MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Oct 03 2016, 10:05 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Andrew J. Sickmann Gregory F. Zoeller
Boston Bever Klinge Attorney General of Indiana
Cross & Chidester
Robert J. Henke
Richmond, Indiana Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Termination of the Parent- October 3, 2016
Child Relationship of H.L. Court of Appeals Case No.
(Minor Child), 89A01-1604-JT-911
C.L. (Mother) and L.F. (Father), Appeal from the Wayne Superior
Court
Appellants-Respondents,
The Honorable Darrin M.
v. Dolehanty, Judge
Trial Court Cause No.
The Indiana Department of 89D03-1511-JT-40
Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] C.L. (Mother) and L.F. (Father) appeal the trial court’s order terminating their
parent-child relationship with their child, H.L. (Child). Mother and Father
argue that there is insufficient evidence supporting the termination order.
Finding the evidence sufficient, we affirm.
Facts
[2] Child was born on July 3, 2014, and had opiates in her system at the time of her
birth. Mother later admitted using heroin throughout her pregnancy. Father
was incarcerated at that time. The Department of Child Services (DCS)
became involved with the family based on concerns of Mother’s drug use.
Mother agreed to participate in a program of Informal Adjustment, but the
program was unsuccessful because Mother continued to test positive for heroin
as well as cocaine and marijuana.
[3] On October 24, 2014, the trial court authorized the removal of Child from
Mother’s care and custody because of Mother’s ongoing substance abuse and
Father’s incarceration. Additionally, DCS alleged that Mother had left the
infant in a residence where a known heroin user resides. On October 31, 2014,
DCS filed a petition alleging that Child was a Child in Need of Services
(CHINS) based on Mother’s substance abuse and Father’s incarceration. The
same day, both parents admitted to the allegations in an amended CHINS
petition1 and Child was adjudicated a CHINS. Also at that hearing, the trial
1
The amended CHINS petition was not admitted into evidence.
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court found Mother in contempt for continuing to use illegal drugs and
sentenced her to ninety days imprisonment. Father was released from
incarceration on November 17, 2014.
[4] The trial court issued a dispositional decree on November 25, 2014, ordering
both parents to do the following: submit to random drug screens; complete a
substance abuse assessment and comply with all recommendations; attend all
scheduled visits with Child; and maintain a stable source of income. Father
was ordered to participate in the Engaging Fathers program and Mother was
ordered to complete inpatient substance abuse treatment. Additionally, the trial
court authorized Mother’s release from jail so that she could begin inpatient
substance abuse treatment.
Mother
[5] Mother successfully completed inpatient substance abuse treatment, but she
tested positive for methamphetamine just one week later. DCS referred Mother
to a substance abuse counselor, but Mother participated infrequently and
inconsistently, and when she did participate she was often dishonest. That
provider stopped working with Mother in July 2015 because of Mother’s failure
to progress.
[6] On February 6, 2015, the trial court again found Mother in contempt for failing
to appear at a hearing and sentenced her to thirty days in jail. She was released
in March 2015.
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[7] Mother was participating with homebased case management between July 2014
and September 2015. She was supposed to attend once a week, but after Child
was removed in October 2014, Mother’s participation became inconsistent. As
of the July 6, 2015, CHINS review hearing, Mother had not attended a case
management session since she was released from incarceration on March 28,
2015. Mother was unsuccessfully discharged from this service because of
noncompliance and incarceration.
[8] Mother’s homebased case manager also supervised her visits with Child.
Mother did not consistently attend her scheduled visits and sometimes appeared
to be under the influence when she attended. At the time of the termination
hearing, Mother’s last visit with Child had occurred on August 25, 2015.
[9] Mother was arrested on July 7, 2015, and charged with Level 6 felony theft,
Level 6 felony possession of a legend drug, and class A misdemeanor
possession of paraphernalia; on July 14, 2015, she was charged with class A
misdemeanor conversion in a separate cause. On July 29, 2015, Mother
pleaded guilty to conversion and was sentenced to four days in jail. She was
released on August 5, 2015.
[10] In August 2015, DCS referred Mother to an intensive outpatient treatment
program, but Mother never completed the required substance abuse assessment
and that referral was closed.
[11] On September 17, 2015, Mother was arrested, and on October 9, 2015, she was
charged with ten counts of Level 6 felony fraud. In December 2015, while
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incarcerated, Mother completed a substance abuse assessment, indicating that
she used methamphetamine, heroin, marijuana, and opiate pain pills. She had
last used illicit substances before she was arrested in September 2015. Mother
has participated with substance abuse counseling while incarcerated; her
counselor has recommended that Mother again complete inpatient substance
abuse treatment once she is released.
[12] On February 9, 2016, Mother pleaded guilty to Level 6 felony theft and one
count of Level 6 felony fraud. She was sentenced to one year for each of the
two convictions, to be served consecutively. At the time of the termination
hearing, Mother was still incarcerated, with an earliest possible release date of
May 15, 2016.
[13] During the underlying CHINS case, Mother lived at three different residences,
in addition to the five times she was incarcerated. At the time of the
termination hearing, she had not met her goals of going back to school,
securing housing, or finding employment. Mother’s only income occurred
during the program of Informal Adjustment and consisted of food stamps and
Temporary Assistance for Needy Families. Both income sources discontinued
after Child’s removal in October 2014, and Mother has not had any income
since that time.
Father
[14] Father attended only two visits with Child; both visits took place in December
2014. He failed to attend a third visit in December 2014 and had no visits after
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that time because he failed to maintain contact with DCS during the period of
time he was not incarcerated.
[15] On April 7, 2015, Father was arrested on a charge of Level 6 felony possession
of methamphetamine. He eventually pleaded guilty as charged and was
sentenced to one year of incarceration. At the time of the termination hearing,
his earliest possible release date was September 2, 2016, at which time he will
be on parole for a minimum of six months. While incarcerated, he has
participated in the Engaging Fathers and Thinking for a Change programs and
has obtained his GED. He was enrolled in a substance abuse program but
stopped attending because he did not receive a reduction in his sentence for
participating.
[16] DCS filed a petition to terminate the parent-child relationship between both
parents and Child on November 20, 2015. Following a February 24, 2016,
factfinding hearing, the trial court entered an order terminating the parent-child
relationship. In pertinent part, the trial court found and concluded as follows:
B. There is clear and convincing evidence to establish a
reasonable probability that the conditions that led to the child’s
removal from her home, and the reasons for her placement
outside of that home, will not be remedied. [Child] was born
with opiates in her system, due to Mother’s ongoing use of illegal
drugs while pregnant. . . . Mother continued to test positive for
illegal drug use. . . . Mother completed a three-week inpatient
substance abuse treatment program on December 22, 2014. By
December 29, 2014, Mother had already relapsed . . . . Since
that time, Mother disappeared for a couple of months, and then
was incarcerated for another month. . . . Mother was
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incarcerated various times in July and August, 2015. She has
remained incarcerated since mid-September, 2015. The child
was removed from Mother’s care due to Mother’s longstanding
and continuing substance abuse. Despite inpatient and
outpatient substance abuse treatment, Mother continued to
prioritize drugs over her infant child. Since July, 2015, Mother
has committed and been convicted and sentenced for Criminal
Conversion, Theft, and Fraud.
Father was incarcerated when [Child] was born, and other
than two visits with her in December, 2014, has had no
relationship with her. Father has been incarcerated for most of
[Child’s] life. He has only even visited with her for a few hours
since she was born. . . . Father has no job and no home, and it is
not reasonable to conclude that he would be able to immediately
provide for [Child’s] needs upon his release from incarceration.
The law does not require, and the Court does not conclude,
that there is absolutely no chance that the parents might someday
be able to overcome or remedy the reasons why [Child] was
removed from her home, and why she has remained removed
from her home since a few weeks after her birth. Nonetheless,
the Court does conclude that there is clear and convincing
evidence of a reasonable probability that the reasons for removal
and ongoing placement will not be remedied.
C. There is clear and convincing evidence to conclude that
termination of the parent-child relationship is in this child’s best
interest. This child has lived the vast majority of her life in the
absence of her biological parents. She has spent very little time
with her mother, due to Mother’s repeated abuse of illegal drugs
as well as repeated, and ongoing, periods of incarceration. She
has spent virtually no time with her father, due to Father’s initial
incarceration, abandonment of the child for several months, and
then return to incarceration. There is an absence of reason to
conclude that [Child] recognizes either parent as a parent. In
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stark contrast, for nearly 85% of her life, [Child] has lived with a
suitable adoptive family. Her needs are provided. She is
comfortable, smart, and advancing as would be expected of a
normal child in a safe environment.
Appellants’ App. p. 92-93 (emphases original). Mother and Father now appeal.
Discussion and Decision
I. Standard of Review
[17] 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 Cnty. Office of Family & Children,
839 N.E.2d 143, 148 (Ind. 2005).
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[18] 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.
(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.
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(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 prove the alleged circumstances by clear and convincing evidence.
K.T.K., 989 N.E.2d at 1230.
II. Mother
[19] Mother argues that there is insufficient evidence supporting the trial court’s
termination order. Specifically, she argues that there is insufficient evidence
establishing that (1) there is a reasonable probability that the conditions that
resulted in Child’s removal or the reasons for placement outside the home of
the parents will not be remedied; 2 and (2) termination is in Child’s best
interests.
[20] In considering Mother’s first argument, we note that we must evaluate the
initial conditions leading to the child’s removal as well as the reasons the child
continues to be placed outside the home. In re A.I., 825 N.E.2d 798, 806 (Ind.
2
Mother and Father both make much of the fact that they admitted to the allegations in an amended CHINS
petition and the amended petition is not in the record. They contend that because we do not know the
reasons for the CHINS adjudication, DCS has failed to prove its case under this prong of the statute. But the
statute focuses on the reasons for the child’s removal, not the reasons for the CHINS adjudication. Therefore,
this argument is unavailing.
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Ct. App. 2005). In this case, Child was originally removed from Mother’s care
and custody primarily because of Mother’s ongoing substance abuse. Child has
continued to be placed outside of Mother’s care and custody because of
continuing concerns about substance abuse, repeated incarcerations, and
Mother’s failure to complete court-ordered services.
[21] In finding that DCS had met its burden of proving this prong of the statute, the
trial court found the following relevant facts:
Child was born with opiates in her system. Mother admitted to regular
use of heroin while pregnant.
Mother continued to test positive for illegal drug use during the program
of Informal Adjustment. She was incarcerated as a result.
After her release from incarceration, she successfully completed inpatient
substance abuse treatment. She relapsed one week later.
Since that time, Mother lost contact with DCS and the trial court for two
months and was incarcerated several other times, amassing three
convictions during the CHINS and termination proceedings.
Mother was not participating consistently with court-ordered services,
including her visits with Child. The visitation supervisor believed that
Mother was under the influence during multiple visits.
At the time the termination order was issued in February 2016, Mother
had remained incarcerated since September 2015.
Mother participated in a substance abuse assessment during the most
recent incarceration. That assessment recommended another round of
inpatient substance abuse treatment upon her release.
Mother has no source of income and no residence.
[22] In short, Mother had multiple opportunities over the course of nearly two years
to ameliorate her substance abuse issues and improve her parenting and life
skills. Her repeated failures to remain sober, live a law-abiding life, and comply
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with court-ordered services readily support the trial court’s conclusion that DCS
proved by clear and convincing evidence that there is a reasonable probability
that the conditions that resulted in Child’s removal and continued placement
outside of Mother’s care and custody will not be remedied. We decline to
reverse on this basis.
[23] Next, Mother argues that the trial court erred by finding that termination is in
Child’s best interests. Again, we note that throughout the nearly two years of
the CHINS and termination cases, Mother continued to abuse illegal drugs,
commit crimes, and refrain from appropriate participation in court-ordered
services. She also failed to participate regularly in her visits with Child, and
when she did attend, the visitation supervisor was often concerned that Mother
was under the influence. Child is placed in a loving and appropriate
preadoptive home where she is thriving. Under these circumstances, the trial
court did not err by finding that DCS proved by clear and convincing evidence
that termination is in Child’s best interests.
III. Father
[24] Father raises the same arguments: DCS failed to prove by clear and convincing
evidence that (1) there is a reasonable probability that the conditions that
resulted in Child’s removal or the reasons for placement outside the home of
the parents will not be remedied; and (2) termination is in Child’s best interests.
[25] Turning to the first argument, we note that the reason resulting in Child’s initial
removal from Father’s care and custody was Father’s incarceration. The
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reasons for Child’s continued placement outside of Father’s care and custody
include Father’s failure to attend all visits with Child, failure to keep in touch
with DCS or the trial court when not incarcerated, and new incarceration and
conviction for possession of methamphetamine. In support of its conclusion
that DCS met its burden of proving this statutory element, the trial court found
the following facts:
Father has been incarcerated for most of Child’s life. He was
incarcerated when she was born, and again became incarcerated during
the CHINS case after he possessed methamphetamine.
Father has only met Child on two occasions in her entire life.
Father has no job and no home.
We acknowledge that Father has participated in multiple programs while
incarcerated. But that, in and of itself, does not establish a reasonable
probability that the conditions that led to Child’s removal will be remedied. To
the contrary, after Child was born, Father committed a new criminal offense,
leading to yet another incarceration. Moreover, Father was released between
November 2015 and April 2016. He attended only two visits in December 2015
and did not see Child again even though he was free to do so. Additionally,
during the time he was not incarcerated, he did not remain in touch with DCS
or the trial court and did not participate in court-ordered services. Under these
circumstances, we find that the trial court did not err by concluding that DCS
proved by clear and convincing evidence that there is not a reasonable
probability that the reasons leading to Child’s removal from Father’s care and
custody will be remedied.
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[26] Finally, Father argues that the trial court erred by determining that termination
is in Child’s best interests. The trial court noted that Child has spent virtually
no time with Father as the result of his repeated incarcerations and his
abandonment of Child when released. Indeed, Father is a stranger to Child.
But she has spent the majority of her life with a loving and supportive
preadoptive family. Given these facts, we find that the trial court did not err by
concluding that DCS proved by clear and convincing evidence that termination
is in Child’s best interests.
[27] The judgment of the trial court is affirmed.
Vaidik, C.J., and Najam, J., concur.
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