MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 26 2018, 9:19 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark E. Small Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Robert J. Henke
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Termination of the October 26, 2018
Parent-Child Relationship of: Court of Appeals Case No.
18A-JT-901
S.R. (Minor Child)
Appeal from the Vigo Circuit
and Court
V.E., The Honorable Sarah K. Mullican,
Appellant-Respondent, Judge
The Honorable Daniel W. Kelly,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 84C01-1708-JT-1161
Child Services,
Appellee-Petitioner.
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Tavitas, Judge.
Case Summary
[1] V.E. (“Mother”) appeals the termination of her parental rights to S.R. (the
“Child”). We affirm.
Issue
[2] Based upon Mother’s arguments, we restate the issue as whether the
Department of Child Services proved, by clear and convincing evidence, that
termination of Mother’s parental rights is in the best interests of the Child.
Facts
[3] The Child was born to Mother and P.R. (“Father”) on September 11, 2012. 1 In
2013 and 2014, Vigo County Department of Child Services (“DCS”)
substantiated claims that Mother’s boyfriend, R.H., physically abused Mother.
DCS also substantiated two claims of neglect by Mother regarding “two
children that were no longer in Mother’s care.” App. Vol. II p. 11.
[4] On December 15, 2015, R.H. held Mother hostage in a standoff with law
enforcement. DCS conducted an assessment regarding the Child and
established that R.H., who periodically lived with Mother, physically abused
1
The trial court also terminated Father’s parental rights as to the Child. Father is not a party to this appeal.
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Mother, “forced her to smoke meth[amphetamine] [and] threaten[ed] to beat
her up if she refused.” Id.
[5] In December 2015, Mother tested positive for methamphetamine,
amphetamine, and marijuana. On December 30, 2015, DCS filed a Child in
Need of Services (“CHINS”) petition regarding the Child and, subsequently,
initiated an “in-home CHINS” matter. 2 Id. at 12.
[6] On February 18, 2016, Mother assaulted the Child’s half-brother at the Boys
and Girls Club in Terre Haute. Investigators went to Mother’s residence, where
“[Mother] appeared erratic and under the influence and refused to screen.” Tr.
Vol. II p. 39. DCS removed the Child and his half-brother from Mother’s care
and placed the Child with his maternal great-grandparents.
[7] The trial court adjudicated the Child as a CHINS in April 2016. At a
subsequent hearing, on May 17, 2016, the trial court entered a dispositional
order under which Mother was ordered to undergo addictions and mental
health treatment, case management assessments, medication management, and
skills building. Mother was also ordered to follow the service providers’
recommendations stemming from the assessments, including participation in
individual and group therapy, regular drug screens, and supervised visits.
Lastly, Mother was to obtain employment and to comply with DCS’s case plan.
2
In an “in-home CHINS” matter, the trial court allows the child to remain in the care of the parent, while
the parent receives services from service providers.
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[8] During the pendency of the CHINS proceedings, Mother made minimal
progress toward the case plan objectives. Mother failed to timely complete her
addictions assessment, to obtain employment, to secure stable housing, to
regularly submit to drug screens, and to refrain from drug use. On September 6,
2017, DCS filed a petition to terminate Mother’s and Father’s parental rights to
the Child. On March 5, 2018, the trial court conducted a fact-finding hearing.
[9] At the hearing, Julie McBride, who served as the initial family case manager at
the outset of the DCS matter, testified that Mother: (1) failed to complete an
addictions assessment until March 2017, which was ten months after DCS’s
initial referral; (2) failed to obtain employment; (3) was evicted and periodically
“homeless or couch surfing, [or] staying with friends”; (4) “no-show[ed]” for
the first six months of drug screens; and (5) “struggled with parenting and
maintaining the children” 3 during the supervised visits. Tr. Vol. II pp. 13, 15.
[10] McBride also testified that, during her tenure as family case manager, Mother
no-showed for twenty-one of sixty-five scheduled drug screens, refused five drug
screens, and failed thirty-four drug screens. Mother tested positive for
methamphetamine, amphetamine, marijuana, opiates, and tramadol. Id. at 9,
13. McBride also testified that, for a five-month period during the proceedings,
Mother lived with her brother, against whom DCS had substantiated claims of
sexual abuse of Mother’s older children. McBride testified that DCS would not
3
Child and his half-brother were involved in the supervised visits.
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restore S.R. to Mother’s care if Mother continued to reside with her brother.
Lastly, McBride testified that “[Mother] didn’t engage really in any of the
services that could have been helpful to her with her addiction during the time
that [McBride] worked with her.” Id. at 13.
[11] Next, DCS permanency family case manager, Kylie Hickmon, testified that
Mother failed to successfully establish stable housing and employment.
Hickmon also testified as follows regarding the twenty-three drug screens that
were administered to Mother during Hickmon’s tenure as family case manager:
[Only] [f]ive [screens] . . . were clean of all substances, one was a
refusal, two [were] no-shows, four were positive for THC
[marijuana], the last being November 27th, [2017], and one
positive for methamphetamine on February 21st[, 2018].
Id. at 22. Hickmon testified that she lacked confidence in Mother’s ability to
remedy Mother’s substance abuse issues, housing instability, and
unemployment; she testified further that termination of Mother’s parental rights
was in the Child’s best interests. Lastly, Hickmon testified that the adoptive
placement offers support and “long term permanency” for the Child, who has
special needs and “needs structure and stability.” Id. at 33.
[12] Amanda McCullough of the Hamilton Center testified that, for two years, she
supervised Mother’s visitation with the Child. According to McCullough,
although Mother attended most of her scheduled supervised visits and exhibited
some improvement, Mother also exhibited frustration from “[c]hild behavior,”
had “an attitude that . . . [Mother] didn’t want to be there[,]” and “would end
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[supervised visits] on her own or get frustrated with the way things were going
and just wouldn’t stay the whole time.” Id. at 56, 59.
[13] Court appointed special advocate (“CASA”), Amy Jukes, served as CASA for
the Child for two years and “maybe spoke to the mother one time.” Id. at 63.
Jukes testified that, “although I’ve reached out to [Mother], she has not had any
contact with me.” Id. at 66. Jukes testified that, after observing some
visitations, she “does not believe that there is a bond from what I can see with
[the Child and Mother].” Id. at 63. Lastly, Jukes testified that she supported
the termination of Mother’s parental rights.
[14] At the close of the hearing, the trial court took the matter under advisement.
On March 9, 2018, the trial court entered an order terminating Mother’s and
Father’s parental relationships with the Child. In its order, the trial court
acknowledged that Mother, “in very recent weeks ha[d] begun taking some
steps forward”; however, the trial court determined that DCS established, by
clear and convincing evidence, the allegations contained in the petition to
terminate Mother’s parental rights. The trial court’s order stated:
4. There is a reasonable probability that the conditions
which resulted in the removal of the child from his parents will
not be remedied or the reasons for placement outside of the home
of the parents will not be remedied or that the continuation of the
parent-child relationship poses a threat to the well-being of the
child as follows:
*****
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c. Mother did meet with her assigned case manager
during supervised visits with [the Child], but never was
involved in drug treatment by the time the case was
transferred to FCM Kylie Hickmon at the end of March,
2017.
d. During the CHINS case, Mother was unable to
secure stable housing. She lived with her grandparents a
couple of different times and otherwise generally slept on
friends’ couches. There was a brief period where Mother
lived at her grandparents’ home with her own mother and
brother, but that was not continued because her brother
had a substantiation for sexual molestation against
Mother’s older children. Mother lived for a short time in
Club Soda, a sober living environment, and then moved in
with her mother until she was arrested in December 2017
for battering her mother and was kicked out of her home.
e. Transportation was also a challenge for Mother
throughout the CHINS case. DCS gave her bus passes,
but they weren’t frequently utilized.
*****
j. Mother expressed feelings of anxiety and depression
in August, 2017, but didn’t see a doctor for those
conditions until January, 2018, at which time her
physician prescribed Prozac, which Mother has already
discontinued.
*****
5. Termination is in the best interest of the child.
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6. The Department of Child Services has a satisfactory plan
for the care and treatment of the child, which is adoption.
7. It is in the best interests of the minor child for the parent-
child relationship to be terminated.
Id. at 12-14. Mother now appeals.
Analysis
[15] Mother challenges the termination of her parental rights. The Fourteenth
Amendment to the United States Constitution protects the traditional right of
parents to establish a home and raise their children. In re K.T.K. v. Indiana Dept.
of Child Services, Dearborn County Office, 989 N.E.2d 1225, 1230 (Ind. 2013). “[A]
parent’s interest in the upbringing of [his or her] child is ‘perhaps the oldest of
the fundamental liberty interests recognized by th[e] [c]ourt[s].’” Id. (quoting
Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize, of
course, that parental interests are not absolute and must be subordinated to the
child’s interests when determining the proper disposition of a petition to
terminate parental rights. Id. Thus, “‘[p]arental rights may be terminated when
the parents are unable or unwilling to meet their parental responsibilities by
failing to provide for the child’s immediate and long-term needs.’” In re K.T.K.,
989 N.E.2d at 1230 (quoting In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App.
2004), trans. denied).
[16] When reviewing the termination of parental rights, we do not reweigh the
evidence or judge witness credibility. In re. C.G., 954 N.E.2d 910, 923 (Ind.
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2011). We consider only the evidence and reasonable inferences that are most
favorable to the judgment. Id. We must also give “due regard” to the trial
court’s unique opportunity to judge the credibility of the witnesses. Id. (quoting
Ind. Trial Rule 52(A)).
[17] Pursuant to Indiana Code Section 31-35-2-8(c), “The trial court shall enter
findings of fact that support the entry of the conclusions required by subsections
(a) and (b).” 4 Here, the trial court did enter findings of fact and conclusions of
law in granting DCS’s petition to terminate Mother’s parental rights. When
reviewing findings of fact and conclusions of law entered in a case involving the
termination of parental rights, we apply a two-tiered standard of review. First,
we determine whether the evidence supports the findings, and second, we
determine whether the findings support the judgment. Id. We will set aside the
trial court’s judgment only if it is clearly erroneous. Id. A judgment is clearly
erroneous if the findings do not support the trial court’s conclusions or the
conclusions do not support the judgment. Id.
4
Indiana Code Sections 31-35-2-8(a) and (b), governing termination of a parent-child relationship involving a
delinquent child or CHINS, provide as follows:
(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the
allegations in a petition described in section 4 of this chapter are true, the court shall
terminate the parent-child relationship.
(b) If the court does not find that the allegations in the petition are true, the court shall
dismiss the petition.
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[18] Indiana Code Section 31-35-2-8(a) provides that “if the court finds that the
allegations in a petition described in [Indiana Code Section 31-35-2-4] are true,
the court shall terminate the parent-child relationship.” Indiana Code Section
31-35-2-4(b)(2) provides that a petition to terminate a parent-child relationship
involving a child in need of services must allege, in part:
(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 establish these allegations by clear and convincing evidence. In re
V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).
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[19] In appealing the trial court’s order terminating her parental rights, Mother
challenges only the court’s finding that termination of her parental rights is in
the Child’s best interests. In determining what is in the best interests of a child,
the trial court is required to look at the totality of the evidence. In re D.D., 804
N.E.2d at 267. In doing so, the trial court must subordinate the interests of the
parents to those of the child involved. Id. Termination of a parent-child
relationship is proper where the child’s emotional and physical development is
threatened. In re K.T.K., 989 N.E.2d at 1235. A trial court need not wait until
a child is irreversibly harmed such that his or her physical, mental, and social
development is permanently impaired before terminating the parent-child
relationship. Id. Additionally, a child’s need for permanency is an important
consideration in determining the best interests of a child. Id.
[20] Moreover, a parent’s historical inability to provide a suitable, stable home
environment along with the parent’s current inability to do so supports a finding
that termination is in the best interest of the child. In re A.P., 981 N.E.2d 75, 82
(Ind. Ct. App. 2012). Testimony of the service providers, as well as evidence
that the conditions resulting in removal will not be remedied, are sufficient to
show by clear and convincing evidence that termination of parental rights is in
the child’s best interests. In re A.S., 17 N.E.3d 994, 1005 (Ind. Ct. App. 2014),
trans. denied.
[21] Here, Mother’s substance abuse, housing instability, and unemployment were
DCS’s primary concerns throughout the proceedings. As the trial court
acknowledged in its order of termination, it was not until mere weeks before the
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March 2018 fact-finding hearing that Mother finally began to make some
positive, but insufficient, strides regarding the case plan objectives.
Unfortunately, by then, the Child had been out of Mother’s care for two years,
and DCS had shifted its goal from reunification to adoptive placement.
[22] DCS presented the following evidence in support of its petition for termination
of Mother’s parental rights. Family case manager McBride testified that, during
the proceedings, Mother: (1) failed to obtain steady employment; (2) failed to
obtain safe and stable housing; (3) failed to regularly submit to drug screens; (4)
failed an alarming number of drug tests; (5) relapsed on methamphetamine
“less than two weeks before the termination fact-finding hearing”; (6) failed to
timely complete DCS’s addictions assessment and substance abuse treatment;
and (7) “didn’t engage really in any of the services that could have been helpful
to [Mother] with her addiction.” App. Vol. II p. 13.
[23] Additionally, family case manager Hickmon testified that: (1) Hickmon lacked
any confidence in Mother’s ability to remedy the conditions that prompted the
removal of the Child; and (2) stability, structure, and permanency are vitally
important for the Child, who has special needs. See In re K.T.K., 989 N.E.2d at
1235 (“[A] child’s need for permanency is an important consideration in
determining the best interests of a child.”). CASA Jukes also testified that she
was “in agreement with the termination.” Tr. Vol. II p. 63.
[24] Based on the totality of the evidence, we find that DCS proved, by clear and
convincing evidence, that termination of Mother’s parental rights was in the
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Child’s best interests. We cannot conclude that the trial court’s finding is
clearly erroneous.
Conclusion
[25] The evidence is sufficient to support the termination of Mother’s parental rights.
We affirm.
[26] Affirmed.
[27] Brown, J., and Altice, J., concur.
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In Re the Termination of the Parent-Child Relationship of S.R. (Minor Child) and V.E. v. The Indiana Department of Child Services (mem. dec.)
Combined Opinion