M.E.R. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

[1] M.E.R. (“Mother”) appeals the termination of her parental rights to her two children, A.L.R. and D.L.S. Mother argues that DCS failed to prove by clear and convincing evidence that there is a reasonable probability that the conditions that resulted in the children's removal would not be remedied and that termination of her parental rights is in their best interests.

[2] We affirm.

Facts and Procedural History

[3] Mother gave birth to D.L.S. in January 2018 and to A.L.R. in January 2020.¹ DCS first became involved with the family in 2018, when D.L.S. was almost ten months old and before A.L.R. was born. Specifically, in October 2018, D.L.S. ingested pills he found in Mother's home, overdosed, and was revived with Narcan. Mother admitted that D.L.S. was a Child in Need of Services (“CHINS”) due to her substance abuse issues. D.L.S. was removed from Mother's care.

[4] During the prior CHINS proceedings, Mother gave birth to A.L.R. At birth, A.L.R. tested positive for oxycodone and oxymorphone. A.L.R. suffered from withdrawal symptoms. Mother had a positive drug screen for Oxycodone. In February 2020, Mother admitted that A.L.R. was a CHINS. Mother participated in substance abuse treatment and achieved sobriety; therefore, the first CHINS case closed on August 18, 2020.

[5] In December 2020, Mother's boyfriend shot the children's father multiple times at Mother's home and with the children present. During its investigation of the children's exposure to violence in the home, DCS also determined that Mother was using illegal substances. Mother had also instructed her oldest child, who was eleven years old, to exchange money and pills with individuals who came to their home.² On January 7, 2021, DCS filed petitions alleging that the children were CHINS.

[6] Mother failed to appear for the fact-finding hearing. During the hearing, DCS presented evidence that Mother's oldest child often had to care for her younger siblings, and Mother repeatedly left them alone in the house. That child also had to miss two weeks of school to stay home to care for her siblings. The child stated that she was scared of Mother, and that Mother had threatened to harm D.L.S. DCS also presented evidence that Mother had left guns unsecured in the home and within the reach of the children. The children's foster parent told the court that A.L.R. suffered from night terrors, and D.L.S. often flinched when a person moved near him.

[7] The juvenile court adjudicated the children as CHINS on February 18. Mother was ordered to participate in numerous services including substance abuse treatment and mental health treatment. Mother was also ordered to submit to random drug screens.

[8] Mother failed to submit to random drug screens on a regular basis. In three years, she submitted to only thirty-five drug screens and thirty-two of those were positive for substances. DCS made numerous referrals for Mother to receive substance abuse treatment. Mother either failed to attend or was discharged from treatment for non-compliance. Mother completed a treatment program in April 2023, but she continued to test positive for THC and methamphetamine. Mother was discharged from a program in November 2023 for violating the attendance policies and her continued drug use. Mother's last positive test for methamphetamine was in August 2023. On January 9, 2024, Mother began substance abuse treatment at the YMCA. However, she continued to test positive for THC.

[9] Mother also failed to regularly participate in mental health treatment and refused to participate in homebased case management. Mother was unemployed, lacked stable housing, and did not have transportation.

[10] D.L.S. is on the autism spectrum and suffers from post-traumatic stress syndrome. He participates in play therapy. D.L.S. has benefited from therapy but also has periods of regression, typically after contact with Mother or biological father. D.L.S.’s behavior improves when he has a stable routine and does not have contact with Mother. Mother's participation in visitation was not consistent. However, the supervisor did not observe any safety concerns during visitation between Mother and the children.

[11] DCS filed a petition to terminate Mother's parental rights to the children on October 5, 2023. The juvenile court held fact finding hearings on the petition on January 31 and February 9, 2024. The court issued its order terminating Mother's parental rights on March 28. In support of its order, the court found that it is reasonably likely that Mother will not be able to remedy her substance abuse and that

[Family Case Manager] Welles credibly testified that [Mother], in the approximately three-year period she and the child[ren] were receiving services, continues to produce positive random drug screens – rather, she either frequently tested positive or failed to submit to such screens (despite the provision in this Court's dispositional decree that “[Mother] must submit to random drug/alcohol screens when one is requested[.]”

Appellant's App. Vol. 2, p. 27.³ The juvenile court acknowledged that Mother may eventually conquer her drug addiction, but her habitual patterns of conduct suggest otherwise. Id.

[12] The court also found that termination was in the children's best interests because Mother missed many visitations and continued to test positive for illegal substances. The court further found that Mother

lacks insight into her problems. She has only begun to realize how to address issues ordered by the Court nearly three years ago. Mother offered testimony outlining her many years of trauma, and how she feared the father of these children and others. Mother called witnesses that not only seemed to accept continued drug use but suggested that it is acceptable. There was no acceptance in how these facts were against the best interests of her children.

Id. at 29. The family case manager and Court Appointed Special Advocate (“CASA”) also recommended termination of Mother's parental rights.

[13] Mother now appeals.

Standard of Review

[14] Indiana appellate courts have long adhered to a highly deferential standard of review in cases involving the termination of parental rights. In re S.K., 124 N.E.3d 1225, 1230-31 (Ind. Ct. App. 2019). In analyzing the trial court's decision, we neither reweigh the evidence nor assess witness credibility. Id. We consider only the evidence and reasonable inferences favorable to the court's judgment. Id. In deference to the juvenile 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.

[15] To determine whether a termination decision is clearly erroneous, we apply a two-tiered standard of review to the juvenile court's findings of facts and conclusions of law. 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; 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.” In re A.D.S., 987 N.E.2d 1150, 1156 (Ind. Ct. App. 2013), trans. denied. If the evidence and inferences support the court's termination decision, we must affirm. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. We will accept unchallenged factual findings as true. See In re S.S., 120 N.E.3d 605, 614 n.2 (Ind. Ct. App. 2019).

[16] It is well-settled that the parent-child relationship is one of society's most cherished relationships. See, e.g., In re A.G., 45 N.E.3d 471, 475 (Ind. Ct. App. 2015), trans. denied. Indiana law thus sets a high bar to sever that relationship by requiring DCS to prove four elements by clear and convincing evidence. Ind. Code § 31-35-2-4(b)(2) (2023).⁴ Only two of those elements need to be addressed in this appeal: (1) whether there is a reasonable probability that the conditions that resulted in the children's removal or the reasons for continued placement outside of Mother's home will not be remedied;⁵ and (2) whether termination of Mother's parental rights is in the children's best interests. I.C. § 31-35-2-4(b)(2)(B)(i) and (C).

[17] We also observe that clear and convincing evidence need not establish that the continued custody of a parent is wholly inadequate for a child's very survival. Bester, 839 N.E.2d at 148. It is instead sufficient to show 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. I.C. § 31-35-2-8(a).

Discussion and Decision

[18] Mother argues that the juvenile court's order is not supported by clear and convincing evidence, and therefore, the trial court's order terminating her parental rights should be reversed. First, we address whether DCS presented clear and convincing evidence that there is a reasonable probability that the conditions that led to the children's removal or continued placement outside Mother's home will not be remedied.

[19] Consideration of this argument involves a two-step analysis: first, identifying the conditions that led to removal, and second, determining whether there is a reasonable probability those conditions will be remedied. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). In the second step, the trial court determines a parent's fitness at the time of the termination proceeding, taking into consideration evidence of changed conditions; in other words, the court must balance a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. Id. In conducting its analysis, the trial court may also consider the reasons for the child's continued placement outside the home. In re N.Q., 996 N.E.2d 385, 392 (Ind. Ct. App. 2013).

[20] The children were removed from Mother's home due to the children's exposure to violence and Mother's substance abuse issues. We agree with Mother that the violence was perpetrated by the children's father and her boyfriend. And although Mother did not shield the children from their violent acts, Mother and the children's father are no longer involved in a relationship, and Mother's former boyfriend is in prison for murder. Therefore, it is reasonably likely that this condition has been remedied. Although the juvenile court did not explicitly come to that conclusion in its order terminating Mother's parental rights, the court did not focus on this condition in its findings of fact and conclusions of law.

[21] Instead, the trial court focused on Mother's substance abuse.⁶ Mother argues that when the fact-finding hearings were held, she was successfully participating in a substance abuse program at the YMCA. But the trial court considered this evidence and weighed it against three years of failing to complete substance abuse treatment or completing the treatment but relapsing shortly thereafter. Mother argues that the YMCA has programs in place that will help prevent or treat relapse.⁷ But the juvenile court considered this evidence and weighed it against Mother's habitual patterns of conduct and her continued THC use ⁸ before concluding that it was not reasonably likely that Mother will remedy her substance abuse issues. Mother's argument is simply a request to reweigh the evidence and credibility of the witnesses, which we will not do.

[22] Mother also argues that DCS failed to prove that termination of her parental rights was in the children's best interests. To determine what is in the children's best interests, a court is required to look beyond the factors identified by DCS and consider the totality of the evidence. A.S. v. Ind. Dep't of Child Servs. (In re A.K.), 924 N.E.2d 212, 223 (Ind. Ct. App. 2010). A parent's historical inability to provide “adequate housing, stability, and supervision,” in addition to the parent's current inability to do so, supports finding termination of parental rights is in the best interests of the children. Id.

[23] When making its decision, the court must subordinate the interests of the parents to those of the children. See Stewart v. Ind. Dep't of Child Servs. (In re J.S.), 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). “The court need not wait until a child is irreversibly harmed before terminating the parent-child relationship.” Id. Moreover, this Court has previously held that recommendations of the family case manager and court-appointed special advocate to terminate parental rights, coupled with evidence that the conditions resulting in removal will not be remedied, are sufficient to show by clear and convincing evidence that termination is in the children's best interests. Id.

[24] Mother again points to her successful participation in the YMCA's substance abuse program, that she has visited with the children, and a friend has offered her a place to live. The visitation supervisor did not observe any safety concerns during Mother's visitation with the children. But Mother missed scheduled visitations. Mother also failed to participate in mental health treatment as ordered. The children's behavior, particularly D.L.S.’s, regresses after visitation with Mother. The children's uncertainty concerning their future home life creates confusion that also contributes to their behavioral issues. Tr. Vol. 3, p. 221. The children need stability and routine that Mother has not demonstrated any ability to provide during the three years this case was pending. Mother is not employed and does not have a stable home. Finally, the family case manager and the CASA recommended termination of Mother's parental rights. Tr. Vol. 3, pp. 59, 217. This clear and convincing evidence supports the juvenile court's determination that termination of Mother's parental rights is in the children's best interests.

Conclusion

[25] The juvenile court's order terminating Mother's parental rights to D.L.S. and A.L.R. is supported by clear and convincing evidence.

[26] Affirmed.

FOOTNOTES

1.   The children's father signed consents for their adoption, and he does not participate in this appeal.

2.   After the second CHINS case was filed, custody of Mother's oldest child was modified to that child's father, and therefore, she is no longer involved in these proceedings.

3.   The juvenile court issued separate orders for each child. But the orders are the same, and therefore, we cite to the order terminating Mother's parental rights to A.L.R.

4.   The legislature has amended this statute effective March 11, 2024. Rather than subsection (b), the relevant provisions are now found in subsection (d).

5.   The trial court found that DCS had also proven that continuation of the parent-child relationship poses a threat to the children's well-being. Because section 31-35-2-4(b)(2)(B) is written in the disjunctive, we do not address Mother's challenge to the sufficiency of evidence proving that element in this appeal.

6.   Mother specifically challenges one finding, Finding 2H, claiming that it is not supported by the evidence. In this finding, the court addressed Mother's claim at the factfinding hearing that “her history of trauma made her unlikely to seek drug treatment.” Appellant's App. Vol. 2, p. 27. Therefore, the court found that “it seems unlikely she will be amenable to treatment for the underlying PTSD. Indeed, if PTSD causes resistance to behavior modification services, as [Mother] contended, and the Court will assume arguendo is true, it is unlikely that its effects are confined only to drug treatment.” Id. at 27-28.Mother claims that the finding is not supported by sufficient evidence because her testimony was not supported “by expert or other independent evidence to substantiate the fact that her past trauma would make her unlikely to be amenable to treatment for underlying PTSD or for future drug treatment.” Appellant's Br. at 23. But DCS presented evidence that Mother did not participate in mental health treatment. Mother wanted to undergo a specific type of therapy, which was offered to her. But Mother decided that thirty days of that specific therapy would not be sufficient.Therefore, the juvenile court's conclusion that Mother would not be amenable to seeking treatment for PTSD is supported by the evidence, and the remainder of the finding simply addresses the court's rejection of Mother's claims at the factfinding hearing.

7.   While urging our court to consider the transitional and relapse services offered by the YMCA, Mother does not acknowledge that she was discharged from substance abuse treatment at the YMCA in 2022 when presumably the YMCA had similar programs in place.

8.   Mother makes excuses for continuing to test positive for THC, such as possibly using products with CBD oil, but this argument is simply a request to reweigh the evidence.

Mathias, Judge.

Judges Brown and Kenworthy concur. Brown, J., and Kenworthy, J., concur.