K.M. v. Ind. Dep't of Child Servs. (In re In re Of)

• Decision Date: 29 December 2017
• Docket Number: Court of Appeals Case No. 49A05-1707-JT-1498
• Parties: In re the Matter of the Involuntary Termination of the Parent-Child Relationship of: K.M., H.M., K.M. (Minor Children), and H.J. (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner, and Child Advocates, Inc., Appellee (Guardian ad Litem).
• Court: Indiana Appellate Court

In re the Matter of the Involuntary Termination

of the Parent-Child Relationship of: K.M., H.M., K.M. (Minor Children),andH.J. (Mother), Appellant-Respondent, v. The Indiana Department of Child Services, Appellee-Petitioner,andChild Advocates, Inc., Appellee (Guardian ad Litem).

Court of Appeals Case No. 49A05-1707-JT-1498

COURT OF APPEALS OF INDIANA

December 29, 2017

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Steven J. Halbert

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

Appeal from the Marion Superior Court

The Honorable Marilyn Moores, Judge

The Honorable Scott Stowers, Magistrate

Trial Court Cause Nos. 49D09-1609-JT-1034 49D09-1609-JT-1035 49D09-1609-JT-1036 Robb, Judge.

Case Summary and Issue

[1] H.J. ("Mother") appeals the juvenile court's termination of her parental rights to her three children. Mother presents two issues for our review which we consolidate and restate as whether the juvenile court's termination order is clearly erroneous. Concluding the termination order is not clearly erroneous, we affirm.

Facts and Procedural History

[2] Mother and Ka.M. ("Father")¹ (collectively, "Parents") have three children, five-year-old K.M., three-year-old H.M., and two-year-old Kh.M. ("Children"). On August 17, 2015—before Kh.M. was born—the Indiana Department of Child Services ("DCS") filed a petition alleging K.M. and H.M. were children in need of services ("CHINS") due to Parents' history of drug use and the family's lack of stable housing. DCS removed K.M. and H.M. from their Parents' care and placed them with relatives. On September 4, 2015, Parents admitted that because of their substance abuse issues, K.M. and H.M. wereCHINS and the court ordered continued placement in relative care. With the goal of reunification, the juvenile court ordered Parents to engage in a substance abuse assessment, home-based therapy, and random drug screens. The juvenile court authorized Parents to reside in the relative caregiver's home after the completion of four consecutive, clean, non-diluted drug screens.

[3] On December 4, 2015, the juvenile court conducted a periodic review hearing. There, DCS reported that Parents were participating in home-based therapy and their drug screens were negative. However, on December 10, DCS filed a petition alleging newborn Kh.M. was a CHINS after Kh.M. tested positive for codeine, heroin, and marijuana at birth. Following a fact-finding hearing on February 19, 2016, where Parents admitted Kh.M. was a CHINS, the juvenile court entered a parental participation order that required Parents engage in home-based therapy, random drug screens, and substance abuse treatment. Kh.M. was adjudicated a CHINS and placed in relative care.

[4] The juvenile court conducted another periodic review hearing on March 4, 2016. There, DCS expressed concern that Parents resided at the home of the relative caregiver and stated that Mother had not been calling in order to submit to drug screens. The juvenile court ordered Parents to remove their belongings from relative caregiver's home.

[5] By June 2016, K.M. and H.M. were in foster care while Kh.M. remained in relative care. At a hearing on June 10, DCS reported that Mother had tested positive on June 1 for opiates and methamphetamines and the court found Mother had actively prevented DCS from obtaining information about herchosen services. The court ordered Mother to comply with services arranged by DCS rather than continue being able to arrange her own services. Parents failed to attend a permanency hearing on August 12. There, DCS reported Parents had not engaged in substance abuse treatment and requested the permanency plan for H.M. and K.M. change to adoption. The juvenile court reset the hearing for August 26, and ordered Parents to appear.

[6] Parents again failed to appear on August 26. The Guardian Ad Litem agreed with DCS' request to change the permanency plan to adoption. The juvenile court found that Parents had "struggled with heroin addiction since these matter[s] were filed." Exhibits, Volume III at 12. The court also found that because Parents had not engaged in services to address these issues it was in the Children's best interests for the plan to change from reunification to adoption. The juvenile court granted DCS' motion to suspend visitation shortly thereafter.

[7] On September 6, 2016, DCS filed petitions to terminate Parents' parental rights to all three Children. On January 23, 2017, Mother was arrested and charged with possession of a syringe, a Level 6 felony. On May 6, 2017, Mother was arrested again and charged with possession of a narcotic drug, possession of methamphetamine, and possession of a syringe, all Level 6 felonies. Following an evidentiary hearing spanning the course of three days, the juvenile court terminated Parents' parental rights on June 8, 2017. Mother now appeals.

Discussion and Decision

I. Standard of Review

[8] The right of parents to establish a home and raise their children is protected by the Fourteenth Amendment to the United States Constitution. In re D.D., 804 N.E.2d 258, 264 (Ind. Ct. App. 2004), trans. denied. However, the law provides for the termination of these constitutionally protected 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).

[9] When reviewing the termination of parental rights, we do not reweigh the evidence or judge the credibility of witnesses. In re D.D., 804 N.E.2d at 265. We only consider evidence, and reasonable inferences therefrom, most favorable to the judgment. Id. Furthermore, 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 when it is clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied, cert. denied, 534 U.S. 1161 (2002).

[10] Where, as here, the trial court enters findings of fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We must first determine whether the evidence supports the findings, then we determine whether the findings support the judgment. Id. Findings will be set aside only if they are clearly erroneous and findings are clearly erroneous only "when the record contains nofacts to support them either directly or by inference." Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).

II. Remedy of Conditions

[11] Our supreme court has described the involuntary termination of parental rights as "an extreme measure that is designed to be used as a last resort when all other reasonable efforts have failed." In re C.G., 954 N.E.2d 910, 916 (Ind. 2011). In order for the State to terminate parental rights, Indiana Code section 31-35-2-4(b)(2) provides the State must prove, in relevant part:

(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.

* * *

(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 foregoing elements must be proved by clear and convincing evidence. Ind. Code § 31-37-14-2; In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016).

[12] On appeal, Mother argues that DCS failed to prove by clear and convincing evidence that the conditions that resulted in the Children's removal will not be remedied. When considering whether the conditions that resulted in a child's removal will be remedied, we engage in a two-step analysis: "First, we must ascertain what conditions led to [child's] placement and retention in foster care. Second, we determine whether there is a reasonable probability that those conditions will not be remedied." In re K.T.K., 989 N.E.2d 1225, 1231 (Ind. 2013) (quotation omitted).

[13] The juvenile court found:

38. There is a reasonable probability that the conditions that resulted in the [C]hildren's removal and continued placement outside of the home will not be remedied by their parents. [Parents] have had well over a year and a half to put forth an effort and address issues but have been unable to do so. Sobriety, housing, and stability remain major concerns. Both [Parents] have struggled with heroin addition [sic] since these matters were filed. Both parents have been arrested recently multiple times for drug charges. Neither parent have [sic] engaged in services to address these issues. Due to their continued usage, neither parent is in a position to parent at this time.

Appealed Order at 3. Mother alleges that this case stems only from Parents' substance abuse issues, highlighting the juvenile court's findings regarding the underlying CHINS cases:

6. On September 4, 2015, [K.M. and H.M.] were adjudicated to be CHINS as to both [M]other and [F]ather when both parents admitted to an amended CHINS Petition. Specifically, Mother admitted that "[T]he children are in need of services because[Mother] has substance abuse issues and the children and family would benefit from services offered through the Department of Child Services. The Intervention of the Court is necessary to ensure the child[ren]'s safety". . . .

* * *

8. On or about December 10, 2015, a CHINS Petition was filed on Kh.M. . . . after she was born positive for codeine, heroin, and marijuana; and that [Mother] used heroin regularly during her pregnancy.

Appealed Order at 1-2.

...