In the Termination of the Parent-Child Relationship of: B.R.C. (Minor Child) And S.C. (Mother), Appellant-Respondent v. Indiana Department of Child Services, Appellee-Petitioner (2024)

MEMORANDUM DECISION

Case Summary

[1] S.C. (Mother) appeals from the involuntary termination of her parental rights to B.R.C. (Child).¹ On appeal, she challenges the sufficiency of the evidence supporting the termination. Specifically, Mother argues that the court's findings do not support its conclusions that (1) there is a reasonable probability that the conditions for removal or continued placement outside the home will not be remedied and (2) that termination is in Child's best interests.

[2] We affirm.

Facts & Procedural History

[3] On May 2, 2022, Mother twice contacted the police because she was hearing voices coming through the vents in her home. On the second run to the home, law enforcement contacted Mother's probation officer, who screened Mother for drugs. Mother tested positive for methamphetamine and methamphetamine was found in the home. Mother was arrested for neglect of a dependent and possession of methamphetamine and the Department of Child Services (DCS) removed Child, then ten years old, and her three half-siblings from the home. They were initially placed with their great-grandmother, and then with their maternal grandmother.

[4] On May 4, 2022, DCS filed a petition alleging Child was a child in need of services (CHINS).² On February 1, 2023, the trial court adjudicated Child a CHINS based on Mother's stipulation to using drugs and the fact that Child's biological father was incarcerated and entered a dispositional order.

[5] Following her May 2 arrest, Mother remained incarcerated until October 2022. In November, Mother was ordered by probation to enter a drug rehabilitation facility. Mother's first visit with Child was on Thanksgiving. Between November 2022 and February 2023, Mother visited with Child three times.³ Mother did not stay for the full visitation periods due to disputes that arose between Mother and maternal grandmother.

[6] On or about February 14, 2023, Mother left the rehabilitation center against advice. For a short time thereafter, Mother ceased contact with DCS and probation. Then, on March 1, 2023, Child and a half-sibling did not return to maternal grandmother's home after school. Instead, they went to their great-grandmother's home to see Mother. When they arrived, Mother hurried them inside so no one would see them. Because this was not an authorized visit, maternal grandmother contacted the police. Child was located and returned to maternal grandmother. Mother was arrested and charged with false informing and interfering with custody. Shortly thereafter, Child was placed with paternal aunt, where she remained throughout the rest of the CHINS and termination proceedings.

[7] From March to August 2023, Mother was in jail or ongoing inpatient treatment and thus unable to visit Child. On August 16, 2023, the trial court modified Child's permanency plan to include a concurrent plan of adoption. DCS also entered a referral for visitation services. Over the next few months, there were sixteen scheduled visits with the service provider and Mother attended eleven of them.⁴ Child was present for two of the visits in which Mother participated.⁵ Service providers reported no concerns with Mother's behavior during those visits. However, by December 2023, the visitation referral was closed out due to Mother's missed visits.

[8] At the start of 2024, paternal aunt offered Mother four additional visits and extended an open invitation for Mother to visit with Child. Mother, however, attended only one of the arranged visits and for that, she arrived four hours late. Mother also did not attend Child's birthday party in February 2024 despite having been invited. Mother admitted that she had not visited with Child despite the open invitation extended by paternal aunt.

[9] Mother graduated from the rehabilitation program in February 2024. Thereafter, DCS entered a referral for Mother to submit to random drug screens. Mother was directed to provide an initial sample and to call the service provider every day to see if she needed to report for a drug screen. Mother, however, did not provide an initial specimen and called only twice over a thirty-day period to see if she needed to screen.⁶ Family case manager Mitchell Hein (FCM Hein) screened Mother on two occasions and both times Mother tested negative for illegal substances.

[10] On January 15, 2024, Child began seeing Carrie Little, a licensed therapist. Child told Little that she did not want to return to Mother's home and that she wanted to stay with her paternal aunt. Child is thriving in her placement and in school, has bonded with her cousins, and has set goals for herself with her current placement in mind. According to Little, Child believes Mother puts on a show for others and she has no hope that Mother will show for visits.

[11] A petition to terminate Mother's parental rights was filed on September 12, 2023. The trial court held a fact-finding hearing on the termination petition on March 27, 2024. At the hearing, FCM Hein testified that Child is doing well in her placement and has bonded with her cousins almost as if they were siblings. FCM Hein also noted that early on, Child was upset when Mother missed visits but that Child had grown indifferent as to whether Mother shows for visits. FCM Hein testified that it was in Child's best interests to terminate Mother's parental rights despite Mother's recent clean drug screen because Mother had not regularly visited with Child or shown herself to be dependable.

[12] On April 24, 2024, the court entered written findings of fact and conclusions of law terminating Mother's parental rights. The court concluded that DCS had proved there was a reasonable probability that the conditions that resulted in Child's removal or the continued placement outside Mother's care would not be remedied and that termination was in Child's best interests. Mother now appeals.

Discussion & Decision

Standard of Review

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 G.Y., 904 N.E.2d 1257, 1259 (Ind. 2009). 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 K.S., 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). The purpose of terminating parental rights is not to punish parents, but to protect their children. Id.

Under the statutory authority applicable at the time of the underlying termination proceedings,⁷ DCS was required to allege and prove by clear and convincing evidence 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). Among other things, 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 care and treatment of the child. I.C. § 31-35-2-4(b)(2)(C), (D).

[13] When reviewing the termination of parental rights, we will not reweigh the evidence or judge the credibility of the witnesses. 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 most favorable to the judgment. Id. 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. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied. Thus, if the evidence and inferences support the decision, we must affirm. Id.

[14] In reviewing a trial court's specific findings of fact and conclusions thereon, 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). A judgment is clearly erroneous only if the findings do not support the court's conclusions or the conclusions do not support the judgment thereon. Id.

Conditions will not be remedied

[15] In looking at the totality of the evidence, the trial court concluded that there is a reasonable probability that the conditions that resulted in Child's removal or continued placement outside the home will not be remedied. See I.C. § 31-35-2-4(b)(2)(B)(i). Mother argues that the court's conclusion is clearly erroneous.

[16] In determining whether the “remedy” element is met, the first step is to identify the conditions that led to the child's removal. In re E.M., 4 N.E.3d 636, 642-43 (Ind. 2014). Next, the court must determine whether a reasonable probability exists that those conditions or the conditions justifying a child's continued placement outside the home will not be remedied. Id. In this second step, the trial court must judge a parent's fitness to care for her child at the time of the termination hearing, taking into consideration evidence of changed conditions—balancing a parent's recent improvements against habitual patterns of conduct to determine whether there is a substantial probability of future neglect or deprivation. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied. 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.” E.M., 4 N.E.3d at 643.

[17] Here, Child was initially removed from Mother's care because of methamphetamine use significant enough to cause auditory hallucinations and her subsequent arrest and incarceration. Child remained out of Mother's care for nearly two years because Mother failed to demonstrate sobriety or an ability to provide a safe and stable home. Mother also did not regularly visit Child, which had the effect of making Child visiting with Mother. Mother admitted that despite an open invitation to visit Child in the months prior to the termination hearing, she made no effort to do so. In nearly two years, Mother had visited with Child only a handful of times. And, although Mother had seemingly made some positive strides regarding her substance abuse, Mother did not comply with drug screening services to confirm her claimed sobriety. In light of the evidence in the record, we cannot say the trial court's conclusion that there is a reasonable probability that the conditions resulting in Child's removal or continued placement outside Mother's care will not be remedied.

Best Interests

[18] Mother argues that the court's determination that termination is in Child's best interests is clearly erroneous. 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 interests of the parent to those of the child. 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.” G.Y., 904 N.E.2d at 1265.

[19] Evidence establishing the unfitness of a parent—as shown by the court's probability of non-remedy conclusion—may support a court's legal conclusion that termination is in a child's best interests. In re A.K., 924 N.E.2d 212, 221 (Ind. Ct. App. 2010). As set out above, Mother had made some strides toward sobriety, but in the months before the termination hearing, she did not comply with services to confirm her sobriety. Further, in the nearly two years since Child's removal, Mother visited Child only a handful of times, failing to take advantage of opportunities to visit Child and nurture the parent-child relationship. Mother's actions have made Child, now twelve years, indifferent to further visits with Mother. Child has bonded with her placement and has established goals for herself with the placement in mind, which highlights Child's desire and need for permanency and stability. Considering all of the evidence, we cannot say that the court's conclusion that termination is in Child's best interests is clearly erroneous.

[20] Finally, we address Mother's challenge to certain findings in the trial court's judgment. Mother points out that in its termination order, the trial court made findings of fact regarding testimony of a court appointed special advocate (CASA) assigned to the case. Specifically, in its findings of fact No. 8 and No. 10, the trial court notes testimony from CASA that Child is happy and bonded with her current placement and that Child desires to remain with placement and not return to Mother's home. The court also found that CASA opined that Child benefits from the stability of her current placement and that termination was in Child's best interests. The trial transcript submitted on appeal does not show that the CASA testified.⁸ Thus, these findings are not supported by the record. Nevertheless, even without CASA's findings, the trial court's remaining findings of fact, as discussed herein, support its conclusion that termination is in Child's best interests.

[21] Judgment affirmed.

FOOTNOTES

1.   The trial court also terminated the parent-child relationship between V.B., Jr. (Father) and Child. Father does not appeal the termination of his rights.

2.   Prior to the instant action, Child was adjudicated a CHINS from September 7, 2018 through December 18, 2019.

3.   Because DCS could not locate a service provider, these visits were supervised by maternal grandmother.

4.   One visit was cancelled by the visit supervisor due to a personal situation. Mother did not show for the four other missed visits.

5.   Child did not attend all of the scheduled visitations due to transportation or scheduling issues.

6.   On those two occasions, Mother was not required to report for a drug screen.

7.   Our legislature has made extensive changes to Ind. Code § 31-35-2-4, which became effective March 11, 2024. DCS filed its petition in 2023, under the prior version of the statute.

8.   DCS filed a notice with this court that transcript of the termination proceedings before this court is incomplete. DCS advised that the trial court “reopened the evidence and allowed CASA to testify while the evidence was under advisement” and before the court issued its order terminating Mother's parental rights. DCS maintains that the testimony was recorded but not transcribed.

Altice, Chief Judge.

Judge Vaidik and Senior Judge Crone concur. Vaidik, J. and Crone, Sr.J., concur.