In Re the Termination of the Parent-Child Relationships of: H.H., A.H., and A.S. (Minor Children) and M.R. v. The 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 Sep 19 2018, 9:15 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 Andrew W. Foster Curtis T. Hill, Jr. Rockport, Indiana Attorney General of Indiana

Katherine A. Cornelius Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Termination of the September 19, 2018 Parent-Child Relationships of: Court of Appeals Case No. 18A-JT-790 H.H., A.H., and A.S. (Minor Children) Appeal from the Spencer Circuit Court and The Honorable Jon Dartt, Judge M.R., The Honorable Lucy Goffinet, Appellant-Respondent, Special Judge Trial Court Cause No. v. 74C01-1708-JT-185, 74C01-1708- JT-186, 74C01-1708-JT-187 The Indiana Department of Child Services, Appellee-Petitioner

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 1 of 12

Altice, Judge.

Case Summary [1] M.C.R. (Mother) appeals following the termination of her parental rights to her

three children, H.H., A.H., and A.S. (collectively, the Children). Mother

argues that the evidence was insufficient to support the termination of her

rights. [2] We affirm.

Facts & Procedural History [3] In September 2015, Mother and the Children, then ages seven, eight, and nine,

lived with Mother’s boyfriend of several years. Mother and her boyfriend had a

history of domestic violence and drug use. The mobile home in which they

lived was dirty, unsafe, and unsuitable for the Children. The Indiana

Department of Child Services (DCS) became involved with the family on

September 8, 2015, and the Children were removed from the home a week later

when Mother tested positive for methamphetamine and other illegal substances

and the conditions of the home had not been adequately remedied. After the

Children’s removal, Mother tested positive for illegal drugs in September and

October 2015.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 2 of 12 [4] The Children were adjudicated CHINS on April 19, 2016,1 and a dispositional

order was issued following a hearing on May 9, 2016. Mother became

generally compliant with services and things were going well. Mother passed

drug screens, participated in family therapy and home-based services, visited

with the Children, and became employed. Mother and her boyfriend also

cleaned up the trailer and took domestic violence classes. As a result, the

Children were returned to Mother for a trial home visit in September 2016.

During the trial home visit, however, Mother lost her job and her relationship

with her boyfriend ended. This resulted in her “downhill spiral” and return to

drug use. Transcript at 54. [5] On or about December 16, 2016, a therapy provider, Olivia Golike, went to

Mother’s trailer upon discovering that H.H. was not at school for a therapy

session. Golike found all three children home alone inside the trailer and not at

school. They had not eaten breakfast and had not seen Mother. Golike

contacted the family case manager (FCM), Channell Hood, who also came to

the home. When Mother returned home that morning, she submitted to a drug

screen. The Children were removed immediately from Mother’s home and

returned to foster care. Mother’s drug test came back positive for

methamphetamine.

1 The fact-finding hearing on the CHINS petition took place on November 23, 2015. The reason for the significant delay in issuing the order finding the Children to be CHINS is unclear from the limited record before us.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 3 of 12 [6] After the failed trial home visit, Mother continued using drugs and was

homeless by March 2017. She stopped showing up for visits with the Children

around March 2017 and has not seen them since. Mother’s sporadic

participation in services during early 2017 eventually ceased, and she had no

contact with service providers in May and June. All services for Mother were

officially put on hold in June due to Mother’s noncompliance. FCM Hood

finally located Mother in July 2017 and attempted to reengage Mother in

services. Thereafter, Mother participated irregularly in services and was placed

on twenty-four-hour call-ahead due to problems with her not showing up.

Mother continued using illegal drugs and failing to obtain mental health and/or

substance abuse treatment as recommended by DCS. [7] In August 2017, the permanency plan in the CHINS case was changed to

concurrent plans of reunification and adoption. In the August 17, 2017 order

approving the permanency plan, the CHINS court found in part:

[Mother has] not complied with the [Children’s] case plan. [Mother] stopped participating in parent aide and therapy sessions. She participated in 4 drug screens and was positive on 4/04/2017 which was the last hearing date. [She] has not participated in any support groups or treatment programs. She was not responding to any requests to come into the DCS office to submit [to] drug screens or otherwise. [Mother] is currently homeless.

Appellee’s Appendix at 66. DCS filed verified petitions for involuntary

termination of parental rights on August 21, 2017.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 4 of 12 [8] A periodic case review hearing was held in the CHINS case on November 13,

2017. In the order from this review hearing, the court found that Mother was

still not compliant with the case plan, explaining:

Mother is to be screened at the DCS office 2-3x per week. At the last court hearing, she tested positive for amphetamine, methamphetamine, and THC…. She was negative on screens in September, however, in October, she missed several screens. Home based therapy was reinstated in August to address goals of relapse prevention, coping skills, dealing with her depression and trauma as well as relationship with the children and ex-boyfriend. She missed the first scheduled appointment and admitted to using methamphetamine during that time slot. Mother scheduled an evaluation with an in-patient treatment provider, however, she cancelled due to reporting that someone stole her money for the evaluation. Mother has reported that she participates in AA/NA but has never provided documentation. She has never consistently attending [sic] her therapy sessions. Mother is employed, but she does not have stable transportation at this time.

Id. at 75-76. Immediately after this hearing, Mother informed FCM Hood that

she was going into a rehabilitation facility that day. She did not go, nor did she

contact FCM Hood, continue with therapy, or comply with drug screens.

Again, Mother maintained no contact with service providers. Further, a drug

screen taken at this hearing tested positive for THC. [9] On December 11, 2017, Mother entered a thirty-day inpatient treatment

program. Thereafter, she moved into a shelter and began intensive outpatient

treatment. The treatment was not arranged through DCS, and Mother did not

reach out to FCM Hood until the week before the termination hearing. Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 5 of 12

[10] The termination fact-finding hearing took place on January 22, 2018. At the

hearing, Mother acknowledged her long battle with drugs and that she had not

seen the Children since early 2017. Mother indicated that during much of 2017

she was using drugs, homeless, unstable, and even suicidal. Mother testified

that her most-recent rehabilitation effort, which she started the month prior to

the termination hearing, was her sixth time in rehab. When asked why this

time will be different, Mother responded: “I was doing everything okay and

then because of losing everything, I fell apart but this time I’m determined. I

don’t want to lose my kids.” Id. at 17. Regarding substance abuse, Mother

stated that she was participating in a twelve-step program now, with a sponsor

and a support group. She acknowledged, however, that in the past she had

been involved in a twelve-step program and then quit and relapsed. At the time

of the hearing, Mother was unemployed, living in a shelter, without a vehicle,

and less than two months clean and sober. [11] The CASA, Carol Lichtey, testified that the Children had not spoken about

Mother to her since April 2017. In Lichtey’s opinion, termination is in the best

interests of the Children after a history of ups and downs with Mother and,

particularly, the instability of the prior two years. She testified that each move

“takes a little bit more of them away.” Id. at 47. Lichtey noted that H.H., the

oldest of the Children, was becoming cynical and recently stated, “I don’t get

attached – people come and people go.” Id. at 48.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 6 of 12 [12] Among other things, FCM Hood testified in detail about Mother’s lack of

cooperation with services and lengthy absences after the failed trial home visit

in late 2016. Regarding the Children’s best interests, FCM Hood testified:

I believe they need to know where they’re going to be and I think if they’re with mom, they’re never going to know where they’re going to be from day to day. That’s just been the pattern that I’ve seen from the kids – talking to the kids about their past. You know, that’s the life they have lived and they don’t – their [sic] done with that.

Id. at 63. FCM testified that the permanency plan for the Children following

termination was adoption. [13] At the conclusion of the hearing on January 22, 2018, the court terminated

Mother’s parental rights. The court entered a written termination order on

February 26, 2018, which provided in relevant part:

There is a reasonable probability that the conditions that resulted in the [Children’s] removal or the reasons for the placement outside the parent’s home will not be remedied in that: The case has been open for two years. The mother still has no stable housing. The mother has only one month of doing well in rehabilitation. During the CHINS case, mother failed to do drug evaluations and rehabilitation. The mother has not visited the children in a year. The children have been subjected to domestic violence. The mother had CPS history in other state[s]. The mother does not have a consistent plan of action. The mother has been inconsistent with children and the children’s history shows inconsistency. The children need stability and want stability. The mother has continued to test positive for illegal substances throughout the life of the CHINS case.

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Appellant’s Appendix at 8. Upon finding that termination was in the best

interests of the Children, the court stated to Mother at the hearing: “I am glad

and I am proud that for the last month you have held it together and that you

have completed the in-patient treatment but your kids deserve a permanent

home and they want that”. Transcript at 71. [14] Mother appeals the termination of her parental rights. Additional information

will be provided below as needed.

Discussion & Decision [15] 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.

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. [16] 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.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 8 of 12

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. [17] 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). The trial court here determined that DCS had

proven both subsections (b)(2)(B)(i) and (b)(2)(B)(ii). Because DCS was

required to establish only one of these by clear and convincing evidence, we

focus our review on the requirements of subsection (b)(2)(B)(i). [18] In determining whether there is a reasonable probability that the conditions

resulting in a child’s removal or continued placement outside the home will not

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be remedied, the trial court must judge a parent’s fitness to care for his or her

child 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. The court must also evaluate the parent’s habitual patterns of

conduct to determine whether there is a substantial probability of future neglect

or deprivation of the child. Id. In conducting this inquiry, courts may consider

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. Further, it is within the trial court’s

discretion to disregard efforts made only shortly before termination and to

weigh more heavily a parent’s history of conduct prior to those efforts. K.T.K.

v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1234 (Ind. 2013). The court may

also consider the parent’s response to the services offered through DCS. Lang v.

Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372 (Ind. Ct. App.

2007), trans. denied. [19] On appeal, Mother does not challenge the trial court’s specific findings of fact.

She argues only that the trial court clearly erred when it determined that there

was a reasonable probability that the conditions that resulted in the Children’s

removal or the reasons for the placement outside the parent’s home will not be

remedied. In this regard, Mother argues that she was actively involved in drug

rehabilitation at the time of the termination hearing and in 2016 had nearly

completed a successful trial home visit with the Children. Noting her progress

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during the first half of the CHINS proceedings and her recent progress after a

significant period of relapse, Mother asserts that she has been “either compliant

or actively helping herself for approximately sixteen (16) of twenty-eight (28)

months, or 57% of the total life of the CHINS case.” Appellant’s Brief at 8. [20] Like the trial court, we applaud Mother for her recent efforts at rehabilitation

and wish the best for her. But forty-two days of treatment at the eleventh hour

is not enough considering the entire history of this case and Mother’s past

repeated failed attempts at maintaining a drug-free life. Mother’s progress

during the first year of the CHINS proceeding is well-documented, and she was

doing what was needed to regain custody of the Children. When life got

difficult during the trial home visit in December 2016, however, Mother’s life

quickly fell apart again, and she returned to using methamphetamine. Over the

next year, Mother continued using drugs and was not compliant with services.

For significant periods of time, service providers could not even find her. She

stopped attending visits with the Children, became homeless, and failed to

commence drug and mental health treatment as recommended by DCS. Not

until December 2017 did Mother seek treatment in an inpatient program. This

was a year after the failed trial home visit, at least nine months after she had last

seen the Children, and more than two years after the CHINS proceedings

commenced. At the time of the termination hearing, Mother was living in a

shelter, was jobless, had been clean for only about forty-two days, and had not

seen the Children for nearly a year.

Court of Appeals of Indiana | Memorandum Decision 18A-JT-790 | September 19, 2018 Page 11 of 12 [21] In sum, the record establishes that Mother was not fit to care for the Children at

the time of the termination hearing.2 Moreover, her long history of drug abuse

and repeated relapses after treatment, as well as her inconsistent participation in

DCS services, indicate a substantial probability of future neglect or deprivation

of the Children. The Children have been in the system for well over two years

and need, want, and deserve to have permanency in their lives, which Mother

has been unable to provide for them. The trial court did not err in determining

that there was a reasonable probability that the conditions that resulted in the

Children’s removal or the reasons for the placement outside Mother’s home will

not be remedied. [22] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

2 Mother directs us to In re Ma.J., 972 N.E.2d 394 (Ind. Ct. App. 2012) in support of her argument for reversal of the termination order. In Ma.J., we expressly noted, “this is not a case where the parent’s progress has been inconsistent or last-minute.” Id. at 404. Rather, the mother in that case had “eight months of solid progress in each area of concern”. Id. at 396. Further, at the time of the termination hearing, she had an appropriate home, had been working, and had been visiting regularly with the children. In the case at hand, Mother was not similarly situated at the time of the hearing and had not established the same degree of progress.

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