IN RE: the Termination of Parental Rights of R.M. and T.S. (Minor Children) (2024)

MEMORANDUM DECISION

Case Summary

[1] B.M. (“Mother”) appeals the termination of her parental rights to her two children. We affirm.

Facts and Procedural History

[2] Mother has two children: T.S., born in July 2014, and R.M., born in June 2017. Paternity was never established for T.S., and T.S.’s alleged father is deceased. The parental rights of R.M.’s father were also terminated, but he does not participate in this appeal.

[3] The Department of Child Services (DCS) first became involved with the family in December 2022 after receiving a report of neglect and drug use in the home. Two weeks later, in January, DCS received another report that Mother was using and selling methamphetamine from the home. Mother denied using or selling methamphetamine but admitted using marijuana; however, she submitted a drug screen, and it was positive for both THC and methamphetamine. DCS also screened the children, and T.S., then eight, tested positive for methamphetamine. There were also allegations that there was no running water in the home, and Mother admitted that her utilities had been shut off.

[4] On February 21, DCS removed the children from Mother and placed them in relative care, where they have since remained. That same day, DCS filed a petition alleging the children were in need of services (CHINS). In April, Mother admitted to the allegations in the petition, and the children were adjudicated CHINS. The trial court entered a dispositional order requiring Mother to, among other things, complete a substance-abuse assessment and any resulting recommendations, submit to random drug screens, attend supervised visitation, and participate in home-based case management and follow all recommendations.

[5] Mother completed a substance-abuse assessment at the Center for Problem Resolution and was referred for intensive outpatient treatment. She initially attended but had to restart the program after missing several sessions, and she was eventually unsuccessfully discharged after she stopped attending. Mother was also referred to Lifeline for home-based case management to address sobriety, stable housing, employment, and parenting education. She participated at first but didn't consistently attend her appointments or keep in touch with her caseworker. She was also inconsistent with supervised visitation and appeared to be under the influence at some visits. In June, Lifeline closed Mother's case-management and visitation referrals due to her noncompliance. DCS put in another referral for supervised visitation with a different provider, but Mother only completed the intake, and that referral was closed in July.

[6] Mother failed to appear for the July review hearing. By that point, Mother was homeless, hadn't fully engaged with visits since May, and had failed four drug screens. Family Case Manager (FCM) Kimberly Bradshaw reached out weekly to engage with Mother, but Mother would only “pop up when she feels like it.” Tr. Vol. II p. 52. Following the hearing, the trial court suspended Mother's visitation until she could produce three clean drug screens. Mother attended the child-and-family team meeting on September 7 and told FCM Bradshaw she would start treatment, but she never did, and she tested positive for THC that day. After that, DCS didn't hear from Mother for nearly six months. Mother moved to Kentucky in October but didn't inform DCS, and FCM Bradshaw wasn't able to contact her because she got a new phone number.

[7] In December, while Mother's whereabouts were still unknown, DCS petitioned to terminate her parental rights. The trial court set a fact-finding hearing for March 1, 2024. Mother moved back from Kentucky at the end of February and appeared at the hearing, which the court ultimately continued at the request of Mother's counsel. Thereafter, Mother began complying with DCS again. Specifically, she resumed contact with FCM Bradshaw, started home-based case management, did another substance-abuse evaluation, and completed intensive outpatient treatment and was in aftercare. Mother also produced four clean drug screens from March 1 to March 21.

[8] The fact-finding hearing was held in April. FCM Bradshaw testified that there was no way to know whether Mother was sober before her clean drug screens in March because she didn't provide any documentation of treatment or screening while she was living in Kentucky. FCM Bradshaw opined that termination was in the children's best interests and that Mother's recent engagement in services was not enough to outweigh the children's need for permanency. She explained that Mother's substance abuse was still an ongoing concern for DCS because Mother “just started participating in sobriety and it takes longer than one month to do.” Id. at 135. Similarly, Shelly Hoefly, the licensed clinical addictions counselor who conducted Mother's substance-abuse assessment at the Center for Problem Resolution, opined that staying sober for “a week, a month, three months” is not a reliable indicator of a person's likelihood to maintain sobriety long-term. Id. at 186.

[9] Mother testified that she had a job at Domino's Pizza but was working only part-time because she has to have open-heart surgery and was waiting for the surgery to be scheduled. She explained that she's had five different homes throughout the CHINS and termination proceedings and that she'd been living with her mother in Michigan since returning from Kentucky but plans to move out after she recovers from surgery. Mother claimed she'd been sober since moving to Kentucky in October, but she admitted that she didn't provide DCS with any drug screens from that period or attend any substance-abuse treatment in Kentucky.

[10] Alyssa Caouette, the children's Court Appointed Special Advocate (CASA), testified that, despite Mother's recent engagement in services, termination is in the children's best interests. She explained that the children need permanency as soon as possible because “they don't feel safe being in this limbo,” and their current placement can provide that permanency. Tr. Vol. III p. 53.

[11] Following the hearing, the trial court terminated Mother's parental rights.

[12] Mother now appeals.

Discussion and Decision

[13] Mother contends there is insufficient evidence to meet the statutory requirements for termination. 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 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).

[14] A petition to terminate parental rights must allege, 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 wellbeing 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.

Ind. Code § 31-35-2-4(b)(2) (2023).¹ DCS must prove the alleged circumstances by clear and convincing evidence. K.T.K., 989 N.E.2d at 1231. If the trial court finds the allegations are true, the court “shall terminate the parent-child relationship.” I.C. § 31-35-2-8(a).

I. The trial court did not err in concluding there is a reasonable probability that Mother will not remedy the conditions that led to the children's removal and continued placement outside the home

[15] Mother first challenges the trial court's determination that there is a reasonable probability that the conditions resulting in the children's removal and continued placement outside the home will not be remedied. In making such a determination, the trial court engages in a two-step analysis: first, the court identifies what conditions led to the child's placement and retention outside the home, and then it determines whether there is a reasonable probability those conditions will not be remedied. K.T.K., 989 N.E.2d at 1231. This second step requires the court to judge a parent's fitness at the time of the termination proceeding, considering evidence of changed conditions and balancing any recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). “We entrust that delicate balance to the trial court, which has discretion to weigh a parent's prior history more heavily than efforts made only shortly before termination.” Id.

[16] The children were removed due to Mother's substance abuse, unsuitable living conditions, and T.S. testing positive for methamphetamine, and they remained outside the home because of Mother's continued drug use and failure to follow through with court-ordered services. Although Mother completed a substance-abuse assessment and began intensive outpatient treatment following the CHINS disposition, she eventually stopped attending and was unsuccessfully discharged, all the while still testing positive for drugs. Similarly, while Mother initially participated in supervised visitation, Lifeline eventually closed her referral due to her noncompliance, and when she was referred to another visitation provider, that referral was also closed for noncompliance. After that, the trial court suspended Mother's visitation until she could produce three clean drug screens, which she failed to do until March 2024—three months after the termination petition was filed, and only after the fact-finding hearing was continued. Mother also failed to address her housing instability. One of the goals of her home-based case management with Lifeline was stable housing, but rather than utilizing this service, Mother was inconsistent in her attendance and didn't keep in touch with her caseworker, which led to Lifeline closing the referral. Mother acknowledged that she's had five different homes throughout the CHINS and termination proceedings, including when she was living in Kentucky without informing DCS. She was also homeless at one point in the CHINS proceedings. She now lives with her mother, but she acknowledged at the fact-finding hearing that this is only temporary until she recovers from open-heart surgery (which had yet to be scheduled). While Mother said she plans to get her own place after recovering from surgery, as of the fact-finding hearing, she didn't have permanent housing.

[17] It is true that, by the time of the fact-finding hearing, Mother had made improvements—she attended home-based case management, completed intensive outpatient treatment, started aftercare, and was testing negative for drugs. But these efforts didn't come until just before the fact-finding hearing, and this was after a period of nearly six months of no contact with DCS and no engagement in services or visitation with the children. Mother claims she's been sober since she moved to Kentucky in October, but she didn't provide any drug screens from that period to show she was testing negative. While Mother's recent sobriety is certainly commendable, Hoefly, the licensed clinical addictions counselor at the Center for Problem Resolution, testified that one to three months of sobriety is not a reliable indicator of a person's likelihood to maintain sobriety long-term. As the trial court put it, Mother is in the “honeymoon phase of sobriety.” Tr. Vol. III p. 77. Ultimately, the trial court was within its discretion to give more weight to Mother's history of noncompliance than to her recent sobriety and last-minute engagement in services. See E.M., 4 N.E.3d at 643 (“Requiring trial courts to give due regard to changed conditions does not preclude them from finding that parents’ past behavior is the best predictor of their future behavior.”). The evidence supports the trial court's conclusion that there is a reasonable probability Mother will not remedy the conditions that resulted in the children's removal and continued placement outside the home.²

II. The trial court did not err in concluding termination is in the children's best interests

[18] Mother also challenges the trial court's conclusion that termination is in the children's best interests. In determining whether termination is in a child's best interests, the trial court must look at the totality of the evidence and subordinate the parent's interests to those of the child. In re Ma.H., 134 N.E.3d 41, 49 (Ind. 2019), reh'g denied. Central among these interests is the child's need for permanency, as “children cannot wait indefinitely for their parents to work toward preservation or reunification.” Id. We have previously held that the recommendation by both the case manager and child 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 A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans. denied.

[19] Here, FCM Bradshaw and CASA Caouette both opined that termination is in the children's best interests.³ And as noted above, Mother has not yet shown an ability to provide a stable, drug-free home for the children. Mother had five different homes throughout the proceedings and is temporarily living with her mother but hasn't secured her own housing for when she moves out of her mother's house. See Castro v. State Off. of Fam. & Child., 842 N.E.2d 367, 374 (Ind. Ct. App. 2006) (“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.”), trans. denied. And again, while we commend Mother's recent efforts to get sober, at the time of the fact-finding hearing, she was in the “honeymoon phase” of her sobriety, and it was simply too soon to tell whether she'd remedied her issues with substance abuse.

[20] While this evidence alone is sufficient to support the trial court's conclusion, permanency is a central consideration in determining the children's best interests. The children, now ten and seven, have been removed from Mother's care for over a year and a half, and Mother hasn't seen them since May 2023. Since then, the children have been thriving in relative care, and these relatives wish to adopt them. As CASA Caouette explained, the children are in “limbo” and need permanency as soon as possible, and their current placement can provide that permanency. The totality of the evidence supports the trial court's conclusion that termination is in the children's best interests.

[21] Affirmed.

FOOTNOTES

1.   Section 31-35-2-4 was amended effective March 11, 2024, several months after DCS petitioned for termination. See Pub. L. No. 70-2024, § 4. Neither party argues that this amendment has any bearing on the proceedings in this case.

2.   Mother also argues that “[t]he trial court erred when it determined a continuation of the parent-child relationship would be harmful to the children.” Appellant's Br. p. 27. But the trial court never made such a determination; it concluded only that there is a reasonable probability Mother will not remedy the conditions that resulted in the children's removal and continued placement outside the home and that termination is in the children's best interests. See Appellant's App. Vol. II pp. 20-23.

3.   Mother purports to challenge one of the trial court's findings of fact. In the termination order, the court stated, “CASA believes that termination would be in the best interest of both children, as does the DCS Family Case Manager.” Appellant's App. Vol. II p. 22. Mother claims that this “finding” “should not have been a basis” for the trial court's best-interests determination because it is “a recitation of the testimony of the CASA and DCS family case manager and cannot be considered to be an appropriate ‘finding’ made by the trial court.” Appellant's Br. p. 31. Though it is true that recitations of witness testimony are not findings of fact, see In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct. App. 2003), this statement does not appear to be one of the trial court's findings of fact; the court's findings are seemingly encompassed in section (A) of the termination order, while this statement is under section (C), the court's conclusion that termination is in the children's best interests. And in any event, as noted above, we have previously found the case manager's and child advocate's recommendations to terminate parental rights to be among the evidence central to a showing that termination is in a child's best interests. See A.D.S., 987 N.E.2d at 1158. The trial court properly considered these recommendations in concluding that termination is in the best interests of the children.

Vaidik, Judge.

Chief Judge Altice and Senior Judge Crone concur. Altice, C.J., and Crone, Sr. J., concur.