MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
Oct 14 2016, 10:36 am
this Memorandum Decision shall not be
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 APPELLANT ATTORNEYS FOR APPELLEE
Jacob A. Venderley Gregory F. Zoeller
Norris Law Office Attorney General of Indiana
Washington, Indiana
Robert J. Henke
Deputy Attorney General
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the termination of the October 14, 2016
parent-child relationship of R.Q. Court of Appeals Case No.
and N.Q.: 14A01-1603-JT-524
Appeal from the Davies Superior
K.Q. (Mother), Court
Appellant-Respondent, The Honorable Gregory A. Smith,
Judge
v.
Trial Court Cause No.
14C01-1507-JT-129
Indiana Department of Child 14C01-1507-JT-130
Services,
Appellee-Petitioner.
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Vaidik, Chief Judge.
Case Summary
[1] K.Q. (“Mother”) appeals the termination of her parental rights to N.O. and
R.Q. She raises two issues on appeal, whether the trial court’s conclusions that
(1) the conditions that resulted in the children’s removal or placement outside
the home will not be remedied, and (2) the termination of the parent-child
relationship is in the best interests of the children was clearly erroneous.
Concluding that the trial court did not err, we affirm.
Facts and Procedural History
[2] Mother has two sons, N.O., born June 6, 2004, and R.Q., born February 14,
2014. In October 2013, police officers from the Washington Police Department
dispatched to Mother’s residence and found her “warming up narcotics in the
microwave” and subsequently arrested her. Tr. p. 134. N.O. was home when
the police officers arrived and witnessed Mother attempting to get high. As a
result, the Department of Child Services (DCS) did an assessment on Mother
and issued a report. On December 17, 2013, Mother was convicted of
possession of methamphetamine and neglect of a dependent based on the
October incident.
[3] The very next day, December 18, DCS was called to a hospital because Mother
was there talking to “nonexistent voices and believed people were coming
through the wall to get her.” DCS Exs. 3 & 4. DCS started another assessment
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process for Mother and drug tested her on January 10, 2014; she tested positive
for methamphetamine, amphetamine, and ephedrine. Mother then gave birth
to R.Q. on February 14, and both Mother and R.Q. tested positive for
methamphetamine. DCS removed N.O. and R.Q. from Mother that same day.
DCS filed a children in need of services (CHINS) petition on February 19, and
both children were adjudicated CHINS on April 2.
[4] At a dispositional hearing on May 9, 2014, the court ordered Mother to:
participate in recommended programs as scheduled without delay or missed
appointments; maintain suitable, safe, and stable housing; secure and maintain
a legal and stable source of income; refrain from consuming, manufacturing,
trading, distributing, or selling any illegal controlled substance; and provide a
safe, secure, and nurturing environment free from abuse and neglect, and be a
nurturing caregiver. DCS Exs. 10 & 11.
[5] Mother was initially referred by DCS to the Samaritan Center for a
comprehensive evaluation, individual therapy, and home-based case
management. DCS continued to work with Mother up to the termination
hearing and amended its program recommendations to include a Systematic
Assessment of Family Environment (SAFE) assessment, in-patient therapy,
psychiatric evaluation, medical injections to deal with her mental-health issues,
and case-management services to obtain housing. Mother was also required to
check in with the Family Case Manager (FCM) on Mondays, Wednesdays, and
Fridays via telephone.
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[6] At the first periodic case review on August 27, 2014, the court found that
Mother had not been compliant with the May 9 order for missing an
appointment for therapy, failing to check in on Mondays, testing positive for
illegal drugs on six different dates in just three months, and failing to maintain
stable housing. The court held subsequent case reviews on May 12, August 12,
and November 23, 2015, and found at each review that Mother had not been
compliant with the May 9 order.
[7] During a visit on January 27, 2015, the FCM witnessed Mother get upset with
R.Q. for being fussy “so she, basically, kind of threw him onto the ground after
that.” Tr. p. 231. Mother’s visitation rights for both children were terminated
on February 6. Visitation was never reinstated due to her continued non-
compliance with DCS’s recommended services. On May 20, 2015, Mother met
with a clinical psychologist and was diagnosed with schizophrenia and a
methamphetamine-use disorder. Id. at 10. DCS filed a petition to terminate her
parental rights to the children on July 2.
[8] At the termination hearing on December 9, 2015, and January 15, 2016, DCS
called the FCM, Mother’s psychologist, the Court Appointed Special Advocate
(CASA), other case workers, and Washington police officers to testify. The
FCM testified that Mother continued to be non-compliant with the court’s
original May 9, 2014 order. The FCM testified that Mother rarely checked in
on Fridays as required by DCS; stopped attending therapy from September
2014 until December 2014; stopped meeting with her home-based case
manager; missed visits with N.O. and R.Q.; failed random drug tests routinely;
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and had upwards of fourteen different addresses between October 2014 and
January 2016.
[9] The psychologist testified that Mother was “quite actively psychotic”
throughout the psychiatric evaluation, “rambling to herself . . . .” Id. at 13.
Mother’s ramblings were violent, and she “repeatedly made comments about
cutting off her baby’s head, and that was something she reported several times,
and her words at one point were the voices have told her to do that.” Id. at 13-
14. The psychologist diagnosed Mother as schizophrenic and suffering from a
methamphetamine-induced psychotic disorder, given her history of hearing
voices in childhood and adolescence. Id. at 25. The psychologist testified that
“[s]chizophrenia is usually a life-long disorder . . . it does not usually go away
with treatment.” Id. at 10. A home-based therapist also testified that Mother
told him she “had heard voices since the age of five . . . and only experienced
meth in the last year or so . . . .” Id. at 148. Both the FCM and the CASA
testified that termination is in the best interests of N.O. and R.Q.
[10] On February 12, 2016, the trial court issued an order terminating Mother’s
parental rights to N.O. and R.Q. The court concluded, among other things,
that there is a reasonable probability that the circumstances resulting in the
removal of N.O. and R.Q. or the reasons for placement outside the home will
not be remedied, that there is a reasonable probability that the continuation of
the parent-child relationship poses a threat to the well-being of the children, and
that termination of the parent-child relationship is in the best interests of the
children.
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[11] Mother now appeals.
Discussion and Decision
[12] Mother contends that there is insufficient evidence to support the termination of
her parental rights. When reviewing the termination of parental rights, we do
not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d
1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable
inferences that are most favorable to the judgment of the trial court. Id. When
a trial court has entered findings of fact and conclusions, we will not set aside
the trial court’s findings or judgment unless clearly erroneous. Id. To
determine whether a judgment terminating parental rights is clearly erroneous,
we review whether the evidence clearly and convincingly supports the trial
court’s findings and whether the findings clearly and convincingly support the
judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).
[13] A petition to terminate parental rights must allege, among other things:
(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;
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(C) that termination is in the best interests of the child[.]
Ind. Code § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by
clear and convincing evidence. In re K.T.K., 989 N.E.2d at 1231.
[14] Mother raises two arguments.1 First, she argues that the trial court erred in
terminating her parental rights when it concluded there is a reasonable
probability that the conditions that resulted in N.O.’s and R.Q.’s removal or
reasons for placement outside the home will not be remedied.2 Second, Mother
argues that the trial court erred in concluding that termination is in the best
interests of N.O. and R.Q.
1
Mother raises a third issue on appeal: whether the trial court’s judgment is clearly erroneous because the
court did not consider her proposed findings of fact and conclusions. The trial court noted in its order that
neither party asked the court for findings of fact and conclusions. However, the trial court sua sponte
directed both parties to submit proposed entries. The trial court said in its order, “Having now received the
submissions by the parties and having had the matter under advisement and having considered the evidence
and testimony now being duly advised in the premises, the Court now enters its findings and order herein.”
Id. Contrary to Mother’s claim, there is no evidence that the trial court failed to consider her proposed
findings of fact and conclusions when issuing its order.
2
[1] Mother also argues that there was insufficient evidence to support the trial court’s conclusion that there is a
reasonable probability that continuation of the parent-child relationship poses a threat to the children’s well-
being. Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive and requires clear and convincing
evidence of only one of the circumstances listed in subsection (B). See R.J. v. Ind. Dep’t. of Child Servs., 56
N.E.3d 729 (Ind. Ct. App. 2016). Because we conclude that there is sufficient evidence to support the trial
court’s conclusion that there is a reasonable probability that the conditions resulting in the children’s removal
will not be remedied, we do not address this argument.
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I. Reasonable Probability That the Conditions Resulting
in Removal or the Reasons for Placement Outside the
Home Will Not Be Remedied
[15] N.O. and R.Q. were removed from Mother’s home due to her mental-health
issues and drug addiction. Mother argues that the trial court’s ruling is clearly
erroneous because “DCS’s contention that the conditions would remain is
based upon DCS’s own failure to provide the proper services so that she would
be able to remedy said conditions.” Appellant’s Br. p. 10.
[16] To determine whether the conditions that resulted in the children’s removal or
placement outside the home will not be remedied, the trial court engages in a
two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, the court
identifies the conditions that led to removal or placement outside the home and
then determines whether there is a reasonable probability that those conditions
will not be remedied. Id. The second step requires trial courts to judge a
parent’s fitness at the time of the termination proceeding, taking into
consideration evidence of changed conditions, and balancing any recent
improvements against “habitual patterns of conduct to determine whether there
is a substantial probability of future neglect or deprivation.” Id. Trial courts
have discretion to weigh a parent’s prior history more heavily than efforts made
only shortly before termination, and the court may find that a parent’s past
behavior is the best predictor of her future behavior. Id.
[17] DCS was initially involved with Mother due to a drug-related incident in
October 2013 and again investigated Mother after psychotic episode she had in
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December 2013. N.O. and R.Q. were removed from Mother after she gave
birth to R.Q. in February 2014 and both Mother and R.Q. tested positive for
methamphetamine. In May 2014, the court ordered Mother to comply with
DCS’s recommendations for services. From May 2014 until the termination
hearing began in December 2015, DCS referred Mother to multiple services: a
comprehensive evaluation, individual therapy, home-based case management, a
SAFE assessment, in-patient therapy, a psychiatric evaluation, and case-
management services to obtain housing.
[18] The trial court held periodic case reviews on August 27, 2014, and May 12,
August 12, and November 23, 2015, and concluded at each hearing that Mother
was not compliant with DCS’s recommended services. The court entered
specific findings of noncompliance at each hearing, including: missing
appointments for therapy, failing to check in with the FCM, testing positive for
illegal drugs, failing to make medication appointments, failing to maintain
stable housing, and failing her random drug screens with the FCM.
[19] The trial court’s conclusion that there is a reasonable probability that the
conditions resulting in the removal of N.O. and R.Q. or the reasons for
placement outside the home will not be remedied is not clearly erroneous.
II. Best Interests of the Children
[20] Mother’s second argument is that the trial court erred in determining that
termination is in the best interests of N.O. and R.Q. To determine what is in a
children’s best interests, the trial court must look to the totality of the evidence.
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In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied. In doing
so, the trial court must subordinate the interests of the parent to those of the
children. Id. The court need not wait until a child is irreversibly harmed before
terminating the parent-child relationship. Id. We have previously held that
recommendations by both the CASA and the FCM to terminate parental rights,
in addition to evidence that the conditions resulting in removal will not be
remedied, is sufficient to show by clear and convincing evidence that
termination is in the best interests of the children. Id. at 1158-59.
[21] Here, both the CASA and the FCM testified that termination is in the best
interests of N.O. and R.Q. As we have already addressed, there is sufficient
evidence that the conditions resulting in removal will not be remedied.
Therefore, the trial court did not clearly err in concluding that termination of
parental rights is in N.O.’s and R.Q.’s best interests.
[22] Affirmed.
Baker, J., and Najam, J., concur.
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