also refused to submit to urine
screens after visits. At one of her last visits with the children, J.M. told them she
had a dream in which the entire family was violently murdered. J.M. refused a
drug screen after the visit. J.M. also missed the next scheduled visitation.
[14] In March 2016, J.M. was arrested for theft and incarcerated for twenty-nine
days. After she was released from jail, J.M.’s case manager had trouble
contacting her, and J.M. would not participate in random drug screens. DCS
requested that the CHINS court suspend J.M.’s visits with the children because
caseworkers felt that she needed to address her mental and emotional health.
The CHINS court agreed and suspended J.M.’s visits with the children. The
court ordered that J.M. would not have visitation with the children until she
attended at least three counseling sessions and her counselor recommended that
visits with the children should resume.
[15] J.M. participated in one counseling session between March and July 2016. She
began a suboxone program in June 2016. At a July 6, 2016 hearing, the trial
court found that J.M. had not complied with the case plan since the last
hearing, had not improved her ability to parent the children, her visitation with
the children was suspended, and she had not cooperated with DCS. Therefore,
the court ordered J.M. to participate in an inpatient drug treatment program.
J.M. chose a treatment center, and DCS provided transportation to the
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admissions interview. J.M. checked herself out of the treatment center after two
weeks before the program was complete.
[16] On September 7, 2016, DCS filed a petition to involuntarily terminate J.M.’s
parental rights to the children. In October 2016, the trial court ordered services
suspended except for drug screens because J.M. had not complied with services,
had not completed inpatient drug treatment, and had not participated in the
services required before visitation with the children could resume.
[17] The termination fact-finding hearing was held on December 2, 2016, January
23, 27, and 30, 2017. For reasons not apparent in the record, the trial court did
not issue its findings of fact and conclusions of law until January 31, 2018. The
trial court terminated J.M.’s parental rights after concluding termination was in
the children’s best interests and
[t]here is a reasonable probability that the conditions that resulted
in the child[ren]’s removal or the reasons for placement outside
the parent’s home will not be remedied, and/or there is a
reasonable probability that the continuation of the parent-child
relationship poses a threat to the well-being of the child[ren].
Appellant’s App. p. 50. J.M. now appeals.
Termination of Parental Rights
[18] We have consistently noted that 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 the termination of such rights
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when the parents are unable or unwilling to meet their responsibilities as
parents. Id. Indeed, the parent’s interests must be subordinated to the children'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).
[19] The termination of parental rights is controlled by Indiana Code section 31-35-
2-4(b)(2), which 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.
(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.
[20] The burden is on DCS to prove each element by clear and convincing evidence.
Ind. Code § 31-37-14-2; G.Y., 904 N.E.2d at 1260. As Indiana Code section 31-
35-2-4(b)(2)(B) is written in the disjunctive, the trial court is required to find that
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only one prong of that subsection has been established by clear and convincing
evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). If the court
finds the allegations in a petition are true, the court shall terminate the parent-
child relationship. I.C. § 31-35-2-8(a). If the court does not find that the
allegations in the petition are true, it shall dismiss the petition. Id. at § 8(b).
[21] 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
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.
[22] Indiana Code section 31-35-2-8(c) provides that the trial court “shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b)” to either terminate a parent-child relationship or to dismiss the
termination petition. When the trial court enters such findings and conclusions
of law, we apply a two-tiered standard of review. A.D.S. v. Indiana Dep’t of Child
Servs., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. We first
determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. “Findings are clearly
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erroneous only when the record contains no facts to support them either
directly or by inference.” Id. (quoting 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. Id.
[23] J.M. argues that the evidence was insufficient to support the trial court’s finding
that there is a reasonable probability that continuation of the parent-child
relationship poses a threat to the well-being of the children. J.M. acknowledges
that her efforts after leaving the Caring Place shelter in January 2016 were
sporadic but argues that she has a strong bond with the children. She also
claims that her housing was stable and adequate, and DCS did not evaluate her
housing situation after she was released from jail in May 2016.
[24] As we address J.M.’s argument, we initially observe that 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 termination
of the parent-child relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App.
2002). And to evaluate whether continuation of the parent-child relationship
poses a threat to the child, a trial court “should consider a parent’s habitual
pattern of conduct to determine whether there is a substantial probability of
future neglect or deprivation” while also judging a parent’s fitness to care for his
child as of the time of the termination proceedings, taking into consideration
evidence of changed conditions. In re A.P., 981 N.E.2d 75, 81 (Ind. Ct. App.
2012).
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[25] Throughout the CHINS and termination proceedings, J.M. failed to address her
substance abuse issues and tested positive for methadone and THC on multiple
dates. DCS provided numerous services to assist J.M. over the course of these
proceedings, but she failed to take advantage of the offered services. J.M.’s
participation in services, including therapy, was sporadic. J.M. was unable to
maintain employment or stable housing for any significant length of time after
she was terminated from the Caring Place for rules violations. The children’s
behavior declined during visitations with J.M., therapeutic intervention at the
visits was ineffective, and the visitation negatively impacted the children. In the
months before J.M.’s visitation with the children was suspended, she appeared
to be impaired during visitation or failed to attend visitation. J.M. also failed to
complete parenting education and individual therapy. J.M.’s therapist
concluded that J.M. failed to make progress in her ability to parent the children.
[26] The DCS proved by clear and convincing evidence that J.M. failed to address
her substance abuse addiction, participate in therapy, maintain a stable home
and income, and improve her parenting skills. For all of these reasons, we
conclude that the trial court’s finding that continuation of the parent-child
relationship poses a threat to the children’s well-being is supported by sufficient
evidence.
[27] We therefore do not address J.M.’s arguments directed at the removal prong of
Indiana Code section 31-35-2-4-(b)(2)(B). See In re A.K., 924 N.E.2d at 220
(noting that section 4(b)(2)(B) is written in the disjunctive and that the trial
court is required to find that only one prong of subsection (b)(2)(B) has been
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established). Also, J.M. does not challenge the trial court’s finding that
termination of her parental rights is in the children’s best interests, and
therefore, we do not address that issue on appeal.
Conclusion
[28] J.M. has not established that she is entitled to relief on appeal. We therefore
affirm the trial court’s order terminating J.M.’s parental rights.
[29] Affirmed.
Bailey, J., and Bradford, J., concur.
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