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 2017, 8:56 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
Timothy E. Stucky Curtis T. Hill, Jr.
Stucky, Lauer & Young, LLP Attorney General of Indiana
Fort Wayne, Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Involuntary August 16, 2017
Termination of the Parent-Child Court of Appeals Case No.
Relationship of S.C. (Minor 02A05-1703-JT-471
Child) and Appeal from the Allen Superior
T.M. (Mother), Court
The Honorable Charles F. Pratt,
Appellant-Respondent,
Judge
v. The Honorable Sherry A. Hartzler,
Magistrate
The Indiana Department of Trial Court Cause No.
Child Services, 02D08-1604-JT-79
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] T.M. (“Mother”) appeals the involuntary termination of her parental rights
(“the Termination Order”) to her child, S.C. (“Child”). Mother argues that the
trial court clearly erred in concluding that there is a reasonable probability that
the conditions that resulted in Child’s removal from Mother’s care or the
reasons for placement outside Mother’s home will not be remedied. She also
argues that the trial court clearly erred in concluding that termination of the
parent-child relationship was in Child’s best interests and that adoption was a
satisfactory plan for Child care and treatment. Finding no error, we affirm.
Facts and Procedural History
[2] The facts most favorable to the Termination Order show that in July 2005,
Mother married M.M. (“Stepfather”). In September 2005, Mother gave birth to
Child. Child’s biological father is L.B., but he is not participating in this
appeal.1
[3] In November 2014, the Indiana Department of Child Services (“DCS”)
removed Child from Mother and Stepfather’s home because Child had been
missing numerous days of school and Mother was struggling with mental health
and substance abuse issues and had engaged in domestic altercations with
Stepfather in Child’s presence. Appealed Order at 2. The trial court authorized
1
L.B. has continuously resided in Florida, has not interacted with Child, and voluntarily relinquished his
parental rights. Although Stepfather was a party to the CHINS proceedings, he has made no legal claim of
parentage to Child.
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DCS to file a petition alleging that Child was a child in need of services
(“CHINS”) and placed Child in foster care.
[4] Following a hearing, in February 2015, the trial court adjudicated Child a
CHINS based on Mother’s, Father’s, and Stepfather’s admissions to certain
allegations in the amended CHINS petition.2 Id. Specifically, Mother admitted
that Child had been late to school nine times between October 1, 2014, and
November 6, 2014; she had left Child with Stepfather for two to three days at a
time; she had mental health issues and had recently undergone inpatient
treatment at Parkview Behavior Health Clinic but had stopped taking her
medication; and she had issues with drug abuse and refused to submit to an oral
swab drug test in November 2014 as requested by DCS. Appealed Order at 2;
Appellant’s App. Vol. 2 at 25 (amended CHINS petition). Stepfather admitted
that Mother had issues taking her prescriptions as prescribed and had made
threats to kill herself. By the time of this hearing, Mother had moved out of the
home that she had shared with Stepfather. The trial court approved placement
of Child in Stepfather’s home under DCS’s supervision and granted Mother
supervised visitation. Appellant’s App. Vol. 2 at 39.
2
We note that the copy of the amended CHINS petition in the record contains handwritten notations
indicating Mother’s and Stepfather’s admissions and denials next to the allegations and handwritten
alterations of some portions of some of the allegations. Appellant’s App. Vol. 2 at 25-27. The Appealed
Order’s description of Mother’s and Stepfather’s admissions is consistent with the handwritten notations and
alterations. Appealed Order at 2. DCS’s description of Child’s removal from Mother’s care and custody
would be consistent with the amended CHINS petition if it did not have the handwritten alterations, but it is
not entirely consistent with the Appealed Order. Appellee’s Br. at 10-11. We provide Mother’s and
Stepfather’s admissions as set forth in the Appealed Order.
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[5] The trial court issued a dispositional order, in which it required Mother and
Stepfather to comply with a parent participation plan (“PPP”). Mother was
required to do the following: refrain from criminal activity; maintain clean,
safe, and appropriate housing; notify DCS of changes in housing and
employment; cooperate with all caseworkers, the guardian ad litem (“GAL”),
and the court appointed special advocate (“CASA”); attend all case conferences
and maintain contact with DCS; submit to a diagnostic assessment and follow
all recommendations; obtain a drug and alcohol assessment and follow all
recommendations; successfully complete drug and alcohol counseling,
individual counseling, and parenting classes; submit to random drug screens
and refrain from alcohol, illegal drugs, and other substance abuse; and attend
and appropriately participate in all visits with Child.
[6] Mother initially complied with the PPP. She cooperated with service providers
and submitted to a diagnostic assessment. She completed the drug and alcohol
counseling program and submitted to all drug tests, and her drug screenings
came back negative. She completed two parenting programs. Mother attended
all scheduled visitations with Child. In April 2015, Mother moved into an
apartment and DCS began conducting visitations there. Also in April, Mother
began attending individual therapy. In May 2015, the trial court authorized a
permanency plan calling for Child’s reunification with Mother.
[7] In June 2015, Mother stopped attending individual therapy sessions, after
having attended only four sessions. Her therapist had been unable to establish a
treatment plan and reported that Mother lacked insight into her issues and
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thought that the only problem was DCS’s involvement. In mid-July 2015,
Mother abruptly stopped attending visitation with Child. Twice at the end of
July, a DCS family case manager brought Child to Mother’s apartment for
scheduled visits, but Mother was not there. Attempts to contact Mother were
unsuccessful. Child was upset and “cried that her mom wasn’t there.” Tr. at
68.
[8] In August 2015, the trial court held a review hearing. DCS reported that
Mother was using drugs again and had moved into a hotel. The trial court
ordered Mother to submit to a drug screen, which came back positive for
cocaine. Id. at 94. Mother told her family case manager that “she [] should just
use drugs instead because everyone thinks that she’s using and that she would
be better off dead [] and that she was not going to submit to anymore [sic] drug
screens after this point and she was done engaging in services.” Id. Thereafter,
Mother stopped communicating with DCS, participating in services, and
attending visitation with Child.
[9] In October 2015, the trial court held a review hearing. Mother and Stepfather
had obtained a divorce. Stepfather had filed an adoption petition, and Mother
advised the trial court that she no longer desired reunification with Child. The
trial court found that Stepfather was participating in some services as required
by the PPP, but had not completed a psychological evaluation. The trial court
adopted a new permanency plan for placement of Child in Stepfather’s legal
custody and a concurrent permanency plan for Stepfather’s adoption of Child.
Appellant’s App. Vol. 2 at 55.
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[10] In early 2016, DCS initiated a referral for intensive home-based therapy for
Stepfather and Child to stabilize Child and work toward Stepfather’s adoption
of Child. The treatment plan for Child included coping with intense emotions
and anxiety and grieving the loss of her mother. Appealed Order at 8. A
therapist met with Stepfather and Child from April to August 2016, but
Stepfather did not want to address Mother’s absence from Child’s life. The
therapist observed that Stepfather was unable to set appropriate parenting
boundaries with Child, and in nearly every session was unable to redirect
Child’s screaming and tantrums. Id.
[11] In April 2016, the trial court held a review hearing and found that although
Stepfather was participating in services, there was some question as to whether
he had benefited from the services provided, and he still had not completed a
psychological evaluation. The trial court adopted a permanency plan calling for
Child’s adoption but did not identify adoptive parents and ordered that Child’s
placement continue with Stepfather. Appellant’s App. Vol. 2 at 59. In June
2016, DCS filed a petition for involuntary termination of Mother’s parental
rights. Id. at 66-69.
[12] Between May and September 2016, Mother was charged with and pled guilty to
numerous crimes. She was convicted of two counts of level 6 felony theft, class
A misdemeanor criminal trespass, class B misdemeanor false reporting, and
class A misdemeanor domestic battery. From August to October 2016, Mother
was incarcerated.
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[13] In August 2016, the trial court held a review hearing and found that Child was
not progressing under Stepfather’s care, her behaviors were becoming
increasingly more extreme, and the GAL, CASA, and service providers had
significant concerns about whether Stepfather was able to meet Child’s needs.
The trial court ordered that Child be removed from Stepfather. DCS placed
Child with pre-adoptive foster parents after a short stay at the Youth Services
Center.
[14] In October 2016, Mother was released from incarceration to home detention,
and she moved into a one-bedroom apartment. She contacted DCS and
attempted to resume services. She attended two visitations with Child in
November 2016.
[15] In October and November 2016, the trial court held a hearing on the
termination of Mother’s parental rights. The CASA testified that Child’s
behaviors had improved since she was placed in foster care and she was doing
well both mentally and physically. Tr. at 132. The family case manager, the
CASA, and the GAL all testified that termination was in Child’s best interests.
Id. at 127, 132, 141. In February 2017, the trial court issued the Termination
Order with the following relevant conclusions:
3. The Court concludes that the reason for [Child’s] placement
outside of Mother’s care [is] primarily due to [Child’s] lack of
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school attendance, Mother’s struggle with mental health and
substance abuse …[.][3]
4. At the time of the termination proceedings, Mother had not
resolved her relapse into drug use. She had also failed to
participate in and benefit from her individual therapy to assist her
with her mental illness. Additionally, Mother [had] been
convicted for domestic battery less than three months prior to the
last day of trial in these proceedings. Mother had not maintained
stable and safe housing as either her whereabouts were unknown
or she was residing with [an] individual with whom she battered
and for whom she blamed for her relapse. Mother’s recent
housing does not resolve the historical pattern of instability.
5. Moreover, Mother abandoned [Child] during the course of
these proceedings (either through her conscience [sic] decision or
symptomatic of her untreated mental illeness [sic]), choosing to
drop out in an effort to have [Child] adopted or placed [in] the
custody of [Stepfather]. Mother demonstrated no insight into the
trauma and grief experienced by [Child] as a result of her
abandonment.
6. Mother failed to avail herself of services to assist in the
reunification with [Child]. Thus, for this and the reasons cited
herein, she failed to remedy the reasons for [Child’s] removal and
the continued placement outside of her home.
3
The trial court also included as a reason for Child’s placement outside of Mother’s care “domestic violence
in the presence of [Child] with [Stepfather].” Appealed Order at 11. However, at the CHINS adjudication
hearing, none of the parties admitted to any allegations that Mother and Stepfather were involved in
domestic violence, and the Appealed Order contains no findings regarding whether there was domestic
violence between Mother and Stepfather. The trial court did find that on or about the time of removal, Mother
and Stepfather had engaged in “domestic altercations” in Child’s presence. Id. at 2. In their briefs, neither
Mother nor DCS addresses domestic violence as a reason for removal. Accordingly, to the extent the trial
court’s reference to domestic violence may constitute error, we consider it harmless.
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7. The Court concludes that [Child] requires consistency and
stability, Mother has been unable and unwilling to demonstrate
an ability to provide these needs to [Child].
8. Termination must be in the child’s best interests and the
petitioner must have a satisfactory plan for the care and
treatment of the child. IC 31-35-2-4 (b) (C) and (D) and IC 31-
35-2-8. In this case the [GAL] and CASA have concluded that
termination of parental rights is in [Child’s] best interests. The
Court concludes that the termination of parental rights and
placement for adoption will provide [Child] with the nurturance
care and protection she requires. It is therefore in her best
interests that the petition to terminate parental rights be granted.
Appealed Order at 11 (brackets removed). Mother now appeals.
Discussion and Decision
Standard of Review
[16] In appeals involving the termination of parental rights, we have long employed
a highly deferential standard of review. C.A. v. Ind. Dep’t of Child Servs., 15
N.E.3d 85, 92 (Ind. Ct. App. 2014).
When reviewing the termination of parental rights, we do not
reweigh the evidence or judge witness credibility. We consider
only the evidence and reasonable inferences that are most
favorable to the judgment. …. When reviewing findings of fact
and conclusions of law entered in a case involving a termination
of parental rights, we apply a two-tiered standard of review.
First, we determine whether the evidence supports the findings,
and second we determine whether the findings support the
judgment. We will set aside the trial court’s judgment only if it is
clearly erroneous. A judgment is clearly erroneous if the findings
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do not support the trial court’s conclusions or the conclusions do
not support the judgment.
In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009) (citations, quotation marks, and
brackets omitted). Here, Mother does not challenge the trial court’s findings of
fact, and therefore we will accept them as true. See McMaster v. McMaster, 681
N.E.2d 744, 747 (Ind. Ct. App. 1997) (“Father does not challenge these
findings and we accept them as true.”).
[17] We observe that “although parental rights are of a constitutional dimension, the
law provides for the termination of these rights when the parents are unable or
unwilling to meet their parental responsibilities.” In re A.P., 882 N.E.2d 799,
805 (Ind. Ct. App. 2008). Involuntary termination of parental rights is the most
extreme sanction, and therefore “termination is intended as a last resort,
available only when all other reasonable efforts have failed.” Id.
[18] A petition to terminate a parent-child relationship involving a CHINS 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.
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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.
Ind. Code § 31-35-2-4(b)(2).
[19] DCS must prove by “clear and convincing evidence” each element set forth in
Section 31-35-2-4(b)(2). G.Y., 904 N.E.2d at 1261; Ind. Code § 31-37-14-2.
“‘Clear and convincing evidence need not reveal that the continued custody of
the parents is wholly inadequate for the child’s very survival.’” Id. (quoting
Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005)).
“‘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.’” Id. (quoting Bester, 839 N.E.2d at 148).
Section 1 - The trial court did not clearly err in concluding that
there is a reasonable probability that the conditions that
resulted in Child’s removal or the reasons for placement
outside the home will not be remedied.
[20] Mother first challenges the trial court’s conclusion that there is a reasonable
probability that the conditions resulting in Child’s removal or the reasons for
placement outside the home would not be remedied. In reviewing this
determination, we engage in a two-step analysis. K.T.K. v. Ind. Dep’t of Child
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Servs., 989 N.E.2d 1225, 1231 (Ind. 2013). First, “we must ascertain what
conditions led to [her] placement and retention in foster care.” Id. Second, “we
‘determine whether there is a reasonable probability that those conditions will
not be remedied.’” Id. (quoting In re I.A., 934 N.E.2d 1127, 1134 (Ind. 2010)).
When the trial court makes its determination, it must evaluate a parent’s fitness
at the time of the termination hearing, 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) (emphasis added).
[21] In this case, the primary reasons for Child’s removal or placement outside
Mother’s care were Mother’s mental health and substance abuse issues.4
Mother contends that the trial court erred by failing to consider evidence of
changed conditions. According to Mother, these changed conditions were
established by the progress she made early in the case when she was fully
participating in services. She points out that she successfully completed
substance abuse counseling and parenting classes, submitted and passed all her
random drug screens until August 2015, obtained appropriate housing and
attended all scheduled visitation, and briefly participated in individual
counseling.
4
The trial court also noted that Child was missing school, but that seems to be a result of Mother’s mental
health and substance abuse issues.
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[22] We note that although Mother initially participated in services, any “changed
conditions” were short-lived. As for Mother’s mental health issues, the trial
court found that she suffers from mental illness for which she receives social
security, but she did not benefit from individual therapy because she attended
only four sessions, and, at the time of the termination hearing, she was not
taking her prescribed medication and was not in treatment with any mental
health service provider. Appealed Order at 7. As for Mother’s substance abuse,
the trial court found that although Mother completed substance abuse
programs, she relapsed into drug use, and therefore she did not benefit from the
treatment. Id. at 9.
[23] Mother attempts to excuse her cessation of services and failure to engage in
visitation with Child after August 2015 by arguing that she was told by DCS
that by divorcing Stepfather, Child’s placement with him as a permanency plan
would be expedited, which would “permit her to maintain her close loving and
bonded relationship with [Child] when she elected to stop participating in
services.” Appellant’s Br. at 16. We observe that between mid-July 2015 and
May 2016, Mother did not have any visitation with Child. Child was upset and
wept when Mother was not at her apartment for two scheduled visitations in
July 2015. In May 2016, Mother had one two-hour visitation. Mother
cancelled the next scheduled visit. When the trial court began the termination
hearings in October 2016, Mother had visited with Child only once in fourteen
months. The lack of contact does not reflect any desire on Mother’s part to
maintain a close, loving relationship with Child. The undisputed findings show
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that in August 2015, Mother expressed her intention to stop participating in
services to her family case manager. Appealed Order at 10; Tr. at 94. In
October 2015, Mother advised the trial court that she did not intend to work
toward reunification. Appealed Order at 5. Although Child required therapy
to help her deal with feelings of anxiety and grief from losing her Mother, the
trial court found, “Mother demonstrated no insight into the trauma and grief”
experienced by Child because of Mother’s abandonment. Id. at 11.
[24] In addition to Mother’s failure to treat her mental illness, benefit from
substance abuse treatment, and maintain a relationship with Child, she failed to
maintain proper housing for herself. She also failed to refrain from criminal
activity and was convicted of two felonies and three misdemeanors shortly
before the termination hearing. Mother argues that at the time of the
termination hearing, she had reestablished appropriate housing and
recommenced services. However, a trial court is within its discretion to give
less weight to efforts made shortly before termination and to weigh more
heavily the history of conduct prior to those efforts. K.T.K., 989 N.E.2d at
1234. Therefore, the trial court did not clearly err in concluding that there is a
reasonable probability that the conditions that resulted in Child’s removal or the
reasons for placement outside the home will not be remedied.
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Section 2 – The trial court did not clearly err in concluding
that termination of Mother’s parental rights is in Child’s best
interests.
[25] Mother challenges the trial court’s conclusion that termination of the parent-
child relationship is in Child’s best interests.
[I]n determining what is in the best interests of a child, the trial
court is required to look beyond the factors identified by the
Department of Child Services and to consider the totality of the
evidence. In so doing, the trial court must subordinate the
interests of the parent to those of the child. The court need not
wait until a child is irreversibly harmed before terminating the
parent-child relationship. Moreover, we have previously held
that 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.
In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009) (citations omitted); see also
In re L.S., 717 N.E.2d 204, 210 (Ind. Ct. App. 1999) (“[C]hildren should not be
compelled to suffer emotional injury, psychological adjustments, and instability
to preserve parental rights.”), trans. denied (2000), cert. denied (2002).
[26] Mother argues that based on the totality of the evidence termination is not in
Child’s best interests. Mother maintains that she provided for all Child’s needs
until the underlying CHINS proceedings were initiated, and she poses no safety
concern to Child and was observed to be good at handling Child’s behavioral
problems and tantrums. She again directs our attention to her early
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participation in services and emphasizes that as soon as she was released from
incarceration, she reestablished appropriate housing and recommenced services.
She likens this case to In re R.H., 892 N.E.2d 144 (Ind. Ct. App. 2008), in which
another panel of this Court reversed a termination order.
[27] In that case, R.H.’s father, Sean, moved to Alaska when R.H. was three months
old. A few months later, R.H. and his mother moved to Alaska but returned to
Indiana after eight months. Due to mother’s drug use, R.H. was adjudicated a
CHINS and was placed with his paternal grandmother and her husband.
Although Sean did not move back to Indiana as DCS urged, he completed all
court-ordered services in Alaska. However, he did not have contact with R.H.
for two years, and DCS filed a petition for involuntary termination of his
parental rights. The trial court granted the petition because Sean had not made
sufficient efforts to communicate and bond with R.H., Sean refused to move
back to Indiana, and R.H. would be traumatized if forced to leave his
grandparents with whom he was strongly bonded.
[28] The R.H. court concluded that Sean had completed all services and, now that
he realized that his parental rights could be terminated, was making great
efforts to establish a bond with R.H., and R.H. could continue to live with his
grandparents, who provided a safe and stable environment, while Sean worked
to develop a relationship with him. Id. at 150-51. The R.H. court summed up
as follows:
[W]e find that although evidence of Sean’s lackluster efforts to
communicate and visit with R.H., Sean’s refusal to relocate to
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Indiana, and R.H.’s strong bond with his grandparents would be
relevant to a determination of custody and/or guardianship, it is
insufficient on its own to support the radical act of severing the
parent-child relationship.
Id. at 151.
[29] R.H. is clearly distinguishable from this case. Mother did not comply with the
PPP or complete all court-ordered services; she totally disengaged from
services, stopped communicating with DCS, and abandoned all contact with
Child. Also, in R.H., the child was placed with his paternal grandparents, who
provided a safe and stable home. Child’s placement with Stepfather is not
comparable. As of August 2016, DCS, the CASA, and the GAL were
concerned that Stepfather was unable to meet Child’s needs. Child’s therapist
observed that Stepfather had difficulty handling her screaming and tantrums.
Appealed Order at 8. Child was removed from Stepfather because Stepfather
admitted to removing her from her medication without the advice of her
physician, was planning to homeschool her without DCS’s permission, and was
planning to move to Muncie to get married, and DCS, the CASA, and the GAL
were concerned that Stepfather did not have the ability to control Child’s erratic
behaviors. Id. at 9.
[30] We further observe that the family case manager, the CASA, and the GAL
opined that termination was in Child’s best interests. Child has been placed
with a pre-adoptive family and is doing well both mentally and physically, and
her behavior has improved. Accordingly, the trial court did not clearly err in
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concluding that termination of Mother’s parental rights is in Child’s best
interests.
Section 3 – The trial court did not clearly err in concluding
that adoption is a satisfactory plan for Child’s care and
treatment.
[31] Finally, Mother insists that adoption is not a satisfactory plan because Child
was already eleven years old at the time of the termination hearing and has
behavioral problems, and therefore the prospect of adoption by persons other
than Stepfather is problematic and difficult. We observe that
Indiana courts have traditionally held that for a plan to be
satisfactory, for the purposes of the termination statute, it need
not be detailed, so long as it offers a general sense of the direction
in which the child will be going after the parent-child relationship
is terminated. A DCS plan is satisfactory if the plan is to attempt
to find suitable parents to adopt the children. In other words,
there need not be a guarantee that a suitable adoption will take
place, only that DCS will attempt to find a suitable adoptive
parent. Accordingly, a plan is not unsatisfactory if DCS has not
identified a specific family to adopt the children. Part of the
reason for this is that it is within the authority of the adoption
court, not the termination court, to determine whether an
adoptive placement is appropriate.
In re A.S., 17 N.E.3d 994, 1007 (Ind. Ct. App. 2014) (citations and quotation
marks omitted), trans. denied.
[32] Our case law establishes that adoption is a satisfactory plan for a child’s care
and treatment. Here, DCS’s plan is for Child’s adoption, and there is nothing
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in the record that suggests that adoption for this particular child is
inappropriate. Mother’s preference for Stepfather’s adoption of Child does not
render DCS’s plan for adoption unsatisfactory. We find no error here.
[33] Based on the foregoing, we affirm the trial court’s termination of Mother’s
parental rights to Child.
[34] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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