MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2019, 9:02 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel G. Foote Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the August 16, 2019
Parent-Child Relationship of: Court of Appeals Case No.
19A-JT-433
J.N. (Minor Child),
Appeal from the Marion Superior
and Court
A.N. (Mother), The Honorable Mark A. Jones,
Appellant-Respondent, Judge
The Honorable Larry Bradley,
v. Magistrate
Trial Court Cause No.
The Indiana Department of 49D15-1808-JT-926
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] A.N. (Mother) appeals the juvenile court’s order terminating her parent-child
relationship with J.N. (Child), arguing that the evidence is insufficient to
support the order. Finding the evidence sufficient, we affirm.
Facts
[2] Child was born to Mother on December 5, 2014,1 with marijuana in his system.
As a result, the Department of Child Services (DCS) became involved with the
family and Mother participated successfully in a program of informal
adjustment.
[3] On August 20, 2017, DCS received a report that Mother had been arrested,
leaving no caregiver for Child. Mother explained to the Family Case Manager
(FCM) that police had searched her car at a gas station and found a syringe in
her purse and heroin in a cigarette pack, both of which were within the reach of
two-year-old Child. Additionally, Child had been unrestrained in the vehicle
because Mother did not have a car seat for him. DCS removed Child, placed
him in foster care, and filed a petition alleging that he was a Child in Need of
Services (CHINS). On November 29, 2017, the juvenile court found Child to
be a CHINS based on Mother’s admission that she needed “assistance in
maintaining a home free from substance abuse.” Tr. Ex. 61.
1
Child’s father is not a part of this appeal.
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[4] During the CHINS case, Mother eventually pleaded guilty to possession of
heroin for the incident that resulted in the CHINS case. Mother failed to
appear at multiple hearings in her criminal case and had approximately seven
bench warrants issued at various times as a result. She was incarcerated on and
off during the CHINS case. In addition to the possession conviction, Mother
pleaded guilty to theft after shoplifting from a Walmart during the CHINS case.
[5] The juvenile court ordered Mother to participate with a substance abuse
assessment. She failed to do so even though DCS referred her to the assessment
five times. She began an intensive outpatient treatment program (IOP) in the
fall of 2018 but was unsuccessfully discharged for disrupting the groups,
arriving late, and smelling of marijuana. During the CHINS case, Mother
submitted to only 15 out of over 100 requested drug screens, and all 15 were
positive for, among other things, methamphetamine, marijuana, heroin, and
fentanyl. Five days before the termination trial, Mother finally completed a
substance abuse assessment to satisfy a condition of probation, but she refused
to participate in the recommended treatment.
[6] During the CHINS case, Mother wanted, but did not find, employment and
stable housing independent of her own mother’s (Grandmother) home. She
was employed for only a couple of months during the CHINS case.
[7] Mother’s therapist testified that Mother had made only minimal progress on her
issues because she was unwilling to take responsibility for her actions. The
therapist believed that Mother was at very high risk of drug abuse relapse.
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When the therapist visited Mother at Grandmother’s home, it was cluttered and
there were many animals in the home and feces on the floor.
[8] Mother’s home-based case manager testified that she had serious concerns
about Mother’s relationship with Grandmother—they continuously argued,
even during therapy sessions. Grandmother is the victim of domestic violence
from her boyfriend or husband, who still lived with her, and has not completed
any domestic violence counseling. When DCS assessed Grandmother as a
possible relative care placement for Child on three occasions during the CHINS
case, all were unsuccessful. First, the home was unsuitable because the abuser
still lived in the home; second, the home was unsuitable because Grandmother
refused to cooperate with the assessment process; finally, the home was
unsuitable because Grandmother tested positive for methamphetamine.
Grandmother refused to submit to a drug screen on the day of the termination
hearing.
[9] Mother’s visitation supervisor testified that the referral for that service closed
three times for incarcerations or failures to show for visitation. The supervisor
believed that Mother was using drugs because she often fell asleep during visits.
Mother spent too much time talking on the phone and cancelled often in the
beginning. She allowed Child to watch videos and movies on her phone
instead of interacting with him.
[10] Six days before the termination hearing, Mother successfully completed a
twenty-one-day inpatient substance abuse program. That was Phase I of the
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program. Phase II consisted of another fifty-four days, but Mother refused to
participate and instead planned to report to work release on January 28, 2019. 2
She also refused to comply with the program’s recommendation that she
remain in inpatient treatment for another ten days until she reported to work
release.
[11] On August 15, 2018, DCS filed a petition to terminate the parent-child
relationship, and the factfinding hearing took place on January 24, 2019.
Child’s Court Appointed Special Advocate (CASA) testified that in her
opinion, it was in Child’s best interests that the parent-child relationship be
terminated. The case had been open for seventeen months, and Mother had
only begun to try to address her addictions in the previous twenty-one days.
She still did not have a suitable home or the financial means to care for Child.
The FCM agreed, testifying that Mother was unable to provide Child with safe
and stable housing, that her criminal activities and drug use posed a threat to
Child’s safety, and that Mother had not demonstrated an ability or intention to
remain sober. Child is bonded to and thriving in the care of his foster parents,
who plan to adopt him. On January 29, 2019, the juvenile court entered an
order granting the termination petition. Mother now appeals.
2
Employees with the substance abuse treatment facility offered to explain to the trial court why it was
important that Mother continue with her substance abuse treatment in the hope that her work release
program could be delayed. Mother refused that offer.
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Discussion and Decision
I. Standard of Review
[12] Our standard of review with respect to termination of parental rights
proceedings is well established. In considering whether termination was
appropriate, we neither reweigh the evidence nor assess witness credibility.
K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will
consider only the evidence and reasonable inferences that may be drawn
therefrom in support of the judgment, giving due regard to the trial court’s
opportunity to judge witness credibility firsthand. Id. Where, as here, the trial
court entered findings of fact and conclusions of law, we will not set aside the
findings or judgment unless clearly erroneous. Id. In making that
determination, we must consider whether the evidence clearly and convincingly
supports the findings, and the findings clearly and convincingly support the
judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing
evidence that the child’s emotional and physical development are threatened by
the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
[13] Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate
parental rights for a CHINS must make the following allegations:
(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at
least six (6) months under a dispositional decree.
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(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a
description of the court’s finding, the date of the
finding, and the manner in which the finding was
made.
(iii) The child has been removed from the parent and
has been under the supervision of a local office or
probation department for at least fifteen (15) months
of the most recent twenty-two (22) months,
beginning with the date the child is removed from
the home as a result of the child being alleged to be
a child in need of services or a delinquent child;
(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.
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DCS must prove the alleged circumstances by clear and convincing evidence.
K.T.K., 989 N.E.2d at 1230.
II. Sufficiency
A. Reasons for Removal
[14] Mother first argues that the evidence does not establish a reasonable probability
that the conditions resulting in Child’s initial and continued removal outside
her care and custody will not be remedied. Child was initially removed because
of concerns about Mother’s substance abuse and criminal charges. He
continued to be removed based on those concerns as well as concerns about her
lack of suitable housing.
[15] During the CHINS case, Mother had many, many opportunities to participate
with substance abuse treatment. She failed to do so until the days leading up to
the termination hearing—and then, she only did so because it was a required
probation condition. See K.T.K., 989 N.E.2d at 1234 (holding that court is
within its discretion to disregard evidence of remedial efforts made only shortly
before the termination hearing). She was unsuccessfully discharged from IOP
and, while she successfully completed the first phase of an inpatient treatment
program, she refused to comply with the recommendations following that
program. She completed only 15 of over 100 requested drug screens during the
CHINS case; all 15 were positive for multiple illicit substances. She used
heroin while in jail and either heroin and/or methamphetamine while on home
detention at Grandmother’s house. Her last use of methamphetamine was on
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December 28, 2018, the same day she entered the inpatient program, four
months after DCS filed the termination petition and just one month before the
termination hearing. Mother’s therapist believed that, even following the
inpatient treatment program, Mother remained at a very high risk of relapse.
She has yet to demonstrate that she is able to remain sober in an uncontrolled—
or, indeed, even in a controlled—environment.
[16] Mother was working to complete her sentence in her criminal case. At the time
of the termination hearing, it was reported that if she successfully completed the
111 days of work release, she would have no remaining obligations in that case.
But she also committed at least one new crime—theft—while the CHINS case
was ongoing—and frequently failed to appear at hearings in her criminal case.
[17] As for housing, at the time of the termination hearing she continued to live with
Grandmother. Everyone—including Mother—agreed that Grandmother’s
home is not a suitable place for Child to live. But Mother made no progress
over the course of the CHINS case towards finding her own independent
suitable housing. Similarly, she was unable to find and maintain employment
during the CHINS case.
[18] Mother focuses heavily on the month leading up to the termination hearing,
when she completed Phase I of the inpatient treatment program. While we
applaud her participation, the fact that she then refused to comply with the
recommendations stemming from the program greatly undercuts the value of
that participation. Moreover, over the life of the CHINS case, she repeatedly
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failed to address her very serious substance abuse issues, despite multiple
chances to do so. Under these circumstances, we find that the juvenile court
did not err by concluding that there was a reasonable probability that the
conditions leading to Child’s initial and continued removal would not be
remedied.3
B. Best Interests
[19] Mother next argues that the juvenile court erred in determining that termination
of the parent-child relationship is in Child’s best interests.
[20] By the time of the termination hearing, Mother had failed to secure suitable
housing or maintain employment. Despite seventeen months to address her
substance abuse issues, she failed to take any real steps in that direction until
the month leading up to the termination hearing—and even then, she refused to
comply with further treatment recommendations. She used multiple illicit
substances regularly throughout the CHINS proceeding. Child’s CASA and the
FCM testified that in their view, termination was in Child’s best interests.
Child’s therapist testified that it would be traumatic to remove Child from his
current placement. None of the service providers involved in the CHINS case
even recommended that Mother be given unsupervised parenting time,
3
As the elements are phrased in the disjunctive, we need not also address whether the evidence supports the
juvenile court’s finding that the continuation of the parent-child relationship posed a threat to Child’s well-
being. We note, however, that the same evidence discussed above likewise supports a conclusion that the
juvenile court did not err in finding this element established by clear and convincing evidence.
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including the visitation supervisor, who had multiple concerns based on her
observations of Mother’s interactions with Child.
[21] Given this record, we find that the juvenile court did not err by concluding that
termination of the parent-child relationship is in Child’s best interests.
C. Satisfactory Plan
[22] Finally, Mother argues that DCS does not have a satisfactory plan for Child’s
care and treatment. Child has been in his current foster home since March
2018. He is bonded to his foster family and is well adjusted and thriving. His
foster family has met his needs, including ensuring that he attended counseling
and play therapy. They plan to adopt him. We find that the juvenile court did
not err by concluding that this plan is satisfactory.
[23] The judgment of the juvenile court is affirmed.
Kirsch, J., and Crone, J., concur.
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