C.B., Appellant-Respondent, v. INDIANA DEPARTMENT OF CHILD SERVICES (2023)

MEMORANDUM DECISION

Case Summary

[1] C.B. (Mother) appeals from the involuntary termination of her parental rights to two of her minor children, Ly.B and L.B. (collectively, Children).¹ She challenges the sufficiency of the evidence supporting the termination.

[2] We affirm.

Facts & Procedural History 2

[3] Mother and Father's marriage was plagued by domestic violence and drug abuse, and police were often called to their home. In May 2021, the Indiana Department of Child Services (DCS) received several reports of possible neglect of Ly.B., who was about seventeen months old at the time. During the DCS investigation, Father punched Mother multiple times in the presence of Ly.B. on May 19, ultimately breaking two of her ribs. Mother was about three months pregnant with L.B. at the time. Father was later convicted of Level 5 felony domestic battery.

[4] On May 20, 2021, DCS filed a petition alleging that Ly.B. was a child in need of services (CHINS) based on domestic violence in the home and Mother's inability or unwillingness to restrict Father's access to Ly.B. without DCS intervention. DCS also sought and obtained a child protective order by which Father was ordered not to enter the family home or to have any contact with Mother or Ly.B.

[5] Ly.B. remained in Mother's care initially, but DCS removed him on July 26, 2021, after Mother allowed Father into the home to care for Ly.B. in violation of the protective order. As a result, Ly.B. was placed in relative care with his maternal grandmother (Grandmother) and her husband and has remained there ever since. Additionally, Mother was charged the next day with Level 6 felony neglect of a dependent.

[6] At the CHINS factfinding hearing on August 11, 2021, Mother and Father admitted that Ly.B. was a CHINS. The dispositional order, issued September 8, required Mother to, among other things, keep in weekly contact with the DCS family case manager (FCM), engage in all recommended services, keep appointments, secure and maintain stable housing and income, not use illegal substances, obey the law, submit to random drug screens, and complete a substance abuse assessment and follow all treatment recommendations, and attend visitations.

[7] At first, Mother complied with the dispositional order and engaged in services referred by DCS. At the review hearing in early November 2021, it was reported that Mother had participated in substance abuse treatment, home-based services, and visitation, but individual therapy had been discontinued because Mother was overwhelmed. DCS was considering a trial home visit with Mother but needed additional input from service providers.

[8] L.B. was born on November 23, 2021, and Mother's cooperation with DCS and service providers began to decline around this time. On December 3, 2021, she was randomly drug screened during a visit with Ly.B. and tested positive for methamphetamine. FCM Brooklynn Deaton had trouble locating Mother in early January and then was able to screen her again on January 7, 2022. This test returned positive for methamphetamine.

[9] After receiving the second positive drug results, DCS filed a CHINS petition regarding L.B. on January 19, 2022, and requested permission from the court to take L.B. into custody. DCS's allegations included that Mother was using methamphetamine, not practicing safe sleeping practices with L.B., and not fully participating in services in Ly.B.’s CHINS case. The trial court authorized removal that same day, and L.B. was placed in Grandmother's care with Ly.B.

[10] L.B. was adjudicated a CHINS on March 9, 2022, with Mother admitting to the allegations. Then, on May 2, the trial court issued a dispositional order that generally tracked the one issued in Ly.B.’s CHINS case. Mother was also ordered to comply with the terms of her probation – as she had just pleaded guilty to the felony neglect charge and received a one-year suspended sentence. As for random drug screens, the dispositional order clarified that noncompliance with a request would be deemed a positive result.

[11] In the meantime, at the April 20 review hearing in Ly.B.’s case, DCS presented evidence that Mother had not complied with random drug screens and had missed most scheduled visits with Ly.B. in November and December 2021. She also missed certain treatment appointments in March and April and did not comply with recommended inpatient treatment. She tested positive for methamphetamine again on April 14, 2022.

[12] A periodic case review hearing was held on June 29, 2022, to address both pending CHINS cases. Mother had not cooperated with DCS during the review period and “had not addressed her substance abuse issue.” Exhibits at 96. The court specifically found: Mother had not been compliant with therapy, substance abuse assessment and recommendations, homebased casework, or random drug screens; she had left in-patient treatment “for medical reasons that have not been substantiated”; and she violated her probation. Id. at 95. The court ordered Mother to enter inpatient treatment within thirty days.

[13] At the next review hearing on September 21, 2022, Mother remained out of compliance with the case plans with respect to, among other things, random drug screens, therapy, homebased casework, and probation. She was also unable to visit with Children, as she became incarcerated in mid-August for violating probation. After forty-one days in jail, Mother was released back to probation on September 28, 2022.

[14] At a permanency hearing on November 2, 2022, the trial court added adoption as a concurrent permanency plan for Children. The court made the following relevant findings in its order:

[Mother has] not complied with the children's case plan. Mother [has] not been participating in Services. She is non-compliant with Therapy, Home Based Casework, Random Drug Screens, Substance Abuse Disorder Assessment. Mother violated Probation and was incarcerated. All new referrals for all Services were entered for Mother on October 18, 2022.

Mother has completed nineteen (19) out of the thirty (30) days of in-patient treatment and engaged in Supervised Visitation.

Mother was questioned in Court on whether or not she understood that new referrals for Services have been entered and how to contact [FCM] for assistance. Mother stated she understood. DCS also stated to Mother that lack of engagement in Services can result in DCS filing and pursuing a Termination of Parental Rights.

Id. at 102.

[15] On November 21, 2022, DCS filed the instant petitions to terminate parental rights. The next week, on November 27, Mother was arrested for violating probation in the criminal neglect case. Before this incarceration, Mother's visitation referral had been closed out due to non-compliance, and she had not participated in other referred services, including random drug screens. Mother's probation was revoked, and she was ordered to serve 239 days in jail.

[16] The termination factfinding hearing was held on February 16, 2023. Mother was still in jail at the time, with an expected release date of March 26, 2023. Mother testified that she was homeless and unemployed before being incarcerated, and she acknowledged that while on probation from April to November 2022, “I missed drug screens. I missed appointments. I missed everything.” Transcript at 20. Indeed, her probation officer testified that Mother was “very noncompliant” and “very argumentative, not receptive to anything” the “entire time.” Id. at 114. And Mother outright refused to submit to drug screens.

[17] FCM Deaton ³ testified that Mother was engaged in services at the beginning of Ly.B.’s CHINS case but that she eventually moved into non-compliance by November 2021. Services were cancelled multiple times in 2022 due to Mother's lack of engagement. FCM Deaton testified that Children had remained out of Mother's care “due to no progress being made.” Id. at 56. Ultimately, she opined that the reasons for Children's removal had not been remedied, noting Mother's incarcerations for violating probation, her active drug use, and her lack of progress and non-compliance with needed services. FCM Deaton testified that she believed termination was in Children's best interests.

[18] Similarly, the CASA and the GAL each concluded that termination was in Children's best interests. The CASA described their removal from Mother's home as “a blessing” and conveyed how well they were doing in Grandmother's home. Id. at 147. The GAL explained that she had observed Mother at team meetings to be “very hesitant to acknowledge that she needs any help whatsoever” and that Mother had testified in past hearings that “she flat-out does not need any assistance and that she can, uh, figure things out herself.” Id. at 154. This was “very concerning” to the GAL, who testified that she fully agreed with DCS's permanency plan of adoption by Grandmother following termination. Id.

[19] Besides testifying that she wished to adopt Children, Grandmother described Mother's struggle with substance abuse – “Ever since she was a teenager. In and out of rehab. In and out of ․ jail.” Id. at 136. Grandmother explained that she had tried to help Mother multiple times before and told how Mother lost custody of her three older children about five years prior due to substance abuse. Mother's oldest child was still in Grandmother's custody, and the two other children were with their respective fathers.

[20] On March 14, 2023, the trial court issued orders terminating Mother's (and Father's) parental rights with respect to Ly.B. and L.B. In concluding that there was a reasonable probability that the conditions resulting in Children's removal will not be remedied, the trial court noted that Mother had “refus[ed]/fail[ed] to engage in any meaningful way in services offered.” Appendix Vol. 2 at 47. The court supported its best-interests determination on the lack of meaningful engagement in services and Mother's failure to “significantly participate in [Children's lives] over the course of the last 12 months.” Id. The trial court also supported these conclusions with the following findings of fact:

5. Mother has been offered services including, but not limited to therapy, drug screens, substance abuse treatment, and case work[.] While initially engaging in services to some extent, by September 2022, mother was non-compliant with most services. Mother frequently missed drug screens ․, failed drug screens, left in-patient treatment before completion, missed several visits, and was removed from two visits due to illegal substance use. Mother also violated her criminal probation during this time, resulting in lengthy incarceration, which in turn prohibited significant engagement in services and visitation. Once released she failed to significantly engage in services and then again violated probation for continued drug use and was incarcerated again. Mother also suffers from housing instability.

***

7. Both parents verbally express a desire to address reasons for [Children's] removal, however, neither parent has taken action to support this notion. Both parents’ actions fully support the DCS’ position that the reasons for placement outside of the home will not be remedied. While one or both parents may eventually address their substance abuse issues in the future, their children should not be deprived any longer of a stable, loving environment while their natural parents decide how they want to live the rest of their lives.

Id. at 46.

[21] Mother now appeals. Additional information will be provided below as needed.

Discussion & Decision

[22] When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625, 628 (Ind. 2016). Instead, we consider only the evidence and reasonable inferences most favorable to the judgment. In re S.K., 124 N.E.3d 1225, 1230-31 (Ind. Ct. App. 2019), trans. denied. 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. Id. at 1231. Because of the applicable clear and convincing evidence standard, we review to determine whether the evidence clearly and convincingly supports the findings and whether the findings clearly and convincingly support the judgment. In re R.S., 56 N.E.3d at 628.

[23] 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 J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), 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. 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 J.W., Jr., 27 N.E.3d at 1188.

[24] 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, that one 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); Ind. Code § 31-37-14-2. DCS must also prove by clear and convincing evidence that termination is in the best interests of the child and that there is a satisfactory plan for the care and treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D); I.C. § 31-37-14-2.

[25] Mother first challenges the trial court's conclusion that there is a reasonable probability that the conditions that resulted in Children's removal or continued placement outside her home would not be remedied. In determining the probability that conditions will change,

the 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. Due to the permanent effect of termination, the trial court also must evaluate the parent's habitual patterns of conduct to determine the probability of future neglect or deprivation of the child. The statute does not simply focus on the initial basis for a child's removal for purposes of determining whether a parent's rights should be terminated, “but also those bases resulting in the continued placement outside the home.” In re A.I., 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied. A court may properly 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. Moreover, a trial court “can reasonably consider the services offered by the [DCS] to the parent and the parent's response to those services.” [McBride v. Monroe Cnty. Off. of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003)].

In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013) (some citations omitted).

[26] Mother suggests that she had remedied the conditions that led to Children's removal by the time of the factfinding hearing and that, upon her pending release from jail, she had housing and employment lined up. We reject this invitation to reweigh the evidence. Contrary to her assertion on appeal, there is no support in the record that Mother had maintained her sobriety since completing a treatment program in August 2022. Indeed, the evidence establishes that she flatly refused to submit to drug screens through DCS and probation, the latter of which led to the revocation of her probation and a lengthy period in jail. And she only re-engaged in services – therapy and recovery coaching – about a week before the termination hearing. Finally, the trial court was not required to credit Mother's self-serving testimony that she had suitable housing and employment ⁴ available after her release from incarceration.

[27] FCM Deaton testified that Mother had made no progress toward reunification, and the testimony of several other witnesses supported this testimony. The trial court's conclusion that there is a reasonable probability that Mother will not remedy the conditions that resulted in Children's removal and continued placement outside her home is not clearly erroneous.

[28] Turning to the trial court's determination on Children's best interests, Mother again suggests that she has maintained her sobriety since August 2022. She also claims that she was temporarily incarcerated “due to technical violations of her terms of probation.” Appellant's Brief at 14. There was nothing technical about it; her violations were complete and flagrant. She did not even cooperate with probation after her first stint in jail for violations. These decisions by Mother to miss drug screens, miss appointments, “miss[ ] everything,” caused her to be unable to work toward reunification with Children. Transcript at 20.

[29] When making a best-interests determination, a trial court must look at the totality of the evidence and, in doing so, subordinate the parents’ interests to those of the children, with the children's need for permanency being a central consideration. See Matter of Ma.H., 134 N.E.3d 41, 49 (Ind. 2019). And we have held that “the recommendation by both the case manager and child advocate to terminate parental rights, in addition to evidence 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 P.B., 199 N.E.3d 790, 799 (Ind. Ct. App. 2022), trans. denied. Here, FCM Deaton, FCM Roberts, the CASA, and the GAL all recommended termination, and the totality of the evidence supports the trial court's conclusion that Mother has been unable or unwilling to remedy her substance abuse issues. The trial court's determination that termination of Mother's parental rights is in Children's best interests is not clearly erroneous.

[30] Judgment affirmed.

FOOTNOTES

1.   Mother has three older, minor children who were not part of the proceedings below and were not in her care or custody.

3.   FCM Deaton worked with the family from the beginning of the CHINS case through January 27, 2023. FCM Roberta Roberts then took over only weeks before the termination factfinding hearing.

4.   When asked about the employment she had “lined up,” Mother testified that she had been offered the job in 2021 and still had to “fill out an application and get an interview.” Transcript at 24. Her representation on appeal that she had secured a “full-time job at a foundry upon her release” is wholly disingenuous. Appellant's Brief at 14.

Altice, Chief Judge.

May, J. and Foley, J., concur.