S.S. v. Ind. Dep't of Child Servs.

120 N.E.3d 605

In the Termination of the Parent-Child Relationship of: S.S. (Minor Child)andL.M. (Mother) and Sa.S. (Father), Appellants-Respondents,

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

Court of Appeals Case No. 18A-JT-2370

Court of Appeals of Indiana.

FILED March 6, 2019

Attorney for Appellant L.M. (Mother): Benjamin J. Church, Church Law Office, Monticello, Indiana

Attorney for Appellant Sa.S. (Father): Christopher P. Phillips, Phillips Law Office, P.C., Monticello, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Natalie F. Weiss, Deputy Attorney General, Indianapolis, Indiana

Robb, Judge.

Case Summary and Issue

[1] L.M. ("Mother") and Sa.S. ("Father") (collectively "Parents") separately appeal the juvenile court's judgment terminating their parental rights to S.S. ("Child"). Parents present several issues for our review which we consolidate and restate as: whether the juvenile court erred in terminating their parental rights. Concluding the juvenile court did not err in terminating either Mother's or Father's parental rights, we affirm.

Facts and Procedural History

[2] Mother and Father are the biological parents of Child who was born on June 30, 2013.¹ Child tested positive for THC at birth and the Indiana Department of Child Services ("DCS") conducted an informal adjustment and then a child in need of services ("CHINS") case before reunifying Child with Father.

[3] On May 16, 2016, DCS received a report that Parents were neglecting Child and using illegal drugs in his presence. After Parents were contacted by DCS, Mother refused a drug screen and Father tested positive for methamphetamine, amphetamine, and THC. Parents fled with Child to Florida, but Father eventually returned with Child on May 27 and Child was removed from his care. Child was placed in relative care with paternal grandfather where Child remained throughout the duration of this case.

[4] DCS filed its CHINS petition on June 1, 2016 based on Parents' drug use in the presence of the Child, Mother's refusal to take a drug screen, Father's positive drug test, Parents' decision to flee to Florida, and Parents' prior involvement with DCS. The juvenile court conducted a detention hearing on June 2 at which only Father appeared and the juvenile court authorized Child's continued removal and placement in relative care. Due to Father being on probation when he fled to Florida, he was incarcerated from June to August 2016 for violating the terms of his probation.

[5] Following a factfinding hearing, the juvenile court adjudicated Child to be CHINS on September 28, 2016. The juvenile court ordered Parents to, among other things: maintain contact with DCS; maintain suitable, safe, and stable housing; maintain a stable source of income; not use, consume, trade or sell any illegal controlled substances; obey the law; submit to random drug screens; attend all scheduled visitations with the Child; engage in home based case management; and complete a substance abuse assessment and all treatment recommendations therefrom. Appellant's [Mother's] Appendix, Volume II 19-23.

[6] After Parents failed to comply with many of the terms ordered by the juvenile court, DCS filed a verified petition for the termination of the parent-child relationship ("TPR") between Father, Mother, and Child on December 28, 2017. Following a TPR hearing on June 13 and June 18, 2018, the juvenile court issued its termination order on September 4, which included 160 findings of fact² and concluding DCS had met the statutory requirements for terminating the parent-child relationships. See id. at 65-66. Father and Mother now separately appeal. Additional facts will be supplied as necessary.

Discussion and Decision

I. Standard of Review

[7] We begin, as we often do, by emphasizing that 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. The law provides for the termination of these constitutionally protected rights, however, 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). We subordinate the interests of the parents to those of the child when evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).

[8] We do not reweigh the evidence or judge the credibility of witnesses when reviewing the termination of parental rights. In re D.D., 804 N.E.2d at 265. Rather, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. Furthermore, in deference to the juvenile court's unique position to assess the evidence, we only set aside its judgment terminating a parent-child relationship 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, 122 S.Ct. 1197, 152 L.Ed.2d 136 (2002).

[9] Where, as here, the juvenile 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 must determine whether the findings support the judgment. Id. Findings will only be set aside if they are clearly erroneous and findings are only clearly erroneous "when the record contains no facts to support them either directly or by inference." Yanoff v. Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997).

II. Termination Order

[10] 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.

[11] Notably, the provisions of Indiana Code section 31-35-2-4(b)(2)(B) are written in the disjunctive, and thus the State need only prove one of those statutory elements, In re L.S. , 717 N.E.2d at 209, but must do so by clear and convincing evidence, Ind. Code § 31-34-12-2 ; In re G.Y. , 904 N.E.2d 1257, 1261 (Ind. 2009). If a juvenile court determines the allegations of the petition are true, then the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[12] We also note that "[i]t is common practice for our trial courts to conduct termination hearings as well as the CHINS proceedings underlying them involving multiple children and/or multiple parents in a single proceeding." In re V.A. , 51 N.E.3d 1140, 1146 (Ind. 2016). However, we must weigh the evidence as it pertains to each Parent. See id.

A. Remedy of Conditions

[13] Both Mother and Father contend DCS failed to prove by clear and convincing evidence that the circumstances leading to removal would not be remedied. We engage in a two-step analysis to determine whether such conditions will be remedied: "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).

[14] Child was removed from Parents due to ongoing substance abuse issues and their use of illegal drugs in front of Child. The juvenile court made 136 findings "relating to continued removal and reasonable probability reasons for removal not remedied." Appellant's App., Vol. II at 49. And, because neither Father nor Mother has challenged these findings on appeal, we must accept these findings as true. McMaster , 681 N.E.2d at 747.

[15] A juvenile court assesses whether a reasonable probability exists that the conditions justifying a child's removal or continued placement outside his parent's care will not be remedied by judging the parent's fitness to care for the child at the time of the termination hearing, taking into consideration evidence of changed conditions. In re E.M. , 4 N.E.3d 636, 643 (Ind. 2014). Habitual conduct may include criminal history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of adequate housing and employment, but the services offered to the parent and the parent's response to those services can also be evidence demonstrating that conditions will be remedied. A.D.S v. Indiana Dept. of Child Services , 987 N.E.2d 1150, 1157 (Ind. Ct. App. 2013), trans. denied.

1. Mother

[16] We begin our review with Mother. The record reveals that the Child tested positive for THC at birth and Mother has never had primary custody of the Child or acted as the Child's primary caregiver. Mother resided in Florida from May 2016 until December 2017 and during that time Mother only had visitation with the Child once every three months. Mother's oral drug screens were consistently positive for THC and she refused to take hair drug screens on multiple occasions. DCS recommended a drug treatment facility in Florida but Mother failed to complete the program or attend the required sessions. Mother moved back to Indiana in December 2017 after she became pregnant with a child fathered by her new boyfriend. Since her return, Mother's visitation with the Child has increased to once a week and she produced several negative drug...