B.P., Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

Case Summary

[1] B.P. (Mother) appeals from the involuntary termination of her parental rights to M.P. and A.P. (the Children). She presents two issues for our review, one of which we need not address and the other we expand and restate as follows:

1. Is the trial court's finding that the reasons for removal and continued placement outside the home are unlikely to be remedied supported by clear and convincing evidence?

2. Is the trial court's finding that termination is in the best interests of the Children supported by clear and convincing evidence?

[2] We affirm.

Facts & Procedural History

[3] Mother and M.P., Sr. (Father) are the parents of M.P., born April 10, 2009, and A.P., born November 15, 2013.¹ On August 21, 2018, the Children were adjudicated children in need of services (CHINS) after Mother admitted to “substance abuse issues that could affect parenting” and agreed that “services could be beneficial.” Exhibits at 95, 100. The court entered a dispositional order in which Mother was ordered to participate in a substance abuse treatment program. The court terminated wardship over the Children in December 2019, and the Children were placed in Father's care. Father continued to have custody of the Children until DCS became involved in the instant case.

[4] In April 2021, DCS received a report that the Children were not being properly supervised because Father was using drugs. At that time, Mother was homeless and tested positive for methamphetamine and THC. The Children were removed from Father's home and placed in foster care.² On April 23, 2021, DCS filed petitions alleging the Children were CHINS. Mother appeared at the initial hearing and admitted the Children were CHINS and that “services would be beneficial due to substance abuse issues, domestic violence, and unstable housing.” Id. at 25.

[5] The court held a dispositional hearing on May 19, 2021, and issued a dispositional order the same day. In pertinent part, the court ordered Mother to maintain suitable, safe, and stable housing, maintain a legal and stable source of income, refrain from the use of illegal drugs, complete a substance abuse assessment and follow all recommendations, and submit to random drug screens.

[6] By the first review hearing in October 2021, Mother was partially compliant with services. She maintained consistent and appropriate visitation with the Children and in fact, was “very adamant” about visiting Children on a regular basis. Transcript at 20. At all times, Mother's visitation was supervised. Mother initially participated in home-based services but stopped participating when there was a change in provider. Mother had not yet completed the substance abuse assessment and had submitted only one drug screen, which came back positive for methamphetamine.

[7] By the second review hearing in April 2022, Mother was still consistently engaging in supervised visits with the Children. She had completed the substance abuse assessment but was not participating in recommended services.³ During the review period, Mother failed to consistently submit to drug screens. Of the five drug screens to which she did submit, two were positive for methamphetamine (October 15 and 19, 2021) and three were negative (October 28 and December 2, 2021, and January 27, 2022). Mother's participation in home-based services was inconsistent during this review period. She was discharged from home-based services at one point due to lack of communication and after services were reinstated, her participation was sporadic. At that time, the permanency plan for the Children remained reunification with Mother.

[8] Over the course of the next six months (April to October 2022), Mother was “engaging somewhat regularly” with her home-based caseworker but was inconsistent with her substance use outpatient treatment, attending only two group and two individual therapy sessions. Exhibits at 39. Mother submitted to only ten drug screens, four of which were positive for methamphetamine with the most recent being on August 31, 2022, three were positive for THC with the most recent being on September 14, 2022, and three drug screens were negative.⁴

[9] According to Family Case Manager Shannon Vannatta (FCM Vannatta), beginning in September/October 2022, Mother became “very compliant” with substance abuse services and continued until she successfully completed them. Transcript at 21. Mother claimed that she last used methamphetamine at the end of 2022/beginning of 2023 and thereafter, has been taking Buprenorphine to treat her methamphetamine addiction. Mother testified that she has to “work on” her use of marijuana. Id. at 106. Indeed, Mother continued testing positive for THC regularly through May 2023. Three weeks prior to the final fact-finding hearing, Mother stopped reporting for random drug screens, so her claim that her sobriety date is in August 2023 cannot be verified.

[10] Regarding home-based casework, Mother did not consistently participate. While Mother had obtained stable housing for herself by living with her grandparents, FCM Vannatta spoke with Mother's grandparents in March/April of 2023, and they “prefer[red]” that the Children not live there. Id. at 22. Thereafter, Mother took minimal steps to secure housing. Although Mother had applied for HUD housing, a service provider testified that due to Mother having a previous eviction, HUD housing was not an option.

[11] As to obtaining stable employment, Mother had “multiple jobs” throughout the CHINS proceedings but would only maintain employment for up to a month before she would be fired or quit. Id. at 23. Mother secured her most recent and longest employment in June 2023, working part-time at a grocery store.

[12] At some point during the CHINS action, it was learned that fourteen-year-old M.P. was using marijuana. Mother's response was “that's normal [and] he's just experimenting.” Id. at 32. Given Mother's substance abuse issues, FCM Vannatta found Mother's response “concerning.” Id. DCS started working with M.P. on “abstaining from all substance use.” Id. at 33.

[13] While Mother regularly visited with the Children and while those visits generally went well, Mother sometimes had conversations with the Children about the CHINS matter and their future. DCS asked Mother to not discuss such matters with the Children because it was “detrimental to their mental health,” because it gave them “false hope.” Id. at 33, 36. For instance, Mother would tell the Children that she was getting a house and that they were coming to live with her. The Children would get excited but then become confused and upset when they learned that was not true.

[14] About two weeks before the termination hearing, Mother spoke with the Children on the phone, telling them that she was sorry, that she hoped the Children could stay together, and that they should find her when they are older. After this conversation, M.P. was “very [ ] distraught,” “crying and very confused.” Id. at 67. M.P.’s foster mother consoled him and reassured him that he would see Mother again. A few days later, Mother reached out to M.P.’s foster mother and wanted to speak with M.P., but the foster mother, being uncomfortable given the prior conversation between Mother and M.P., did not allow it. Mother was not receptive to the foster mother's concerns and sent her some messages that “weren't kind.” Id. at 69.

[15] On May 10, 2023, the court changed the permanency plan to reunification with a concurrent plan of adoption. Around that time, Mother was participating in some services, but she was still testing positive for THC. On June 20, 2023, DCS filed petitions to terminate Mother's parental rights to Children. DCS alleged that under Ind. Code § 31-35-2-4(b)(2)(B), there was a reasonable probability that the conditions that resulted in removal of the Children or reasons for placement outside the home would not be remedied or that there is a reasonable probability that continuation of the parent-child relationship poses a threat to the well-being of the Children. The court held a fact-finding hearing on the termination petition on August 21 and September 5, 2023.

[16] At the hearing, FCM Vannatta opined that termination was in the Children's best interests because of Mother's DCS history, her inability to maintain consistency, and the Children's need for permanency and stability. She further opined that in light of Mother's pattern of behavior, Mother would be unable to change and that her most recent progress was “likely temporary.” Transcript at 37. FCM Vannatta acknowledged that the Children are bonded with and love Mother and she believed that they would want to continue to have contact with Mother, but she nevertheless opined that the Children had a greater need for stability and permanency. She also noted that M.P.’s foster family desired to adopt the Children, even though A.P. was in a different foster home at the time, and they were open to allowing contact between Mother and the Children so long as Mother was healthy.

[17] The Court Appointed Special Advocate (CASA) also testified that termination of Mother's parental rights was in the Children's best interests due to Mother's “instability” but also that it would be in the Children's best interests to maintain contact with Mother. Id. at 70. CASA noted that “communication with mom wouldn't stop if [termination] is granted and that would be good for both children.” Id. at 72.

[18] After the close of evidence and DCS's closing argument, the court sought to confirm with DCS that the Children had been adjudicated CHINS on a prior occasion as shown by Exhibits 14 and 15. DCS confirmed that the Children had twice been adjudicated CHINS but stated that that was not the basis of the termination petition. The court then questioned: “Do you think that because that wasn't pled in the Petition the Court would be barred from finding that as the element that satisfies [the termination statute]?” Id. at 128. DCS then asked the court to “conform the Petition to the facts that have been presented in evidence.” Id. at 129. Mother did not object but continued with her closing argument, pointing out the positive strides Mother had made in recent months and emphasizing the evidence that there is a strong relationship between Mother and the Children. Although she did ask the court “to deny the State's request,” when asked what elements of the termination statute DCS had not proved by clear and convincing evidence, Mother's response was simply, “Best interest.”⁵ Id. at 130, 131.

[19] On January 3, 2024, the court entered its order terminating Mother's parental rights to the Children. In its order, the court stated:

This Court could, as a matter of law, find this second prong has been met (although not pled) because [DCS] moved to conform the pleading to the evidence presented and because the [C]hildren have been adjudicated [CHINS] on two separate occasions. However, the Court finds the second prong to have been met not only because the [C]hildren have been twice adjudicated to be in need of services but also because there is a reasonable probability that the conditions that resulted in the [C]hildren's removal from Father or continued placement outside the home of either parent will not be remedied.

Appellant's Appendix Vol. 2 at 36. Mother now appeals. Additional facts will be provided as necessary.

Discussion & Decision

Standard of Review

[20] When reviewing the termination of parental rights, we do not reweigh the evidence or judge witness credibility. In re K.T.K., 989 N.E.2d 1225, 1229 (Ind. 2013). Rather, we consider only the evidence and reasonable inferences that are most favorable to the judgment of the trial court. Id. When a trial court has entered findings of fact and conclusions of law, we will not set aside the trial court's findings or judgment unless clearly erroneous. Id. To determine whether a judgment terminating parental rights is clearly erroneous, we review whether the evidence supports the trial court's findings and whether the findings support the judgment. In re V.A., 51 N.E.3d 1140, 1143 (Ind. 2016).

[21] It is well established that “[a] parent's interest in the care, custody, and control of his or her children is ‘perhaps the oldest of the fundamental liberty interests.’ ” Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). The relationship between a parent and child is one of the most valued within our culture. Id. at 147. Yet, parental rights are not absolute, and the best interests of the child must prevail. Id. But termination of parental rights remains an “extreme measure” and should only be utilized as a “last resort when all other reasonable efforts to protect the integrity of the natural relationship between parent and child have failed.” Rowlett v. Vanderburgh Cnty. Office of Family & Children, 841 N.E.2d 615, 623 (Ind. Ct. App. 2006), trans. denied. “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” Troxel, 530 U.S. at 68. “State intrusion is warranted only when parents lack the ability to provide for their children.” In re D.S., 150 N.E.3d 292, 295 (Ind. Ct. App. 2020). Parental rights should be terminated only when parents are “unable or unwilling to meet their responsibilities as parents.” Egly v. Blackford Cnty. Dep't of Public Welfare, 592 N.E.2d 1232, 1234 (Ind. 1992); see also In re K.T.K., 989 N.E.2d at 1230.

[22] When DCS filed the termination petition, Ind. Code § 31-35-2-4(b)(2) provided that a petition seeking to terminate the parent-child relationship must allege the following:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six (6) months under a dispositional decree.

* * *

(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;

(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.

The State must prove, by clear and convincing evidence, each and every element set forth in I.C. § 31-35-2-4. See In re G.Y., 904 N.E.2d 1257, 1261 (Ind. 2009) (explaining that “if the State fails to prove any one of these four statutory elements, then it is not entitled to a judgment terminating parental rights”). Subsection (2)(B) is written in the disjunctive, and therefore, the court is required to find that only one prong has been established by clear and convincing evidence. In re A.K., 924 N.E.2d 212, 220 (Ind. Ct. App. 2010), trans. dismissed.

1. Reasons for Removal/Continued Placement Outside Home

[23] Mother challenges the court's determination that there is a reasonable probability that the conditions that resulted in the Children's removal or the reasons for placement outside the home will not be remedied. In so doing, Mother seemingly challenges all or nearly all of the court's findings of fact relating to her. She does not challenge the court's findings as not being supported by the evidence; rather, she argues that the court's findings do not accurately portray the progress she had made by the time of termination. We disagree.

[24] In making a determination in this regard, the trial court must judge a parent's fitness to care for her children 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.

[25] Here, the trial court's findings accurately set out the circumstances of the CHINS matter and the progress Mother made over the course of more than two years. The findings tell a story and demonstrate a pattern of behavior. For certain, Mother is to be commended for her progress regarding her substance abuse. But, as the trial court found, Mother claimed to have been sober since August 2023; thus, Mother's substance abuse remained an issue two and a half years after Mother admitted the Children were CHINS due, in part, to her substance abuse. The court also noted that Mother admitted that about three weeks prior to the September hearing, she stopped calling in for random drug screens despite a referral still being in place, so it was not entirely clear if Mother was still using or had relapsed.

[26] Further, the court determined that Mother had not secured a stable home for her and the Children after more than two years, noting a caseworker's testimony that Mother had not sought help in obtaining appropriate housing and that Mother did not qualify for HUD housing because she had a prior eviction on her record. The court acknowledged that Mother had recently secured part-time employment but noted that it was her only source of income. The record also reveals that Mother has a history of holding jobs for only short periods of time before quitting or getting fired.

[27] In short, the court's findings do not overlook that Mother made some progress, but those findings also show that after two and a half years, Mother was still unable to show long-term stability regarding the two main reasons the Children were not placed in her care—drug use and unstable housing. The court's findings also show Mother's history and pattern of conduct, which is a proper consideration for a court in termination matters. See In re E.M., 4 N.E.3d 636, 643 (Ind. 2014) (noting that trial courts can consider a parent's pattern of conduct in determining the probability of future neglect). Mother was involved in a prior CHINS case due, in part, to her substance abuse. Wardship in that action was terminated and the Children were placed in Father's care. When DCS became involved in this case, Mother was homeless and continued to have substance abuse issues. Two and a half years after Mother admitted the Children were CHINS, Mother was still unable to provide the Children with a stable home and her substance abuse was still a concern.

[28] To the extent Mother argues that the findings are not relevant to her status at the time of the termination hearing, her arguments are nothing more than an impermissible request to reweigh the evidence. The court noted Mother's progress but weighed more heavily Mother's history prior to her recent efforts. The trial court's findings are supported by the evidence and those findings support the court's determination that there is a reasonable probability the conditions that resulted in the Children's removal or the reasons for placement outside the home of the parents will not be remedied.

2. Best Interests

[29] Mother argues that the evidence in the record establishes that termination of her parental rights is not in the Children's best interests. Mother maintains that she and the Children have a strong bond, points out that she has consistently exercised visitation with the Children, and notes that M.P.’s foster mother and CASA were of the opinion that continued contact between Mother and the Children after termination would be beneficial for the Children.

[30] In determining whether termination of parental rights is in the best interests of a child, the trial court is required to look beyond the factors identified by DCS and consider the totality of the evidence. In re J.C., 994 N.E.2d 278, 290 (Ind. Ct. App. 2013). In so doing, the trial court must subordinate the interest of the parent to those of the child, and the court need not wait until a child is irreversibly harmed before terminating the parent-child relationship. McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). Our Supreme Court has explained that “[p]ermanency is a central consideration in determining the best interests of a child.” In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).

[31] Mother did consistently exercise supervised visitation with the Children and it is obvious that the Children love Mother. Nevertheless, it remains that two and a half years after Mother admitted Children were CHINS due to her housing instability and substance abuse issues, Mother was still unable to provide the Children with a suitable environment. While it had been a while since Mother tested positive for methamphetamine, Mother admitted that she had used marijuana as recent as a month before the final fact-finding hearing and Mother had stopped calling in for drug screens, so her claimed sobriety could not be confirmed. And, while Mother had obtained stable housing for herself, she had not obtained stable housing for her and the Children. Mother was living with her grandparents and did not have the financial resources to get independent housing. After two and a half years, Mother had only recently secured a part-time job and remained employed for more than a month. Although Mother was in a better position than at the start of the underlying proceedings, she still was not in a suitable position to have the Children returned to her care. The Children have been in limbo for more than two and a half years and, in fact, have not been in Mother's care since 2018. As we have stated before, “[a] parent's historical inability to provide adequate housing, stability and supervision coupled with a current inability to provide the same will support a finding that termination of the parent-child relationship is in the child's best interests.” Castro v. State Office of Family and Children, 842 N.E.2d 367, 374 (Ind. Ct. App. 2006), trans. denied.

[32] “Moreover, we have previously held that the recommendations of the case manager and court-appointed advocate to terminate parental rights, in addition to evidence that 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 J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). Here, both the family case manager and CASA noted Mother's progress and the bond between Mother and the Children, and yet both opined that termination was in the Children's best interests given Mother's pattern of instability and the Children's need for permanency. In light of the evidence and testimony before the court, we cannot say that the trial court's determination that termination is in the best interests of the Children is clearly erroneous.

[33] Judgment affirmed.

FOOTNOTES

1.   The court also terminated Father's parental rights to Children. Father did not participate in the proceedings below and does not participate in this appeal.

2.   M.P. and A.P. were placed in separate foster homes.

3.   Following her substance abuse assessment, the assessor recommended that Mother participate in substance abuse treatment, individual therapy, and recovery coaching.

4.   Between June 2021 and June 2023, Mother missed 285 calls for drug screens and had 75 unexcused missed drug screens. Mother submitted to a total of 91 drug screens and had 29 screens that were abnormal.

5.   On appeal, Mother argues that the trial court improperly permitted DCS to amend its termination petition to conform to the evidence to specifically allege as a basis for termination that the Children had twice been adjudicated as CHINS and that the trial court could not rely on such basis to support termination of Mother's parental rights. We need not address this issue as DCS did plead a proper basis for termination and the trial court determined that such supported termination of Mother's parental rights.

Memorandum Decision by Chief Judge Altice

Judges Bailey and Mathias concur. Bailey, J. and Mathias, J., concur.