MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 04 2017, 10:19 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
Cynthia Phillips Smith Curtis T. Hill, Jr.
Law Office of Cynthia P. Smith Attorney General of Indiana
Lafayette, Indiana
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary October 4, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of A.S.P. (Minor 79A04-1705-JT-989
Child) Appeal from the Tippecanoe
and Superior Court
The Honorable Faith A. Graham,
T.P. (Mother), Judge
Appellant-Respondent, The Honorable Tricia L. Thompson,
Magistrate
v.
Trial Court Cause No.
79D03-1606-JT-56
Indiana Department of Child
Services,
Appellee-Petitioner
Court of Appeals of Indiana | Memorandum Decision 79A04-1705-JT-989 | October 4, 2017 Page 1 of 13
Crone, Judge.
Case Summary
[1] T.P. (“Mother”) appeals a trial court order terminating her parent-child
relationship with her seven-year-old son, A.S.P.1 She raises one issue, which is
whether the evidence is sufficient to support the termination order. We affirm.
Facts and Procedural History
[2] In 2011, one-year-old A.S.P. was removed from Mother and Father’s care on a
report of neglect. The Department of Child Services (“DCS”) initiated
proceedings to have the child adjudicated a child in need of services
(“CHINS”). A.S.P. tested positive for methamphetamine and was eventually
adjudicated a CHINS (“2011 CHINS”). Mother failed to participate in the
ordered services, and the 2011 CHINS court ordered the case closed and
granted sole custody to Father.
[3] In December 2011, Mother tested positive for methamphetamine and was the
subject of a CHINS action in another county as to A.S.P.’s three older half
siblings. She completed treatment, and the case was eventually closed.
[4] In April 2014, A.S.P. was residing with Mother and his half siblings while
Father sought housing and employment. DCS removed the children from
Mother after receiving a report concerning Mother’s illegal drug use and child
1
The termination order also terminated the parental rights of A.S.P.’s father, S.P. (“Father”). Father is not
participating in this appeal.
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neglect, i.e., children were dirty and chronically tardy for school. A.S.P. tested
positive for methamphetamine, and Mother tested positive for marijuana. In
June 2014, the trial court adjudicated A.S.P. and his half siblings as CHINS
and ordered that Mother participate in services, which included completing
parenting and substance abuse assessments, participating in home-based case
management, obtaining suitable and safe housing, refraining from alcohol and
illegal drug use; submitting to random drug screens, attending visitation as
ordered, and maintaining contact with DCS personnel and the court.
[5] During the first several months of the CHINS pendency, Mother was cancelled
out of most of her services due to nonparticipation. During the first quarter of
2015, she became actively engaged in services and progressed to the point
where A.S.P. and his half siblings were placed on a trial home visitation with
Mother, who was residing at her mother’s home. Within five months, the trial
home visitation was closed due to Mother’s failure to maintain the home in a
safe and sanitary condition, failure both to attend her own service appointments
and to ensure that A.S.P. attended his service appointments, failure to
personally supervise the children, and her positive alcohol screen. About that
same time, Mother’s family was evicted for nonpayment of rent, and the
children were placed in other homes. Mother eventually secured an apartment,
and DCS personnel attempted to resume services. Mother did not maintain
contact with DCS, and her referral for home-based services was eventually
cancelled for noncompliance. During 2016, she failed to appear for several
weekly drug screens as ordered.
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[6] In June 2016, DCS filed a petition for termination of Mother’s parental rights. 2
Following a factfinding hearing, the trial court issued an order with findings of
fact and conclusions thereon, terminating Mother’s parent-child relationship
with A.S.P.
[7] Mother now appeals. Additional facts will be provided as necessary.
Discussion and Decision
[8] Mother challenges the sufficiency of the evidence to support the trial court’s
judgment terminating her parental relationship with A.S.P. When reviewing a
trial court’s findings of fact and conclusions thereon in a case involving the
termination of parental rights, we first determine whether the evidence supports
the findings and then whether the findings support the judgment. In re E.M., 4
N.E.3d 636, 642 (Ind. 2014). We will set aside the trial court’s judgment only if
it is clearly erroneous. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d
143, 147 (Ind. 2005). We neither reweigh evidence nor judge witness
credibility. E.M., 4 N.E.3d at 642. Rather, we consider only the evidence and
inferences most favorable to the judgment. Id. “[I]t is not enough that the
evidence might support some other conclusion, but it must positively require
the conclusion contended for by the appellant before there is a basis for
reversal.” Best v. Best, 941 N.E.2d 499, 503 (Ind. 2011) (citations omitted).
[9] In Bester, our supreme court stated,
2
Mother signed consents for adoption of A.S.P.’s three half siblings, and they are not subjects of this appeal.
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The Fourteenth Amendment to the United States Constitution
protects the traditional right of parents to establish a home and
raise their children. A parent’s interest in the care, custody, and
control of his or her children is perhaps the oldest of the
fundamental liberty interests. Indeed the parent-child
relationship is one of the most valued relationships in our culture.
We recognize of course that parental interests are not absolute
and must be subordinated to the child’s interests in determining
the proper disposition of a petition to terminate parental rights.
Thus, parental rights may be terminated when the parents are
unable or unwilling to meet their parental responsibilities.
839 N.E.2d at 147 (citations, quotation marks, and alteration omitted).
[10] To obtain a termination of a parent-child relationship, DCS is required to
establish in pertinent part:
(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.
….
(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.
Ind. Code § 31-35-2-4(b)(2).
[11] In recognition of the seriousness with which we address parental termination
cases, Indiana has adopted a clear and convincing evidence standard. Ind.
Code § 31-37-14-2; Castro v. State Office of Family & Children, 842 N.E.2d 367,
377 (Ind. Ct. App. 2006), trans. denied. “Clear and convincing evidence need
not reveal that the continued custody of the parents is wholly inadequate for the
child’s survival. Rather, 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.” In re K.T.K., 989 N.E.2d 1225, 1230 (Ind.
2013) (citation omitted).
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Section 1 – Mother has failed to demonstrate clear error
concerning the reasonable probability that the conditions that
led to A.S.P.’s removal will not be remedied.
[12] Mother asserts that the evidence is insufficient to support the trial court’s
conclusion that a reasonable probability exists that the conditions that led to
A.S.P.’s removal will not be remedied.3 Where, as here, Mother does not
specifically challenge any of the trial court’s findings, we simply determine
whether the unchallenged findings are sufficient to support the judgment. T.B.
v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012), trans.
denied. When assessing whether there is a reasonable probability that
conditions that led to a child’s removal will not be remedied, we must consider
not only the initial basis for the child’s removal but also the bases for continued
placement outside the home. In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App.
2005), trans. denied. Moreover, “the trial court should judge a parent’s fitness to
care for his [or her] children at the time of the termination hearing, taking into
consideration evidence of changed conditions.” In re J.T., 742 N.E.2d 509, 512
(Ind. Ct. App. 2001), trans. denied. “Due to the permanent effect of termination,
3
Mother also challenges the trial court’s conclusion that there is a reasonable probability that the
continuation of the parent-child relationship poses a threat to A.S.P.’s well-being. Indiana Code Section 31-
35-2-4(b)(2)(B) requires DCS to prove only one of the three circumstances listed. Because we find no error
concerning the reasonable probability that the conditions will not be remedied, we need not address the threat
to the child’s well-being. We note that the termination statute was amended in 2010 to include the following
alternative to unremedied circumstances and threat to well-being: “The child has, on two (2) separate
occasions, been adjudicated a child in need of services.” Ind. Code § 31-35-2-4(b)(2)(B)(iii). This is
significant because A.S.P. was adjudicated a CHINS in a separate proceeding in 2011. The trial court
entered findings on A.S.P.’s previous CHINS adjudication but does not appear to have relied on it as the
basis for its termination order. See Appellant’s App. Vol. 2 at 10, 14 (findings 2 and 35, conclusions 1-4). We
observe that Mother has quoted the pre-2010 version of the statute in her brief and remind her to include the
version of the statute in effect when the termination petition was filed.
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the trial court also must evaluate the parent’s habitual patterns of conduct to
determine the probability of future neglect or deprivation of the child.” Id. In
making its case, “DCS need not rule out all possibilities of change; rather, [it]
need establish only that there is a reasonable probability that the parent’s
behavior will not change.” In re Kay.L., 867 N.E.2d 236, 242 (Ind. Ct. App.
2007). The court may properly consider evidence of a parent’s substance abuse,
criminal history, lack of employment or adequate housing, history of neglect,
and failure to provide support. McBride v. Monroe Cty. Office of Family & Children,
798 N.E.2d 185, 199 (Ind. Ct. App. 2003).
[13] Mother asserts that she is currently stable and has essentially remedied the
conditions that led to A.S.P.’s initial removal. Those conditions include
neglect, Mother’s methamphetamine use, unsanitary living conditions, A.S.P.’s
positive test positive for methamphetamine, and Mother’s positive test for
marijuana. In its dispositional order following the CHINS adjudication, the
trial court ordered that Mother secure and maintain employment and safe,
stable housing and that she participate in parenting and substance abuse
assessments, home-based case management, visitation, and drug screens.
[14] In its termination order, the trial court issued extensive findings concerning
Mother’s patterns of conduct that bear negatively on the reasonable probability
of her remedying the conditions that led to A.S.P.’s removal. To summarize,
Mother completed a substance abuse assessment and clinical interview but did
not complete a parenting assessment. She participated in therapy early in the
CHINS proceedings but ceased participation by the summer of 2016. She was
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discharged from several home-based management providers for noncompliance.
She made strides in her visitation and was afforded a trial home visitation,
which lasted about five months and was ultimately closed due to unsafe,
unsanitary living conditions at Mother’s home and Mother’s persistent reliance
on her own mother as the children’s primary caregiver. Thereafter, her
participation in services was minimal, and she failed to stay in contact with
DCS as ordered. She was employed during most of the CHINS proceedings,
initially bouncing from job to job (four different jobs in the first six months), but
having a couple longer stints of employment.
[15] As for housing, the trial court found that Mother maintained housing for most
of the pendency of the CHINS case, initially living in her mother’s home and
then moving to an apartment with her boyfriend. When her boyfriend was
incarcerated, she moved back in with her mother. They were several thousand
dollars in arrears on rent; utilities were twice disconnected for nonpayment; and
conditions such as bedbugs, lice, broken plumbing, and trash strewn throughout
the house resulted in the closure of the trial home visitation with A.S.P. and his
half siblings. DCS family case manager Dellie Wells reported that during the
time when the children were at Mother’s house, there was a broken window
that was left unrepaired and uncovered. Tr. Vol. 2 at 73. The family was
evicted, and Mother moved into her own apartment, which DCS personnel
observed to be so cluttered with boxes and clothes as to make it difficult to walk
around. Mother lived in the apartment for a year but faced possible eviction
twice due to unpaid rent. The court found that despite her living conditions
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and unpaid bills, Mother spent money on unnecessary items such as tanning
and brand-name shoes and failed to avail herself of community resources such
as food pantries.
[16] Mother’s history of drug use includes a felony conviction for possession of
methamphetamine as well as a conviction for operating while intoxicated. She
failed several drug screens in the first six months of the CHINS proceedings and
failed to appear for several other screens. Wells testified concerning an incident
in which she came to Mother’s house for a random drug screen, and Mother
tested positive for alcohol (.08 percent blood alcohol concentration)
immediately after having driven home from the hardware store. Id. at 74.4
Mother went a few months with clean drug screens, followed by positive
screens for marijuana in the summer and fall of 2016, after the permanency plan
had been changed from reunification to termination and adoption.
[17] In examining the evidence and unchallenged findings, we find it sad and
troubling that A.S.P.’s behavior regressed during his trial home visitation with
Mother. As part of the trial home visitation, Mother was required to
immediately engage in therapy services for A.S.P., but Wells explained that
Mother’s attendance at those sessions was sporadic and that, when Mother did
attend the sessions, she was impatient with A.S.P. Id. at 72. Wells testified that
after the trial home visitation had failed, Mother maintained weekly visits but
4
At one point during the CHINS pendency, Mother’s driver’s license was suspended for one year for driving
without insurance, and at the time of the termination factfinding, she said that she would not seek to have it
reinstated due to lack of funds.
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was often disengaged and frustrated during those visits. Id. at 93. Wells also
reported that when A.S.P. was placed in foster care, Mother made no effort to
communicate with A.S.P. by phone even though she was afforded the privilege
of doing so. Id. at 92. In short, despite some strides in her employment,
Mother has failed to demonstrate significant, sustained improvement in other
areas. In fact, when it comes to her participation in services, she has regressed.
The evidence and unchallenged findings are sufficient to support the trial
court’s conclusion that there is a reasonable probability that the conditions that
led to A.S.P.’s removal will not be remedied.
Section 2 – Mother has failed to establish clear error
concerning A.S.P.’s best interests.
[18] Mother asserts that the trial court clearly erred in concluding that termination is
in A.S.P.’s best interests. Although not dispositive, permanency and stability
are key considerations in determining the best interests of a child. In re G.Y.,
904 N.E.2d 1257, 1265 (Ind. 2009). A determination of a child’s best interests
should be based on the totality of the circumstances. In re A.P., 981 N.E.2d 75,
84 (Ind. Ct. App. 2012).
[19] The trial court’s findings with respect to A.S.P.’s best interests include the
following:
33. The child has been diagnosed with Reactive Attachment
Disorder, Adjustment Disorder, and Disruptive Behavior. The
child participated in therapy and home-based life skills training.
The plan for the child is adoption by the concurrent (sic) foster
home. The child is doing well in the foster home which provides
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a stable environment and ensures the child’s needs are met.
34. CASA, Shaeley Schmidt, supports the plan of adoption for
the child. CASA notes the child has behavioral, educational, and
mental health issues. The child needs a caregiver who is stable
and can manage the child’s challenges. CASA notes that Mother
has not demonstrated an ability to provide for the child’s needs.
The Father has essentially abandoned the child.
35. The child has been adjudicated a CHINS on two (2) separate
occasions and tested positive for methamphetamine in both
cases. The child has suffered from instability during his young
life and needs a stable, permanent home. The child has been in
approximately five (5) foster homes throughout the course of
both CHINS cases. This child has spent the majority of his life in
a CHINS case and needs permanency now. To continue the
parent-child relationships would be detrimental to the child.
Appellant’s App. Vol. 2 at 14.
[20] Here, the totality of the circumstances shows a child with significant challenges,
many of which can be traced to the lack of stable, consistent care throughout his
young life. He has been bounced from home to home, having been in and out
of his parents’ care, in relative care, and in several foster homes. Mother,
though seemingly well-meaning, struggles with significant challenges of her
own. Her inability to stay away from drugs for any prolonged period has
resulted in her unstable and unsanitary living conditions, which in turn, have
negatively affected A.S.P.’s behavior as well as his mental stability and physical
health and safety. A.S.P. has twice been adjudicated a CHINS, and in both
instances, this young child tested positive for illegal drugs. He is now at a point
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where his mental, emotional, and educational needs require additional care and
consistency that Mother simply cannot provide. CASA Schmidt concluded,
and the trial court agreed, that termination of Mother’s parental rights and
adoption by the current foster parents are in A.S.P.’s best interests. “[T]he
testimony of the service providers may support a finding that termination is in
the child’s best interests.” In re A.K., 924 N.E.2d 212, 224 (Ind. Ct. App. 2010),
trans. dismissed. The totality of the circumstances supports the trial court’s
conclusion that termination is in A.S.P.’s best interests.
[21] Mother has failed to establish clear error in the trial court’s decision to
terminate her parent-child relationship with A.S.P. Consequently, we affirm.
[22] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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In the Matter of the Involuntary Termination of the Parent-Child Relationship of A.S.P. (Minor Child) and T.P. (Mother) v. Indiana Department of Child Services (mem. dec.)
Combined Opinion