E.F. v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 19 2016, 7:14 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jennifer L. Schrontz Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana

Robert J. Henke
Deputy Attorney General

Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

E.F., October 19, 2016
Appellant-Defendant, Court of Appeals Case No.
79A02-1602-JT-444
v. Appeal from the Tippecanoe
County Superior Court
Indiana Department of Child The Honorable Faith A. Graham,
Services, Judge
Appellee-Plaintiff. Trial Court Cause No.
79D03-1508-JT-67

Altice, Judge.

Case Summary
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[1] E.F. (Mother) appeals the involuntary termination of her parental rights (TPR)

to K.S.F. (Child). Mother challenges the sufficiency of the evidence supporting

the termination.

[2] We affirm.

Facts & Procedural History

[3] Mother began using opiates when she was twenty years old and heroin when

she was twenty-one. On March 9, 2014, Mother, then twenty-two years old,

gave birth to Child. The Tippecanoe County Department of Child Services

(DCS) became involved with Mother that same day upon receiving a report of

neglect from the hospital.

[4] On April 7, 2014, DCS filed a child in need of services (CHINS) petition

alleging that Child was born with opiates in her system.1 Further investigation

revealed that Mother reported to nursing staff that she was unaware that she

was pregnant, that she received no prenatal care, that she admitted to using

heroin two to three times a week during the eight months preceding Child’s

birth, and that she most recently used heroin two days prior to Child’s birth.

Indeed, Child’s meconium tested positive for opiates. At one day old, Child

began displaying signs of heroin withdrawal, including seizures, tremors, lack

of sleep, sneezing, and scratching at herself, for which Child had to be treated

1
See Ind. Code § 31-34-1-10(1) (“a child is a child in need of services if . . . the child is born with . . . any
amount, including a trace amount, of a controlled substance or a legend drug in the child’s body”).

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 with morphine. Although Mother identified who she thought was Child’s

father, DNA testing revealed that another individual, D.H., was actually

Child’s biological father.2

[5] At an initial hearing, the court authorized the continued removal of Child from

Mother’s care. Child remained hospitalized for two months following her birth.

Upon her release, Child was placed in foster care, where she remained

throughout these proceedings.

[6] At a May 5, 2014 fact-finding hearing, Mother admitted to the allegations and

factual circumstances set forth in the CHINS petition and the court adjudicated

Child a CHINS. The court held a dispositional hearing on June 4, 2014, and

thereafter entered its dispositional decree ordering Mother to participate in

services.

[7] The eighteen months between Child’s birth and the termination hearing can be

divided into three distinct, six-month periods. During the first six months after

Child was born, Mother’s participation in services was sporadic. She was

ultimately discharged for failure to participate. Further, Mother twice admitted

herself into the Salvation Army Harbor Lights (Harbor Lights) rehabilitation

facility, but she failed to complete the initial stages of the program and each

time she returned to using heroin. She also failed to maintain regular visits with

2
D.H. also had his parental rights terminated, but he does not participate in this appeal. We will confine the
facts and our discussion to that which is relevant to Mother.

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 Child. In fact, Mother would disappear for short periods as she continued to

struggle with her heroin addiction. During this time, Mother tested positive for

opiates on at least twenty-eight occasions.

[8] In October 2014, the beginning of the second six-month period, Mother entered

the Harbor Lights rehabilitation facility for a third time. This time Mother

successfully completed the detox and residential programs and followed up with

an intensive outpatient program (IOP) through Wabash Valley Alliance

(WVA). After completing the IOP, Mother went through sixteen weeks of

relapse prevention. She did not, however, follow through with the

recommended social support group through WVA, but rather chose to attend

narcotics anonymous (NA).

[9] Additionally, during this six-month timeframe, Mother participated in and was

receptive to some of the services offered by DCS, actively and appropriately

interacted with Child during visits, obtained full-time employment and an

apartment, and her drug-screens were clean. Mother also engaged in case

management services. Individuals assigned to work with Mother and Child,

including the Family Case Manager (FCM) and Court Appointed Special

Advocate (CASA), described Mother as making “tremendous progress” and

noted that the goal was reunification of Mother and Child. Transcript at 6. In

fact, near the end of this six-month period, service providers were considering

arranging an in-home visit between Mother and Child.

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[10] The in-home visit, however, never occurred because beginning in March 2015

(the third six-month period), Mother’s participation in services started to

decline. First, Mother failed to show for a therapy session. Shortly thereafter,

on March 21, 2015, Mother was called for a drug screen, but was unable to

produce a specimen. Over the course of the next few months, Mother failed to

report for six additional drug screens, giving various reasons or wholly failing to

communicate. In May, Mother had two positive drug screens and admitted to

service providers that she had a relapse and had used spice. The FCM, CASA,

and others talked with Mother about how to get back on track and referred her

back to WVA for relapse prevention. Mother did not follow through with

services at WVA, but rather claimed that she was attending NA meetings

several times a month as her relapse prevention. Mother could not, however,

produce any documentation to support her claim that she was attending NA

meetings.

[11] Mother also failed to attend a scheduled appointment for case management

services on February 20 and again on March 30, 2015. Mother was then placed

under a no tolerance policy, but nevertheless missed a scheduled appointment

in May 2015. In May, the case management service provider reported that

although Mother had made progress initially, the case had “taken a significant

downturn.” Exhibit 4 at 70. The service provider noted that Mother had

“demonstrated that she is unable to save and budget her money despite

continued pressure and persistence” and that she “does not have the time to

manage the daily responsibilities of being a full time parent.” Exhibit 4 at 70.

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 Mother was eventually terminated from case management services for failure to

participate.

[12] With regard to Mother’s housing situation, the case management service

provider noted that Mother’s “stability and ability to even keep her home is in

question from month to month.” Id. Initially, Mother received government

assistance. When it was discovered that Mother had falsified on her housing

application that Child was in her care and that Mother had failed to inform the

apartment complex that she had obtained employment, Mother’s rent payment

increased. Although Mother had been living in the same apartment since

September 2014, she received an eviction notice in May 2015 based on her

failure to pay rent for April and May. With help from family members, Mother

was able to pay the back rent and avoid eviction, but she “fell short with other

bills” and had her electricity shut off for six days. Transcript at 218.

[13] At the time of the termination hearing, Mother remained employed. Mother,

however, had lost her driver’s license for failing to pay “a judgment on an

accident without insurance”, but nevertheless continued to drive without a

license. Id. at 227.

[14] Mother’s visitation with Child similarly declined. In April, Mother was late

cancelling a visit with Child, arrived at another visit without diapers, and ended

another visit forty-five minutes early. On May 5, 2015, Mother failed to show

for her scheduled visit with child. Two days later, Mother failed to confirm her

visit with Child and was therefore considered a “no show”. During a visit in

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 September 2015, at which Mother and paternal grandparents were present,

Mother became angry and started screaming at a supervisor. Mother was asked

to leave and informed that the police would be called. As Mother left, she

continued screaming and making a scene. The police arrived and escorted

everyone out of the facility. Mother’s visitation was thereafter suspended due

to inappropriate behavior in the presence of Child.

[15] In June 2015, after Mother’s participation in services started to decline, DCS

requested that the permanency plan be changed to concurrent plans of

reunification of Mother and Child and initiation of TPR proceedings.

Eventually, on August 5, 2015, the permanency plan for Child was changed

when DCS filed a verified TPR petition. The court held a TPR hearing on

October 26, 2015, at which service providers and Mother testified. On

February 8, 2016, the court entered its order, along with findings of fact and

conclusions of law, granting the TPR petition. Mother now appeals.

Additional facts will be provided where necessary.

Discussion & Decision

[16] When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. In re D.D., 804 N.E.2d 258,

265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider only the evidence

and reasonable inferences most favorable to the judgment. Id. In deference to

the trial court’s unique position to assess the evidence, we will set aside its

judgment terminating a parent-child relationship only if it is clearly erroneous.

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 In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the

evidence and inferences support the decision, we must affirm. Id.

[17] The trial court entered findings in its order terminating Mother’s parental

rights. When the trial court enters specific findings of fact and conclusions

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

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). First, we determine

whether the evidence supports the findings, and second we determine whether

the findings support the judgment. Id. “Findings are clearly erroneous only

when the record contains no facts to support them either directly or by

inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). A judgment is

clearly erroneous only if the findings do not support the court’s conclusions or

the conclusions do not support the judgment thereon. Id.

[18] We recognize that the traditional right of parents to “establish a home and raise

their children is protected by the Fourteenth Amendment of the United States

Constitution.” In re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied.

Although parental rights are of constitutional dimension, the law provides for

the termination of these rights 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). In addition, a court must subordinate the interests of the parents to those

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

re K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating

parental rights is not to punish the parents, but to protect their children. Id.

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[19] Before an involuntary termination of parental rights may occur in Indiana, DCS

is required to allege and prove by clear and convincing evidence, 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[.]

Ind. Code § 31-35-2-4(b)(2)(B). DCS must also prove by clear and convincing

evidence that termination is in the best interests of the child, I.C. § 31-35-2-

4(b)(2)(C), and that there is a satisfactory plan for the care and treatment of the

child. I.C. § 31-35-2-4(b)(2)(D).

[20] Here, the trial court concluded that DCS established that I.C. § 31-35-2-

4(b)(2)(B)(i) and (ii) had been satisfied. Mother challenges both conclusions.

Because I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive, we need only

conclude that the trial court properly determined one of the conditions therein

had been met. See In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010). With

respect to (i), the court noted: “Neither parent has demonstrated the ability or

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 willingness to make lasting changes from past behaviors. There is no

reasonable probability that either parent will be able to maintain sobriety and

stability in order to care and provide adequately for [Child].” Appellant’s

Appendix at 15.

[21] In determining whether there is a reasonable probability that the conditions that

led to a child’s removal and continued placement outside the home will be

remedied, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child Servs.,

989 N.E.2d 1225, 1231 (Ind. 2013). First, we must ascertain what conditions

led to the child’s placement and retention in foster care, and, second, we

determine whether there is a reasonable probability that those conditions will

not be remedied. Id. In the second step, the trial court must judge a parent’s

fitness at the time of the termination proceeding, taking into consideration

evidence of changed conditions and balancing a parent’s recent improvements

against “‘habitual pattern[s] of conduct to determine whether there is a

substantial probability of future neglect or deprivation.’” In re E.M., 4 N.E.3d

636, 643 (Ind. 2014) (quoting K.T.K., 989 N.E.2d at 1231). Pursuant to this

rule, “trial courts have properly considered evidence of a parent’s prior criminal

history, drug and alcohol abuse, history of neglect, failure to provide support,

and lack of adequate housing and employment.” A.F. v. Marion Cnty. Office of

Family & Children, 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied.

[22] In addition, DCS need not provide evidence ruling out all possibilities of

change; rather, it need establish only that there is a reasonable probability the

parent’s behavior will not change. In re Involuntary Termination of Parent-Child

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 Relationship of Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). “We entrust

that delicate balance to the trial court, which has discretion to weigh a parent’s

prior history more heavily than efforts made only shortly before termination.”

In re E.M., 4 N.E.3d at 643. Although trial courts are required to give due

regard to changed conditions, this does not preclude them from finding that a

parent’s past behavior is the best predictor of their future behavior. Id.

[23] We first address Mother’s challenges to several of the court’s findings. Mother

challenges Finding 22 wherein the court noted that “[n]either parent has

followed recommendations for ongoing substance abuse support groups.”

Appellant’s Appendix at 14. Mother asserts that this finding is erroneous and

directs us to evidence that she completed a rehabilitation program and followed

through with an IOP. Mother also points to her testimony that she attended

weekly NA meetings since April 2015. Mother’s testimony, however, is

contrary to other evidence in the record. Indeed, Mother produced no evidence

to support her claim that she regularly attended NA meetings and she even

acknowledges that she did not have perfect attendance. DCS also presented

evidence that relapse prevention through NA meetings was not the same as

relapse prevention services offered by WVA, in which Mother chose not to

participate after completion of her IOP program. These are the same services

for which DCS made its most recent referral after Mother relapsed, but Mother

did not follow through.

[24] All of the evidence Mother points to that tends to show that she sought

treatment for her addiction and followed through with relapse prevention

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 services occurred during the second six-month period when Mother made great

strides and cooperated with service providers. Mother ignores her conduct in

the six months immediately prior to the termination hearing, which indicates

Mother’s return to a point where she is unable to care for Child. Mother also

ignores the fact that she presented no evidence to corroborate her testimony that

she was regularly attending NA. In sum, Mother’s challenge to Finding 22 is

simply an improper request that we reweigh the evidence. We conclude that

Finding 22 is supported by the evidence.

[25] Mother also challenges Finding 23 wherein the court noted that “[d]espite

lengthy services and periods of progress, Mother has failed to demonstrate

sustained stability. Mother was evicted on April 1, 2015.” Id. While there is

conflicting evidence regarding the circumstances surrounding Mother’s possible

eviction at one point in time, the evidence in the record amply supports the trial

court’s finding that Mother has not demonstrated stability. Mother completed

several assessments at the start of the CHINS proceedings, but admits that her

participation in other services was sporadic for the first six months. Mother

followed up this initial six-month period with six months of participation in

services. Indeed, Mother finally completed her third attempt at substance abuse

treatment, began visitations with Child, secured a job, obtained housing, and

participated in other case management services.

[26] In the six months immediately preceding the termination hearing, however,

Mother’s participation started to decline. Although Mother participated in

services to some degree, she ignores the fact that she missed at least six drug

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 screens, had a relapse by using spice, stopped cooperating with case

management service providers such that services were terminated, and did not

fully participate in visitation with Child. As above, Mother’s challenge boils

down to a request that we reweigh the evidence. Having reviewed the record,

we conclude that the evidence in the record supports the court’s finding that

Mother “failed to demonstrate sustained stability.” Id.

[27] Mother next challenges part of Finding 24 wherein the court noted that

“Mother stopped engaging in services in late July/early August of 2015.” Id.

Mother acknowledges that she stopped participating in services, but claims that

she did so only because the court ordered that DCS no longer fund any services

for her. In making this argument, Mother ignores her conduct that led to this

point. With the filing of the petition to terminate Mother’s parental rights,

many services to Mother were suspended. The decision to move forward with

termination was made only after Mother’s lack of participation in services and

cooperation with DCS declined to a point where all previous progress was

nearly lost and there was no indication that the circumstances were going to

change. We conclude that Finding 24 is supported by the evidence in the

record.

[28] Mother’s challenges to these findings serve as the basis for her challenge to the

court’s conclusion that the there is a reasonable probability the conditions that

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

be remedied. The court acknowledged that Mother had made significant

progress at one point during the CHINS proceedings. Indeed, the FCM and the

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 CASA noted that during the second six-month segment, Mother had made

“tremendous progress” and that the permanency plan was reunification of

Mother and Child. Transcript at 6. At some point, the circumstances changed

and Mother’s participation and cooperation with service providers went

downhill. The same service providers who supported Mother and worked with

her to the point of considering an in-home visit are the same service providers

who testified that the circumstances that resulted in the removal of Child from

Mother’s care have not changed and are unlikely to change given Mother’s

conduct in the six months immediately preceding the termination hearing. The

general concern was Mother’s lack of stability. Having reviewed the record, we

cannot say the court’s finding in this regard is clearly erroneous.

[29] Mother also challenges the court’s conclusion that termination is in the best

interests of Child. There is no doubt that Mother loves Child and such was

acknowledged by the court and service providers. Despite this, the same service

providers, who had worked with and fought for Mother’s right to parent Child,

testified that termination of Mother’s parental rights is in Child’s best interests.

See In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (“the recommendations

of the case manager and court-appointed advocate 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 child’s best interests”). The record reflects that Mother

made significant progress at one point in time, but any progress has since been

lost. Child has now been in foster care for eighteen months and needs

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 permanency. Mother’s conduct in the six months prior to the termination

hearing is more telling of what the future holds than her conduct during a brief

six-month period. In re E.M., 4 N.E.3d at 643. We cannot say that the court

erred in concluding that termination was in the best interests of Child.

[30] Finally, Mother challenges the court’s conclusion that DCS established it had a

satisfactory plan for the care and treatment of Child. DCS informed the court

that the permanency plan for Child was adoption by the foster parents, to

whom Child was closely bonded. Mother argues that DCS should have

considered a guardianship with Child’s paternal grandparents and asserts that

such placement is an alternative to termination of her parental rights. The

record reveals that the paternal grandparents have been involved throughout

parts of the CHINS proceedings, even filing a motion to intervene and

participating in visits with Child. Further, during the pendency of the CHINS

proceedings, Father asked the court to consider placement of Child with the

paternal grandparents rather than a foster home.3

[31] As Mother acknowledges, DCS is required only to detail a general direction of

its plan. See In re S.L.H.S., 885 N.E.2d 603, 618 (Ind. Ct. App. 2008). Here,

DCS did just that. DCS noted that Child is bonded with the foster family she

has been with for most of her young life and that Child needs permanency. We

3
Although no details are provided, the record indicates that the paternal grandparents were considered for
placement of Child, but were found unsuitable.

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 cannot say that the court’s conclusion that there is a satisfactory plan in place

for Child is clearly erroneous.

[32] Based on the foregoing, we conclude that the court’s findings of fact are

supported by the evidence in the record and the court’s conclusions supporting

termination of Mother’s parental rights are not clearly erroneous.

[33] Judgment affirmed.

[34] Bradford, J. and Pyle, J., concur.

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