In the Matter of the Termination of the Parent-Child Relationship of J.R. and A.T. (Minor Children) and C.T. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing May 18 2020, 10:05 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Danielle L. Gregory Katherine A. Cornelius Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Termination May 18, 2020 of the Parent–Child Relationship Court of Appeals Case No. of J.R. and A.T. (Minor 19A-JT-2675 Children) Appeal from the Marion Superior and Court The Honorable Mark A. Jones, C.T. (Mother), Judge Appellant-Respondent, The Honorable Peter Haughan, Magistrate v. Trial Court Cause Nos. The Indiana Department of 49D15-1904-JT-410 Child Services, 49D15-1904-JT-411 Appellee-Petitioner.

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Bradford, Chief Judge.

Case Summary [1] C.T. (“Mother”) is the biological parent of J.R. (born June 20, 2015) and A.T.

(born October 15, 2017), (collectively the “Children”).1 In September of 2018,

the Children were adjudicated to be children in need of services (“CHINS”) due

to Mother’s substance abuse and a lack of safe and stable housing.2 In April of

2019, the Department of Child Services (“DCS”) petitioned for the termination

of Mother’s parental rights to the Children. On October 22, 2019, the juvenile

court ordered that Mother’s parental rights to the Children be terminated.

Mother contends that the juvenile court’s termination of her parental rights was

clearly erroneous. We affirm.

Facts and Procedural History [2] In 2017, DCS became involved with Mother and the Children after receiving

multiple reports regarding abuse and neglect, including that A.T. tested positive

for marijuana at birth. In December of 2017, DCS petitioned to have the

Children adjudicated CHINS due to, inter alia, Mother’s substance abuse and

her inability to provide suitable and stable housing. On June 15, 2018, the

1 Father does not participate in this appeal. 2 The Children were also adjudicated CHINS due to domestic violence between Mother and Father; however, the juvenile court concluded in its order terminating Mother’s parental rights that Mother had remedied the domestic violence issue.

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juvenile court held a factfinding hearing on the CHINS petition, at which DCS

reported that Mother had tested positive for amphetamines that same day and

was not engaged in services.3 In September of 2018, following Mother’s

admissions, the juvenile court adjudicated the Children to be CHINS. In

October of 2018, the juvenile court held a dispositional hearing, at which the

juvenile court removed the Children from Mother’s care and ordered Mother to

engage in home-based therapy and follow all recommendations, engage in

home-based case management and follow all recommendations, submit to

random drug/alcohol screens and that any failure to complete a requested drug

screen would be considered a positive result, and follow all recommendations

from her previously-completed substance-abuse assessment. [3] At a November 30, 2018, permanency hearing, DCS reported that Mother had

not engaged in any services. On March 22, 2019, the juvenile court held a

permanency hearing, at which it ordered the permanency plan to be changed

from reunification to adoption. In doing so, the court found that DCS had

offered services to achieve reunification, but Mother had not followed the

recommendations from her substance-abuse assessment and had not

participated in home-based case therapy or management. In March of 2019,

3 Mother has a total of six children from multiple fathers; however, this appeal only involves J.R. and A.T., both having the same Father. The June 15, 2018, factfinding hearing was continued after one of the fathers’ counsel requested a continuance.

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Mother spent three weeks at Bridges of Hope, which is an inpatient drug-

treatment facility. [4] On April 3, 2019, DCS petitioned for the termination of Mother’s parental

rights to the Children. On June 28, 2019, the juvenile court held a periodic

review hearing, at which it was reported that Mother was not participating in

random drugs screens and had screened positive for alcohol,

methamphetamine, and amphetamine on June 17, 2019. As a result, the

juvenile court suspended Mother’s visitation until she completed inpatient

treatment. In August of 2019, Mother relapsed, using methamphetamine. That

same month, Mother entered Volunteers of America (“VOA”), which is an

inpatient treatment program. After approximately sixteen days, Mother

voluntarily left VOA against the staff’s recommendations that Mother complete

twenty-one days at VOA and then be reassessed, which ultimately resulted in

Mother being unsuccessfully discharged. On September 9 and 12, 2019, the

juvenile court held a factfinding hearing regarding DCS’s termination petitions. [5] At the factfinding hearing, Mother’s cousin Amanda Bays testified that Mother

had smoked marijuana her entire adult life and that Mother had told her in

October of 2018 that she had been using methamphetamine for two years but

was not addicted and could quit anytime. Shanon Simms is a home-based case

worker who had begun working with Mother to address her substance abuse

issues after she left Bridges of Hope in March of 2019. Simms testified,

explaining that the treatment program he enrolled Mother in required her to

complete a substance-use and brain-injury workbook, which she had been

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unsuccessful in doing. He also testified that Mother’s drug of choice was

methamphetamine, she used marijuana regularly, and she had relapsed on

methamphetamine twice. Simms noted that Mother had explained to him that

she self-medicates with marijuana to deal with stress and relax. Simms

concluded that Mother “has a general knowledge of what substance use

disorder is, why she’s in the predicament that she’s in, but [does not] think that

she knows how to put the thing in place to obtain her sobriety or- or to maintain

it.” Tr. Vol. II p. 101. [6] Mother’s therapist at VOA, Thomas Pennington testified that while Mother had

admitted to using methamphetamine and marijuana, she did not think she “was

addicted to marijuana at all, and did not seem to think that the meth was a

problem. She seemed to think she could stop using it.” Tr. Vol. II p. 37. On

October 22, 2019, the juvenile court ordered that Mother’s parental rights to the

Children be terminated.

Discussion and Decision [7] The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. Bester v.

Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). “Though

it’s been oft-stated, it bears repeating: the parent–child relationship is one of the

most valued relationships in our culture.” Matter of M.I., 127 N.E.3d 1168,

1170–71 (Ind. 2019) (internal quotations and citations omitted). Parental rights,

however, are not absolute and must be subordinated to the child’s interests

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when determining the proper disposition of a petition to terminate the parent–

child relationship. Bester, 839 N.E.2d at 147. Therefore, when parents are

unwilling or unable to fulfill their parental responsibilities, their rights may be

terminated. Id. [8] In reviewing the termination of parental rights on appeal, we neither reweigh

the evidence nor judge the credibility of witnesses. Doe v. Daviess Cty. Div. of

Children & Family Servs., 669 N.E.2d 192, 194 (Ind. Ct. App. 1996), trans. denied.

We consider only the evidence and reasonable inferences therefrom which are

most favorable to the juvenile court’s judgment. Id. Where, as here, a juvenile

court has entered findings of facts and conclusions of law, our standard of

review is two-tiered. Id. First, we determine whether the evidence supports the

factual findings, second, whether the factual findings support the judgment. Id.

The juvenile court’s findings and judgment will only be set aside if found to be

clearly erroneous. Id. A finding is clearly erroneous if no facts or inferences

drawn therefrom support it. In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

2005). “A judgment is clearly erroneous if the findings do not support the

juvenile court’s conclusions or the conclusions do not support the judgment.”

Id. When the juvenile court’s findings are unchallenged on appeal, we accept

them as true. See In re S.S., 120 N.E.3d 605, 610 (Ind. Ct. App. 2019).4

4 Mother seems to argue that the juvenile court erred in finding that she was unemployed; however, Simms testified that at the time of the evidentiary hearing he believed Mother to be unemployed, testimony which that juvenile court was entitled to believe. We will not second-guess the juvenile court’s conclusion in this regard.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2675| May 18, 2020 Page 6 of 12 [9] Indiana Code section 31-35-2-4(b) dictates what DCS is required to establish to

support a termination of parental rights. Of relevance to this case, DCS was

required to establish by clear and convincing evidence

(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[.]

[and]

(C) that termination is in the best interests of the child[.]

Ind. Code § 31-35-2-4(b)(2).5 In challenging the sufficiency of the evidence to

sustain the termination of her parental rights, Mother contends that the juvenile

court erred by concluding that (1) there is a reasonable probability that the

conditions that resulted in the Children’s removal would not be remedied, (2)

the continuation of the parent–child relationship posed a threat to the

5 It is not disputed that the Children had been removed from Mother for at least six months under a dispositional decree and that there was a satisfactory plan for the care and treatment of the Children, both required findings pursuant to Indiana Code section 31-35-2-4(b)(2).

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Children’s well-being, and (3) termination of her parental rights was in the

Children’s best interests.

I. Indiana Code Section 31-35-2-4(b)(2)(B) [10] Mother contends that there is insufficient evidence to establish a reasonable

probability that the conditions that resulted in the Children’s removal would

not be remedied or that the continued parent–child relationship posed a threat

to the Children. Because Indiana Code section 31-35-2-4(b)(2)(B) is written in

the disjunctive, DCS was only required to establish one of the circumstances.

We choose to first address Mother’s contention that the juvenile court erred by

concluding that the conditions which resulted in the Children’s removal would

not be remedied.

In determining whether the conditions that resulted in the child[ren]’s removal…will not be remedied, we engage in a two- step analysis[.] First, we identify the conditions that led to removal; and second, we determine whether there is a reasonable probability that those conditions will not be remedied. In the second step, the trial court must judge a parent’s fitness as of the time of the termination proceeding, taking into consideration evidence of changed conditions—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. 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. Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.

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In re E.M., 4 N.E.3d 636, 642–43 (Ind. 2014) (cleaned up). [11] The conditions that led to the Children’s removal were Mother’s substance

abuse and her inability to maintain safe and suitable housing. DCS produced

ample evidence to establish a reasonable probability that these conditions

would not be remedied. Throughout this matter, Mother has failed to maintain

sobriety. Mother tested positive for methamphetamine and amphetamine in

June of 2019 and admitted to using methamphetamine in August of 2019, less

than a month prior to the evidentiary hearings regarding DCS’s termination

petition. Mother has, at best, submitted to drug screens sporadically and failed

to successfully complete any of the court-ordered services. Moreover, Mother

has admitted to multiple persons that she does not believe she is addicted to

methamphetamine or marijuana and uses marijuana to self-medicate. Mother

also voluntarily left VOA against the staff’s recommendations, at which she was

receiving inpatient treatment for her substance abuse. [12] As to Mother’s inability to maintain safe and suitable housing, her living

situation has been unstable throughout this matter. In the initial stages of this

matter, DCS and the family case manager (“FCM”) did not see where Mother

was living. FCM Kareem Fenner stated that Mother told her she was staying

with various friends. Mother also spent stints living with her mother and then

with her sister. At some point, Simms was aware that Mother was living with

her boyfriend, who had outstanding warrants issued for his arrest. At the time

of the factfinding hearings, Mother testified that she was living in an apartment;

however, the juvenile court concluded that “Mother’s testimony was not

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credible or believable,” Appellant’s App. Vol. II p. 31, and we will not second-

guess its determination. Given Mother’s consistent drug use and inability to

maintain safe and stable housing, the juvenile court did not clearly err by

concluding that the conditions that led to the Children’s removal would not be

remedied. Therefore, it is unnecessary for us to address Mother’s contention

that there was insufficient evidence to conclude that the continued parent–child

relationship posed a threat to the Children.6

II. Indiana Code Section 31-35-2-4(b)(2)(C) [13] Mother contends that there is insufficient evidence to support the juvenile

court’s conclusion that termination of her parental rights was in the Children’s

best interests. We are mindful that, in determining what is in the best interests

of the children, the juvenile court must look beyond factors identified by DCS

and consider the totality of the evidence. In re J.S., 906 N.E.2d 226, 236 (Ind.

Ct. App. 2009). The juvenile court need not wait until the children are

irreversibly harmed before terminating the parent–child relationship because it

must subordinate the interests of the parents to those of the children. McBride v.

Monroe Cty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App.

2003). We have previously held that recommendations from the FCM and

6 Mother also seemingly argues that her substance abuse is a result of her untreated mental-health issues, for which DCS failed to provide services. Mother’s argument is merely an invitation for us to reweigh the evidence, which we will not do. Doe, 669 N.E.2d at 194. Moreover, Mother’s own testimony undercuts her argument, during which she stated that the only time she had received medication for her mental health issues was while she was in inpatient treatment at Bridges of Hope and VOA, and Mother voluntarily left VOA against the staff’s recommendations.

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court-appointed special advocate (“CASA”) to terminate parental rights, in

addition to evidence that conditions resulting in removal will not be remedied,

is sufficient evidence to show that termination is in the children’s best interests.

In re J.S., 906 N.E.2d at 236. [14] Guardian ad-Litem Jessica Adams, FCM Brittany Dale, and CASA Shawna

Eikenberry all testified that adoption was in the Children’s best interests. When

considered with our previous conclusion that there was sufficient evidence to

show that the conditions of removal would not be remedied is sufficient to

support the juvenile court’s termination of Mother’s parental rights, it is not as

though this testimony is unsupported by other evidence in the record. [15] Mother has consistently failed to address her substance-abuse issues throughout

this matter, and our review of the record does not persuade us that she is serious

about addressing them in the near future. Mother has also failed to maintain

safe and suitable housing or to successfully completed any of the court-ordered

services. Moreover, the juvenile court concluded that the Children are doing

well in their current placement and that this placement will provide the

Children with “a permanent, safe and stable home, and [will] provide for the

Children’s long-term and short-term needs.” Appellant’s App. Vol. II p. 34.

Considering the totality of the evidence, Mother has failed to establish that the

juvenile court’s determination that termination was in the Children’s best

interests was clearly erroneous. [16] The judgment of the juvenile court is affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2675| May 18, 2020 Page 11 of 12 Baker, J., and Pyle, J., concur. Court of Appeals of Indiana | Memorandum Decision 19A-JT-2675| May 18, 2020 Page 12 of 12