M.M. v. Ind. Dep't of Child Servs. (In re Termination the Parent-Child Relationship M.M.), Court of Appeals Case No. 18A-JT-2072

121 N.E.3d 146 (Table)

In the MATTER OF the Termination of the Parent-Child Relationship of M.M., Father, Mi.M., Mother,

and Ma.M., Child,

M.M., Appellant-Respondent,

v.Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals Case No. 18A-JT-2072

Court of Appeals of Indiana.

FILED January 29, 2019

Attorney for Appellant: Kimberly A. Jackson, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Robert J. Henke, Abigail R. Recker, Deputy Attorneys General, Indianapolis, Indiana

MEMORANDUM DECISION

Kirsch, Judge.

[1] M.M. ("Father") appeals the juvenile court's order terminating his parental rights to his minor child Ma.M. ("Child"). Father raises the following consolidated and restated issue for our review: whether the juvenile court's termination order was clearly erroneous when it found that there was a reasonable probability that the conditions that resulted in Child's removal will not be remedied and that termination of Father's parental rights was in the best interests of Child.

[2] We affirm.

Facts and Procedural History²

[3] Mi.M. ("Mother") and Father are the parents of Child, who was born on July 26, 2016. Child was born five weeks premature and addicted to drugs. At the time of his birth, Child tested positive for methamphetamine, opiates, and unprescribed methadone, and his meconium tested positive for amphetamine and methadone. Child was transferred directly to St. Vincent Hospital, where medical personnel determined he had jaundice, was withdrawn, and was having difficulty eating. Noting Child's physical condition, the Indiana Department of Child Services ("DCS") removed Child from Mother's and Father's (together, "Parents") care.

[4] On August 12, 2016, DCS filed a child in need of services ("CHINS") petition, alleging that: (1) Father did not have permanent and stable housing; (2) Mother and Child tested positive for unprescribed drugs on the day of Child's birth; (3) Child had to be given routine dosages of morphine because he was born with "Neonatal Abstinence Syndrome," Ex. Vol. I at 12; and (4) Parents had prior involvement with DCS regarding CHINS services offered in connection with two other children, E.M. and T.S. Id. at 11-12. That same day, following an emergency detention hearing, the CHINS court approved Child's removal from Parents' care. Id. at 15. The next day, Child was released from the hospital into the care of his paternal grandmother; Child was never returned to Parents' care.

[5] Father's prior involvement with DCS began in August 2015 and pertained to a CHINS proceeding for his child E.M., who was born July 20, 2015. There, like here, DCS's involvement was prompted by Mother's and Father's drug abuse and unstable housing. Id. at 36. Father did not comply with DCS services in that case, and he continued to use illegal drugs and engage in criminal activity. Specifically, Father tested positive for methamphetamine on December 2, 2015, February 3, 2016, and February 17, 2016, and he committed burglary on February 16, 2016. Id. at 42, 63. On December 15, 2017, the juvenile court terminated Father's parental rights to his child E.M. Id. at 35-45.

[6] Meanwhile, in January 2017, the CHINS court held a factfinding hearing and adjudicated Child to be a CHINS. The CHINS court found in pertinent part that: (1) Mother and Father failed to participate in services and substance abuse treatments in their prior CHINS proceedings;³ (2) during DCS involvement in the prior proceedings, Father's drug screens were positive for methamphetamine on three separate occasions; (3) at the time of Child's CHINS factfinding hearing, Father had not completed substance abuse treatment; (4) at the time of the factfinding hearing, Father had an outstanding arrest warrant on the burglary charges; (5) Child was born exposed to methamphetamine; and (6) Father failed to ensure that Child received proper care and supervision. Id. at 18-19.

[7] Following a February 2017 dispositional hearing, the CHINS court ordered Father to, among other things: (1) contact the family case manager ("FCM") weekly; (2) maintain stable housing and income; (3) refrain from consuming illegal or unprescribed drugs; (4) complete parenting and substance abuse assessments and follow all recommendations; and (5) submit to random drug screens. Id. at 20-21. Father did not participate in any of those services. In October 2017, the CHINS court granted DCS's request to modify the dispositional decree to relieve DCS of its obligation to provide services to Father and to change the permanency plan from reunification to termination of parental rights. Id. at 27, 29.

[8] "Father pleaded guilty to the previously charged [b]urglary and appears to have been sentenced November 17, 2017, to a suspended term of [one year and six months] imprisonment." Appellant's Br . at 7 (citing Ex. Vol. I at 63-64). On December 1, 2017, Father was charged with unlawful possession of a syringe, a Level 6 felony, and visiting a common nuisance, a Class B misdemeanor. Id. (citing Ex. Vol. I at 56). Based on those offenses, Father was alleged to have violated the terms of his probation in the burglary case and was placed in jail.

[9] In February 2018, DCS filed a petition to terminate Father's parental rights to Child. Subsequently, Father pleaded guilty to unlawful possession of a syringe and admitted to violating his probation on the burglary count. On April 10, 2018, the trial court sentenced Father to one year executed for possession of a syringe and a consecutive sentence of one year and six months for the probation violation in the burglary case.

[10] During the July 2018 termination factfinding hearing, Father testified that, after his release from incarceration, he planned to move close to his sons, Child and E.M. Tr. Vol . I at 41. Father said that he had arranged post-release employment as a construction worker, and that he intended to attend meetings at Narcotics Anonymous or Alcoholics Anonymous with the goal of remaining sober. Id. at 42. Father testified that he had been accepted into a year-long commitment in a faith-based recovery home for his continuing post-release rehabilitation. Id. at 43.

[11] Father also testified that he had had, on and off, about "twenty-plus years of substance abuse." Id. at 39, 40. Father admitted that he started drinking alcohol at an early age and then moved to marijuana. Id. at 40. Since then, he had used heroin, methamphetamine, and prescription pills. Id. Father completed a twenty-one-day program at Tara Treatment Center in May 2016, which was before Child's birth. Id. at 39. Father testified that he also participated in an intensive treatment program while incarcerated at the Fayette County Jail; however, he was sent to the Indiana Department of Correction before the program was completed. Id. at 40-41.

[12] Prior to his incarceration, Father was offered a substance abuse assessment, substance abuse treatment, case management, supervised visitation, and drug screens. Id. at 55. During the underlying proceedings, Father did not complete any services, and he failed to maintain contact with FCM Lori Brittenham ("FCM Brittenham"). Id. at 49-50. In fact, on October 4, 2017, the juvenile court ordered that services be terminated because of Father's failure to participate and to comply with DCS. Id. at 29-30. Additionally, Father failed to maintain suitable housing for Child. Ex. Vol. I at 6.

[13] Child was released from St. Vincent's Hospital on August 13, 2016 and was placed with his paternal grandmother and her husband. Tr. Vol. I at 54. FCM Brittenham testified that Father had not seen Child since he was released from the hospital and had never asked DCS for visitation with Child. Id. at 55. At the time of the termination hearing, Father had been incarcerated for sixteen of the twenty-four months of Child's life, and his expected release date was July 16, 2019. In other words, by the time Father is released from prison, he will have been in prison for about thirty-two of Child's thirty-six months of life. Paternal grandmother and her husband are the only parents Child has known.

[14] Father testified that drug abuse is a terrible sickness that takes away one's ability to think rationally and to be a good parent. Id. at 44. FCM Brittenham testified that it was important to DCS that Father participate in substance abuse treatment because he is unable to provide a safe environment for Child while using illegal substances. Id. at 50. FCM Brittenham testified that, except for drug treatment that was completed prior to Child's birth, Father has not completed "any long-term substance abuse treatment." Id. at 54.

[15] FCM Brittenham testified that DCS recommended the termination of Father's parental rights because of his history of drug use and incarceration, which prevented him from meeting Child's need for permanency and stability. Id. at 54. DCS's plan for Child upon the termination of Father's parental rights was adoption by paternal grandmother and her husband, who had already adopted one of Child's brothers. Id. From this and other evidence, the juvenile court concluded that: (1) Child had been removed from Parents for the requisite period of time; (2) there was a reasonable probability that the conditions that resulted in Child's removal will not be remedied, and the continuation of the parent-child relationship poses a threat to the well-being of Child; (3) that termination of Father's parental rights was in Child's best interests; and (4) adoption by paternal grandmother and her husband is a satisfactory plan for the care and treatment of Child. Appellant's App . Vol. II at 101. Father now appeals the termination of his parental rights.

Discussion and Decision

[16] "Decisions to terminate parental rights are among the most difficult our trial courts are called upon to make. They are also among the most fact-sensitive—so we review them with great deference to the trial courts[.]"...