IN RE: the Involuntary Termination of the Parent-Child Relationship of: S.B. (Minor Child) (2023)

MEMORANDUM DECISION

Case Summary

[1] K.B. (“Mother”) appeals the trial court's order terminating her parental rights over her minor child, S.B. (“Child”).¹ Mother raises one issue for our review, namely, whether the court erred when it terminated her rights. We affirm.

Facts and Procedural History

[2] Mother gave birth to a child, N.B., on April 15, 2020. When she gave birth, Mother tested positive for cocaine. Because of Mother's drug use and lack of stable housing, the Indiana Department of Child Services (“DCS)” removed N.B. from Mother's care and filed a petition alleging that he was a Child in Need of Services (“CHINS”). Mother continued to test positive for drugs, and she was not compliant with services. Ultimately, Mother consented to the adoption of N.B. in November 2021.

[3] During the CHINS proceedings involving N.B., Mother gave birth to Child on May 24, 2021. Child was born prematurely and had cocaine and THC in her system. On July 9, DCS detained Child and filed a petition alleging that Child is a CHINS. The court adjudicated Child a CHINS and ordered Mother to participate in services. In relevant part, the court ordered Mother to: refrain from criminal activity; maintain clean, safe, and appropriate sustainable housing at all times; cooperate with caseworkers; submit to a diagnostic assessment; submit to a substance abuse assessment and follow all recommendations; enroll in home-based services; submit to drug screens; and participate in supervised visitation with Child. Ex. at 21-22.

[4] Mother was noncompliant with services. Mother did not complete a diagnostic assessment or participate in home-based case work. Mother only visited Child once, which visit occurred in February 2022. Mother tested positive for cocaine on one occasion and for cocaine and methamphetamine on another occasion. Mother also failed to obtain appropriate housing. And Mother was convicted of theft on two occasions under two different cause numbers and had numerous probation violation hearings, which resulted in Mother being incarcerated throughout the “majority” of the CHINS proceedings. Tr. at 90.

[5] As a result, DCS filed a petition to terminate Mother's rights over Child. During the hearing, several service providers testified to Mother's lack of participation in services. In addition, Child's guardian ad litem (“GAL”) testified that the termination of Mother's parental rights was in Child's best interests. See id. at 135. And the GAL testified that the permanency plan for Child was to be adopted by her current placement.

[6] Following a hearing, the court entered findings of fact and conclusions thereon. In relevant part, the court found:

21. The Court finds that [Mother] failed to participate in the diagnostic evaluation, home based services, family counseling, or substance abuse assessment through Quality Counseling.

22. The Court finds that although there were referrals for supervised visitation from July of 2021 through July of 2022, Mother ․ only participated in one supervised visit with her daughter [Child]. That visit took place in February of 2022. [Mother] was unsuccessfully discharged from supervised visitations at Quality Counseling in March of 2022 due to non-attendance.

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28. The Court finds that [Mother] did not participate in the substance abuse assessment, even though it was scheduled, the diagnostic assessment, or home based services through Quality Counseling.

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42. The Court finds that Mother ․ did not have stable housing during the pendency of the CHINS case. She was living with others and was also incarcerated during the case.

43. The Court finds that Mother ․ was incarcerated from August of 2021 until January of 2022. She was re-arrested a couple of times between January and May of 2022 for short periods of time. Then, she was on electronic monitoring for two weeks in June of 2022. [Mother] was placed in jail again and then was released in July of 2022. She was re-arrested in July or August of 2022 and then was incarcerated until October 26, 2022[,] when she was released from her incarceration. [Mother] was arrested on a probation violation in December of 2022.

44. The Court finds that Mother ․ has engaged in criminal activity during the underlying CHINS case as she has criminal convictions since the dispositional order was entered.

45. The Court finds that [Mother] was convicted of theft and sentenced on January 11, 2022[,] in cause number 02D06-2108-F6-1133. She received jail credit of 104 days and was sentenced to one year and 183 days incarceration with one year suspended. (See Exhibits #10-12).

46. During the pendency of the criminal case 02D06-2108-F6-l 133, six hearings were held regarding probation violations. (See Exhibits #10-15).

47. The Court finds that Mother ․ pled guilty to felony theft in 02D04-2207-F6-809 on September 20, 2022[,] and was sentenced to one and half years’ incarceration with one year suspended and credit for 56 days in jail. A petition to revoke her probation was filed on December 12, 2022. (See Exhibit #16-18)

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49. The Court finds that Mother ․ had an older child that was involved with the Department of Child Services and removed from her care due to the child being born with controlled substances in his system, substance abuse issues with his mother ․, and overall instability and lack of housing. The permanency plan for that child was termination of parental rights and subsequent adoption, wherein Mother signed a consent to the adoption of that child. (See Exhibits #22-25)

50. The Court finds that Mother ․ maintained very minimal contact with the Department of Child Services and only attended one child and family team meeting to discuss services necessary to remedy the issues within the family.

51. Even though referrals were made at several agencies, the Court finds that Mother ․ did not complete her diagnostic assessment or the substance abuse assessment referred to [by] any of the agencies.

52. The Court finds that [Mother] did not participate in home based services through any agency or family therapy.

53. The Court finds that after the child was released from the NICU unit at the hospital, Mother ․ participated in only one supervised visitation with [Child].

54. The Court finds that neither parent completed any of the court services directed at domestic violence, parenting or substance abuse issues as ordered through the dispositional order.

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56. The Court finds that both parents were ordered to complete random drug screens as part of their dispositional order. (See Exhibit # 4). The parents failed to participate in random drug screens on a regular basis as ordered.

57. The Court finds that on the two occasions where [Mother] participated in random drug screens, she tested positive for Methamphetamine, cocaine and metabolites of cocaine on January 18, 2022[,] and tested positive for cocaine and metabolites of cocaine on July 15, 2021. (See Exhibit #37).

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65. The Court finds that [E.C.] and [Mother] never participated in unsupervised parenting time during the pendency of the underlying CHINS case.

66. The Court finds that [Mother] did not participate in any of the services ordered under the dispositional order, besides visiting with her child on one occasion in February of 2022.

Appellant's App. Vol. 2 at 8-13.

[7] Based on those findings, the court concluded that “there is a reasonable probability that the reasons that brought about the child's placement outside the home will not be remedied”; that “continuation of the parent-child relationship poses a threat to the well-being of the child”; that termination of the parent-child relationship is in Child's best interests; and that DCS has a satisfactory plan for the care and treatment of child, which is adoption by Child's current placement. Id. at 15-16. Accordingly, the court terminated Mother's parental rights over Child. This appeal ensued.

Discussion and Decision

[8] Mother challenges the trial court's termination of her parental rights over Child. We begin our review of this issue by acknowledging that “[t]he traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution.” Bailey v. Tippecanoe Div. of Fam. & Child. (In re M.B.), 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. However, a trial court must subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. Schultz v. Porter Cnty. Off. of Fam. & Child. (In re K.S.), 750 N.E.2d 832, 837 (Ind. Ct. App. 2001). Termination of a parent-child relationship is proper where a child's emotional and physical development is threatened. Id. Although the right to raise one's own child should not be terminated solely because there is a better home available for the child, parental rights may be terminated when a parent is unable or unwilling to meet his or her parental responsibilities. Id. at 836.

[9] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, 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․

(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) (2022). DCS's “burden of proof in termination of parental rights cases is one of ‘clear and convincing evidence.’ ” R.Y. v. Ind. Dept of Child Servs. (In re G.Y.), 904 N.E.2d 1257, 1260 (Ind. 2009) (quoting I.C. § 31-37-14-2).

[10] When reviewing a termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Off. of Fam. & Child. (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 that are most favorable to the judgment. Id. Moreover, in deference to the trial court's unique position to assess the evidence, we will set aside the court's judgment terminating a parent-child relationship only if it is clearly erroneous. Judy S. v. Noble Cnty. Off. of Fam. & Child. (In re L.S.), 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

[11] Here, in terminating Mother's parental rights, the trial court entered findings of fact and conclusions thereon. When a trial court's judgment contains special findings and conclusions, we apply a two-tiered standard of review. Bester v. Lake Cnty. Off. of Fam. & Child., 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). If the evidence and inferences support the trial court's decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[12] On appeal, Mother does not challenge any of the factual findings made by the trial court. When findings of fact are unchallenged, this Court accepts them as true. L.M. v. Ind Dep't of Child Servs. (In re S.S.), 120 N.E.3d 605, 608 n.2 (Ind. Ct. App. 2019). Further, Mother does not challenge the court's conclusion that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to Child's well-being, that termination is in Child's best interests, or that DCS has a satisfactory plan for the care and treatment of Child. Rather, Mother only challenges the court's conclusion that the reasons for Child's removal and the continued placement outside of Mother's home will not be remedied.

[13] However, Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive. As such, “the trial court need only find that one of the three requirements of that subsection has been met by clear and convincing evidence.” S.K., Sr. v. Ind. Dep't of Child. Servs. (In re S.K.), 124 N.E.3d 1225, 1233 (Ind. Ct. App. 2019). Here, the court concluded that the State had proven two of three requirements: (1) that there is a reasonable probability that the conditions that resulted in Child's removal and continued placement outside of Mother's home will not be remedied and (2) that there is a reasonable probability that the continuation of the parent-child relationship poses a threat to Child's well-being. As Mother only challenges the court's “remedy” conclusion, she has waived our review of the sufficiency of the evidence to support the court's conclusion on either prong.

[14] Waiver notwithstanding, we hold that the court's unchallenged findings clearly support its conclusion that the reasons for Child's removal will not be remedied. Indeed, as the court's findings demonstrate, Mother failed to participate in services, she only visited with Child once, she tested positive for illegal substances on two occasions, she failed to obtain adequate housing, and she spent the majority of the underlying CHINS proceedings incarcerated because of her criminal behavior. Mother's argument on appeal is simply a request for this Court to reweigh evidence, which we cannot do. We therefore affirm the court's termination of Mother's parental rights over Child.

[15] Affirmed.

FOOTNOTES

1.   The court also terminated the parental rights of Child's alleged father, E.C., but E.C. does not participate in this appeal.

Bailey, Judge.

Tavitas, J., and Kenworthy, J., concur.