In re the Termination of the Parent-Child Relationship of E v. (Minor Child) and T.N. (Mother) 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 Jun 10 2020, 9:22 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 Leanna Weissmann Monika Prekopa Talbot Lawrenceburg, Indiana Robert J. Henke Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In re the Termination of the June 10, 2020 Parent-Child Relationship of Court of Appeals Case No. E.V. (Minor Child) and 19A-JT-2753 T.N. (Mother), Appeal from the Decatur Circuit Court Appellant-Respondent, The Honorable Timothy B. Day, v. Judge Trial Court Cause No. Indiana Department of Child 16C01-1904-JT-153 Services, Appellee-Petitioner.

Mathias, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 1 of 9 [1] T.N. (“Mother”) appeals the Decatur Circuit Court’s order terminating her

parental rights to E.V., her minor child. Mother argues that the trial court’s

order involuntarily terminating her parental rights is not supported by clear and

convincing evidence. [2] We affirm.

Facts and Procedural History [3] E.V. was born to Mother and S.V. (“Father”) in February 2013. In January

2017, police officers were called to Mother’s hotel room due to a domestic

violence incident. While responding to the incident, law enforcement learned

that there was an active warrant for Mother’s arrest, and she was taken into

custody. Father could not be located. The Indiana Department of Child

Services (“DCS”) removed E.V. from Mother’s care. [4] DCS filed a Child in Need of Services (“CHINS”) petition shortly after E.V.

was removed from Mother’s care. E.V. was adjudicated a CHINS on January

31, 2017. [5] During the CHINS proceedings, Mother did not have a stable home or stable

employment. She tested positive for methamphetamine. Mother sporadically

participated in home-based services and supervised visitation with E.V. Family

case managers found it difficult to maintain contact with Mother. And Mother

never allowed case managers into her home.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 2 of 9 [6] Because Mother missed a significant number of visits with E.V., visitation

ceased in March 2018. Family case managers attempted to communicate with

Mother via telephone calls and text message with the goal of assisting Mother

with her participation in services. The family case manager texted Mother

“multiple times” in an attempt to reestablish visitation between Mother and

E.V. Mother did not reply to the text messages. Tr. p. 16. [7] DCS filed a petition to terminate Mother’s parental rights in May 2019. Mother

did not appear at the initial hearing. [8] Mother also failed to appear at the termination fact-finding hearing held on

October 24, 2019.1 Mother had actual notice of the hearing. Tr. p. 10. Family

case manager Rani Judd testified that there is no bond between Mother and

E.V. Tr. p. 16. Family case manager Kimberly Miller visited with Mother in

July 2019. She discussed the termination proceedings with Mother. Mother told

Miller that she did not plan to attend the fact-finding hearing, but she also

refused to voluntarily terminate her parental rights to E.V. Tr. p. 18. Miller

offered Mother services and visitation with E.V. Mother declined Miller’s offer.

E.V.’s guardian ad litem testified that termination of Mother’s parental rights

was in E.V.’s best interest. Tr. p. 23. She stated that E.V. is excelling in his pre-

adoptive placement. Id.

1 Father did not appear at the fact-finding hearing, his parental rights were also terminated, and he does not participate in this appeal.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 3 of 9 [9] On October 24, 2019, the trial court issued an order terminating Mother’s

parental rights to E.V. The trial court found in pertinent part:

There is a reasonable probability that the conditions that resulted in the child’s removal or the reasons for the placement outside the parent’s home will not be remedied in that: . . . Mother . . . [has] failed to engaged with the Child or the Department with regard to services, visitation, or parenting in general and [has] failed to make any efforts to improve [her] situation[] or avail [herself] of any resources provided in order to do so.

There is a reasonable probability that continuation of the parent- child relationship poses a threat to the well-being of the child in that: the Child has been placed with his current placement for such a lengthy period that he has developed an extremely strong familial bond with them, . . . Mother . . . [has] no bond with the Child whatsoever, and that disrupting the established bond between the Child and his current caregivers would severely traumatize the Child and deny him the permanency he needs to thrive.

Termination is in the child’s best interests . . . in that: the Child has a strong familial bond with his current foster placement, regarding them as his mother and father, has no bond with either biological parent whatsoever, and the Child would best achieve the permanency, stability, and support he needs and is receiving from his placement following the termination of his biological parents’ parental rights.

Appellant’s App. p. 27. Mother now appeals.

Standard of Review [10] Indiana appellate courts have long had a highly deferential standard of review

in cases involving the termination of parental rights. In re D.B., 942 N.E.2d 867,

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 4 of 9

871 (Ind. Ct. App. 2011). We neither reweigh the evidence nor assess witness

credibility. Id. We consider only the evidence and reasonable inferences

favorable to the trial court’s judgment. Id. In deference to the trial court’s

unique position to assess the evidence, we will set aside a judgment terminating

a parent-child relationship only if it is clearly erroneous. Id. Clear error is that

which leaves us with a definite and firm conviction that a mistake has been

made. J.M. v. Marion Cty. Off. of Family & Children, 802 N.E.2d 40, 44 (Ind. Ct.

App. 2004), trans. denied. [11] Mother does not challenge any of the trial court’s factual findings as being

clearly erroneous. We therefore accept the trial court’s findings as true and

determine only whether these unchallenged findings are sufficient to support

the judgment. In re A.M., 121 N.E.3d 556, 562 (Ind. Ct. App. 2019), trans.

denied; see also T.B. v. Ind. Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct.

App. 2012) (holding that when the trial court's unchallenged findings support

termination, there is no error), trans. denied.

Discussion and Decision [12] Mother claims that the trial court’s order involuntarily terminating her parental

rights is not supported by clear and convincing evidence. Indiana Code section

31-35-2-4(b)(2) provides that a petition to terminate parental rights must allege:

(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. Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 5 of 9

(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;

(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.

[13] DCS must prove each element by clear and convincing evidence. Ind. Code §

31-37-14-2; In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009). Because Indiana

Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, the trial court is

required to find that only one prong of subsection 4(b)(2)(B) has been

established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220

(Ind. Ct. App. 2010). [14] Clear and convincing evidence need not establish that the continued custody of

the parent is wholly inadequate for the child’s very survival. Bester v. Lake Cty.

Off. of Family & Children, 839 N.E.2d 143, 148 (Ind. 2005). It is instead sufficient

to show by clear and convincing evidence that the child’s emotional and

physical development are put at risk by the parent’s custody. Id. If the court

finds the allegations in a petition are true, the court shall terminate the parent-

child relationship. Ind. Code § 31-35-2-8(a). [15] The purpose of terminating parental rights is not to punish parents but instead

to protect the child. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct. App. 2004).

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 6 of 9

Although parental rights have a constitutional dimension, the law allows for

their termination when the parties are unable or unwilling to meet their

responsibilities as parents. Id. Indeed, parental interests must be subordinated to

the child’s interests in determining the proper disposition of a petition to

terminate parental rights. In re G.Y., 904 N.E.2d at 1259. [16] Mother argues that the trial court clearly erred by concluding that there was a

reasonable probability that the conditions that resulted in the child’s removal

from her care, or the reasons for his continued placement outside her home,

would not be remedied. When considering whether DCS has proven this factor

by clear and convincing evidence, the trial court must determine a parent's

fitness to care for the child at the time of the termination hearing while also

taking into consideration evidence of changed circumstances. A.D.S. v. Ind.

Dep’t of Child Servs., 987 N.E.2d 1150, 1156–57 (Ind. Ct. App. 2013), trans.

denied. [17] Mother contends that DCS failed to prove that there was a reasonable

probability that the reasons for E.V.’s continued placement outside her home

would not be remedied because DCS failed to present evidence of the services it

offered to Mother. The family case manager testified that Mother was offered

home-based services, a substance abuse assessment, drug screens, and visitation

with E.V. Tr. p. 15. We agree with Mother that the family case manager’s

testimony regarding services and Mother’s participation was cursory.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 7 of 9 [18] However, the family case manager was not able to offer detailed testimony

because of Mother’s lack of participation in services and minimal visitation

with E.V. Mother did not maintain communication with the DCS service

providers, did not keep them informed of her address, refused to allow them

inside her home, and has not had any contact with E.V. since March 2018. And

prior to March 2018, Mother’s participation in services and visitation was

sporadic. Tr. pp. 15–16. [19] After he was removed from Mother’s care, E.V. continued to be placed outside

of Mother’s home because her participation in services was inconsistent.

Importantly, Mother refused to participate in any services or visitation after

March 2018 even though her family case managers offered services and

visitation to her. Mother abandoned E.V. and continued to show her lack of

commitment to the child when she failed to appear for the termination fact-

finding hearing. [20] For all of these reasons, we conclude that clear and convincing evidence

supports the trial court’s finding that there is a reasonable probability that the

conditions that resulted in the child’s removal from Mother’s care, or the

reasons for his continued placement outside her home, would not be remedied.2

2 Because Indiana Code subsection 31-35-2-4(b)(2)(B) is written in the disjunctive, we decline to address Mother’s additional claim that DCS failed to prove that continuation of the parent-child relationship threatens the children’s well-being. In re A.K., 924 N.E.2d at 220. And Mother does not challenge the trial court’s finding that termination of her parental rights is in E.V.’s best interests.

Court of Appeals of Indiana | Memorandum Decision 19A-JT-2753 | June 10, 2020 Page 8 of 9

Conclusion [21] Clear and convincing evidence supports the trial court’s order involuntarily

terminating Mother’s parental rights to her child. [22] Affirmed.

Riley, J., and Tavitas, J., concur.

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