In the Termination of the Parent-Child Relationship of: S.S. (Minor Child) and L.M. (Mother) and Sa.S. (Father) v. The Indiana Department of Child Services

FILED
Mar 06 2019, 9:21 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
L.M. (MOTHER) Curtis T. Hill, Jr.
Benjamin J. Church Attorney General of Indiana
Church Law Office Natalie F. Weiss
Monticello, Indiana Deputy Attorney General
ATTORNEY FOR APPELLANT Indianapolis, Indiana
SA.S. (FATHER)
Christopher P. Phillips
Phillips Law Office, P.C.
Monticello, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Termination of the Parent- March 6, 2019
Child Relationship of: Court of Appeals Case No.
18A-JT-2370
S.S. (Minor Child)
Appeal from the White Circuit
and Court
L.M. (Mother) and Sa.S. (Father), The Honorable Robert W.
Appellants-Respondents, Thacker, Judge
Trial Court Cause No.
v. 91C01-1712-JT-30

The Indiana Department of
Child Services,
Appellee-Petitioner.

Robb, Judge.

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 Case Summary and Issue
[1] L.M. (“Mother”) and Sa.S. (“Father”) (collectively “Parents”) separately

appeal the juvenile court’s judgment terminating their parental rights to S.S.

(“Child”). Parents present several issues for our review which we consolidate

and restate as: whether the juvenile court erred in terminating their parental

rights. Concluding the juvenile court did not err in terminating either Mother’s

or Father’s parental rights, we affirm.

Facts and Procedural History
[2] Mother and Father are the biological parents of Child who was born on June

30, 2013.1 Child tested positive for THC at birth and the Indiana Department

of Child Services (“DCS”) conducted an informal adjustment and then a child

in need of services (“CHINS”) case before reunifying Child with Father.

[3] On May 16, 2016, DCS received a report that Parents were neglecting Child

and using illegal drugs in his presence. After Parents were contacted by DCS,

Mother refused a drug screen and Father tested positive for methamphetamine,

amphetamine, and THC. Parents fled with Child to Florida, but Father

eventually returned with Child on May 27 and Child was removed from his

1
Paternity was established in a prior legal action.

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 care. Child was placed in relative care with paternal grandfather where Child

remained throughout the duration of this case.

[4] DCS filed its CHINS petition on June 1, 2016 based on Parents’ drug use in the

presence of the Child, Mother’s refusal to take a drug screen, Father’s positive

drug test, Parents’ decision to flee to Florida, and Parents’ prior involvement

with DCS. The juvenile court conducted a detention hearing on June 2 at

which only Father appeared and the juvenile court authorized Child’s

continued removal and placement in relative care. Due to Father being on

probation when he fled to Florida, he was incarcerated from June to August

2016 for violating the terms of his probation.

[5] Following a factfinding hearing, the juvenile court adjudicated Child to be

CHINS on September 28, 2016. The juvenile court ordered Parents to, among

other things: maintain contact with DCS; maintain suitable, safe, and stable

housing; maintain a stable source of income; not use, consume, trade or sell any

illegal controlled substances; obey the law; submit to random drug screens;

attend all scheduled visitations with the Child; engage in home based case

management; and complete a substance abuse assessment and all treatment

recommendations therefrom. Appellant’s [Mother’s] Appendix, Volume II 19-

23.

[6] After Parents failed to comply with many of the terms ordered by the juvenile

court, DCS filed a verified petition for the termination of the parent-child

relationship (“TPR”) between Father, Mother, and Child on December 28,

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 2017. Following a TPR hearing on June 13 and June 18, 2018, the juvenile

court issued its termination order on September 4, which included 160 findings

of fact2 and concluding DCS had met the statutory requirements for terminating

the parent-child relationships. See id. at 65-66. Father and Mother now

separately appeal. Additional facts will be supplied as necessary.

Discussion and Decision
I. Standard of Review
[7] We begin, as we often do, by emphasizing that the right of parents to establish a

home and raise their children is protected by the Fourteenth Amendment to the

United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App.

2004), trans. denied. The law provides for the termination of these

constitutionally protected rights, however, when parents are unable or

unwilling to meet their parental responsibilities. In re R.H., 892 N.E.2d 144,

149 (Ind. Ct. App. 2008). We subordinate the interests of the parents to those

2
While we commend the juvenile court for its extensive findings and thorough order, we note that many of
the juvenile court’s findings are merely recitations of the evidence. See Appellant’s App., Vol. II at 45-65. “A
court or an administrative agency does not find something to be a fact by merely reciting that a witness
testified to X, Y, or Z.” S.L. v. Indiana Dep’t of Child Servs., 997 N.E.2d 1114, 1122 (Ind. Ct. App. 2013).
Instead, “a finding of fact must indicate not what someone said is true but what is determined to be true, for
that is the trier of fact’s duty.” Id. “The trier of fact must adopt the testimony of the witness before the
‘finding’ may be considered a finding of fact.” Id. Because neither Father nor Mother has challenged these
findings on appeal, however, any such argument has been waived. McMaster v. McMaster, 681 N.E.2d 744,
747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court findings were accepted as true).
Regardless, we take this opportunity to remind trial courts that they must adopt evidence or testimony if the
court wishes to make such a finding.

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 of the child when evaluating the circumstances surrounding a termination. In re

K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).

[8] We do not reweigh the evidence or judge the credibility of witnesses when

reviewing the termination of parental rights. In re D.D., 804 N.E.2d at 265.

Rather, we consider only the evidence and reasonable inferences most favorable

to the judgment. Id. Furthermore, in deference to the juvenile court’s unique

position to assess the evidence, we only set aside its judgment terminating a

parent-child relationship when it is clearly erroneous. In re L.S., 717 N.E.2d

204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534 U.S. 1161 (2002).

[9] Where, as here, the juvenile court enters findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine

whether the evidence supports the findings, then we must determine whether

the findings support the judgment. Id. Findings will only be set aside if they are

clearly erroneous and findings are only clearly erroneous “when the record

contains no facts to support them either directly or by inference.” Yanoff v.

Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).

II. Termination Order
[10] Our supreme court has described the involuntary termination of parental rights

as “an extreme measure that is designed to be used as a last resort when all

other reasonable efforts have failed.” In re C.G., 954 N.E.2d 910, 916 (Ind.

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 2011). In order for the State to terminate parental rights, Indiana Code section

31-35-2-4(b)(2) provides the State must prove, in relevant 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.

***

(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.

[11] Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written

in the disjunctive, and thus the State need only prove one of those statutory

elements, In re L.S., 717 N.E.2d at 209, but must do so by clear and convincing

evidence, Ind. Code § 31-34-12-2; In re G.Y., 904 N.E.2d 1257, 1261 (Ind.

2009). If a juvenile court determines the allegations of the petition are true,

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

2-8(a).

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[12] We also note that “[i]t is common practice for our trial courts to conduct

termination hearings as well as the CHINS proceedings underlying them

involving multiple children and/or multiple parents in a single proceeding.” In

re V.A., 51 N.E.3d 1140, 1146 (Ind. 2016). However, we must weigh the

evidence as it pertains to each Parent. See id.

A. Remedy of Conditions
[13] Both Mother and Father contend DCS failed to prove by clear and convincing

evidence that the circumstances leading to removal would not be remedied.

We engage in a two-step analysis to determine whether such conditions will be

remedied: “First, we must ascertain what conditions led to [Child’s] placement

and retention in foster care. Second, we determine whether there is a

reasonable probability that those conditions will not be remedied.” In re K.T.K.,

989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted).

[14] Child was removed from Parents due to ongoing substance abuse issues and

their use of illegal drugs in front of Child. The juvenile court made 136 findings

“relating to continued removal and reasonable probability reasons for removal

not remedied.” Appellant’s App., Vol. II at 49. And, because neither Father

nor Mother has challenged these findings on appeal, we must accept these

findings as true. McMaster, 681 N.E.2d at 747.

[15] A juvenile court assesses whether a reasonable probability exists that the

conditions justifying a child’s removal or continued placement outside his

parent’s care will not be remedied by judging the parent’s fitness to care for the

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 child at the time of the termination hearing, taking into consideration evidence

of changed conditions. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). Habitual

conduct may include criminal history, drug and alcohol abuse, history of

neglect, failure to provide support, and lack of adequate housing and

employment, but the services offered to the parent and the parent’s response to

those services can also be evidence demonstrating that conditions will be

remedied. A.D.S v. Indiana Dept. of Child Services, 987 N.E.2d 1150, 1157 (Ind.

Ct. App. 2013), trans. denied.

1. Mother

[16] We begin our review with Mother. The record reveals that the Child tested

positive for THC at birth and Mother has never had primary custody of the

Child or acted as the Child’s primary caregiver. Mother resided in Florida from

May 2016 until December 2017 and during that time Mother only had

visitation with the Child once every three months. Mother’s oral drug screens

were consistently positive for THC and she refused to take hair drug screens on

multiple occasions. DCS recommended a drug treatment facility in Florida but

Mother failed to complete the program or attend the required sessions. Mother

moved back to Indiana in December 2017 after she became pregnant with a

child fathered by her new boyfriend. Since her return, Mother’s visitation with

the Child has increased to once a week and she produced several negative drug

tests during her pregnancy. Mother requested additional visitation with the

Child a month before the TPR hearing and completed a substance abuse

assessment a week before the TPR hearing.

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[17] On appeal, Mother’s sole argument is that the juvenile court erred by

disregarding her recent progress. However, since Mother failed to specifically

challenge any of the juvenile court’s findings, we need only consider whether

the findings support the juvenile court’s conclusion. Bester, 839 N.E.2d at 147.

We conclude that they do.

[18] Substance abuse is the underlying issue in this case and Mother has failed to

complete a substance abuse program despite being counseled to participate in

such a program for over a year and a half. Accounting for the fact that the

Child tested positive for THC at birth in 2013, Mother has failed to complete a

substance abuse program for over five years and the record is also absent of any

voluntary efforts Mother has made with the aim of improving her substance

abuse issues.

[19] Mother’s efforts are similarly unimpressive with regard to her relationship with

the Child. Family Case Manager (“FCM”) Brooke Brown testified that Mother

lacks a strong bond with the Child and that Mother disregarded her suggestions

for improvement. Likewise, the guardian ad litem testified that Mother’s

relationship with the Child more closely resembles a friendship than that of a

parent and child. We have often noted that evidence of a parent’s pattern of

unwillingness or lack of commitment to address parenting issues and to

cooperate with services demonstrates the requisite reasonable probability that

the conditions will not change. Lang v. Starke Cty. OFC, 861 N.E.2d 366, 372

(Ind. Ct. App. 2007), trans. denied. Such is the case here.

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[20] To the extent Mother highlights her recent progress and completion of a

substance abuse assessment one week before the TPR hearing, the juvenile

court was well within its discretion to “disregard the efforts Mother made only

shortly before termination and to weigh more heavily Mother’s history of

conduct prior to those efforts.” In re K.T.K., 989 N.E.2d at 1234. For these

reasons, we conclude the juvenile court’s findings supported its conclusion. See,

e.g., In re E.M., 4 N.E.3d at 644 (findings regarding a parent’s continued non-

compliance with services supported juvenile court’s conclusion the conditions

under which children were removed from the parent’s care would not be

remedied).

2. Father

[21] Unlike Mother, Father’s efforts were initially quite promising. After the Child’s

removal and Father’s release from incarceration for violating his probation,

Father engaged in home based case management and cooperated with DCS. In

return, Father was provided additional responsibility which included picking

the Child up from preschool and having unsupervised time with the Child

before daycare. Father eventually began arriving late and then failed to pick the

Child up at all. Thereafter, Father’s behavior worsened, and his cooperation

declined.

[22] Father repeatedly tested positive for cocaine, methamphetamine, amphetamine,

and/or THC since the inception of this case. DCS employees observed Father

under the influence on multiple occasions during which his behavior was

irrational and he would appear aggressive and threatening. Father completed
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 only seven days of a 60-to-90-day inpatient treatment program and was

eventually arrested on charges of possession of a syringe, methamphetamine,

and marijuana in September 2017.

[23] Like Mother, Father emphasizes his recent efforts and argues the juvenile court

erred in concluding the relevant conditions were unlikely to be remedied

because of his recent cooperation, the fact that he has not missed any visits with

the Child since the beginning of 2018, his current employment, and that he was

“capable of progress with his substance abuse, but needs to work on following

through with the program.” Appellant’s Brief on Behalf of Father at 13. In so

arguing, Father contends his case is akin to In re J.M., where DCS sought to

terminate the parental rights of both the mother and father of a child after both

were incarcerated on drug-related charges. 908 N.E.2d 191 (Ind. 2009).

[24] In J.M., the juvenile court refused to terminate the parental rights after receiving

testimony that both parents could be released early from prison for completing

certain degrees, that both parents had completed a number of self-improvement

programs while incarcerated, and that the father had secured employment and

housing upon his release from prison. Our supreme court agreed with the

juvenile court’s refusal to terminate because the parents’ ability to establish a

proper household for the child could be determined within a relatively short

period of time without threatening the child’s need for permanency.

[25] Contrary to Father’s assertion, however, almost none of the factors considered

by our supreme court in J.M. are applicable here. First, to the extent Father

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 contends he was employed at the time of the TPR hearing, the juvenile court

found that he was not. See Appellant’s App., Vol. II at 60, ¶ 99. Indeed,

Father’s own testimony at the TPR hearing established that he was

unemployed. See Transcript, Volume 2 at 120. Second, despite the similarity

between Father’s two arrests and the arrests of the parents in J.M., both of

which were after their children’s birth, Father has consistently refused help with

his substance abuse issues and has failed to take any significant steps to obtain

sobriety—unlike the number of self-improvement programs completed in J.M.

[26] Finally, as with Mother, the juvenile court was free to disregard Father’s

attendance at five narcotics anonymous meetings and his month-long sobriety

prior to the TPR hearing in favor of his long-running pattern of behavior. In re

K.T.K., 989 N.E.2d at 1234. In short, we agree with the juvenile court that the

evidence establishes a reasonable probability that the conditions that resulted in

the Child’s removal and continued placement outside the home will not be

remedied.3

B. Best Interests
[27] Both Father and Mother also contend DCS failed to prove termination of their

parental rights was in the Child’s best interest. In determining the best interests

3
Father also argues the juvenile court erred in finding that the continuation of the parent-child relationship
poses a threat to the Child’s well-being. However, as noted above, Indiana Code section 31-35-2-4(b)(2)(B) is
written in the disjunctive and requires only one element be proven to terminate Father’s parental rights. See
In re L.S., 717 N.E.2d at 209. Having concluded the evidence is sufficient to show a reasonable probability
the conditions resulting in the Child’s removal will not be remedied, we need not consider whether the
parent-child relationship poses a threat to the Child’s well-being.

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 of a child, the juvenile court must “look beyond the factors identified by the

DCS and look to the totality of the evidence.” In re H.L., 915 N.E.2d 145, 149

(Ind. Ct. App. 2009). And the juvenile court “need not wait until the child is

irreversibly harmed such that the child’s physical, mental and social

development is permanently impaired before terminating the parent-child

relationship.” In re K.T.K., 989 N.E.2d at 1235.

[28] Once again, neither Father nor Mother has challenged any of the juvenile

court’s findings of fact and therefore, we need only determine whether those

findings support the juvenile court’s conclusion. Bester, 839 N.E.2d at 147. In

this regard, the juvenile court found:

1. [FCM] Brown testified that the termination was in the
[C]hild’s best interest in that the Father continues to
struggle with housing and income stability, poor decision
making, illegal substance use which produces erratic,
irrational behavior, and that Mother chose to live in
Florida instead of Indiana to build a bond with [the Child],
that throughout the case Mother only visited [the Child]
when she was home for Court, and consistently tested
positive for THC until she became pregnant while home
for Court. Since Mother’s return [to Indiana] in December
of 2017 she did not request additional visitation until May
of 2018.

2. [FCM] Brown testified that the relationship between the
[C]hild and Mother was more of a friend relationship than
a Mother-[child] relationship. This relationship has been
only minimally enhanced since Mother’s return in
December.

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 3. [FCM] Brown testified that the [C]hild needs consistency
in her everyday life, and permanency and had been placed
with her grandfather a majority of her life.

4. [The guardian ad litem] testified that the [C]hild needs
stable parents and consistency.

5. [The guardian ad litem] testified that the [C]hild has been
with [the same] placement for over half her life and
bonded with paternal grandfather and his significant other.

Appellant’s App., Vol. II at 64.

[29] We conclude that the juvenile court’s findings support its judgment. As

discussed above, DCS produced ample evidence that the conditions resulting in

removal will not be remedied. This, combined with FCM Brown’s testimony

that termination was in the Child’s best interest, is sufficient to show

termination is in the child’s best interest by clear and convincing evidence. See,

e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (holding

recommendations of the case manager, court-appointed advocate, and evidence

tending to show that the conditions resulting in removal will not be remedied is

enough to show termination is in the child’s best interests by clear and

convincing evidence), trans. denied. Neither parent has demonstrated an ability

to effectively use the services provided to them, see In re T.F., 743 N.E.2d 766,

776 (Ind. Ct. App. 2001), trans. denied, and it is uncontested that Child is doing

well in foster placement with her paternal grandfather. Accordingly, the

juvenile court did not err in its determination of the Child’s best interests.

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 Conclusion
[30] We reverse a termination of parental rights “only upon a showing of ‘clear

error’—that which leaves us with a definite and firm conviction that a mistake

has been made.” Egly v. Blackford Cty. Dep’t of Pub. Welfare, 592 N.E.2d 1232,

1235 (Ind. 1992). Finding no such error here, we affirm the juvenile court.

[31] Affirmed.

Riley, J., and Kirsch, J., concur.

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